Functional Statehood in Contemporary International Law

The international community lacks a form of territorial-based, international legal personality distinct from statehood, and yet, non-state, territorial entities of varying degrees of autonomy or independence need to function within the international community in some form. Some of these entities cannot be recognized as states because their creation violates jus cogens norms, though others are not recognized based on an assessment that they may not fully qualify as a state or that there are political reasons to refuse recognition. However, existing states still need to engage with these territorial quasi-states through the only paradigm the international community has—statehood. For example, these quasi-state entities need to be held responsible under international law, and their populations need the benefits of human rights, among other objectives. The emerging solution is to increasingly treat quasi-states functionally as if they were states, but only for certain purposes. This approach creates a separate, relative, and functional statehood regime alongside the objective one. To date, these situations are often dismissed as merely sui generis, pragmatic solutions; however, the increasingly widespread application of a functional approach is arbitrary and calls for more coherence. This Article identifies this growing ad hoc regime and takes a first step in proposing a systematic approach to applying functional statehood