Nascent State

This concept of international law refers to a political entity whose future political status of statehood has been recognized by the international community.

Definition

The Re'ut Institute defines the concept of nascent state (in statu nascendi) as referring to a status under international law of:

A political entity, which aspires to political independence and recognition of its status of statehood;

Whose future political status of statehood has been recognized by the relevant members and organs of the international community, primarily the UN;

although

This status of statehood has not yet been fully realized.

The Reut Institute distinguishes between the concepts of nascent state, quasi-state and state-in-the-making.

Background – Statehood

In international law, a state can come into being either de jure (by law) or de facto (in fact) (see Accession to Statehood):

De facto - According to the Montevideo Convention (1933), a state must have (a) a permanent population; (b) a defined territory; (c) effective governance; and (d) capacity to enter into relations with other states.1 Hence, a political entity that meets these criteria is, de-facto, a state.

De jure - the two main theories of statehood are:

  • The Declarative Approach – Statehood arises through declaration of independence.2 However, this declaration may not be recognized by other members of the international community if the entity does not possess de-facto powers of statehood (see above). In other words, self-proclaimed statehood does not necessarily equal sovereignty;
  • The Constitutive Approach – Statehood arises when an entity declares itself as a state and this declaration is recognized by other states.

A nascent state is a concept that refers to a status under international law of a political entity that:

  • Embodies the international recognition of the right to self-determination of a population in a specific territory; but
  • Does not exercise full sovereign powers and lacks other necessary attributes of statehood; however
  • The international community, primarily the United Nations and other relevant parties, has established that this entity will eventually become a full-fledged nation-state; and
  • The political entity enjoys and is subject to some of the rights and obligations of states under international law.

The term of nascent state – in statu nascendi – has few historical precedents.

The best known example is East Timor. UN Security Council Resolution 1272 (10/99) recognized the State of East Timor, though full-fledged statehood would only be realized upon its induction into the UN (5/02). During this interim period, the UN Transition Authority in East Timor was designated to prepare East Timor for statehood.3

The State of Israel between UN General Assembly Resolution 181 (“Partition Plan”) (11/47) and the end of the British Mandate (5/14/48).4

The Palestinian Authority

In this context, the status of the Palestinian Authority may be considered as a:

  • State-in-the-Making between 5/94 and 4/03 having a territory, population, a legitimate claim to representation, yet no agreement by the relevant political actors – which may be seen as Israel, US or the United Nations – regarding its permanent political status as a state.
  • Nascent State as of 4/2003 with the ratification of the Roadmap by the United Nations, which explicitly determines that the permanent political status of the Palestinian Authority will be full-fledged statehood. However, it currently lacks the necessary attributes of sovereignty, primarily, in this context, powers of international representation and exercise of its jurisdiction over its sovereign space. These powers should be agreed upon and realized during the implementation of the Roadmap. (See Roadmap).5


1 Montevideo Convention on the Rights and Duties of States in 1933.

2 Dajani Omar, “Stalled between Seasons: the International Legal Status of Palestine during the Interim Process”, Denver Journal of International Law and Policy, Fall 1997, Volume 26. pp. 7-92.

3 For additional reading about the formation of East Timor press here.

4 Smith Charles, Palestine and the Arab-Israeli Conflict, Bedford/St. Martin’s; Boston, 2004. pg. 185-190.

5 The acknowledged future existence of a Palestinian state by all of the relevant actors distinguishes 2003 from the 1988 Algiers Declaration. Although close to 100 countries recognized the PLO declaration of an independent, Palestinian state, Israel, which administered to the areas in question, did not acknowledge the declaration nor cede control as a result of it. In contrast, Israel agreed in principle to the Roadmap’s explicit call for a Palestinian State (04/03).