Schrödinger’s Sovereign: Statehood, Consent, and the Fictions of Sovereign Equality

[Melis Irem Kirkdisceoglu is senior editorof the Nottingham Advocate, and a member of both the International Law Association and the European Society of International Law. She is an LLB candidate at the University of Nottingham.]

This post critically evaluates how structural imbalances shape the “international community of states as a whole”, (ARSIWA, Article 25(1)(b)) exposing how hierarchical concepts, such as state recognition, (p. 94) the civilised/uncivilised binary, and the developed/developing divide (pp. 187-193), are strategically deployed by economically dominant states (pp. 160-162) to solidify their authority and reshape the international legal order to serve their interests. Although the principle of sovereign equality (pp. 530-531) is theoretically foundational to public international law, in practice, it is undermined by these asymmetrical frameworks (pp. 189-191). Drawing on a legal realist-influenced  perspective (pp. 150-151), the post argues that asymmetry is not merely a by-product of geopolitical power but a constitutive feature of international law itself. Using the analogy of Schrödinger’s cat, it interrogates the paradox of recognition: how visibly functioning entities can be denied legal statehood (ch. 8) based not on objective criteria, but on the political will of powerful observers. 

The metaphor is then extended to international economic law, where the doctrine of sovereign consent (ARSIWA, Article 20) is likewise compromised. Formal voluntarism masks coercive conditions under which developing states enter legal commitments, particularly in trade and investment regimes. Ultimately, the post asks whether such systemic imbalances can be reconciled with the ideals of legal equality (p. 150), and whether doctrines like recognition and consent remain normatively legitimate in a structurally unequal world (pp. 272- 273, 321).

Schrödinger’s Cat and the Ambiguity of Statehood

In the realm of quantum theory, Schrödinger’s cat is a thought experiment used to illustrate superposition, the idea that a system can exist in multiple states at once. The cat, sealed inside a box, is simultaneously alive and dead until the moment of observation collapses this ambiguity into a single reality. This scenario exemplifies a state of paradox not due to any lack of reality regarding the cat, but rather because the observer has yet to assess the situation.

Remarkably, this analogy extends beyond physics, capturing the paradoxical position of entities that meet the legal criteria for statehood yet remain unrecognised or only partially recognised. Somaliland, Western Sahara, and Northern Cyprus, for example, exhibit functional sovereignty: they govern, issue passports, conduct elections, and maintain public order. In substance, they operate as sovereign states. However, because most of the international community withholds recognition, their statehood exists in a peculiar state of simultaneity, both present and absent, leaving them suspended in a kind of legal indeterminacy.

What if the cat emits a meow? What if the observer hears it but chooses to disregard it?

In the original thought experiment, the box remains sealed; however, in the realm of international law, this is not the case. The performance of statehood (pp. 59, 87-88) is observable, yet it is often overlooked, as recognition is contingent not upon existence but rather on power and political will.

Article 1 of the Montevideo Convention delineates the criteria for identifying states. The four key qualifications for statehood are a permanent population, a defined territory, an established government, and the capacity to engage in relations with other states. While this framework is a widely accepted point of reference, it is essential to note that the definition is somewhat abstract and lacks comprehensiveness. It fails to consider factors such as independence, democracy, and self-determination (pp. 217-222).

The capacity to engage in relations with other states (Article 1(d)) is often read in two ways: (ch. 1.4) either as a requirement in itself, or as a consequence of fulfilling the first three criteria.

There are two predominant theories (ch. 1.4) concerning the recognition of states: the declaratory theory (ch. 2.2.b.) and the constitutive theory. (ch. 2.2.b.) The declaratory theory, which is generally favoured under international law, treats statehood as an objective status determined by the fulfilment of specific criteria. In contrast, the constitutive theory maintains that legal statehood comes into being only through recognition by other states.

The ongoing discourse surrounding the recognition of Palestine exemplifies how statehood in international law is frequently influenced more by selective political will than by objective legal criteria. Despite persistent contention, a compelling argument can be made that Palestine fulfils the primary requirements delineated in the Montevideo Convention: it has a permanent population, exercises partial territorial control, and possesses a fragmented administrative structure. However, prominent nations continue to exhibit hesitance or outright refusal to extend recognition.

In contrast, South Sudan was recognised following its referendum in 2011, gaining admission to the United Nations with minimal resistance. This recognition occurred despite existing internal conflicts and institutional weaknesses.  The prompt acceptance of South Sudan was not predicated on superior adherence to the Montevideo criteria but rather on the fact that its secession had been diplomatically facilitated by key international actors who framed it as a resolution to Sudan’s extended civil war. An entity fulfilling the factual criteria for statehood entitles it to the fundamental rights of a state, which include the right to be free from attacks and foreign intervention. Although the rights associated with participation in treaty regimes may be withheld until such an entity can accede to relevant treaties, it will still retain certain legal rights (pp. 469- 470). 

Recognition can be seen as declarative of statehood in law, yet constitutive of an entity’s ability to fully participate in the international community. It is not neutral or purely legal; instead, it acts as a gatekeeping tool, political power disguised as legal formalism. 

In the case of Palestine, this gatekeeping takes on a particularly coercive nature: statehood becomes a bargaining chip in negotiations, contingent upon accepting terms that legitimise ongoing dispossession and violence. The absence of recognition does not indicate any doubt about Palestine’s existence; instead, it reflects the political strategy of withholding acknowledgement.

The Legacy of “Civilised” States

The discourse surrounding “civilised states” reveals a profound hypocrisy. Historically, this concept served as a legal and political criterion for classification.  During the 19th and early 20th centuries, international law explicitly differentiated between “civilised” and “uncivilised” states, a division deeply entrenched in European imperialism. The designation of being “civilised” was less an indication of adherence to universal values and more a reflection of alignment with European powers, politically, culturally, and legally. Those categorised as “uncivilised” were systematically excluded from full participation in international law and sovereignty, thereby legitimising colonial domination and exclusion (pp. 41, 61-63).

In contemporary discourse, although the term “civilised” is seldom employed, its legacy endures. The international system tends to favour entities that have previously gained recognition and effectively assert their status as “civilised” by prevailing membership and power dynamics.

Conversely, unrecognised entities are compelled to consistently demonstrate their legitimacy to these dominant powers, thereby remaining ensnared in a cycle of conditional acceptance (ch. 12.3). The current reality stands in stark contrast to the theoretical foundations of public international law, which asserts that all states, irrespective of their political stature or influence, possess equal legal personality and sovereign equality (pp. 251-255). This principle of sovereign equality is fundamental to international law, signifying that each state is entitled to equal rights, responsibilities, and the capacity to act within the international arena.

However, this notion of equality is frequently compromised when recognised as a utilitarian instrument, fostering hierarchies between “recognised” and “unrecognised, as well as between “developed” and “developing” nations. Such practices privilege certain states while marginalising others. The ideal of formal legal equality is thus conflicted by the dynamics of power and selective acknowledgement in the realm of international relations.

In this context, one may consider the question: Are states deemed “recognised” due to their “civilised” status, or are they considered “civilised” primarily because they are the entities granting recognition?

 The “cat meows”. It is, indeed, alive. However, the “observers”, predominantly powerful states and institutions, choose to disregard this reality, as acknowledging it would require embracing a truth that they are unwilling to accept.

Statehood, akin to civilisation, transforms into a performative privilege reserved for those already encompassed within a certain “elite” circle.  For others, no degree of performance is adequate.

The Illusion of Voluntary Consent

The same asymmetry that characterises state recognition is replicated in another cornerstone of international law, consent. In doctrine, state consent is portrayed as the voluntary acceptance of binding obligations, a sovereign choice exercised freely. In practice, however, that choice is hemmed in by structural constraints.

In theory, states have the option to either refrain from or withdraw from multilateral arrangements (pp. 143-149), choosing instead to engage in international relations on a bilateral basis (pp. 141-142), especially when faced with excessive coercion in the development or implementation of rules and commitments. However, this option is limited by the constraints imposed by financial markets and the potential withdrawal of transnational corporations. Economically weaker nations  (pp. 255-258) rarely exercise this option due to the even greater coercion they would encounter in bilateral dealings with significant economic and political powers.

Global collective action aimed at establishing multilateral disciplines should fundamentally function as a consultative process characterised by full, equal, and voluntary participation. However, the existing multilateral frameworks fail to fulfil these essential criteria. Numerous developing countries exert limited influence over the formulation of WTO rules (pp. 164-167) and the conditionalities imposed by the Bretton Woods Institutions. Moreover, they are insufficiently represented in the fora responsible for establishing standards to harmonise policies and practices. Powerful nations frequently exert coercive pressure in developing and implementing these rules and obligations.

Formally, the principle of state consent (pp. 260-261) is not breached by overt coercion. Nevertheless, diminishing policy space and structural dependency create a form of indirect coercion (pp. 74-75). The notion of pure voluntarism is largely illusory: while consent is formally given, the context transforms it into a constrained and often coerced commitment. 

This distortion is especially evident in the investor–state dispute settlement (ISDS) (pp. 208-210) regime. States consent, through Bilateral Investment Treaties (BITs) or Free Trade Agreements, to arbitral jurisdiction. 

Many agreements, especially since the mid-1960s, were concluded under intense pressure to attract foreign investment, often with limited legal capacity and bargaining power. Today, these states face a steady flow of arbitration claims over public interest regulations, including environmental, human rights, and corporate social responsibility measures.

Argentina’s economic crisis from 1992 to 2002 provides a vivid example. More than 47 ICSID claims were filed, many disputing whether the crisis qualified as a state of necessity. In CMS Gas Transmission Co. v. Argentina and LG&E Energy Corp. et al. v. Argentina, tribunals faced nearly identical facts yet reached opposite conclusions on the necessity defence. This inconsistency undermines predictability and exposes states’ fragile position in navigating emergencies within a rigid legal framework.

Tribunals often operate with limited transparency, inconsistent jurisprudence, and a predominance of arbitrators from Western legal cultures. Investors, mainly from developed nations, assert rights under treaties reflecting their home countries‘ priorities (p. 57). In contrast, host states (pp. 122-123) must defend public policies before tribunals that may insufficiently consider their developmental context. For instance, South Africa’s black economic empowerment initiative faced scrutiny in an ISDS claim. Although the case did not proceed, a negative award could have severely undermined efforts to address Apartheid’s legacy. 

This is recognition by another name. Just as unrecognised states exercise sovereignty without acknowledgement, many developing states express consent without being genuinely heard. They operate within a framework that proclaims equality yet, in practice, entrenches dependency and asymmetry, hollowing out the substance of consent.

Conclusion

Recognition is not a mirror reflecting legal reality; it is a lens engineered by power, enabling entities such as Palestine and South Sudan to be acknowledged and effaced in the same breath. This is a structural feature that allows the proclamation of sovereign equality while maintaining entrenched hierarchies.

Consent in investment treaties is similarly framed as a voluntary act, yet for many states, it is the product of economic asymmetry and geopolitical pressure. Agreements entered under such conditions cannot be meaningfully distinguished from coercion.

If sovereign equality is to be more than a doctrinal fiction, recognition must shed its political bias, and consent must be liberated from structural compulsion. Both must reflect factual governance, self-determination, and equitable participation, rather than the selective privileges granted by dominant states.

The cat meows. The box was never sealed. It is time to listen,  not as a gesture of tolerance, but as an act of breaking the silence that power constructs.