Approaching ‘Stateness’ as a Spectrum

Elisabeth Perham and Maartje De Visser

Elisabeth Perham is a Lecturer at the Faculty of Law & Justice, UNSW Sydney.
Maartje De Visser is Professor of Law at the Yong Pung How School of Law and College of Integrative Studies, Singapore Management University.

The volume spotlighted in this Blog Symposium is entitled Small State Constitutionalism. In our chapter, and this post, we aim to draw attention to the middle part of that title – the word ‘State’ – and underscore the need for comparative constitutional scholars to adopt a more discerning attitude in this regard. At first blush, there may seem little to discuss or problematise. A quintessential focal point for such scholars are the Constitutions of independent States – with it being assumed that it is relatively clear what counts as such: those entities that meet the (not unproblematic) criteria of the Montevideo Convention. A moment’s thought, however, reveals that this does not exhaust the geographic domain for the study of comparative constitutional law. As scholars, we are aware that Constitutions may also exist, be it formally and/or functionally, at the level of the constituent units of federations (which has produced a literature on what is typically called ‘subnational constitutionalism’) as well as beyond independent States (as in the case of regional organisations such as the European Union’s Treaties or the Council of Europe’s Convention on Human Rights, which have been categorised by the respective European courts as having a constitutional character).

Yet, as we explain in our chapter, there are further arrangements to examine and explore. More particularly, we identify as also worthy of academic scrutiny the relationships between countries and territories that possess varying degrees of autonomy, and formally independent larger and often unitary States. These arrangements are the focus of some constitutional scholars, for example, in the context of exploring various autonomy arrangements (see this IACL Blog symposium on territorial autonomy). This category has been acknowledged by political scientists, who have labelled such entities variously as “partially independent territories”, “non-sovereign island territories” or “sub-national island jurisdictions”. In this regard, two points deserve to be made. First, such arrangements are not uncommon and efforts for our field to be grounded in more complete constitutional data accordingly warrants their consideration: for instance, by Ferdinand et al’s count there are 55 jurisdictions that can be classified as ‘non-sovereign island territories’ (and that of course doesn’t include non-sovereign territories that are not islands!). They can be found, among others, within the Caribbean territories of the Kingdom of the Netherlands (eg, Aruba), the Realm of New Zealand (eg, Tokelau), the Danish Realm (eg, Greenland, which has attracted much attention recently), overseas France (eg, New Caledonia), overseas United Kingdom (eg, the Cayman Islands), and the United States (eg, Puerto Rico). Second, most of these jurisdictions have a population that is small in the way we have defined it for the volume, possessing a population of fewer than 1.5 million inhabitants, who often also live on islands or in archipelagos.

From a comparative perspective, it may be more instructive to place the constitutional experiences and designs adopted by independent and sovereign small states side by side with those of non-independent and non-sovereign jurisdictions, rather than use larger states, let alone (very) large usual suspect countries like the United States, the United Kingdom, India or Germany. Doing so would allow us to explore questions like whether and how the turn to direct democratic mechanisms works in settings that have the shared attribute of a small population that needs to be engaged, or the implications of living in a society where the relationships between the governed and the governors are often close and intimate for the functioning of the political domain, including in designing a separation of powers schematic and finding individuals to staff the various posts. In addition, we should recognise that small states that enjoy de iure sovereignty and independence may nevertheless also have a relationship of ‘dependence’ with other, larger States, either in their region or beyond, due to geopolitical or other reasons. In other words, sometimes a jurisdiction’s status in international law will matter less than some of its other attributes. Indeed, it may be more helpful to think of the functional position in which the state or jurisdiction concerned finds itself in relation to other sovereign or non-sovereign entities.

Against this backdrop, we advocate conceiving ‘stateness’ as involving a spectrum. This, we readily acknowledge, is by no means a revolutionary claim, but its systematic acceptance would help enrich our field. Comparative constitutional scholars need to methodically study the relationship between non-sovereign jurisdictions and administering states, accepting the relevant arrangements as a core element of the latter’s constitutional settlement and not dismiss these as of marginal relevance either conceptually or empirically (see an example of such an argument being made in the context of the United States here). It may similarly be instructive to conceive certain treaty-based relationships between (small) sovereign states and larger states – like the Falepili Union treaty between Tuvalu and Australia – in constitutional terms (as implicating sovereignty or identity, for instance), rather than as coming only or mainly in the purview of international lawyers.

By “going up one level”, as we have called it, several profitable areas for investigation emerge. First, the realisation that subnational constitutionalism can be found in States that have not explicitly embraced federalism, devolution or regionalisation, but remain unitary at heart, suggests that our conceptualisation of this notion warrants refinement and further development. Second, the process for (re)making the text that governs the relationship between the non-sovereign jurisdiction(s) and the administering State deserves to be studied, including to see whether the people (and which people!) were able to participate. Third, the arrangements in place should be examined with a view to assessing whether and how the needs, preferences and concerns of the non-sovereign jurisdictions and their inhabitants are respected and safeguarded as well as any identify room for improvement in this regard. In our chapter in the volume, we zoom in on the constitutional relationships between the Kingdom of the Netherlands and its constituent countries to demonstrate how these enquiries might play out.

Finally, as suggested above, scholars may also wish to shift their gaze down beyond sovereign States to assist in getting ‘unstuck’ from the familiar paradigms. There may be constitutional innovations taking place in non-independent jurisdictions which are of interest not only as comparators and inspiration for constitutional design in other small states, but also in other settings. As the chapters in the volume explore, often the assumption is that constitutional models from larger states will be transplanted into smaller settings. But, we suggest, there is merit in exploring whether sometimes the ideas might flow in the other direction.

In brief, there is considerable latent potential to further pluralise the geographic scope of our field. Moving beyond “the State” is a worthwhile undertaking that may throw up new questions or provide new settings to test how contemporary tropes play out in the real world. We hope that this post, and our chapter in the volume, may go some way towards exciting comparative constitutional scholars to do just that.    

This blog post is part of the IACL Blog symposium Small State Constitutionalism, which presents some of the key arguments made in chapters of the newly-published edited collection: Elisabeth Perham, Maartje De Visser and Rosalind Dixon (eds), Small State Constitutionalism (Hart Publishing, 2026).

Maartje De Visser is Professor of Law at the Yong Pung How School of Law and College of Integrative Studies, Singapore Management University.

Elisabeth Perham is a Lecturer at the Faculty of Law & Justice, UNSW Sydney.

Suggested citation: Maartje De Visser and Elisabeth Perham, ‘Approaching “Stateness” as a Spectrum’ IACL-AIDC Blog (5 March 2026) Approaching ‘Stateness’ as a Spectrum — IACL-IADC Blog