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Summary Statehood Topic in LL278 Public International Law at LSE
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LL278Statehood Revision Notes
Main Role of international law in creation and recognition of states
points/facts:
The Creation of states
Gone from 50 to almost 200 states over C 20th
States can come into beings through
- Decolonisation
- Devolution
- Secession (Bangladesh, Kosovo)
- Dissolution (USSR, FRY)
There is two fundamental approaches to statehood:
(i) Statehood as an objective fact: Natural law tradition
(ii) Statehood as an effect of state consent: Emerged with
C19th positivism
Neither is satisfactory as explanation or justification of practice;
a state may be a fact, but it is a legal, social fact
Statehood should not be granted or withheld on an ad hoc
discretionary basis but should be based on an objective status –
this matters as states are constantly shifting, altering and
coming into existence (eg territorial integrity of existing states) –
often during periods of conflict/ upheaval
Claims for statehood arise relevantly frequently so we need an
adjudicative system to facilitate this
Swiss international lawyer Matel said states were attempt to
capture, in neutral terms as possible, different kinds of political
communities – project of defining states was a vehicle for
distinguishing and empowering particular communities as
subjects in their own right and subjects of international law (that
came with recognition of statehood)
Theories of Statehood (conference in Americas in 1928):
Declaratory approach:
- Montevideo Convention was approach of declaratory
approach to statehood:
- This approach says that a state will exist in international law,
at the moment in which it exists in fact, it is an objective
question determined by the application of the four criteria for
statehood
- Recognition by other states merely declares/confirms a prior
legal position
Constitutive approach:
- Alternatively a constitutive approach suggests states can only
come into being through the acquiescence of other states,
through recognition
- Whether or not the international community accepts a new
entity is not determined by application of legal principle, but
by the decisions of other states
, Crawford’s conclusion: ‘The question is whether the denial of
recognition to an entity otherwise qualifying as a State entitles
the non-recognizing State to act as if it was not a State—to
ignore its nationality, to intervene in its affairs, generally to deny
the exercise of State rights under international law. The answer
must be no, and the categorical constitutive position, which
implies a different answer, is unacceptable.’ – Crawford believes
that cannot be a solely constitutive approach and must be
something aside from will of states
4 criteria under Montevideo Convention:
Sovereign control/authority over territory is at the heart of the
international legal constitution of political power
Montevideo Convention on Rights and Duties of States, Article 1:
- ‘The state as a person of international law should possess the
following qualifications:
a) A permanent population;
b) A defined territory;
c) Government; and
d) Capacity to enter into relations with other states
Permanent population:
- No minimum number
- Position of nomadic peoples (Western Sahara: Traditionally
populated by Nomadic peoples whose position is transitory
and thereby impermanent in Morocco displaced nomadic
peoples and ICJ was asked for advisory opinion – not asked
directly whether Western Sahara was a state but ICJ did say
these people had a right to self-determination and thereby
had rights over property and should be consulted in future of
that territory)
- Eg Eurocentric notion of permanent population would dismiss
transient nature of nomadic peoples
- Legal connection between people and territory was important
even if notion of permanence was flexibly applied
Defined territory:
- Boundary disputes are common and do not invalidate
statehood
- ‘its territory has sufficient consistency, even though its
boundaries have not yet been accurately delimited’
- Entire territory can be disputed
Government:
- Structure: Definite political structure to govern
- Effectiveness: Sufficiently strong to assert authority broadly
throughout territory (loss of effective control not applied to
negate statehood)
- Capacity to enter into foreign relations with other states
(independence)
Criteria should not be read narrowly
, Recognition:
Recognition or lack of it, can still have important legal
significance
- recognition can constitute important evidence of whether an
entity meets the criteria for statehood, particularly where the
factual evidence is ambiguous
- collective non-recognition, especially where that is on the
ground that the entity was established in contravention of
international law, probably serves to prevent the entity from
becoming a state, even if it meets the Montevideo criteria
- on the other hand, collective recognition – typically in the
form of admission to the UN – is powerful evidence of
statehood, and can in practice be conclusive
- recognition practice may over time alter the rules governing
the creation of states
- recognition of one state by another – even if not effective to
create the state per se – will have the effect that international
law applies as between those two entities
- Note that an act of non-recognition (or recognition) can have
many meanings, and must be interpreted in context before its
legal significance is assessed
Duties of recognition:
- There is no duty to recognise other states
- There is a duty not to recognise as states entities which came
into being in violation of international law (eg Southern
Rhodesia)
- Note that premature recognition may constitute a violation of
the sovereignty of the state from which a territory is seeking
to secede
The FRY experience:
Violent break up of former Yugoslavia in early 1990s
How to manage process of dissolution?
Issues:
- Which constituent elements of Yugoslavia would be granted
statehood?
- How to determine borders?
- How (and to what level) to apply principle of self-
determination?
Arbitral commission set up in 1991 which issued a number of
opinions on these issues (Badinter Commission)
1st opinion was dealing with secession – if some republics
seceded, were all republics equal successors to a dissolved
Yugoslavia, or did Yugoslavia continue to exist?
Eg Serbia and Montenegro were close allies and said to be
continuation of Yugoslavia but Badinter Arbitration Commission
said they weren’t and said they would all be new states
In this way, the Badinter Commission were reinforcing EC
Guidelines on Recognition of States and republics even if many
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