Global Law – Identity, Continuity and
Representation of States in International
Law
Course - Prof. Dr. Phoebe Nyawade Okowa
Session 1 - Statehood and the Political Processes by Which New States
Come About
Introduction
The concept of statehood stands as a linchpin in the realm of international law, serving as a
pivotal determinant in various legal scenarios. Central to the discourse on international law,
states, as its principal subjects, are integral contributors to its formation, a fact underscored by
their deliberate establishment of this legal framework. The question of capacity within the
international legal order, a critical facet of statehood, is contingent upon an extra-legal criterion
— political recognition by other states. This discerning criterion was notably emphasized in
the Reparation for Injuries case, elucidating the intricate interplay between political recognition
and the acknowledgment of entities as subjects of international law, encompassing states,
international organizations, and individuals.
The legal personality of a State is considered relative in international law because it depends
on political recognition by other states. Unlike individuals or entities with inherent
characteristics defining their legal status, a State’s legal personality relies on external factors
like acknowledgment by sovereign entities. This recognition is discretionary and contingent on
diplomatic and political considerations among states. The Reparation for Injuries case
highlights that a state’s capacity as a subject of international law is determined by recognition
from other states. This relative nature allows for flexibility in international law, reflecting
evolving state relations and the principle of sovereign equality. The legal status and personality
of states may change based on shifts in political landscapes and international dynamics.
Contexts in Which Issues of Personality Arise
The perennial inquiry into statehood manifests itself across diverse scenarios within the
international order. Notably, such considerations arise during the accession of states to
international organizations and in the adjudication of cases before the International Court of
Justice (ICJ). The landmark Gur Corporation v. Trust Bank (Ciskei) case serves as a compelling
illustration of the complexities inherent in such matters. The case, where a businessman
pursued legal recourse concerning a rental contract with the Government of Ciskei, unfolded
against the backdrop of South Africa’s creation of several homelands, constituting a strategic
extension of its apartheid policy. Despite condemnation by the United Nations for establishing
these satellite states, the court deemed them as subordinated entities created by the South
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,African government, thereby permitting legal action and redress for the aggrieved
businessman.
The issue of personality also surfaces in treaty conferences and regimes, wherein entities
lacking statehood seek participation. For instance, Taiwan’s inclusion in such bodies
exemplifies the challenge posed by entities not formally recognized as states. While
participating in these international forums, Taiwan’s non-recognition as a state underscores the
complexities and ambiguities surrounding the conferment of legal personality.
Moreover, the question of responsibility on the international stage introduces an additional
layer of complexity. States bear the capacity for international responsibility for their actions, a
prerogative not extended to non-states. Consequently, entities lacking statehood find
themselves reliant on larger entities for accountability in the international arena.
In conclusion, the multifaceted exploration of statehood in international law reveals its
overarching influence on legal determinations and responsibilities. The dynamics surrounding
the recognition of legal personality and the attendant responsibilities underscore the intricacies
inherent in the global legal framework, prompting a continual re-evaluation of established
norms and principles.
Political Processes by Which States Arise
The emergence of sovereign States is a multifaceted phenomenon, shaped by various political
processes that extend beyond mere territorial adjustments. This discourse examines key
mechanisms through which States arise, with particular emphasis on decolonization,
disintegration, cession, dismemberment, secession, merger, and the unique status of certain
territories.
Decolonization and Self-Determination: Decolonization, primarily driven by former colonial
powers, represents a conspicuous avenue through which States come into being. However, the
decision of some former colonies to remain within the fold of their colonial progenitors
underscores a nuanced aspect of this process. The exercise of self-determination plays a pivotal
role, enabling these entities to assert their identity as integral parts of the parent territory.
Disintegration: States may also arise through the disintegration of existing entities,
exemplified by the dissolution of the USSR and Yugoslavia. This intricate process involves the
fragmentation of a State into new, independent entities, each assuming the mantle of statehood.
Cession and Dismemberment: Cession, as witnessed in historical events such as the transfer
of Alaska, Cuba, and Hong Kong, signifies the voluntary relinquishment of territory by one
State to another. Dismemberment, on the other hand, implies the fragmentation of a State into
distinct parts, often resulting in the creation of new States.
Secession: Secession, characterized by a violent breakoff, as seen in the cases of Eritrea and
Bangladesh, poses unique challenges. In the context of complex societies with diverse
minorities, the advocacy for minority secession and self-determination necessitates careful
consideration. The potential for abuse, as observed in Russia’s actions in Eastern Ukraine,
underscores the delicate nature of navigating secessionary claims.
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, Merger: Merger entails the convergence of two or more existing States into a unified entity.
Historical instances, such as the formation of the UAE through the merger of Egypt and Syria,
as well as the unification of Germany and Tanzania, exemplify this process.
Existence in a Twilight Zone: Certain territories, like Kosovo and Palestine, grapple with an
ambiguous status, existing in a twilight zone without full citizenship. This unique condition
raises intricate questions about sovereignty and international recognition.
Non-States: The Turkish Republic of Northern Cyprus and the Moldavian Republic, despite
their self-proclaimed status, lack meaningful attributes of statehood. Their existence stands as
a testament to the complexities surrounding the determination of statehood.
Criteria of Statehood
Membership in the United Nations, while significant, does not definitively establish one’s
status as a State. Nevertheless, UN affiliation carries a robust presumption of statehood that
proves challenging to negate, as articulated in Article 4 of the UN Charter. It is crucial to note,
however, that non-membership in the UN does not equate to a repudiation of statehood,
exemplified by Switzerland and Taiwan.
The foundational principles delineating the criteria for statehood are encapsulated in the
Montevideo Convention on the Rights and Duties of States. These criteria enjoy widespread
acknowledgment within the international community. Notably, the Badinter Commission,
instituted by the European Commission, explicitly embraced the Montevideo Criteria, further
underscoring their significance in the determination of statehood.
The Badinter Commission, established by the European Commission, adopted the Montevideo
Criteria as its foundational framework. In addition to these criteria, the Commission
incorporated supplementary conditions for the recognition of statehood. These supplementary
conditions encompass the presence of a democratic regime, adherence to human rights
principles and the Helsinki Accords, respect for existing borders, a commitment to peaceful
conflict resolution, and a dedication to the non-proliferation of nuclear weapons.
The question arises: how do these additional criteria interact with the established Montevideo
Criteria? The determinations made by the Badinter Commission are not legally binding; rather,
they hold a doctrinal status and do not constitute formal legal standards. Nonetheless, their
significance lies in their role as de facto European regional benchmarks for the recognition of
new states within Europe. This is particularly noteworthy due to the partial application of these
rules by the EU and the fact that the Badinter Commission was initiated under the auspices of
the EU. Consequently, these criteria, though non-binding, carry influence as guidelines shaping
the approach to state recognition within the European context.
Criteria of Statehood: Permanent Population
The requisites for the acknowledgment of Statehood do not include a prescribed minimum
population. The focal point resides in the presence of a stable and existing political community.
It is noteworthy that a claim to statehood can be undermined if the population exhibits a foreign
character, thereby implicating issues of self-determination.
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