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International law 4

Statehood and Recognition

Powers and functions gained through statehood


Treaty-making
Sovereign equality with other states
Membership to and representation on key
international organisations like UN
Exclusive litigation rights at ICJ
Consensual participation in the peaceful settlement of
disputes, and influence on world affaires

Criteria of Statehood
Article 1 of Montevideo Convention on Rights and
Duties 1933:
1. Defined territory
2. permanent population
3. Effective government
4. A capacity to enter into relations with other states

Defined Territory

Defined territory means that a state must have some definite physical

existence that marks it out clearly from its neighbour.


Defined territory does not mean that the territory of a state must be
articulated with mathematical precision. Because it is not practically
possible to determine the territory of a state with absolute finality. Similarly
a refusal to define the extent of the state precisely is not fatal to statehood.
The reasons are
- territory can change through change in law,
- territory can be merged into others,
- territory can be submerged, and
- territory can be changed through cessation, merger and accession.

Continued
In this context an example can be taken from the
decision of North Sea Continental Shelf Cases 1969
where ICJ held that state boarder can not be delineated
with precision, simply because law is evolving with
respect to territorial sea ( first it was 3 nautical miles
according to the Hague Convention 1930, then 12
nautical miles in Geneva Convention on the Law of the
Sea 1958 and
UNCLOS 1982). In addition, it
observed:
There is no rule that the land frontiers of a state must
be fully delimited and defined and often in various
places and for long periods they are not.

Continued....
In Temple Vehear Case 1962 on defined territory between
Thailand and Cambodia, the ICJ held that when a disputed
boarder is delineated through mutual consent and by mutual
participation of the parties involved, the delimitation of
territory is final. It recognised that the existence of the dispute
does not militate against the fulfilment of defined territory.
The size of the territory is immaterial for the statehood.
The enemy or military occupation of a territory does not
militate against its statehood status. For example, Kuwait was
no less than a state for its occupation by Iraq.

Continued
The term defined territory has to be understood relatively, not
absolutely, but there must be some territorial definiteness that
can be physically identified, and isolated from surrounding or
other countries territories.
The boarder dispute does not necessarily undermine the
compliance with the legal requirement of defined territory.
Clear and undisputed borders are not a requirement of
statehood. Because state boundaries are constantly redefined
by the creation of new states, law of the sea, resolution of
border disputes and various other trade-offs.

Permanent population
Permanent population is a legal requirement for statehood.
A land mass alone without population can not constitute a
state.
There is no size of population. There is no hard and fast rule
for determining permanent population. Because the
articulation of permanency with precision is a difficult matter.
Permanent population has to be understood in a relative sense,
not in absolute term, because it varies with various other
factors such as migration , refugee issue.

Continued
Western Sahara Case (1975) ICJ Advisory Opinion:
Permanent population has to be understood relatively because
of many factors such as migration, annexation, cessation, right
to self-determination, emergence of new states etc.
Structure of permanent population for the purpose of statehood
is a difficult matter. It is even immaterial for the purpose of
statehood.
The so called principle of terra-nullius as claimed by Spain,
the invader of Western Sahara is a legal fiction. No legal
system has ever entertained this principle. It has no standing in
international law. It is the British who invented this principle
only to dispossess the locals.

Continued
Upon the basis of the report of factfinding mission, the Court
said, Western Sahara is not a terra-nullius ( i.e., empty of
population); the nomadic tribes who roamed across this territory,
associated themselves, constituted the structure of a permanent
population for the purpose of statehood in international law,
although their association, politics may not be the same as the
western system.
As long as the population is associated with the land, not
transplanted from somewhere else the condition of statehood
is made.

Effective government
International law always relies on effective government for its
enforcement. It is the government, which is primarily
responsible for the international rights and duties of the state.
Because international law has no centralized enforcement
mechanism.
There is no hard and fast rule for determining an effective
government as a legal requirement of statehood. There is no
set degree of effectiveness required.

Continued
The term effective government means that the
executive authorities must be effective within the
defined territory and exercise control over permanent
population. This does not mean that the government
must be entirely dominant within the territory, so long it
is capable of controlling the affairs of the state in
international community.
Effectiveness can be diluted and compromised. For
examples, Shehanuk Govt, in Cambodia; In addition,
in civil war, the existing government loses its
effectiveness, but state per se continues to exist as a
subject of international law with all of its capacities
intact.

Continued
Legal requirement is effectiveness, it can be achieved through
public support or coercive method.
The requirement of effective government is construed flexibly
in state practice. It is not indispensable for a government to
sustain full control over its entire territory and people. It may
be enough to control just those parts necessary for the
administration and fulfilment of governmental duties as whole.
Governmental authority can be performed by external
authority on a temporary basis such as provisional authority of
UN in East Timor and Haiti.
Governmental authority can be manned by an outside authority
to ensure international ability and thereupon criteria of
effective government is not compromised.

Capacity to enter into relations with other states


Capacity to enter into relations with other states requires
legal independence, not factual autonomy. A state exists if
the territory is not under the lawful sovereign authority of
another state. For example, Hong Kong is under the legal
authority of China, so it has no capacity independently to enter
into international relations.
The term capacity to enter into legal relations has been
interpreted to mean that the state must be independent of other
states as a matter of law as evident from the advisory opinion
of PCIJ about the meaning of independence of states in the
Customs Regime Between Germany and Austria ( 1931)

Continued
The capacity for enter into relations for the purpose of
statehood depends upon and varies with the effectiveness,
stability, independence, and external recognition of its
governmental authority.
Capacity to enter into relation and actual establishment of
relations are not the same. An territorial entity having
government can be elevated to the status of a state and
continued even in the absence of any formal international
relations.

Continued
Tangible relationship need not to be established to qualify as a
legal requirement of statehood such as in the case of Yan
Smith Government in Southern Rhodesia. The lack of tangible
international relationship does not militate against the
statehood in terms of effective government.
UN Resolution not to recognise Rhodesia, not to establish any
relationship with it had nothing to do with Rhodesia's capacity
to enter into international relations.
Non-recognition creates functional limitation, limits
international personality, not the capacity to enter into
international relations.

Additional criteria of statehood

Independence
Self-determination
Unilateral declaration of independence

Independence
Some argue independence as an indispensable criteria
for state.
A territorial entity is said to be independent when it is
free from external control and influence and it can
manage and govern its own internal and external
affaires by itself.
Independence in international law can not be
interpreted in international law from positivistic legal
theory of absolute sovereignty. This is because in
international law practice the sovereignty of state is
curtailed in many ways.

Continued
Legal independence is necessary for statehood, but its
factual independence may not be totally devoid of
outside control.
Voluntary or consensual delegation of authority does
not compromise its control such India maintains
Bhutan foreign and defence portfolio, Cook Islands
and Western Samoa depend on New Zealand for their
defence.
Substantial foreign control however militates against
the status of statehood.

Status of unilateral declaration of independence(UDI) of


a state
Unilateral declaration of independence is not a criteria of
statehood, but it is a means of acquiring statehood.
The UDI is nothing but a notification to the rest of the world about
a new situation with a view to establish relationship as we see in Yan
Smiths declaration about Southern Rhodesia as an independent
state.
The status of UDI is a revolutionary act ( neither UN Charter nor
international law prohibits or encourages ) and it becomes a legally
valid act only when it is successful.
The UDI of the Republic of Biafra, Western Province of Nigeria,
was unsuccessful.

Recognition of a state and government


Recognition is a political act or discretion through which one
state accepts or acknowledge the existence of other as entitled
to exercise all capacities of statehood in international law.
Recognition may be of a new state or a new government. It
may be implied or express, defacto or dejure. It may be
collective that takes the form of joint declaration by a group of
states.
The recognition is a necessary precondition to full optional
bilateral relations, such as diplomatic representation and treaty
agreements. It is not a criteria for statehood. State can exist as
an independent entity having capacity to maintain international
relations with others without recognition.

Continued
Recognition is out and out a political act, it has got
nothing to do with legality. It can not make and break a
state. It can not prevent a territory to be elevated to the
status of statehood in international law. However, more
recognition gives a state higher international
personality .
There are some legal effects or consequences that flow
from the act of recognition such as both recognizing
and recognized states acquire status in each other
jurisdiction; they can establish diplomatic relations,
conclude agreements or treaties.

Continued

Theory of recognition

1. Constitutive
2. Declaratory
Constitutive: Recognition can play a role in making
an entity a state.
Declaratory: Recognition does not make a new
situation, it is just an endorsement of situation which
is already in existence. This theory is more closer to
reality.

Independence as a criteria of statehood beyond above


four
James Crawford argues that the independence is a criteria for
statehood in addition to modern four criteria as introduced by
Montevideo Convention.
Independence means that entity must be free from overt and
covert external interference in its freedom of action. However
the legal position is that if this interference is coercive , it
obviously may militate against statehood status, if it is
consensual, it does not militate against statehood status. For
examples, the foreign affairs and defense of Cook Island and
Western Samoa are administered by New Zealand; Bhutans
foreign affairs and defense are administered by India. These
external interferences are not coercive, but consensual, done
upon agreement between the states concerned.

Right to self determination as a criteria


Self-determination is not a criteria in fact, rather a means like
UDI through which independence can be achieved. It provides
a room for the creation of statehood.
Right to self-determination is recognized under Art.1 para 2
and Art. 55 of UN Charter ( economic self-determination) as a
legitimate method for acquiring independence both in colonial
and non-colonial context.
Right to self-determination can be exercised even in an
independent state. Bangladesh is the first ever example that
exercised its right to self-determination against Federal state
of Pakistan. Examples also can be taken from Baltic States in
former Soviet Union and Balkans States in Europe.

Statehood of Palestine
Palestine has submitted an application to be a member of UN.
It has opted for collective recognition instead of UDI. It has
already achieved the membership of UNESCO.
It fulfils all legal requirements of statehood as set out in Article
1 of Montevideo Convention 1933. Moreover, it has been
recognized by more than 100 states.