Divided States

Divided States
Markku Suksi
Content type: Encyclopedia entries

Product: Max Planck Encyclopedias of International Law
[MPIL]
Module: Max Planck Encyclopedia of Public International
Law [MPEPIL]
Article last updated: July 2013
Subject(s):
Act of state — Sovereignty — State succession — Governments — Demarcation — Federal states —
Secession
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law
under the direction of Rüdiger Wolfrum.
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.
Subscriber: Oxford University Press - Master Gratis Access; date: 03 December 2019
A. Historical Development and Context
1 ‘Divided State’ is not a legal term of art from which normatively relevant consequences
follow (→ State). Also, there are no specific rules of international law that recognize the
phenomenon of ‘divided States’. However, historically a number of States have been
characterized as divided in the meaning that an existing State with established subjectivity
of public international law has been divided de facto and later on often also to some extent
de iure into two parts, each of which claim subjectivity under public international law in
relation to each other and in relation to other → subjects of international law. The reasons
for such division may be international (such as international wars or effects of
→ colonialism) or domestic (such as civil war, differing political ideologies). At the same
time as the two parts of a divided State may claim subjectivity under public international
law and perhaps deny the same to the other part, each of the two parts also claim
→ sovereignty over their own territory and often also over the territory of the other part.
2 Many situations of internal strife with two different parts claiming sovereignty in their
respective parts of the country are resolved at such an early stage that the original State
with its two entities is not identified as a divided State. Therefore, the concept of the
divided State requires some permanency of the division. Passage of time can thus be a
factor in characterizing a State as divided, as can a more formal recognition of the division,
eg, by means of establishing borders or dividing zones between the two parts of the country.
In the cases where the reason for the division is war, the → international community is often
involved in demarcating a zone that divides the country into two parts, either by means of
treaty arrangements or by way of decisions of the United Nations (→ Demarcation Line).
3 When the international community is involved in the matter because of its background in
a conflict which may be armed, it also appears that the situation involving a divided State is
not regarded favourably, evidently because of its latent threat to peace. The attempts seem
to be directed towards resolving the situation so that the State is either reunited into one
State or officially partitioned into two new States, which cease to entertain claims over each
other and are both recognized as ordinary subjects of public international law. Therefore, a
situation with a divided State can be regarded as a transitional one, ultimately resolved by
means of unification or official emergence of the two parts as independent States
recognized by most other States.
4 The claim of sovereignty over a part of the State is relevant both concerning external
sovereignty and internal sovereignty. Against the background of criteria established in Art.
1 Montevideo Convention on Rights and Duties of States, generally regarded as an
expression of → customary international law, the two parts of most divided States fulfil the
three general criteria of statehood, while the fourth, particular criterion often remains a
political issue within the community of States. Both of the two parts of a divided State have
normally established the three general criteria, while the fourth criterion is dependent on
other States and international organizations (→ International Organizations or Institutions,
Membership).
5 A part of a divided State could be expected to consist of a permanent population and be

confined to a defined territory, and it would have established a government that wields
effective legislative, executive, and judicial jurisdiction over the population and the territory
it claims. Both parts of a divided State normally claim the right of → self-determination for
themselves. From the point of view of public international law, however, the main point of
controversy is related to the capacity of one or both parts of the divided State to enter into
relations with other States and subjects of public international law, followed by a series of
other controversial issues, such as State succession, continuity of the original State, and
representation and membership in international organizations (→ Continuity of States;
→ State Succession in Treaties; → State Succession in Other Matters than Treaties).
6 During the latter half of the 20th century, four clear examples of divided States existed:
→ Vietnam, Germany (→ Germany, Legal Status after World War II), → China, and → Korea.
In all these cases, the political division between socialism or communism, on the one hand,
and other political orientations, on the other, seemed to be the common factor. There was a
unification of the State of Vietnam in 1976 after its partition in 1954 into North Vietnam
(the Democratic Republic of Vietnam) and South Vietnam (the Republic of Vietnam) due to
the military collapse of the latter. Germany was unified after one of its two parts, the
Federal Republic of Germany (or West Germany) merged with the German Democratic
Republic (or East Germany) by way of admitting, after the economic and political collapse of
the latter, the recreated State entities in the area of East Germany as federal State entities
of the former (→ Federal States). In these two cases, one of the two parts of the divided
State has ceased to exist through incorporation in the other State entity, which means that
the overall number of States as subjects of international law has, eventually, not increased
as a consequence of the division and that the problems possibly posed by these divided
States to the international community have disappeared.
7 The case of the two Yemens, that is North Yemen (Yemen Arab Republic, also Yemen-
Sanaa) and South Yemen (People’s Democratic Republic of Yemen, also Yemen-Aden) is not
to be regarded as an example of a divided State, because at the outset there was not one
single State that was divided into two parts, although the two Yemens eventually united to
form the Republic of Yemen in 1990.
8 At the beginning of the 21st century, only two of the above-mentioned, politically
motivated divided States continue to exist, namely China and Korea, while a new type of
divided State seems to be emerging, premised on the perceived ethnic divides of the State.
→ Cyprus with the division between the Republic of Cyprus and the Federal Turkish State of
Cyprus can be regarded an early example of this type of division with potential to evolve
into a ‘divided State’, while more recent examples of such potential include Moldova with
Transdnistria, Georgia with → Abkhazia and → South Ossetia, Israel (→ Israel, Occupied
Territories) with Palestine (→ Palestine Liberation Organization [PLO]; in particular, after
the building of the wall), Somalia with Somaliland, (→ Somalia, Conflict), and → Serbia with
Kosovo (→ Kosovo [Advisory Opinion]). In the context of this perceived ethnic dimension,
the concept of self-determination of → peoples may become more relevant than previously
in the context of divided States. However, doubts can be raised concerning whether these
cases are divided States proper in light of the historical development, constructed in paras
9–25 below, on the basis of four cases of ‘divided States’ that either still exist (Korea and
China) or have existed (Germany and Vietnam) and about which substantial consensus
prevails that they either constitute or have constituted ‘divided States’.
B. Notion
9 In the cases of Vietnam and Korea, doubts remain whether there existed a State before
the division was brought about, although there certainly existed a valid claim of self-
determination and thus statehood under the concept of self-determination in a colonial
situation for both areas. However, in these two cases and also in the cases of Germany and
China, two entities were established in an area that was originally supposed to be singular
so as to create conflicting claims of statehood. It seems as if effective independence was
established in all eight cases, at least after some passage of time, although the effective
independence of → Taiwan seems to have been weakened considerably after the UN
decision to revoke its membership in the UN. In spite of the establishment of effective
independence, it seems against the background of the unification of Vietnam and Germany
that the existence of a divided State may be a transitional stage only.
10 Some general elements can be extracted from the four (or eight) cases of divided States
reviewed above. Firstly, the two different parts of the divided State have territories which
have become the object of actions by the international community (or by inaction of the
international community, as in the case of Taiwan right after World War II). Their borders,
while often disputed, are of an international character for the purposes of determining
whether actions in the border areas constitute threats to peace or acts of use of force
(→ Use of Force, Prohibition of; → Use of Force, Prohibition of Threat). Secondly, the two
different parts of the divided State have established constitutions that create effective
government and purport to be representative not only of the part of the divided State for
which the constitution has been established, but also for the other part of the divided State.
Thirdly, a distinct citizenship has been created for the population of each part, but this
citizenship is often flexible concerning the inclusion of persons from the other part of the
divided State (→ Nationality). Citizenship legislation in one part of the divided State may
hence at the same time recognize the broader nationality of the inhabitants of the entire
‘divided State’. Fourthly, the existence of the divided States reviewed here has been
conditioned by the political divide between the Eastern socialist bloc and the Western non-
socialist bloc, which largely disappeared in the beginning of the 1990s and was replaced by
a more pragmatic attitude towards international relations. Fifthly, all the parts of the
divided States have been able to acquire substantial → recognition in the form of explicit
recognition by other States and in the form of international treaties concluded with other
States as well as in the form of memberships in international organizations. Often a group
of States recognizing one part of a divided State has withheld recognition for the other part,
has entered into no or few treaty relations with the other part, and has refrained from
supporting membership of the other part in international organizations. Often, there also
existed States that did not recognize either of the parts of the divided State. Sixthly, all
parts of the divided States reviewed here have entered into treaties of international law
with other States.
11 What is interesting in this context is the relatively great symmetry between the two
parts of the divided State in respect of the elements. It seems that this symmetry may be
regarded as a defining factor of what is and is not a ‘divided State’. For instance, West
Germany and East Germany became members of the UN simultaneously in 1973.
12 For all practical purposes, the two parts of the divided States are or have been treated
as subjects of international law, with the exception of Taiwan, which has experienced a
certain decline in its international status since the 1970s and is thus displaying increasing
asymmetry. Therefore, the notion of the divided State is not very helpful from the point of
view of international law and there does not seem to exist much added value on the basis of
the term in comparison with regular notions of sovereignty and statehood. In addition, the
case of China and Taiwan may, in fact, revert back to considerations other than those of the
divided State, such as ‘separate administration’.
13 Arguably, neither Vietnam nor Korea existed as States before their division into two
States (although Vietnam entered into some treaty relationships before 1954), but emerged
into two parts more or less directly out of a colonial situation in the aftermath of war.
Therefore, issues of the continuity of State and State succession are not relevant in relation
to those two countries with a view to the transfer of the original obligations of the previous
State to one or both of the parts of the divided State. The situation is different concerning
Germany and China, because in both cases, there existed a State before the partition into
two entities. In the German case, it was accepted that while the government of Nazi
Germany was completely defeated as a consequence of World War II, Germany as a whole
continued to exist in the form of the Federal Republic of Germany, in particular. West
Germany was held to be a successor State to the German Reich, while East Germany, for its
part, seemed to have problems with the notions of continuity and succession.
14 The issues of continuity of State and of State succession after unification are relevant in
the cases of Vietnam and Germany, because the abolishment of the partition of the territory
made it necessary to determine who is responsible for those obligations under international
law that the part of the State which becomes extinct of its statehood has contracted during
its existence (→ States, Extinction of). In principle, under Arts 31 and 34 of the Vienna
Convention on the Succession of States in Respect of Treaties, treaties contracted by the
part which is extinguished as a result of unification, remain in force for the successor State.
In contrast, membership in international organizations is determined on the basis of the
constitution of each organization and is hence, at the outset, not automatic but subject to
the review of a membership application on a case-by-case basis.
15 However, in the case of Germany, bilateral treaties of the German Democratic Republic
(‘GDR’) were continued by the Federal Republic of Germany on a case-by-case basis.
Concerning international organizations, there does not seem to have existed any
membership procedures for Germany after the unification in 1990, but the unified German
State continued as one after the disappearance of the GDR, even in some international
organizations of which the GDR was member. In some instances after unification, Vietnam
did not notify a number of international organizations of which South Vietnam had been a
member concerning the continuance of membership, with the consequence that the
membership lapsed, but in most cases, membership of Vietnam continued after unification.
It seems that the treaties concluded by South Vietnam were discontinued in so far as they
could be attributed to the ‘illegal’ Saigon regime and were of a more political nature, while
some treaties of a more technical nature concluded by South Vietnam could remain in force.
Hence in spite of general rules pertaining to treaties and membership in international
organizations, alternative courses of action, suggested from a pragmatic or functional point
of view, may be possible, resulting in an inconsistent application of the rules in the concrete
cases.
16 As concerns State property, the general principle under customary international law,
sustained by the 1983 Vienna Convention on Succession of States in Respect of State
Property, Archives and Debts that has not entered into force due to lack of ratifications, is
that such property becomes property of the successor State, and this also applies to State
archives and State debt (→ Debts). In the case of East Germany, State succession followed
these principles, except with regard to the State debt owed to States other than West
Germany or to international organizations, in which context West Germany did not in all
cases recognize the obligation to act as successor to State debt. In the context of the
divided States, the State that prevails after unification of the two parts is expected to
extend its citizenship to the persons who were citizens of the other part, and under the
1961 Convention on the Reduction of Statelessness ([concluded 30 August 1961, entered
into force 13 December 1975] 989 UNTS 175), the prevailing State should ensure that no
person becomes stateless as a result of the unification. In situations of unification, the point
of departure with regard to the rights of individuals should in principle be the observance of
→ human rights as outlined in the → Universal Declaration of Human Rights (1948),
supplemented by the treaty obligations of the succeeding State. Private rights of an
acquired nature of, for instance, foreigners in relation to the State that becomes extinct,
continue after the succession and can be enforced against the successor State.
17 As concerns claims of a private law nature between individuals or legal persons, the
division of States may give rise to complicated legal procedures, as was the case with the
mutual claims between Carl Zeiss Stiftung of West Germany and VEB Carl Zeiss Jena of
East Germany over the trademark rights relating to the optical products under the name
‘Carl Zeiss’ (Carl Zeiss Stiftung v VEB Carl Zeiss Jena United States District Court for the
Southern District of New York [7 November 1968]; Carl Zeiss Stiftung v VEB Carl Zeiss
Jena United States Court of Appeals [2nd Cir 2 November 1970]). It seems that such private
law relationships can generally be recognized as creating rights that are enforceable in
courts both in the two parts of the divided State and in third States.
C. Two Examples: China and Korea

1. Territory
18 After World War II, Japan left the island of Formosa and the territory became by default
a part of the Republic of China, because the rights to the island were renounced without
specifying any recipient. The Republic of China was not party to the → Peace Treaty with
Japan (1951) (136 UNTS 45), but was recognized as the sovereign power over the island in
the 1943 Cairo Declaration (Conference of President Roosevelt, Generalissimo Chiang Kai-
shek, and Prime Minister Churchill in North Africa ‘Cairo Declaration’ [27 November 1943]
232 DeptStBull 393). In 1952, Japan signed a separate peace treaty with the Republic of
China (138 UNTS 3). The civil war of China between Kuomintang and the communist forces
resulted, in 1949, in a retreat of the former to the island of Formosa or Taiwan, while the
communist party established its power in mainland China, renamed the People’s Republic of
China (‘PRC’). Arguably, the civil war has not ended, and mainland China entertains
territorial claims over Taiwan and its adjacent smaller → islands, which the latter denies.
Since 1991, Taiwan no longer claims that mainland China would be part of the Republic of
China because of an ongoing civil war.
19 The separation of Korea into two halves by the Korean demilitarized zone was preceded
by the Korean Empire until its → annexation by Japan in 1910 and division following World
War II and the → Korean War (1950–53). North Korea and South Korea initially emerged as
a result of the Soviet Union’s control over the northern part and the UN control over the
southern part of the Korean peninsula after World War II. Following the Japanese
→ surrender in 1945, the Soviet Union and the United States agreed on disarming the
Japanese troops in Korea. The Soviet Union accepted the surrender of Japanese weaponry
north of the 38th parallel and the United States south of the parallel. None of the victorious
countries wished to surrender the control of Korea to the other, expecting that a new State
of Korea would choose its political affiliation either among the socialist countries or the
non-socialist countries (see also → Cold War [1947–91]). The Soviet Union withdrew its
forces from the north in 1948 and the US from the south in 1949. In 1950, the North Korean
forces crossed over to the South Korean side, and, later that year, China joined the war on
the North Korean side. The Korean War ended in an → armistice that was territorially
established more or less along the 38th parallel, with the Military Demarcation Line (‘MDL’)
running partly north of the parallel and partly south of the parallel. The MDL runs in the
middle of the demilitarized zone, which is around 4km wide. In addition, a maritime
demarcation line, the Northern Limit Line (NLL), was established in 1953 by the UN
command in the Yellow Sea, that is, on the western side of the Korean Peninsula. The
position of North Korea seems to be that it has a claim over the territory of South Korea and
that it has never agreed to the NLL.
2. Government
20 As concerns China, both the PRC government and the Taiwanese government of the
Republic of China were at the outset characterized as highly authoritarian one-party
governments, the latter in part because of the martial law that was in effect from 1948 until
1987. Hence an ideological divide lies at the root of the separation between the PRC and
Taiwan, and because Taiwan has been supported by the United States, there is also a Cold
War dimension to the conflict. The PRC government formally features a one-party rule
under the communist party of China, although its policies have grown less socialist, while
Taiwanese politics have moved from a one-party setting towards multi-party governance.
The PRC does not consider Taiwan to be an independent State, and the Kuomintang
establishment in Taiwan maintains the same position in relation to the PRC, but there are
other political forces in Taiwan that have advocated a formal Taiwanese declaration of
independence from China. Such a declaration of independence has been opposed by the
PRC, which instead offers Taiwan a position as a special administrative region, similar to
that of → Hong Kong and → Macau, under Art. 31 PRC Constitution. The article was enacted
in 1984 to provide a platform for the incorporation of Taiwan into the PRC, but it was
instead used in the 1990s to receive Hong Kong and Macau from the United Kingdom and
Portugal, respectively, and to grant them → autonomy.
21 In Korea, the Cold War resulted in the establishment of two separate governments in
1948, North Korea and South Korea. Constitutionally, North Korea, or the Democratic
People’s Republic of Korea, is propagating the reunification of the two while it remains
under totalitarian one-party rule of a socialist kind. Also South Korea, or the Republic of
Korea, has undergone a development from authoritarian government to more established
multi-party governance, and declares as its constitutional aim the achievement of a peaceful
unification of the entire country. Both the North and the South have entertained ideas of a
unification of Korea, for instance, under a confederal form of government (→ Confederations
of States). The two sides remain in a state of war with each other, because no peace treaty
has been concluded between them. Over the decades, there have been several
rapprochements between the two governments, including the 1991 Agreement on
Reconciliation, Non-aggression, and Exchanges and Co-operation between the South and
the North ([signed 13 December 1991, entered into force 19 February 1992] [10 August
2010]), followed by periods of deteriorating relationships. The → armed forces of the two
parts of the divided Korea have been involved in numerous violent encounters with each
other.
3. Population
22 With the retreat of the forces of the Republic of China to Taiwan, up to 2 million
persons relocated from mainland China to Taiwan. During the decades, the persons who
moved from mainland China with the Kuomintang government dominated over the original
population of Taiwan in, eg, government affairs. The Taiwanese citizenship legislation
recognizes residents of mainland China as citizens of the Republic of China, but at the same
time makes a distinction between persons who have household residency in the Free Area
of the Republic of China and those who do not. The legal consequences of this distinction
are that persons outside the area administered by the Republic of China must apply for
special travel documents and cannot vote in Taiwanese elections. In the PRC, no national
elections are held, and there are no representatives from Taiwan proper to the National
Congress of mainland China. During the height of the conflict, it was not possible for
individuals to travel to the other part or to even have contacts with persons in the other
part, but due to a relaxation of the situation, some travel is now possible.
23 The Korean War resulted in the loss of huge numbers of human lives and in a partition
of the country in a way that prevented the movement of the population over the armistice
line. Both North Korea and South Korea created their own citizenships, but remained ready
to reunite the country, implying the possibility of one citizenship only in Korea. The MDL
between the two countries has been virtually impenetrable, but some exchange of visitors
between the two countries has been possible under controlled conditions.
4. Relations with Other Subjects of International Law

24 In 1972, the PRC was admitted as a Member State of the UN, while the membership of
the Republic of China (Taiwan) was terminated. The decision was taken by the United
Nations General Assembly (‘UNGA’) through Res 2758 (XXVI) of 25 October 1971 entitled
‘Restoration of the lawful rights of the People’s Republic of China in the United Nations’, in
which the UNGA decided to restore
all its rights to the People’s Republic of China and to recognize the representatives
of its Government as the only legitimate representatives of China to the United
Nations, and to expel forthwith the representatives of Chiang Kai-shek from the
place which they unlawfully occupy at the United Nations and in all organizations
related to it.
The PRC is also a permanent member of the UN Security Council (‘UNSC’) and member of
most UN agencies and other international organizations, such as the → World Trade
Organization (WTO). As a consequence of its one-China policy, the PRC has made it a
precondition to establishing diplomatic relations with other States that the other country
acknowledges its claim over Taiwan and severs official ties with the government of the
Republic of China. After 1949, partly as a consequence of the diplomatic activities of the
PRC, many countries have ceased to recognize Taiwan and recognized the PRC instead. In
spite of this, Taiwan continues to be recognized as a State by a number of countries and it
holds membership in some international organizations, such as the Asian Development
Bank, → Asia-Pacific Economic Cooperation (APEC), and the Central American Bank for
Economic Integration, as well as the WTO. The identification used for Taiwan is often Taipei
China, but in the WTO, Taiwan participates under the name ‘Separate Customs Territory of
Taiwan, Penghu, Kinmen, and Matsu’, because the WTO can admit members that are not
formally identified as States proper but which are separate customs territories. After
Taiwan was expelled from the UN, Taiwan has repeatedly sought UN membership, but
without success.
25 North Korea was supported from 1945 onwards by the Soviet Union and from the late
1940s on also by China, and the country remained dependent on Soviet aid until the aid
ended with the dissolution of the Soviet Union in the beginning of the 1990s. South Korea
has been supported by the United States and the Western bloc of countries. The two Koreas
do not recognize each other as States, but both Koreas are members of the UN since 1991.
North Korea belongs to the → Food and Agriculture Organization of the United Nations
(FAO), the → International Civil Aviation Organization (ICAO), the → Universal Postal Union
(UPU), the → United Nations Conference on Trade and Development (UNCTAD), the
→ International Telecommunication Union (ITU), the → United Nations Development
Programme (UNDP), the → United Nations Educational, Scientific and Cultural
Organization (UNESCO), the → World Health Organization (WHO), the → World Intellectual
Property Organization (WIPO), the → World Meteorological Organization (WMO), the
→ International Maritime Organization (IMO), the → International Committee of the Red
Cross (ICRC), and the → Non-Aligned Movement (NAM). South Korea is also member of
most UN-related international organizations and other international forums. It is, for
instance, a member of the → Organization for Economic Co-operation and Development
(OECD) and a founding member of the APEC forum. North Korea maintains diplomatic
relationships with many countries, even with countries of the West, and is recognized by a
majority of States, while South Korea is recognized by almost all States.
D. Conditions and Limits

26 A set of new situations has emerged after the 1990s that could increase the number of
cases in the category of ‘divided States’. These are Serbia with respect to Kosovo, Moldova
with respect to Transdnistria, Georgia with respect to Abkhazia and South-Ossetia, and
Somalia with respect to Somaliland. In addition, a few cases with older roots still exist,
namely Cyprus with respect to Northern Cyprus (where a resolution pursuant to a modified
version of the so-called Annan Plan promoted by the UN is still possible), and Israel with
respect to Palestine (especially after the construction of the wall, the legality of which was
dealt with by the International Court of Justice in the → Israeli Wall Advisory Opinion [Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory]).
27 Applying the general elements extracted from the four cases of divided states reviewed
above on the case of Serbia with respect to Kosovo, it is possible to say that the two parts of
the territory of what is now the Republic of Serbia have become objects of actions by the
international community, creating an approximate border between Serbia and Kosovo
pursuant to UNSC Res 1244 of 1999.
28 The two different entities of the Republic of Serbia have established constitutions that
even in the case of Kosovo purport to create effective government. The Constitution of the
Republic of Kosovo of 2008 soon after its declaration of independence gives effect to limited
or controlled independence following the so-called Ahtisaari Plan (UNSC ‘Comprehensive
Proposal for the Kosovo Status Settlement’ in UNSC ‘Letter Dated 26 March 2007 from the
Secretary-General Addressed to the President of the Security Council: Addendum’ [26
March 2007] UN Doc S/2007/168/Add.1), while the Constitution of Serbia purports to be
representative also for Kosovo. In addition, a distinct citizenship has been created for the
population of each part, and the Serbian citizenship also includes the inhabitants of Kosovo,
while the same is not true vice versa. The creation of the two entities has to some extent
been conditioned by a perceived political divide between the west and the east, but more by
the ideology of nationalism (both Serb and Albanian nationalism). Serbia is generally
regarded as a sovereign State with all the necessary attributes, including memberships in
international organizations. Kosovo, too, has been able to acquire some status in the form of
explicit recognitions by a number of States and in the form of treaties of international law
concluded with other States. Significantly, the → International Court of Justice ('ICJ') held in
its advisory opinion of 22 July 2010 that there is no prohibition in general international law
that bars a declaration of independence, nor was that declaration made in violation of Res
1244/1999 or the constitutional framework developed on the basis of that resolution. (The
Court, however, did not feel obliged to consider ‘whether international law conferred a
positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on
whether international law generally confers an entitlement on entities situated within a
State unilaterally to break away from it’ [Accordance with International Law of the
Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) para. 56]).
Hence, the Court did not deal with the legal consequences arising from the legality of
Kosovo’s declaration of independence. Therefore, it seems that the relationship between
Serbia and Kosovo was, until the declaration of independence of Kosovo, much more
asymmetrical than the notion of the ‘divided State’ would seem to warrant. In addition,
Kosovo is headed towards a final solution with regard to its status that implied an
internationally controlled and to some extent limited independence under, in particular, Arts
147 and 153 Constitution of the Republic of Kosovo. Serbia and Kosovo therefore do not
constitute a ‘divided State’
29 What used to be known as the Republic of Somalia was originally composed of former
colonies of Italy and the Great Britain, that is, of the former Italian Somaliland and the
former British Somaliland. The British Somaliland declared itself independent on 26 June
1960 under the name Somaliland and had the same boundaries as Her Britannic Majesty’s
Protectorate of Somaliland. Already on 27 June 1960, the Legislative Assembly of the
Independent State of Somaliland passed the Law of Union between Somaliland and Somalia
(Law of Union between Somaliland and Somalia: Law No 1 of 1960 ([27 June 1960] [10
August 2010]), the latter being the State of Somalia, which achieved independence on 1 July
1960 from Italy. The Somali Republic thus created integrated Somaliland and transformed it
into the Northern Region of the Somali Republic, a unitary State. However, in the Northern
Region, the laws in force until the union would remain in force, as would the law that had
existed in the territory of the other six regions of the rest of the Somali Republic. Hence the
union recognized two different jurisdictions, although the national assembly of the Somali
Republic was empowered to exercise the law-making powers on behalf of the entire State in
respect of new legislation. A decade into the existence of the Somali Republic, a coup d’état
transformed the State into the Marxist-oriented Democratic Republic of Somalia, which
imploded at the beginning of the 1990s, leaving the country in chaos and anarchy. The
Northern Region was less affected by the events in the rest of Somalia, and declared itself
independent on 18 May 1991 under the name the Republic of Somaliland. So far, no State
has recognized Somaliland and it has not been admitted as member of any
intergovernmental organization. In the 2001 Constitution of the Republic of Somaliland
([approved and entered into force 31 May 2001] [10 August 2010]), reference is made in
Art. 1 (1) to the independence gained in 1960 from the United Kingdom and to the fact that
this independence has been regained, indicating thereby that Somaliland has withdrawn
from the union with Somalia. In Art. 2 Constitution of the Republic of Somaliland, the
territory of Somaliland is outlined, but no territorial claim is presented as concerns the rest
of Somalia. However, there has been a territorial dispute between Somaliland and Puntland,
another territory aspiring for independence from Somalia or some other political status
inside Somalia, which controls the eastern part of the former British Somaliland. The
citizenship created for the inhabitants of Somaliland does not make provisions concerning
persons regarded as citizens of the rest of Somalia, and the Constitution of the Republic of
Somaliland has the apparent aim of creating structures of effective governance. On the
basis of the unilateral nature of the purported creation of Somaliland, it seems that
Somaliland does not present, in relation to the rest of Somalia, features that would qualify
Somalia as a ‘divided State’. Instead, it seems that there is a process of → secession in
progress.
30 Likewise, the relationship between Israel and the Palestinian territories under the
administration of the internally disputed and currently more or less defunct Palestinian
Authority seems so asymmetrical that it cannot, as of yet, result in the characterization of
the two entities as a ‘divided State’. This seems to be the case also concerning the other
more recent cases (Cyprus with respect to Northern Cyprus, Moldova with respect to
Transdnistria, and Georgia with respect to Abkhazia and South Ossetia), which seem to
have received no or just one or very few recognitions by other States and where the
breakaway entities can be considered as rival governments over the territory in question,
not as parts of a ‘divided State’.
E. Evaluation
31 The international legal order has experienced difficulties with divided States and with
the notion of the divided State. The division of territory and population between
jurisdictions of two normally effective governments is a combination of facts which the
international community of States tries to come to terms with by different means. Granting
or refusing recognition to the two parts of the State is one way of doing it, and a
consequence of the recognition is normally entering into or refraining from treaty
relationships with one of the States. Granting or refusing membership in international
organizations follows the same pattern. The legal status of the two parts of a divided State
can change, for instance, from less recognition to full recognition and vice versa, but the
general pattern for the identification of divided States seems to be the existence of a certain
symmetry between the two parts of a divided State in respect of different elements that can
be attributed to their statehood at the same time as the situation is characterized by a
perception of the temporal nature of the arrangement. As concerns the relationship
between Taiwan and the PRC, the situation may be slowly moving out from an existence as
a divided State. In such a scenario, two alternatives seem to take shape: either unification
of Taiwan with the PRC under certain conditions; or the independence of Taiwan.
32 The rules of public international law concerning States have generally been applied to
both parts of the divided State in a manner which is more or less symmetrical, although
conditioned by international politics, at least during the so-called Cold War. Taiwan is an
exception to this pattern and does not quite conform to this characterization, because it has
suffered a dismissal from the membership of the UN and other ‘asymmetrical’ difficulties
that other parts of divided States may not have experienced. However, the application of
norms of international law is not completely consistent in any of the cases, be it the existing
ones (the two Koreas and the two Chinas) or the ones that have disappeared (the two
Vietnams and the two Germanys), but significant deviations from the rules exist. Pending
the emergence of new cases that fit the notion of the ‘divided State’ in addition to the two
existing cases, caution is therefore recommended for the use of the term in the legal sphere
at the same time as such use should be limited to the few clear cases dealt with above.
Select Bibliography
JL Simpson ‘Berlin: Allied Rights and Responsibilities in the Divided City’ (1957) 6
ICLQ 83–102.
FP Morello The International Legal Status of Formosa (Nijhoff The Hague 1966).
HL Bernstein ‘A Divided Country in Foreign Courts—Recent Litigation Involving
Germany’s Legal Status and the Zeiss Stiftung’ (1967) 65 MichLRev 924–43.
FL Morrison ‘Recognition in International Law: A Functional Reappraisal’ (1967) 34
UChiLRev 857–83.
DL Bark Agreement on Berlin: A Study of the 1970–72 Quadripartite Negotiations
(American Enterprise Institute for Public Policy Research Washington 1974).
J Hacker Der Rechtsstatus Deutschlands aus der Sicht der DDR (Verlag Wissenschaft
und Politik Köln 1974).
J Crawford The Creation of States in International Law (Clarendon Press Oxford
1979).
— Vietnam and International Law: An Analysis of International Law and the Use of
Force, and the Precedent of Vietnam for Subsequent Interventions (Aletheia Press
Northampton 1990).
MN Shaw International Law (3rd edn Grotius Cambridge 1991).
J-M Henckaerts (ed) The International Status of Taiwan in the New World Order:
Legal and Political Considerations (Kluwer The Hague 1996).
KG Bühler State Succession and Membership in International Organizations: Legal
Theories versus Political Pragmatism (Kluwer The Hague 2001).
P Calvert (ed) Border and Territorial Disputes of the World (4th edn John Harper
London 2004).
MF Scholz ‘East Germany’s North European Policy prior to International Recognition
of the German Democratic Republic’ (2006) 15 Contemporary European History 553–
71.
Select Documents
Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403.
Agreement on the Cessation of Hostilities in Vietnam (signed on 20 July 1954, entered
into force 22 July 1954) 935 UNTS 149.
Agreement on Ending War and Restoring Peace in Vietnam (signed and entered into
force 27 January 1973) 935 UNTS 6.
Carl Zeiss Stiftung v VEB Carl Zeiss Jena United States District Court for the
Southern District of New York (7 November 1968) 293 F Supp 892.
Carl Zeiss Stiftung v VEB Carl Zeiss Jena United States Court of Appeals (2nd Cir 2
November 1970) 433 F 2d 686.
ILA 73rd Conference ‘Resolution No 3/2008: Aspects of the Law on State
Succession’ (17–21 August 2008) (12 June 2010).
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (Advisory Opinion) [2004] ICJ Rep 136.
Montevideo Convention on the Rights and Duties of States (opened for signature 26
December 1933, entered into force 26 December 1934) 165 LNTS 19.
Quadripartite Agreement on Berlin (signed 3 September 1971, entered into force 3
June 1972) 880 UNTS 115.
Treaty on the Establishment of German Unity (done 31 August 1990, entered into
force 29 September 1990) (1991) 30 ILM 457–59.
Treaty on the Final Settlement with Respect to Germany (signed 12 September 1990,
entered into force 15 March 1991) 1696 UNTS 115.
UNGA ‘Request for an Advisory Opinion of the International Court of Justice on
Whether the Unilateral Declaration of Independence of Kosovo is in Accordance with
International Law’ (23 September 2008) UN Doc A/63/L.2.
UNGA Res 217 A (III) ‘Universal Declaration of Human Rights’ (10 December 1948)
GAOR 3rd Session Part I Resolutions 71.
UNGA Res 2758 (XXVI) ‘Restoration of the Lawful Rights of the People’s Republic of
China in the United Nations’ (25 October 1971) GAOR 26th Session Supp 29, 2.
UNSC Res 1244 (1999) (10 June 1999) SCOR 54th Year 32.
Vienna Convention on Succession of States in Respect of State Property, Archives and
Debts (done 8 April 1983, not yet entered into force) (1983) 22 ILM 306.
Vienna Convention on Succession of States in Respect of Treaties (concluded 23
August 1978, entered into force 6 November 1996) 1946 UNTS 3.

Divided States

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Divided States

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5 A part of a divided State could be expected to consist of a permanent population and be

C. Two Examples: China and Korea

4. Relations with Other Subjects of International Law

D. Conditions and Limits

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