Statehood 1

Part II Personality and recognition, 5 Creation and
incidence of statehood
James Crawford SC, FBA
From: Brownlie's Principles of Public International Law (9th Edition)

James Crawford
Previous Edition (8 ed.)
Content type: Book content

Product: Oxford Scholarly Authorities on International Law [OSAIL]
Published in print: 09 July 2019
ISBN: 9780198737445
Subject(s):
Statehood, legitimacy — Representation of states in international organizations — Sources, foundations
and principles of international law — Secession — 3e376cf7-6596-4a66-aab4-bc941a0fc49b — Self-
determination
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: De La Salle University; date: 02 March 2024
(p. 117) 5 Creation and incidence of statehood
1. Introduction
As noted in chapter 4, the state is a type of legal person recognized by international law.
Yet, since there are other types of legal persons so recognized, the possession of legal
personality is not in itself a sufficient mark of statehood.1 Moreover, the exercise of legal
capacities is a normal consequence, rather than conclusive evidence, of legal personality: a
puppet state may have all the paraphernalia of separate personality and yet be little more
than an agency of another power. It is sometimes said that statehood is a question of fact,
meaning that it is not a question of law.2 However, as lawyers are usually asking if an entity
is a state with a specific legal claim or function in view, it is pointless to confuse issues of
law with the difficulties of applying the legal principles to the facts and of discovering the
key facts in the first place. The criteria of statehood are laid down by the law. If it were not
so, then statehood would produce the same type of structural defect that has been detected
in certain types of doctrine concerning nationality (see chapter 23). In other words, a state
would be able to contract out of its obligations under international law simply by refusing to
characterize the other party as a state. A readiness to ignore the law may be disguised by a
plea of freedom in relation to a key concept, determinant of many particular rights and
duties, like statehood or nationality. To some extent, this position anticipates the results of
the examination of recognition in chapter 6. Nevertheless, as a matter of presentation the
question whether recognition by one or more other states is a determinant (as mandated by
the (p. 118) ‘constitutive theory’ of recognition) will be ignored in the present chapter. The
subject of state succession is also excluded from this discussion: the subject matter
conventionally described under that label is considered in chapter 19.
2. The Criteria for Statehood

Article I of the Montevideo Convention on Rights and Duties of States provides: ‘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 the other States.’3 This brief enumeration is often cited,4 but it is no more than a basis
for further investigation. Not all the conditions are necessary, and in any case further
criteria must be employed to produce a working definition.5
(A) Population
The Montevideo Convention refers to ‘a permanent population’. This criterion is intended to
be used in association with that of territory, and connotes a stable community. Evidentially
this is important, since in the absence of the physical basis for an organized community, it
will be difficult to establish the existence of a state.
(B) Defined territory

There must be a reasonably stable political community and this must be in control of a
certain area. It is clear that the existence of fully defined frontiers is not required and that
what matters is the effective establishment of a political community.6 In 1913, Albania was
recognized by a number of states in spite of a lack of settled frontiers,7 and Israel was
admitted to the UN in 1949 despite disputes over its borders.8
There is no fixed lower limit either of population or territory, and some recognized states
have tiny quantities of both. At one time it was thought that the UN admission of ‘micro-
states’, in particular the European micro-states of Liechtenstein, San Marino, Monaco, and
Andorra, was precluded because of their size, but the principle of (p. 119) universality of
UN membership prevailed. In the 1990s, all were admitted to membership—in the case of
Andorra after significant reforms which removed doubts as to its independence from
France.9
(C) Government
A state is a stable political community supporting a legal order to the exclusion of others in
a given area. The existence of effective government, with centralized administrative and
legislative organs, is the best evidence of a stable political community.10 However, effective
government is in certain cases either unnecessary or insufficient to support statehood.
Some states have arisen before government was well organized, as, for example, Poland in
191911 and Burundi and Rwanda, admitted to the UN in 1962.12 The principle of self-
determination—also discussed in chapter 29—was once commonly set against the concept
of effective government, more particularly when the latter was used as an argument for
continued colonial rule. The relevant question has become, instead, in whose interest and
for what legal purpose is government ‘effective’? Once a state has been established,
extensive civil strife or the breakdown of order through foreign invasion or natural disasters
are not considered to affect personality. Nor is effective government sufficient, since this
leaves open the questions of independence and representation by other states, discussed in
the following section.
(D) Independence
Independence is the decisive criterion of statehood.13 Guggenheim distinguishes the state
from other legal orders by means of two tests which he regards as quantitative rather than
qualitative.14 First, the state has a degree of centralization of its organs not found
elsewhere. Secondly, in a particular area the state is the sole executive and legislative
authority. In other words, the state must be independent of other state legal orders, and any
interference by such legal orders, or by an international agency, must be based on a title of
international law.
In the normal case, independence as a criterion may create few problems. However, there
are sources of confusion. In the first place, independence may be used in close association
with a requirement of effective government, leading to the issues considered earlier. Again,
since a state is, in part, a legal order, there is a temptation (p. 120) to rely on formal
criteria. Certainly, if an entity has its own executive and other organs, conducts its foreign
relations through its own organs, has its own system of courts and legal system, and a
nationality law of its own, then there is strong evidence of statehood. However, there is no
justification for ignoring foreign control exercised in fact through the ostensibly
independent machinery of state. But the emphasis is on foreign control overbearing the
decision-making of the entity concerned on a wide range of matters and doing so
systematically and on a continuing basis. In Ǻland Islands, the Commission of Jurists
referred to the disorder existing in Finland and observed: ‘It is therefore difficult to say at
what exact date the Finnish Republic, in the legal sense of the term, actually became a
definitely constituted sovereign State. This certainly did not take place until a stable
political organisation had been created, and until the public authorities had become strong
enough to assert them-selves throughout the territories of the State without the assistance
of foreign troops.’15 This sets the bar very high and would have embarrassing consequences
if generally applied.
In practice, states have tended to ignore—so far as issues of statehood are concerned—
forms of political and economic blackmail and interference directed against weaker
members. There is a distinction between agency and control, on the one hand, and ad hoc
interference and ‘advice’, on the other.16
(i) ‘Dependent states’
Foreign control of the affairs of a state may occur under a title of international law, for
example as a consequence of a treaty of protection, or some other form of consent to
agency or representation in external relations, or of a lawful war of collective defence or
sanction leading to an occupation and imposition of measures designed to remove the
sources of aggression. Allied occupation of Germany under the Berlin Declaration of 5 June
1945 is an example of the latter: supreme authority was assumed in Germany by the Allies
jointly.17 Providing that the representation and agency exist in fact and in law, there is no
formal difficulty in saying that the criterion of independence is satisfied. Unfortunately,
writers have created confusion by rehearsing independence as an aspect of statehood and
then referring to ‘dependent states’, which are presented as an anomalous category.18 Here
the incidents of personality are not sufficiently distinguished from its existence. The term
‘dependent’ is used to indicate the existence of one or more of the following distinct
situations:(p. 121)
(1) the absence of statehood, where the entity concerned is subordinated to a state so
completely as to be within its control (and the origin of the subordination does not
establish agency or representation);
(2) a state which has made concessions to another state in matters of jurisdiction and
administration to such an extent that it has in some sense ceased to be sovereign; 19
(3) a state which has legally conferred wide powers of agency and representation in
foreign affairs on another state; 20
(4) a state which in fact suffers interference from another state and may be a ‘client’
state politically but which quantitatively is not under the complete and permanent
control of the ‘patron’;
(5) a legal person of a special type, appearing on the international plane for certain
purposes only, as in the case of mandated and trust territories and some
protectorates.
The category of independence (or sovereignty used synonymously) can only be applied
concretely in the light of the legal purpose with which the inquiry is made and the
particular facts. In Austro-German Customs Union,21 the Permanent Court was asked
whether a proposed customs union was contrary to the obligations of Austria under a
protocol of 1922 ‘not to alienate its independence’ and to ‘abstain from any negotiations or
from any economic and financial engagement calculated directly or indirectly to
compromise this independence’.22 By a majority of eight to seven, the Court held that the
customs regime contemplated would be incompatible with these obligations. Here the term
‘independence’ referred to a specialized notion of economic relations in a treaty, and the
obligations were not confined to abstention from actual and complete alienation of
independence. In Nationality Decrees, the Permanent Court emphasized that protectorates
have ‘individual legal characteristics resulting from the special conditions … under which
they were created, and the stage of their development’.23 A protected state may provide an
example of international representation which leaves the personality and statehood of the
entity represented intact, though from the point of view of the incidents of personality the
entity may be ‘dependent’ in one or more of the senses noted earlier. In US Nationals in
Morocco, the International Court, referring to the Treaty of Fez and the creation of a
French protectorate in 1912, stated: ‘Under this Treaty, Morocco remained a sovereign
State but it made an arrangement of contractual character (p. 122) whereby France
undertook to exercise certain sovereign powers in the name and on behalf of Morocco, and,
in principle, all of the international relations of Morocco.’24 In fact, it appears that the
relation was one of subordination and not agency.
Another aspect of dependency emerges in the context of former colonies. Post-colonial
dependency has been analysed in the general framework of development economics and
public administration. With regard to the latter, the colonial analogy is manifested in a state
or other territorial unit being placed under partial or full administration by an international
organization, thereby losing control over some or all aspects of governance and becoming
dependent on the administrator.25 The discourse of development, on the other hand,
created a scalar system of states—dividing states into ‘developed’ or ‘developing’—secured
by positing an ostensibly universally attainable end-point in the status of ‘developed’. The
economic institutions created the possibility for ongoing surveillance and interventions to
transform ‘developing’ states.26 Numbers of states are reliant on foreign aid and loans from
institutions such as the World Bank. The economic assistance programmes usually have
conditions attached to them. The conditions can relate, for example, to the use of the
money, to the recipient’s policies on matters such as human rights, expropriation, or
democratization. The recipient has little choice but to comply if it wants to gain and retain
access to these funds. Such ‘developing’ states are reliant on foreign resources and
consequently prone to influence and interferences by the ‘developed’ world.
It has been suggested that some post-colonial states have ‘failed’ and require supervision by
the international community or select states.27 To address the problem of ‘failed states’,
Helman and Ratner proposed ‘United Nations Conservatorship’, envisaging three options
whereby the UN ‘manages the affairs’ of the ‘failed state’.28 Pfaff declared that ‘[m]uch of
Africa needs, to put it plainly, what one could call a disinterested neo-colonialism’ and
suggested that the European Union should ‘collectively assume such responsibilities in
cooperation with Africans in an effort to arrest the continent’s (p. 123) decline and put it on
a progressive course’.29 This remains a minority position. Moreover, some African states are
exhibiting solid growth and poverty reduction, supporting the view that the causes of the
persistence of severe poverty, and hence the key to its eradication, lie within those
countries themselves.30
A different side of post-colonial dependency is exhibited by the fact that some states elect to
stay associated with the former colonial power. Guam is a US dependency, Aruba is part of
the Kingdom of the Netherlands, the British Virgin Islands is a Crown Colony, and Anguilla
is an ‘associated state’ of Britain. In these cases, local authorities are responsible for most
internal affairs, while ‘parent’ states are responsible for defence and external relations.31
(ii) Associations of states
Independent states may enter into forms of cooperation by consent and on an equal footing.
The basis for the cooperation may be the constitution of an international organization.
However, by treaty or custom other structures for maintaining cooperation may be created.
One such structure, the confederation, has in practice either disintegrated or been
transformed into a federation. Membership does not affect the legal capacities and
personality of member states any more than membership of an organization and has less
effect than membership of some organizations, for example the European Union, which has
a certain federal element, albeit on a treaty basis.32
(E) A Degree of permanence

If one relies principally on the concept of a stable political community, it might seem
superfluous to stipulate for a degree of permanence.33 Time is an element of statehood, as
is space. However, permanence is not necessary to the existence of a state as a legal order,
and a state which has only a very brief life may nevertheless leave an agenda of
consequential legal questions on its extinction.34
(p. 124) (F) Willingness to observe international law

In the modern literature, this is not often mentioned as a criterion, and it has been
subjected to trenchant criticism.35 Delictual and other responsibilities, even though no
longer exclusive to states, are consequences of statehood, and it is indefensible to express
as a criterion of statehood a condition which the entity can only accept because it is a state.
A more fundamental issue is whether some degree of ‘civilization’ is inherent in statehood.
For example, Hyde adds a further criterion: ‘the inhabitants must have attained a degree of
civilization, such as to enable them to observe … those principles of law which are deemed
to govern the members of the international society in their relations with each other’.36
However, it is usually omitted from enumerations of criteria and is redolent of the period
when non-European states were not accorded equal treatment by the European Concert.37
(G) Sovereignty
The term ‘sovereignty’ may be used as a synonym for independence, a key element in
statehood considered already.38 However, a state which has consented to another state
managing its foreign relations, or has granted extensive extraterritorial rights to another
state, may be said not to be ‘sovereign’. If this or a similar content is given to ‘sovereignty’
and the same ideogram is used as a criterion of statehood,39 then the incidents of statehood
and legal personality are once again confused with their existence. Thus, the condition of
Germany after 1945 involved a considerable diminution of German sovereignty in this
sense, and yet Germany continued to exist as a state. Considerations of this sort have led
some to reject sovereignty as a criterion.40
An alternative approach is that of the International Court in US Nationals in Morocco,
where the judgment described Morocco as a ‘sovereign State’, meaning that it had
maintained its basic personality in spite of the French protectorate.41 It would be possible
for a tribunal to hold that a state which had granted away piecemeal (p. 125) a high
proportion of its legal powers had ceased to have a separate existence as a consequence.
But it may be difficult to distinguish granting away of capacities and the existence of
agency or representation, and there is a strong presumption against loss of status.
(H) Function as a state

Experience has shown that entities may exist which are difficult to regard as states but
which have a certain, even considerable, international presence. The Treaty of Versailles of
1919 created the Free City of Danzig, which had the legal marks of statehood in spite of the
fact that it was placed under the guarantee of the League of Nations and Poland had the
power to conduct its foreign relations.42 The type of legal personality involved in these
cases is a congener of statehood, and it is the specialized political function of such entities,
and their relation to an organization, which inhibits use of the category of statehood.
(i) States in statu nascendi
A political community with considerable viability, controlling a certain area of territory, and
having statehood as its objective, may go through a period of travail before that objective
has been achieved. In any case, since matters such as definition of frontiers and effective
government are not looked at too strictly, the distinction between entities in statu nascendi
and statehood cannot be very readily upheld.43 States not infrequently first appear as
independent belligerent entities under a political authority which may be called, and
function effectively as, a provisional government. Once statehood is firmly established, it is
justifiable, both legally and practically, to assume the retroactive validation of the legal
order during a period prior to general recognition as a state, when some degree of effective
government existed. Leaving questions of state succession on one side, the principle of
effectiveness dictates acceptance, for some legal purposes at least, of continuity before and
after statehood is firmly established.44
In particular, the principle of self-determination may justify the granting of a higher status
to certain types of belligerent entities and exile governments than would otherwise be the
case. In exceptional circumstances, a people may be (p. 126) recognized by the
international community, and by interested parties, as having an entitlement to statehood,
and thus as being a state in statu nascendi. Normally, this transitional status leads, without
too much delay, to independence under the auspices of the UN. However, in the case of the
Palestinian people, there has been an eccentric bilateral process in which the question of
statehood has been in issue between the government of Israel and the Palestine Liberation
Organization (PLO),45 which, in turn, has given rise to problems in multilateral
institutions.46 The Palestine question is considered later.
3. Some Issues of Statehood

Three major situations affecting world order provide insight into the issues of statehood in
our time.
(A) Germany since 1945

The termination of hostilities against the German Reich in June 194547 coincided with the
disappearance of effective national government in its territory.48 In response, the Allied
Powers assumed ‘supreme authority with respect to Germany’, under which an Allied
Control Council took the place of the German government.49 Though the Allies affirmed the
integrity of Germany in principle, they divided the country into four Zones of Occupation
and, instead of a single central government, the Commanders-in-Chief of the Four Powers
acted separately in each Zone and jointly only with respect to ‘Germany as a whole’.
Difficult questions of interpretation arose for the courts of the states involved in zonal
administration.50 As for the subject matter of joint administration, this was, evidently, a
residue of the general governmental functions and of the rights and responsibilities of the
one state which had existed as at the time of capitulation, though there, too, the
arrangement was unusual and tended to defy formal categorization. That some authority
was reserved under the rubric of ‘Germany as a whole’ was suggested in various
instruments,51 but the primacy of the separate zonal administrations remained, and it was
from them that the postwar configuration of Germany emerged.
(p. 127) In particular, the failure of the four Powers to implement the Potsdam Agreement
regarding reunification opened the way to the evolution of two separate governmental units
—one in the Soviet Zone, one in the three Western Zones. The Federal Republic of Germany
(FRG) began as a subordinate government of the Western Allies in their Zones, from 23 May
1949, though they quickly adopted the view that this was no mere delegate. Their
declaration of 19 December 1950 indicated as follows: ‘The Three Governments consider
that the Government of the Federal Republic is the only German Government freely and
legitimately constituted and therefore entitled to speak for the German people in
international affairs.’52 A Tripartite Convention on Relations of 26 May 1952 enlarged the
authority of the Federal Republic, though this was not an unlimited authority: the three
Western Allies retained ‘the rights and responsibilities, heretofore exercised or held by
them, relating to Berlin and to Germany as a whole, including the reunification of Germany
and a peace settlement’.53 Soviet recognition of the FRG on 13 September 195554
retrospectively validated what was otherwise a series of ultra vires acts, for no Ally or
group of Allies, save the four as a whole, had had the competence to relinquish
quadripartite authority.55
The Soviet Union, in response to developments in the Western Zones, on 7 October 1949
declared the establishment of a German Democratic Republic (GDR). A treaty of 20
September 1955 indicated that the GDR held general freedom of action in respect of
‘domestic and foreign policy’, reserving for the USSR the ‘obligations of the Soviet Union
and of the GDR under existing international agreements relating to Germany as a whole’.56
The Western Allies resisted these developments. The principal arguments which they set
out against the statehood of the GDR were: (1) that the absence of general recognition of
the GDR was a fundamental infirmity (even though this was a position already largely
untenable by the 1950s); (2) that the lack of democratic institutions prevented the GDR
from attaining independence; (3) that the GDR was subordinate to the USSR; and (4) that
the putative independence of the GDR was in breach of the self-determination of ‘Germany
as a whole’.57 Whatever the legal characterization of the process by which the GDR became
consolidated as a state, its statehood eventually received general recognition. This was
through a series of transactions, in particular a Non-Aggression Treaty between the FRG
and the USSR of 12 August 1970, in which the frontier between the two German states was
affirmed;58 and a Treaty on the Basis of Intra-German Relations between the FRG and GDR
of 21 December 1972 in which each acknowledged that neither ‘can represent the other in
the international sphere or act on its behalf’.59 The Four Powers declared their acceptance
of separate (p. 128) UN membership on 9 November 1972,60 and the two German states
were admitted unopposed the next year.61
It is clear enough that the Four Powers, in 1990, relinquished their remaining joint powers
in respect of ‘Germany as a whole’,62 including, concretely, what remained of their
territorial rights in Berlin, the eastern sector of which the Western Powers had never
accepted as integral to the GDR.63 But, by the same provision of the final settlement, ‘the
united Germany shall have accordingly full sovereignty over its internal and external
affairs’,64 which suggests a reversion of authorities and responsibilities, rather than their
disappearance. So, while the two Germanys after 1945 were in some sense successor
states,65 a strong element of continuity persisted to 1990, and was thereafter reaffirmed in
the form of the Federal Republic.
(B) Palestine
Since 1945, there has been a consolidation of the view that statehood is a question of law
rather than just fact. Peremptory norms have influenced this process, but it has nonetheless
been highly politicized in particular cases, the Israel–Palestine conflict presenting an acute
example.66
The agenda between the government of Israel and the PLO has, since 1993, included ‘the
permanent status negotiations’, which were (it was assumed) to lead to an independent
Palestinian state. Article I of the Oslo Accords of 1993 provided as follows:
The aim of the Israeli–Palestinian negotiations within the current Middle East peace
process is, among other things, to establish a Palestinian Interim Self-Government
Authority, the elected Council (the ‘Council’), for the Palestinian people in the West
Bank and the Gaza Strip, for a transitional period not exceeding five years, leading
to a permanent settlement based on Security Council Resolutions 242 and 338. It is
understood that the interim arrangements are an integral part of the whole peace
process and that the negotiations on the permanent status will lead to the
implementation of Security Council Resolutions 242 and 338.67
A decade later, the Israelis and the Palestinians still had not reached a final status peace
agreement. In 2003, the ‘Quartet’ coordinating the negotiations (the US, the EU, the
Russian Federation, and the UN) proposed a performance-based Roadmap (p. 129)
envisaging the emergence of a Palestinian state.68 Phase III of the Roadmap required that
the parties negotiate a final and comprehensive permanent status agreement based on
Security Council Resolutions 242, 338, and 1397 and entailing ‘two states, Israel and
sovereign, independent, democratic and viable Palestine, living side-by-side in peace and
security’. The Roadmap was endorsed by the Security Council in November 2003.69
However, the parties still failed to agree on final status. In November 2007, the Israeli–
Palestinian Joint Understanding declared the intent of the parties to ‘immediately launch
good-faith bilateral negotiations in order to conclude a peace treaty, resolving all
outstanding issues, including all core issues without exception, as specified in previous
agreements’, ‘[i]n furtherance of the goal of two states, Israel and Palestine, living side by
side in peace and security’.70 The parties also committed to implement their respective
obligations under the Roadmap.71 Peace talks stalled after Israel refused to extend a ten-
month freeze on settlement activity in the occupied Palestinian territory. That decision
prompted the Palestinian Authority to withdraw from direct talks with Israel, which had
only resumed a few weeks earlier after a two-year hiatus.
Though the parties had not reached a final status agreement, Palestine applied for
admission to membership in the UN on 23 September 2011.72 The Security Council
Committee on the Admission of New Members was unable to recommend action to the
Security Council and instead adopted a report noting deep divisions within the Council.73
Palestine had previously been accepted into membership in the Non-Aligned Movement, the
Organization of Islamic Cooperation, the Economic and Social Commission for Western
Asia, the Group of 77, and UNESCO.74 As at 1 July 2018, some 137 states have recognized
Palestine as a state. In 2012, the General Assembly accorded Palestine ‘non-member
observer State status’,75 but a real solution to the Palestine problem seems as distant as
ever.76
(C) Kosovo
Another unresolved case is that of Kosovo. States submitting observations in the Kosovo
advisory proceedings addressed, inter alia, the right to self-determination (outside the
colonial context), and some posited that a state might be created under a right (p. 130) to
‘remedial secession’.77 However, the Court found that it was ‘not necessary to resolve these
questions in the present case’, as the General Assembly had requested the Court’s opinion
on a narrower question—that is, whether the declaration of independence was in
accordance with international law. The Court concluded that ‘general international law
contains no applicable prohibition of declarations of independence’. Accordingly, the
‘declaration of independence of 17 February 2008 did not violate general international
law’.78 The Court found that Security Council Resolution 1244 (1999) did not address the
authors of the declaration of 17 February 2008 and so did not constrain them from issuing a
declaration of independence either. The authors of the declaration were not acting as one of
the Provisional Institutions of Self-Government within the Constitutional Framework, but
rather were representatives of the people of Kosovo acting outside the framework of the
interim administration.79 Nor did the resolution reserve the final determination of the
status of Kosovo to the Security Council.80 The Court chose not to address the
consequences of such a declaration of independence—whether a new state had been
created or whether other states would be obliged to recognize (or to refrain from
recognizing) it. As at 1 July 2018, some 116 states had recognized Kosovo.81
4. Achieving Independence: Secession and Self-Determination

If independence is the decisive criterion of statehood,82 self-determination is a principle
concerned with the right to be a state.83 A key initial development was the reference to ‘the
principle of equal rights and self-determination of peoples’ in Articles 1(2) and 55 of the UN
Charter.84 Many saw these references as merely hortatory, but the practice of UN organs
powerfully reinforced the principle—in particular the Declaration on the Granting of
Independence to Colonial Countries and Peoples, adopted by (p. 131) the General Assembly
in 1960 and referred to in a long series of resolutions since.85 The Declaration treats the
principle of self-determination as one of the obligations stemming from the Charter: it is in
the form of an authoritative interpretation.86 The right to self-determination of ‘all peoples’
was subsequently included as Common Article 1 of the two human rights covenants of
1966.87
Means of achieving self-determination include the formation of a new state through
secession, association in a federal state, or autonomy or assimilation in a unitary (non-
federal) state.88 It is generally accepted that peoples subjected to colonial rule have a right
to elect independence under international law, but the question of secession, and self-
determination more generally, has been highly controversial outside the colonial context.89
In practice, a marked distinction has developed between full (‘external’) self-determination
and qualified (‘internal’) self-determination. This was perhaps definitively formulated by the
Canadian Supreme Court:
We have also considered whether a positive legal entitlement to secession exists

under international law in the factual circumstances contemplated by Question 1,
i.e., a clear democratic expression of support on a clear question for Quebec
secession. Some of those who supported an affirmative answer to this question did
so on the basis of the recognized right to self-determination that belongs to all
‘peoples’. Although much of the Quebec population certainly shares many of the
characteristics of a people, it is not necessary to decide the ‘people’ issue because
… a right to secession only arises under the principle of self-determination of
peoples at international law where ‘a people’ is governed as part of a colonial
empire; where ‘a people’ is subject to alien subjugation, domination or exploitation;
and possibly where ‘a people’ is denied any meaningful exercise of its right to self-
determination within the state of which it forms a part. In other circumstances,
peoples are expected to achieve self-determination within the framework of their
existing state. A state whose government represents the whole of the people or
peoples resident within its territory, on a basis of equality and without
discrimination, and respects the principle of self-determination in its internal
arrangements, is entitled to maintain its territorial integrity under international law
and to have that territorial integrity recognized by other states.90
(p. 132) Questions of internal self-determination and remedial secession are left open here
and remain controversial. The International Court did not address submissions on remedial
secession in the Kosovo opinion.91 In 2014, the Autonomous Republic of Crimea and the
City of Sevastopol declared independence, mentioning Kosovo in support of their contention
that this was lawful and would result, subject to a favourable referendum outcome, in the
creation of an independent state (which would subsequently propose itself to form ‘a new
constituent entity of the Russian Federation’).92 The process has not been recognized, any
more than the attempted secession of Catalonia.93 A possible case of remedial secession is
South Sudan, although (like Eritrea) it could also be analysed on a more traditional basis as
a case of separation by agreement after intractable conflict.94
5. Identity and Continuity of States

The term ‘continuity’ of states is not employed with any precision, and may be used to
preface a diversity of legal problems.95 Thus, it may introduce the proposition that the legal
rights and responsibility of states are not affected by changes in the head of state or the
internal form of government.96 This proposition can, of course, be maintained without
reference to ‘continuity’ or ‘succession’, and it is in any case too general, since political
changes may result in a change of circumstances sufficient to affect particular types of
treaty relation. More significantly, legal doctrine tends to distinguish between continuity
(and identity) and state succession. The latter arises when one international personality
takes the place of another, for example by union or lawful annexation. In general, it is
assumed that cases of ‘state succession’ are likely to involve important changes in the legal
status and rights of the entities concerned, whereas if there is (p. 133) continuity the legal
personality and the particular rights and duties of the state remain unaltered. The
distinction is examined in more detail in chapter 19.
6. Conclusion
After rapid expansion in the number of states in the period 1948–60, and again in the
1990s, and despite several subsequent attempts at secession, the total number of states has
not increased much in the past 20 years. The international system remains opposed to
secession and the few putative states which have been widely recognized after unilateral
declarations of independence—Kosovo, South Sudan—still struggle. The main example of
what might be termed ‘remedial recognition’ is Palestine, currently recognized by a two-
thirds majority of UN members (137); the two-state solution to the Palestine dispute is as
remote from achievement as ever. With that exception, it appears that the future of peoples,
even insular and discrete minorities, lies within their state of origin.
Footnotes:
1 Generally: 1 Whiteman 221–33, 283–476; Guggenheim, 80 Hague Recueil 1; Higgins,
Development (1963) 11–57; Fawcett, British Commonwealth in International Law (1963)
88–143; Marek, Identity and Continuity of States in Public International Law (2nd edn,
1968); Verzijl, 2 International Law in Historical Perspective (1969) 62–294, 339–500;
Rousseau, 2 Droit International Public (1974) 13–93; Arangio-Ruiz, L’État dans le sens du
droit des gens et la notion du droit international (1975); Lauterpacht, 3 International Law
(1977) 5–25; Grant, Recognition of States (1999); Crawford, Creation of States (2nd edn,
2006); Caspersen & Stansfield, Unrecognized States in the International System (2011);
Vidmar, Democratic Statehood in International Law (2013) 39–138, 202–41; Dugard (2013)
357 Hague Recueil 9, 45–69; Coleman, Resolving Claims to Self-Determination (2013) ch 2;
Vidmar (2015) 4 CJICL 547. On UN membership: Grant, Admission to the United Nations
(2009); Duxbury, Participation of States in International Organisations (2011); Charlesworth
(2014) 371 Hague Recueil 43, 79–81.
2
Oppenheim, 1 International Law (1st edn, 1905) 99–101; cf 1 Oppenheim 120–3.
3
Convention on Rights and Duties of States adopted by the Seventh International
Conference of American States, 26 December 1933, 165 LNTS 19.
4
E.g. Fitzmaurice (1957) 92 Hague Recueil 1, 13; Higgins (1963) 13; Fawcett (1963) 92.
5
Grant (1999) 37 Col JTL 403.
6 Deutsche Continental Gas-Gesellschaft v Polish State (1929) 5 ILR 11; North Sea
Continental Shelf (Federal Republic of Germany/Netherlands; Federal Republic of Germany/
Denmark), ICJ Reports 1969 p 3, 32; In re Duchy of Sealand (1978) 80 ILR 683. Further:
Badinter Commission, Opinion No 1 (1991) 92 ILR 162; Opinion No 10 (1992) 92 ILR 206.
7
On Albania: Ydit, Internationalized Territories (1961) 29–33; Crawford (2nd edn, 2006)
510–12.
8
See Jessup, US representative in the Security Council, 2 December 1948, quoted in 1
Whiteman 230; also SC Res 69 (1949), GA Res 273(III), 11 May 1949.
9
On the European micro-states generally: Duursma, Fragmentation and the International
Relations of Microstates (1996). On micro-states as UN Members: Crawford (2nd edn,
2006) 182–5. On Andorra before the reforms of 1993: Crawford (1977) 55 RDISDP 259; on
the reforms: Duursma (1996) 316–73.
10
Guggenheim (1952) 80 Hague Recueil 1, 83; Higgins (1963) 20–5.
11
Temperley, 5 History of the Peace Conference at Paris (1921) 158. Cf Chen, The
International Law of Recognition (1951) 201. Further: Crawford (2nd edn, 2006) 530–1.
12
Higgins (1963) 22.
13
2 Rousseau (1974) 68–73. Cf Marek (1968) 161–90.
14
Guggenheim (1952) 80 Hague Recueil 183, 96.
15
(1920) LNOJ Sp Supp No 3, 3.
16
On independence as a criterion for statehood: Crawford (2nd edn, 2006) 62–88.
17
The occupation was not a belligerent occupation, nor was there a debellatio leading to
extinction of Germany as a state: Protocol on Zones of Occupation in Germany, 12
September 1944, 227 UNTS 279; further: Jennings (1946) 23 BY 112; Sharp, The Wartime
Alliance and the Zonal Division of Germany (1975); Hendry & Wood, The Legal Status of
Berlin (1987); Piotrowicz & Blay, The Unification of Germany in International and Domestic
Law (1997).
18
Hall, International Law (8th edn, 1924) 18, 20, 33; 1 Oppenheim 125–6 (‘sovereignty’
used as a synonym for ‘independence’).
19
On the Gulf states before British withdrawal in 1971: Al Baharna, The Legal Status of
the Arabian Gulf States (2nd rev edn, 1975); Al Baharna, British Extra-Territorial
Jurisdiction in the Gulf 1913–1971 (1998).
20
This may occur without subordination. Since 1919, by agreement the Swiss Federal
Council is authorized to conduct the diplomatic relations of Liechtenstein where
Liechtenstein does not do so itself: Duursma (1996) 161–9. Also: Busek & Hummer (eds),
Der Kleinstaat als Akteur in den Internationalen Beziehungen (2004).
21
Customs Régime between Germany and Austria (1931) PCIJ Ser A/B No 41, 37.
22
Protocol No 1, 4 October 1922, 116 BFSP 851.
23
Nationality Decrees in Tunis and Morocco (1923) PCIJ Ser B No 4, 7.
24
Rights of Nationals of the United States of America in Morocco (France v US), ICJ
Reports 1952 p 176, 188. Also: Guggenheim (1952) 80 Hague Recueil 1, 96. Cf the separate
but dependent personality of India 1919–47; on which see McNair, The Law of Treaties
(1938) 76; Poulose (1970) 44 BY 201; Right of Passage over Indian Territory (Portugal v
India), ICJ Reports 1960 p 6, 95 (Judge Moreno Quintana, diss). Cf also the position of
Monaco in relation to France: Duursma (1996) 274–91; Guidi, ‘Monaco’ (2007) MPEPIL;
Grinda, The Principality of Monaco (2nd edn, 2010) ch 3. On the status of Hungary after
German occupation in 1944: Restitution of Households Effects Belonging to Jews Deported
from Hungary (Germany) (1965) 44 ILR 301, 334–42. On the status of Croatia in Yugoslavia
during the German occupation: Socony Vacuum Oil Co (1954) 21 ILR 55, 58–62. On
Morocco as a French protectorate: Treaty for the Organisation of the Protectorate, 30
March 1912, 106 BFSP 1032.
25
The colonial analogy has been made in different ways, e.g. in Helman & Ratner (1992)
89 Foreign Policy 3; Lyon (1993) 31 JCCP 96; Gordon (1995) 28 Cornell ILJ 301; Richardson
(1996) 10 Temple ICLJ 1; Perritt (2004) 15 Duke JCIL 1. Cf Wilde, International Territorial
Administration (2008) ch 8. For more on international administrations: chapter 4.
26
Pahuja, Decolonising International Law (2011) 46–7.
27
Brooks (2005) 72 U Chic LR 1159, 1168.
28
Helman & Ratner (1992) 89 Foreign Policy 3, 13.
29
Pfaff (1995) 74 Foreign Affairs 2, 2, 6. Also: Kreijen, State Failure, Sovereignty and
Effectiveness (2004); Silva, State Legitimacy and Failure in International Law (2014) ch 6;
Crawford, Creation of States (2nd edn, 2006) 719–23.
30
Further: Pogge in Crawford & Koskenniemi (eds), Cambridge Companion to
International Law (2012) 375; Szpak (2014) 13 Chin JIL 251.
31
Ehrenreich & Brooks (2005) 72 U Chic LR 1159, 1187.
32
Treaty on the Functioning of the European Union (TFEU), 13 December 2007 [2016] OJ
C 202/47. Generally: Gerven, The European Union (2005); Hix & Høyland (eds), The
Political System of the European Union (3rd edn, 2011); Cardwell (ed), EU External
Relations: Law and Policy in the Post-Lisbon Era (2012).
33
Chen (1951) 59–60; Kelsen, Principles of International Law (2nd edn, 1966) 381–3;
Waldock, ILC Ybk 1972/II, 34–5; 1 Restatement 3rd §§201–2.
34
British Somaliland became independent on 26 June 1960 but united with Somalia to
form the Somali Republic on 1 July 1960. It retains aspirations for independence but is so
far not recognized as a separate state: UKMIL (2010) 81 BY 453, 503–5; (2011) 82 BY 676,
736; (2012) 83 BY 298, 350, 360–1. Also: Secretary of State for the Home Department v
Mohamed (formerly CC) [2014] EWCA Civ 559. Further on Somaliland: Maogoto in French
(ed), Statehood and Self-Determination (2013) 208.
35
Chen (1951) 61.
36
Hyde, 1 International Law (1922) 23; Chen (1951) 127–9. Also: 1 Whiteman 223.
37
Gong, The Standard of ‘Civilization’ in International Society (1984); Bull & Watson, The
Expansion of International Society (1985); Fidler (2001) 2 Chicago JIL 137. And see chapter
1.
38
Generally: Chayes & Chayes, The New Sovereignty (1995); Krasner, Sovereignty,
Organized Hypocrisy (1999); MacCormick, Questioning Sovereignty (1999); Kalmo &
Skinner (eds), Sovereignty in Fragments (2010); Sur (2013) 360 Hague Recueil 9, 88–105;
Crawford, Chance, Order, Change (2014) 70–89; Orakhelashvili in Baetens & Chinkin (eds),
Sovereignty, Statehood and State Responsibility (2015) 172.
39
Cf Badinter Commission, Opinion No 1 (1991) 92 ILR 162: ‘The Committee considers …
that such a state is characterized by sovereignty.’ But cf 1 Oppenheim (1st edn, 1905) 108.
40
Rousseau (1948) 73 Hague Recueil 1, 178–80. Cf Duff Development Co v Government of
Kelantan (1924) 2 ILR 124, 127 (Viscount Finlay); Judges Adatci, Kellogg, Rolin-
Jaequemyns, Hurst, Schücking, van Eysinga and Wang (diss), Austro-German Customs
Union (1931) PCIJ Ser A/B No 41, 37, 77. Further: Fawcett (1963) 88–93; Lighthouses in
Crete and Samos (1937) PCIJ Ser A/B No 71, 94.
41
ICJ Reports 1952 p 176, 185, 188. Also: Rolin (1950) 77 Hague Recueil 305, 326.
42
Crawford (2nd edn, 2006) 236–41. But disputes between Danzig and Poland were
referred to the PCIJ by means of its advisory jurisdiction in view of Art 34 of the Statute of
the Court, which gives locus standi in contentious cases only to states. On Danzig: chapter
4.
43
Cf the cases of Albania in 1913; Poland and Czechoslovakia in 1917–18; Estonia, Latvia,
and Lithuania, 1918–20. See 1 Hackworth 199–222. Also the case of Indonesia, 1946–9: 2
Whiteman 165–7. Cf the observations of Lord Finlay, German Interests in Polish Upper
Silesia (1926) PCIJ Ser A No 7, 4, 84.
44
For the asserted continuity of the Palestine Mandate and Israel, see AG (Israel) v
Eichmann (1961) 36 ILR 5, 52–3; (1962) 36 ILR 277, 304. See further ALB v Austrian
Federal Ministry for the Interior (1922) 1 ILR 20; Poznanski v Lentz and Hirschfeld (1924) 2
ILR 228; Establishment of Czechoslovak State (1925) 3 ILR 13; HE v Federal Ministry of the
Interior (1925) 4 ILR 25; Deutsche Continental Gas-Gesellschaft v Poland (1929) 5 ILR 11.
45
Oslo Accords (1993) 32 ILM 1542. Cassese, Self-Determination of Peoples (1995) 230–
48; Shehadeh, From Occupation to Interim Accords (1997); McDowall, The Palestinians
(1998); Crawford (2nd edn, 2006) 434–48. Further: Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004 p 136.
46
E.g. the ICC: Shaw (2011) 9 JICJ 301.
47
Hendry & Wood (1987); Frowein (1992) 86 AJIL 152; Piotrowicz (1992) 63 BY 367;
Crawford (2nd edn, 2006) 452–66.
48
Berlin Declaration, 5 June 1945, 145 BFSP 796.
49
Statement on Control Machinery in Germany, 5 June 1945, 145 BFSP 803.
50
See Brehm v Acheson, 90 F Supp 662 (SD Tex, 1950); Recidivism (Soviet Zone of
Germany) (1954) 21 ILR 42.
51
1952 Tripartite Convention, 331 UNTS 327, Art 2; 1955 Convention (USSR–GDR), 226
UNTS 201, Art 1; 1972 Treaty on the Basis of Intra-German Relations, 21 December 1972,
12 ILM 16, Art 9.
52
[1964] BPIL 276.
53
331 UNTS 327, Art 2.
54
Letter from Prime Minister Bulganin to FRG delegation, 13 September 1955: 162 BFSP
623.
55
Mann, Studies in International Law (1972) 671.
56
226 UNTS 201. Also USSR–GDR Treaty of Friendship, Mutual Assistance and Co-
operation, 12 June 1964, 553 UNTS 249, Arts 7, 9.
57
Crawford (2nd edn, 2006) 456–7.
58
1972 UNTS 315, 9 ILM 1026, Art 3.
59
12 ILM 16, Art 4.
60
12 ILM 217.
61
SC Res 344 (1973); GA Res 3050(XXVIII), 18 September 1973.
62
Treaty on the Final Settlement with Respect to Germany, 12 September 1990, 1696
UNTS 123, Art 7(1).
63
Three Powers note of 14 April 1975: A/10078. Further: (1977) 81 RGDIP 494, 613–14,
772–4. About Berlin generally: Hendry & Wood (1987).
64
Treaty on the Final Settlement, Art 7(2).
65
Ress, Die Rechtslage Deutschlands (1978) 199–228.
66
And one giving rise to unusually sharp exchanges: Crawford (1990) 1 EJIL 307; Boyle
(1990) 1 EJIL 301; Benoliel & Perry (2010) 32 Mich JIL 73; Quigley (2011) 32 Mich JIL 749.
67
Declaration of Principles on Interim Self-Government Arrangements, 13 September
1993, 32 ILM 1527, and see Benvenisti (1993) 4 EJIL 542; Cassese, ibid, 564; Malanczuk
(1996) 7 EJIL 485; Watson, The Oslo Accords (2000); Benvenisti, The International Law of
Occupation (2nd edn, 2012) 209–12; Burgis-Kasthala (2014) 25 EJIL 677, 682–5.
68
Performance-based Roadmap to a Permanent Two-State Solution to the Israeli–
Palestinian Conflict, S/2003/529, 7 May 2003.
69
SC Res 1515 (2003), op para 1.
70
Joint Understanding Read by President Bush at Annapolis Conference, 27 November
2007, released by the White House, Office of the Press Secretary.
71
Ibid.
72
Application of Palestine for Admission to Membership in the UN, A/66/371, 23
September 2011.
73
Report of the Committee on the Admission of New Members concerning the application
of Palestine for admission to membership in the UN, S/2011/705, 11 November 2011, para
21.
74
The latter occurred on 31 October 2011: ‘General Conference admits Palestine as
UNESCO Member State’, Doc UNESCO_Pal-MemberState, UNESCO Press Release.
75
See GA Res 67/19, 29 November 2012, op para 2. Further: UKMIL (2011) 82 BY 676,
714; Vidmar (2013) 12 Chin JIL 19; Megiddo & Nevo in French (2013) 187; Eden (2013) 62
ICLQ 225; Ronen in Baetens & Chinkin (2015) 229.
76
Cf SC Res 2334, 23 December 2016. For the controversy over the status of Jerusalem,
see GA Res 72/240, 20 December 2017.
77
Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo, ICJ Reports 2010 p 403, 438.
78
Ibid, 438–9. Also: Vidmar in French (2013) 60.
79
Kosovo, ICJ Reports 2010 p 403, 447–9, 451–2.
80
Ibid, 449.
81
Further on Kosovo: Almqvist in French (2013) 165; Walter in Walter, von Ungern-
Sternberg, & Abushov (eds), Self-Determination and Secession in International Law (2014)
13; Summers, ibid, 235; Chinkin in Baetens & Chinkin (2015) 155, 161–6; Milanović and
Wood (eds), The Law and Politics of the Kosovo Advisory Opinion (2015). Also: Metz, The
Way to Statehood (2014) ch 3.
82
Cristescu, Right to Self-Determination (1981); Higgins, Problems and Process (1994)
111–28; Cassese (1995); Franck, Fairness in International Law and Institutions (1995) 140–
69; Quane (1998) 47 ICLQ 537; McCorquodale (ed), Self-Determination in International Law
(2000); Crawford (2nd edn, 2006) 108–28; Del Mar in French (2013) 79; Bolton, ibid, 109;
Summers, ibid, 229; Coleman (2013) chs 1, 3; Dugard (2013) 357 Hague Recueil 9; Vidmar
(2013) 139–201, 242–52; Sterio, Right to Self-Determination Under International Law
(2013); Walter, von Ungern-Sternberg, & Abushov (2014); Tesón (ed), Theory of Self-
Determination (2016).
83
Crawford (2nd edn, 2006) 107.
84
Also Chapters XI (Declaration Regarding Non-Self-Governing Territories) and XII
(International Trusteeship System).
85
GA Res 1514(XV), 14 December 1960.
86
Waldock (1962) 106 Hague Recueil 33; Right of Passage, ICJ Reports 1960 p 6, 95–6
(Judge Moreno Quintana, diss).
87
International Covenant on Economic, Social and Cultural Rights (ICESCR) and
International Covenant on Civil and Political Rights (ICCPR), GA Res 2200A(XXI), 16
December 1966; respectively 993 UNTS 3 and 999 UNTS 171.
88
GA Res 1541(XV), 15 December 1960; GA Res 2625(XXV), 24 October 1970.
89
See chapter 29.
90
Reference re Secession of Quebec (1998) 115 ILR 536, 594–5. Also: Crawford (1998) 69
BY 115; Bayefsky (ed), Self-Determination in International Law: Quebec and Lessons
Learned (2000). Cf Scotland’s 2014 independence referendum (held with the UK’s consent
and thus a purely internal affair with the potential for independence through a negotiated
settlement rather than by secession): Agreement Between the United Kingdom Government
and the Scottish Government on a Referendum on Independence for Scotland, 15 October
2012; Scotland Act 1998 (Modification of Schedule 5) Order 2013 (UK). Also: Tierney
(2013) 9 ECLR 359, 360–3, 371–6; Levites (2015) 41 Brooklyn JIL 373, 392–9; Boyle &
Crawford, Devolution and the Implications of Scottish Independence (Cm 8554, 2013) 64,
67, 72.
91
Kosovo, ICJ Reports 2010 p 403, 438. But see Pellet in Milanović & Wood (2015) 268.
92
Declaration of Independence of the Autonomous Republic of Crimea and the City of
Sevastopol, 11 March 2014. Also: ‘Address by President of the Russian Federation’, 18
March 2014. Further on the secession and annexation of Crimea: Shany (2014) 21 Brown
JWA 233; Christakis (2015) 75 ZaöRV 75; van den Driest (2015) 62 NILR 329; Vidmar
(2015) 16 GLJ 365; Hilpold (2015) 14 Chin JIL 237, 262–7; Geiß (2015) 91 ILS 425; Lavonoy
(2015) 4 CJICL 388, 399–403; Grant (2015) 109 AJIL 68.
93
For the Spanish Constitutional Tribunal decision declaring the unconstitutionality of the
independence referendum, see Judgment No 114/2017, Prime Minister v Parliament of
Catalonia, 17 October 2017, noted (2018) 112 AJIL 80. See also Statement on the Lack of
Foundation in International Law of the Independence Referendum in Catalonia (2018) 70
REDI 295.
94
On Eritrea, see Crawford (2nd edn, 2006) 402–3. On South Sudan: Comprehensive Peace
Agreement, 9 January 2005; Coghlan, Collapse of a Country (2017); cf Government of
Sudan v Sudan People’s Liberation Movement/Army (Abyei arbitration) (2009) 144 ILR 348.
95
In particular: Kunz (1955) 49 AJIL 68; Kelsen (1966) 383–7; Marek (1968); O’Connell, 1–
2 State Succession in Municipal Law and International Law (1967); Eisemann &
Koskenniemi (eds), State Succession (2000); Crawford (2nd edn, 2006) 667–99;
Zimmermann, ‘Continuity of States’ (2006) MPEPIL; Craven, The Decolonization of
International Law (2007); Dumberry (2012) 59 NILR 235, 242–9, 251–4; Ziemele in Baetens
& Chinkin (2015) 273.
96
McNair, 1, 3 Opinions; 1 Hackworth 387–92; Tinoco Concessions (1923) 2 ILR 34;
Crawford (2nd edn, 2006) 678–80; International Law Association, Aspects of the Law of
State Succession (2008) 73 ILA Rep 73rd Conf 250; Avedian (2012) 23 EJIL 797, 799–800;
Dumberry (2014) 14 Int Crim LR 261, 269–72.

Statehood 1

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Statehood 1

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Part II Personality and recognition, 5 Creation and

From: Brownlie's Principles of Public International Law (9th Edition)

Previous Edition (8 ed.)

Content type: Book content

2. The Criteria for Statehood

(B) Defined territory

(E) A Degree of permanence

(p. 124) (F) Willingness to observe international law

(H) Function as a state

3. Some Issues of Statehood

(A) Germany since 1945

4. Achieving Independence: Secession and Self-Determination

We have also considered whether a positive legal entitlement to secession exists

5. Identity and Continuity of States

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