State as a Subject of

International Law

Alif Nurfakhri Muhammad, Depok 2021

Title and Content Layout with List
• Historical Development of States
• Creation of Statehood under International Law
• Characteristics of a State
Doctrinal & Historical
Development
 Doctrinal View of Statehood
• Vitoria – “A perfect State, is one which is complete in
itself, that is, which is not a part of another
community, but has its own laws and its own council
and its own magistrates” (De Indis ac de Iure Belli;
Relectiones Theologicae, 1557)
• Grotius – “A complete association of free men, joined
together for the enjoyment of rights and for their
common interest” (De iure belli ac pacis, 1646)
• Pufendorf – “A compound moral person, whose will,
intertwined and united by the pacts of a number of
men, is considered the will of all, so that it is able to
make use of the strength and faculties of the
individual members for the common peace and
security” (De Iure Naturae et Gentium Libri
Octo,1672)
Historical Development
• Pre – Westphalian Nations (Before 1648)
– The existence of “Politie” – Human community which extends beyond family, which is
rooted in natural human living conditions, such as tribes, cities, regions, nations, or
religious communities (Hintze, 1931)
– Medieval Age – The prevalence of feudalism based on a political, military, or economic
structure
– Political: Formation of States, through political powers given by a divine authority, and to use
this power to form a political structure (e.g. The HRE, Islamic Caliphates)
– Military: Allegiance of the privileged (nobility) to a certain ruler, forming a State (e.g.
Medieval England, or even a mercenary States / condottieri system, such as Urbino, Parma,
Lucca)
– Economic: agricultural or commercial community (e.g. Venice or Genoa)
Historical Development
• Early Modern States (1648 – 1815)
– Marked by the Ratification of the two treaties forming Peace of Westphalia
– Kickstarted “absolutism” in some States in the form of an Absolute ruler as Sovereign.
The independent estates are slowly amalgamated into single States (France, Germany,
Spain)
– Birth of the idea of Sovereign States (e.g. Treaty of Münster established the Sovereignty
of the Dutch Republic with the Lord States General as its sovereign (Council of
Stadhouder)), or Sovereign States formed by merging two different States which crown
falls to one person (Polish-Lithuanian Commonwealth, Aragon – Castille formed Spain,
England – Scotland – Ireland formed the UK)
Historical Development
• Early Modern States (1648 – 1815)
– The idea of clearly defined borders (by using natural features), to define the extent of a
Sovereign’s Sovereignty. (Treaty of the Pyrénées 1659, established the Pyrenees as the
natural borders between France and Spain)
– Early rendition of Colonial States (Thirteen Colonies, New Granada, Venezuela, Rio de la
Plata, Peru, or Paraguay)
Historical Development
• Modern States I ( 1815 – 1944)
– Marking the end of absolutism, and birth of constitutionalism
– Homogenous Nation-States (The French, Dutch, Germans)
– Rising role of society (privileged bourgeoise, and the working-class)
– Recognition of Fundamental Rights through legal instruments
– Changing of the form of States (Monarchy to Republic or vice versa)
– Outside of Europe: Colonies became either independent (U.S., Spanish colonies in the
Americas), or became parts of an Imperium (British Empire, Dutch Empire, French
Empire)
– Montevideo Convention on the Rights and Duties of States of 1933
Historical Development
• Modern States II (1945 – Present Day)
– Decolonization and of Imperia
– Heterogenous Nation – State
– Diversification of Political Systems
– Supranationalism vs National Sovereignty
Creation of Statehood
Under International Law
Creation of Statehood
• The Montevideo Convention of 1933, Stipulates qualifications to define State
as a person in international law (Art. 1):
– A permanent population
– A defined territory
– A government
– Capacity to enter into relations with other States
Factual Criteria of a State I:
Permanent Population
• No determinant numbers needed
• Nor the composition of culture, race or religion (in general)
• How the population multiplies? (Holy See as a State?)
• Nomadic Population – Western Sahara Case (Population traversing fixed
territory can constitute a permanent population)
• Population inhabiting artificial islands? (Rimini Island Case, Duchy of
Sealand)
Factual Criteria of a State I:
Defined Territory
• Territory defined by boundaries, natural or artificial
• Boundaries does not have to be fixed, as long as it has a core territory
• There is an efficient control of such territory by a government
• Territory comprises of: Land, Sea, and Air territories
• Las Palmas Case: earning a territory through effective governance/show of
sovereignty/effective occupation theory
• How States got its territory: Next week’s class!
Factual Criteria of a State I:
Government
• Form of government is not fixed, so long as it can upheld the rule of law, and
keep the order of affairs in a territory, international law is satisfied (Klabbers)
• Government that is effective, meaning that is has a government that can
answer to the problem of the population (Judge Huber, Las Palmas Case)
– Palestine Organization is a government, but does not have effective control over the
population in its territory
– But when Croatia and Bosnia & Herzegovina was admitted as a member of the UN, the
government has no control over much of its territory
Factual Criteria of a State I:
Government
• Government with a Coherent Political Structure
– Executive, Legislative and Judicial branch of governance
– Government as the one who act upon the sovereign decisions of a State

• Government in exile?
Legal Criteria:
Capacity to enter into relations with other States
• Capacity to enter into foreign relations is a pivotal part for a Sovereign State
since it proves that a State is independent, creating a competence as a subject
of international law
• Capacity is proven by gaining recognition of the establishment of a State.
Recognition of a State births its international legal personality, but recognition
itself is not an act of law, it is a political act.
Historical Background of Recognition
• Originally, recognition was not needed, as Pre-Westphalian State views
sovereignty, as a supreme power localized into a certain territory, is sufficient
in establishing States
• Pufendorf – Just as Kings owes his sovereignty and majesty to no one, he
need not obtain the consent and approval of other Kings and States, before he
may carry himself as a King
• However, starting in the 18th Century, new States emerged as a result of
revolutions or treaties (e.g. The US, France, Greece, The Netherlands), and
the positivist publicists of the argued that in recognition is necessary for States
to join international community, and to be bound by international law (treaty
relations)
Historical Background of Recognition
• Oppenheim, 1920 – “International Law does not say that a State is not in
existence as long as it is recognized, but it takes no notice of it before its
recognition. Through recognition only and exclusively a State becomes an
International Person and a subject of International Law.”
• States can de facto exist but to achieve de jure existence under international
law, it needs to be recognized
Nature of Recognition
• No requirements on how a State ought to be recognized
• But the act of recognition itself can be rendered invalid (Lauterpacht)
– Recognition of Italy and Germany to the Franco Government in Spain, was rendered
illegal ab initio (from the beginning), since it was a revolutionary regime, not an elected
one.

• Constitutional Theory v Declaratory Theory

• Recognition of a State v Recognition of a Government
Recognition in Modern Times:
Development of Other Criteria of Statehood
• Nowadays, States that are fully recognized as a State informally follows these
procedures
– Adherence to the UN Charter (Be a member of the UN), Rule of Law, Democracy. But
the admission of a State to the UN must be done in accordance of Article 4 of the Charter
“1. Membership in the United Nations is open to all other peace-loving states which accept
the obligations contained in the present Charter and, in the judgment of the Organization,
are able and willing to carry out these obligations.

2. The admission of any such state to membership in the United Nations will be effected by a
decision of the General Assembly upon the recommendation of the Security Council.”
Recognition in Modern Times:
Development of Other Criteria of Statehood
• Protection of Minority Groups (minor ethnicity, race, or culture in a State),
and Human Rights
• Mutual respect to the independence and sovereignty of all States. Moreover,
be Independent by its own rights (Be it through a formal independence, or
actual independence)
• Accepting certain international obligations, such as disarmament or nuclear
non-proliferation, and the peaceful settlement of disputes
• Has its own legal order
Characteristics of a
State
International Legal Personality
• The capacity to be bearer of rights and duties under international law
(Schwarzenberger)
• Capacity to enter into treaty relations, or contractual relations
• Capacity to bring international claims
Sovereignty
• Sovereignty is an attribute of State, not a precondition (See Montevideo
Convention 1933)
• But Sovereignty is a “Power Source” of a State to exercise its jurisdiction, or
a plenary competence a State have within its territory
– International Legal personality gives States power to conduct legal relationship with other
States, while Sovereignty gives States power over its own territory.
State Succession:
The Demise and (Re)birth of a State
• State is desired to own a degree of permanence in international legal order, but
it is not a permanent entity
• There are cases where States become “extinct”, such as when
– States merged with other States (Republic of Tanganyika & Republic of Zanzibar merged
to be Republic of Tanzania in 1964; Germany was formed after the merger of BD and
DDR)
– Dissolution (Yugoslavia broke into Slovenia, Croatia, Bosnia-Herzegovina, Serbia,
Montenegro, Northern Macedonia, and to some States, Kosovo; Soviet Union
disintegrate into Russia, Estonia, Latvia, Lithuania, Belarus, Ukraine, Georgia,
Aezerbaijan, Kazakhstan, Uzbekistan, Tajikistan, Turkmenistan, Kyrgyzstan)
State Succession:
The Demise and (Re)birth of a State
• In international law, when a State no longer exist, the new State does not
automatically assume the rights and obligations enjoyed by its preceding
State, even if they were situated in the same territory.
• However, the new State can declare itself as the Successive State of the old
State in its rights and obligations under treaties ratified.
Other Issues:
Self-Determination or Plebiscite
• The role of Population (under the Montevideo Convention) to determine
whether it decides to be an independent State
• There are ways for a population to decide it has become independent
– Unilateral Declaration, very dependent on recognition (Indonesia was legally recognized
in 1949, but Rhodesia was barred from being recognized by the UN General Assembly)
– Plebiscite/Referendum (Timor Leste held a plebiscite in 1999 and become an independent
State in 2002, while Netherlands New Guinea held plebiscite in 1962 and decided to join
Indonesia)
Further Reading
• Malcolm Shaw, International Law 8th Edition (2017), pp 156-165
• James Crawford, The Creation of States in International Law 2nd Edition
(2007)
• Jan Klabbers, International Law (2013), pp 69 – 76
• Hersch Lauterpacht, Recognition of States in International Law (1944)