Statehood

Ehtysham Tariq (UoP)

 Qualification for an entity to be a state

Article 1 of the Montevideo Convention on Rights and Duties of States,

1933 formulation of the criteria of statehood in international
law. It notes that the state as an international person should possess the
following qualifications:
‘(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter into relations with other states’.
• The Arbitration Commission of the European Conference on Yugoslavia in
Opinion No. 1 declared that ‘the state is commonly defined as
• a community which consists of a territory and
• a population
• subject to an organized political authority (Government)’ and that
• ‘such a state is characterized by sovereignty’.
 Population
• The existence of a permanent Population is naturally required;
• no specification of a minimum number of inhabitants,
• such as Nauru, Tuvalu & Vatican city demonstrate.
 Territory
• there is no necessity in international law for defined and settled boundaries.
• A state may be recognized even though it is involved in a dispute with its
neighbors as to the precise demarcation of its frontiers,
• Example of Israel ;
Israel has been accepted by the majority of nations as well as the United
Nations as a valid state despite the fact that its frontiers have not been finally
settled.

• it is possible for the territory of the state to be split into distinct parts,
• for example Pakistan prior to 1971 or present-day Azerbaijan.
 Government or Central Control
• to function reasonably & effectively state needs some form of government or
central control.
• However, this is not a precondition for recognition as an independent country.
• Both Croatia and Bosnia and Herzegovina were recognized as independent
states by European Community member states and admitted to membership of
the United Nations at a time when non-governmental forces controlled
substantial areas of the territories in question in civil war conditions.
• Kosovo declared independence in 2008 with certain Serb-inhabited areas
apparently not under the control of the central government.
• breakdown in order and the loss of control by the central authorities in an
independent state will not obviate statehood;
• the collapse of governance within a state has no necessary effect upon the status
of that state as a state Example of Taliban takeover on Afghanistan.
 Relationships with other states
• it is essential for a sovereign state to be able to create such legal relations with
other entities as it sees fit. Where this is not present, the entity cannot be an
independent state.
• The capacity to enter into relations with other states is an indication of the level
of importance by other countries attached to recognition
State & International control
It is possible, however, for a state to be accepted as independent even though,
exceptionally, certain functions of government are placed in the hands of an
outside body
• for example, In the case of Bosnia and Herzegovina the Dayton Peace
Agreement of 1995 provided for a High representatives
• Kosovo declared its independence on 17 February 2008, under the
Comprehensive Proposal for the Kosovo Status Settlement (the Ahtisaari Plan)
(This Plan called for ‘independence with international supervision’)
• South Sudan.
 The right of self-determination
Definition
• Definition framed within the framework of colonial territorial framework;

Self-
determination
The right to
The right of people secession of
of colonies to people of a
determine their particular culture
own political status from existing
state
Right of self-determination result and a role in :
independence,
Integration with a neighboring state,
free association with an independent state;
any other political status freely decided upon by the people
concerned;
• preserving the sovereignty and independence of states,
• resolution of disputes.
 The right of self-determination
I- Before WWII
• This principle of right of self-determination evolved primarily in Europe
• traces its origin to the concepts of nationality and democracy ;
• first appeared in major form after the First World War;
• Not included in the League of Nations Covenant ;
• not regarded as a legal principle.
• However, its influence found in the various international laws/rules
regarding minority protection;
• Before WWII, their was little practice regarding self-determination;
• A number of treaties concluded by the USSR in this period mentioned the
principle( right of self determination),

• In the Aaland Islands case it was clearly accepted by both the International
Commission of Jurists and the Committee of Rapporteurs that the principle
of self-determination was not a legal rule of international law, but purely a
political concept .

• So, Before WWII, principle of self-determination was not considered a

legal rule of international law, but purely a political concept
II- Post WWII Scenario
• The Second World War; a stimulus
• further consideration of the idea;
• The principle was included in the UN Charter. Article 1(2) noted as ‘one of
the organization's purposes is the development of friendly relations among
nations based upon respect for the principle of self-determination’,
• article 55 reiterated the phrase of self-determination.
• its inclusion in the Charter, particularly declaring it one of purposes of the
UN, provided the opportunity for the subsequent interpretation of the
principle and to its definition.
• Resolution 1514 (XV), the Declaration on the Granting of Independence
to Colonial Countries and Peoples, adopted in 1960:

‘all peoples have the right to self-determination; by virtue of that right they
freely determine their political status and freely pursue their economic, social
and cultural development.’

• Special Committee on Decolonization, dealing with self-determination.

• In 1966, the International Covenants on Human Rights (Adopted by
General Assembly):
‘………States (which are parties) to the instruments shall promote the right of
self-determination and shall respect that right in conformity with the provisions
of the Charter of the United Nations’.

• Numerous resolutions adopted by General Assembly and Security Council

about right of self determination…. ( resolution on Kashmir issue)
Decisions of ICJ based on the principle of self-determination;
i. Western Sahara case (Morocco Vs Mauritania), upheld principle of
self-determination.

ii. East Timor (Portugal v. Australia)

‘……. the right of peoples to self-determination, as it evolved from the Charter
and from United Nations practices, has an erga omnes character, is
irreproachable.’

The Court emphasised that the right of peoples to self-determination

was ‘one of the essential principles of contemporary international law’.
 AUR BUS!!!!!!!!

Bashokriya Collegiate