International Law – lecture 2, Thursday 22nd September

Statehood and Recognition

 Different from state responsibility which will be covered later on

 States are the primary actors in international law; make international law, bound by
international law and break international law.

Legal personality
An international legal person is capable of possessing international rights and duties and
it has capacity to maintain its rights by bringing international claims.

States are the principle subjects of international law.

International organisations, individuals and certain other actors can also possess
(limited) international legal personality.

Peace of Westfailia? Was the start of legal, governed and sovereign entities.

States that exist in precarious ways have shown changes in the faces of many states ie
break up of USSR and Yugoslavia.

Criteria for statehood

1933 Montevideo Convention on the Rights and Duties of States – Article 1

“The states as a person of international law should possess the following qualifications:

a) A permanent population
b) A defined territory
c) Government
d) Capacity to enter into international relations

25 member states in 1900’s, 75 round about 20th century, now UN has however many (need
to google)

Other criterion? ILC Articles on the Rights and Duties of States

Articles are considered customary international law – customary international law are
binding rules for all states

Montevideo are considered customary international law criteria for what qualifies a state as
a state.
When the IOC made drafts on articles for states they included independents, the rights to
sovereign equality drafted four years before IOC, jurisdiction and ?

Permanent Population

Means people permanently existing within that place. IE there is always a population in
Edinburgh but people may be from international places. Islands cannot be classed as
permanent populations ie Galapagos cannot be populated – uninhabitable.

There is no minimum population , although more than a minimum of 1, no maximum.

Nationality has become an issue due to free movement in EU, globalization. No longer
concered in permanent population. Ethnicity and nationality involved in how states are
formed.

UN Draft articles on Nationality of Natural Persons in Relation to Succession States (1999)

Article 1 – right to a nationality

Every individual who, on the date of the succession of states, had the nationality of the
predecessor

Defined territory

Vatican City is .4 square miles but it is considered a state. Massive states include USA, China,
India and Russia. No requirements on minimum or maximum.
Ability to control state may depend on size and control of borders.

North Sea Continental Shelf Case (Germany vs Netherlands/Denmark)

The appurtenance of a given area, considered as an entity, in no way governs the precise
delimination of its boundaries.

States do not have precise set boundaries all the time. Court put on record that boundaries
need not be physical.

Government
Increasingly tricky aspect of statehood – one government, government heavily reliant on
other government from another country, appointed by another government.

No specific response to this question?

When a state doesn’t have a government does it cease to exist? No because places like
Palestine still exist until other states deem it otherwise.

Independence is something that informs existence of government. Does the government

have effective control. When the government is not effective the term is called a “failed
state”. A failed state is one that may not be in control of its government due to internal or
external conflict. Somalia example as they were not able to control territory. Is getting
stronger. Syria can also be classed as a failed state for this reason.

This effectiveness is different to recognision of a particular government ie coup, guerrilla

take over of government. Government may change but does not necessarily mean it is any
less effective. International community may abhor it but it doesn’t change consideration of
whether a state is a state at the particular time and place of when this takes place.

Effectiveness only examined when a new state is coming into existence – threshold of
Montevideo

Capacity to enter into relations with other states

States can exercise capacity – trade relations, treaty relations. Depends on remaining
international community. If a state is willing to engage with another one then this is how
capacity takes place. If it does not would not have capacity and probably would not ne
considered a state under Montevideo convention.

Additional Criteria

Independence
- Aaland Island Case
- Island of Palmas arbitration
- Austro German Customs union case

Legitimacy
Soverignity
Permanence
Willingness to observe international law
A certain degree of civilization
Recognition
Legal Order

A new state can only come into existence if it does so independently without help or
existence of from another state.

Island of Palmas – soverneignty

Austro German – leading case, concept of pugative loss of state. Austria and Germany –
customs union, severe economy issues. Deemed a violation of Geneva, established Austria
as independent state. Was to see if a treaty would violate another treaty. Deemed to not be
a violation but if Germany took control Austria would lose their independence? Idea can be
transferred to some trade agreements –

Legitimacy – how did the state come into being? Did they separate – needed a referendum,
South Sudan, legitimate. Under pressure now.

Sovereignty – means control to the exclusion of others. Informs discussion of statehood

Permeanence – how long has it been there?

Willingness to observe international law – only will be recognised they have to abide by the
rules of international law.

A certain degree of civilisation – has negative connotations, civilisation is not something we

normally consider. Now tends to concern infrastructure. Has the state set up all the
necessities – tax, government, transport.

Recognition – most important of statehood to some. Political act to others.

Legal Order – one of the most important parts to a state. Does a state have to be a
democracy. May not be the same thing that we subscribe to. Democracy does not work for
some people in the same way. Implicated in a way that can be restrictive to some, can be too
democratic – ie referendum. Democracy can also disguise autocracy. Ie a person can force
people to vote for them and have a 95% majority.

Democracy is not a mandatory feature in the recognition of a state.

Rule of law is the basis of domestic and international system. Rules are set out in a way that
we know that they exist and are used at both domestic and international level.

Montevideo Convention is a treaty – ratified and binds states that ratified to it. Only ratified
by 43 states. Binding as treaty law – rules within it are for all international community as it is
customary law.