1. Statehood & Recognition Flashcards
What is an international legal person?
An international legal person is capable of possessing international rights and duties, and it has the capacity to maintain its rights by bringing international claims. It is something states have and are key players in IL. They help define which entities have the right in IL to act, to make agreements, to make decisions, to implement decisions, obligations.
Increasingly, individuals have increasing legal personalities
IOs have limited international legal personalities.
Criterion 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”
Other criterion? ILC Articles on the Rights and Duties of States
Why does it matter if a state is a state?
Statehood gives them rights – the right for equality, right to exercise territorial jurisdiction
a. What does permanent population mean?
- Territorial entity but must be composed of something other than land.
- But the population cannot NOT move.
- UK has influx of individuals everyday, also leaving. Traditional & non-traditional immigration.
- Key that there are always people there – but there are no minimums required. A population must just be consistently living in the territory.
- E.g. Marshall Islands have a v small population but still recognised as being capable of having international personality. No numbers need to be met.
- Nationality used to be a key issue in terms of establishing population of a state, but no longer are we homogenous societies. Nationality has been severed from concept of permanent population within a state.
- UN Articles of Nationality of Natural Persons in Relations to Successions States 1999.
b. What is a defined territory?
- No minimum nor maximum required.
- No requirement that it be single – can be several islands for example, and doesn’t have to be set in stone. Many territorial/border disputes going on around world right now. What is important is that we have an idea roughly, and whether there is exercise of control over that country.
- North Sea Continental Shelf Case – Germany v. Denmark/Netherlands, 1969 – dispute over how to draw a line to allocate the continental shelf.
- There is “no rule that the land frontiers of a State must be fully delimited and defined, and often in various places and for long periods they are not…”
c. Government required?
- No requirement in M Convention that the gov be democratic, that they do anything; except that they should be effective. Govs wax and wane in their power, particularly in countries in conflict/coming out of conflict.
- Syrian gov = largely ineffective – not in control of all of territory, BUT it has not ceased to exist? Still a state.
- Arbitrory test – can wax and wane.
- How do we know a gov has effective control? If services e.g. water services are functioning, if infrastructure is still there, if you still need to pay parking tickets.
- Is it ensuring that there are no foreign forces entering the territory; is it capable of protecting its borders?
- We distinguish the gov from the state ONCE the state has been created. We don’t want it to cease to exist only bcos the gov has become ineffective/overthrown. In this case, the international relations do not cease to exist unless the new gov decides to severe these relations –e.g. the Paris agreement.
d. Capacity to enter into international obligations with other States?
- This necessitates that other states WANT to enter into relations; engage in these international agreements, diplomatic relations, economic agreements, defence agreements. Capacity can be exercised in many ways.
- Kosovo unilaterally declared independence – has engaged in many factors of statehood & entered into several international agreements. Kept back to do with issues with recognition. Some states not willing to enter into discussions.
- Most complicated element of statehood.
2 things a State must be to qualify as a State?
- The separate existence of an entity.
- Not subject to the authority of another state.
Additional criteria - independence?
- Can think of it in an informal and formal way.
- Aaland Islands case – commission came up w/opinion on whether AI should be independent from neighbours.
- Island of Palmas arbitration – sovereignty in relations to states signifies independence, is the state able to control to the expulsion of others, about marking territory.
- Austro German Custom Union case – dealt with the implementation of 1922 treaty that effectively was put in place to assume the independence of G. Treaty was designed to make sure Au stayed independent. Many members of LofN viewed this arrangement as a volition of the economic aspect of the protocol. Members of the permanent council said Au in danger of falling subservient to G.
- Independence only comes into effect when the entity is strong enough; and has removed itself from occupying foreign force. Is a foreign force required to maintain control of a small country?
Additional criteria - legitimacy?
Qualitative analysis, have they breached IL? Kosovo – Serbia claims that it is the parent state that has not yet consented to this part of their territory breaking away.
Additional criteria - sovereignty?
Ideas re self-determination, idea that all states are equal. Their vote and view is viewed on the same footing as with all other states.
Additional criteria - permanence?
Does the entity have the capacity to exist permanently? Climate change could be an issue – island states could disappear? What happens to the people of a state when that state no longer exists?
Additional criteria - willingness to observe IL?
Remain admitted into international committee; observe all those rules that they subject to. Agreeing to comply with those rules.
Additional criteria - certain degree of civilisation?
Some academics still use this term – view as synonymous to ‘infrastructure’.
Additional criteria - Recognition
Lecture 3
