Statehood & Territory

Question 1

What are the two theories of recognising statehood?

Answer 1

1) Declaratory theory of recognition- once state meets criteria in Montevideo convention, it can declare itself a state. It doesn’t require the recognition of other states.
2) Constitutive theory of recognition- a state only becomes a state through being recognised as such by other states.

Question 2

Do states need to be democratic to be recognised as states?

Answer 2

• No.
• All a state requires is some administrative and legislative identity so that troubles within the state don’t spill over into neighbouring states.
• Whether or not a country is democratic won’t affect whether it qualifies as a state, as long as there’s some administrative and legislative identity exercising control within the territory.

Question 3

Do states have a duty to recognise other states?

Answer 3

No. For example, USA doesn’t recognise North Korea for political reasons.

Question 4

Are former colonies which gain independence bound by existing treaty articles?

Answer 4

No, they start with a clean state so can choose which treaty obligations to be bound by- Article 16 of Vienna Convention on states in respect of treaties. Article 17 holds they won’t usually need the consent of parties to multilateral treaties in order to join multilateral treaties which their former colonisers were a party to.

Question 5

What are the criteria for statehood in the Montevideo convention?

Answer 5

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

a) a permanent population
b) a defined territory
c) a government
d) capacity to enter into relations with other states”

Question 6

Comment on “permanent population” criteria for statehood in the Montevideo convention.

Answer 6

There’s no numerical threshold but the permanent population must have some fixed relationship with territory. Think of Andorra which has 68k. It should also be noted that the requirement of a permanent population does not relate to the nationality of a population: it merely requires that States have a permanent population (Hobach, Lefeber & Ribbelink).

Question 7

Comment on “defined territory” criteria for statehood in the Montevideo convention.

Answer 7

There’s no min threshold and borders can be disputed as long as there’s a core territory.
Israel’s disputed borders..
In North Seas Continental Shelf, the ICJ confirmed that international law does not require that the boundaries of a State should be fully delaminated and defined.

Question 8

Comment on “government” criteria for statehood in the Montevideo convention.

Answer 8

• requires administrative and legislative identity which is exercising control within a territory so troubles within a state don’t spill over into other states.
• Bosnia-Herzegovina was recognized during a period that large parts of its territory were not under effective control of the government.
• The importance of effective authority is further evidenced in the Island of Palmas case which noted that international law does not dictate that States are entirely free in their conduct on their territory.

Question 9

Comment on “capacity to enter into relations with other states” criteria for statehood in the Montevideo convention.

Answer 9

The capacity to enter into relations with other states is seen as a consequence of statehood rather than a prerequisite of being a state

Question 10

Why are borders important?

Answer 10

The strategic, economic and symbolic importance of territory

Question 11

Which is better constitutive or declaratory?

Answer 11

Constitutive theory, where states are considered as such by virtue of the recognition of other states, fits in well with the system of international law governed by the consent of states. A new state entails the creation of obligations for existing states and so they must consent to these obligations before being bound by them.
Constitutive theory proved untenable as no official body to determine when a state is a state, or rule about number of states that must recognise a state before it qualifies as a state.

However, declarative theory sees statehood as outside international law, since the existence of international law presupposes that there are states to whom the law can apply (James). Declaratory theory is prominent theory of statehood and supported by Article 3 of Montevideo convention.

Consider North Korea or Palestine, which aren’t recognised by all other states, or Israel which has disputed borders.

Question 12

Continental shelf in international law?

Answer 12

Continental shelf- Coastal states have sovereign rights over exploration and exploitation of resources on continental shelf. The continental shelf automatically belongs to coastal state as prolongation of their territory and doesn’t need to be claimed. Also, it may extend beyond 200nm (up to 350 in limited circumstances). Other states enjoy rights in the water column & air flight above them

Question 13

Baselines in international law?

Answer 13

Baselines delimit internal waters and mark the starting point for all other maritime zones. Countries want to move their baselines seaward, as it gives them control over more waters. With straight baselines, the baseline doesn’t follow the coast, but joins specified or discrete points on the low-water line. It’s only supposed to use for deeply indented coasts like Norway and Scotland but has been used liberally. States argue for it often.

Question 14

The Contiguous zone in international law?

Answer 14

The contiguous zone is an additional 12 nautical miles beyond the territorial sea (which is itself 12 nautical miles from the coast). Within the contiguous zone, the state can exert limited control to prevent or punish infringement of its customs, fiscal, immigration, or sanitary laws and regulations within its territory or territorial sea- Art 33 UNCLOS. The contiguous zone (unlike territorial waters) is not automatic must be claimed and registered. Beyond the contiguous zone is the exclusive economic zone (EEZ). Its a band stretching from the territorial sea up to 200 nautical miles from the baseline. The contiguous zone is inside the EEZ. The state gets less control in EEZ. States have control of all economic resources within its EEZ including fishing, mining and oil exploration. This fab for the sea, or ‘sea grab’ is economically significant. Landlocked states can’t exert freedom over sea, and with creeping jurisdiction of seas, they have less sea to fish in. States with small coast lines, i.e. Germany - who’s coastline is concave, so when EEC is drawn Germany has very small part of EEC. Germany tried to argue against equidistant rule.

Question 15

High Seas in international law?

Answer 15

The High Seas- ‘Mare liberum’- The freedoms of the High Sea (Art 87)- navigation, overflight, the ability to lay cables and pipelines and the ability to conduct scientific research. Art 89 UNCLOS says no state can exercise sovereign rights in the high seas. Does this give freedom to the high seas or is it the reign of the powerful? Key to understanding regulation of the high seas is the notion of flag-state jurisdiction (Art 91 and what follows). The flag state determines the nationality of the ship, rather than the owner. It is the law of the flag state which applies to ships on the high seas. States can determine their own rules governing the nationality of ships- possibilities of open registries& flags of convenience. It is the civil/criminal law of where a state is registered that applies to a ship on the high sea. Flag states have exclusive jurisdiction over ships on high seas- other states can’t stop and seize ships on the high seas- EXCEPTIONS FOR PIRACY ETC.

Question 16

Deep seabed in international law?

Answer 16

The deep seabed is rich in certain valuable metals like manganese, iron, nickel and cobalt. Part XI on UNCLOS established the International Seabed Authority which controls the seabed. Referred to as ‘The Area’- its made up of 3 bits- the deep seabed, the ocean floor and subsoil. The Area is designated as the common heritage of mankind and no state has sovereign rights. Activities carried out are to be for the benefit of mankind as a whole and monitored bu “The Authority”. Deep seabed mining is carried out by consortia of private companies and The Authority distributed the proceeds.

Question 17

Why is statehood important?

Answer 17

• International “constitutional‟ documents such as the United Nations Charter rely on statehood.
• States can’t exercise full international legal rights without recognition by other states.

Question 18

Crawford’s 5 principles of statehood?

Answer 18

States have full competence to perform international acts such as entering into treaties.
States are exclusively competent with regard to their internal affairs (Art. 2, Para 7 UN Charter). Their jurisdiction is prima facie not subject to the control of other States.
States cannot be compelled to take part in international processes, settlements, or jurisdiction unless they consent (in general cases or specifically).
States are considered “equal‟ in international law (Art. 2 paragraph 1 of the UN Charter).
Finally, it is only possible to derogate from these principles if it has been clearly established. In case of doubt or disagreement an international tribunal or court will have to resolve disputes.

Question 19

Losing statehood?

Answer 19

Once a state has gained statehood, in practice even de-facto collapse of the state (i.e Somalia) doesn’t remove its statehood.

Question 20

Are Colonies, trusteeship territories, states in a federation and protectorates states?

Answer 20

No, Colonies, trusteeship territories, states in a federation and protectorates aren’t states for the purposes ofinternational law as they lack legal independence.

Question 21

Uti possidetis

Answer 21

• earlier internal boundaries will continue to exist after independence or dissolution.

Question 22

earlier internal boundaries will continue to exist after independence or dissolution.

Answer 22

Uti possidetis (as you possess under law)

Question 23

States who secede?

Answer 23

• While former colonies that split off start life with a “clean slate” and can choose which treaty obligations to be bound by, other states which secede are likely to still be bound by treaty obligations, although the 1978 Vienna Convention on States in Respect of Treaties doesn’t say much on whether a state that secedes starts its existence with a clean slate.
• Under Art 16, treaties don’t dissolve merely because they were in force for the metropolitan state. Art 31 presumes that in merger or unification the treaties continue to exist, and under Art 34 the same seems to apply in the case of secession or dissolution.

Question 24

Does the right to self-determination exist in international law in any meaningful way and, if so, does it apply to group X and provide them with the right to secede?

Answer 24

• if entity X has a right to self-determination, that does not mean that it may exercise its right to self
  determination
• self-determination doesn’t encompass a right to secession
• Self-determination is best understood as a procedural
  right to have a right to see their position taken into account whenever their futures are being decided.
• That may not amount to a right to secede or even to a right to autonomy or self-government, but it does amount to a right to be taken seriously. (Klabbers, The Right to Be Taken Seriously’
• In its last advisory opinion on Namibia, in 1971, the International Court of Justice (ICJ) still seemed to confirm the existence, in positive international law, of a right to self-determination.