Creation & Incidence of Statehood – Study Notes

Statehood in International Law: Core Concepts

• The State = “central type of legal person” in public international law (PIL).
  • Possession of international legal personality ≠ automatic proof of statehood (IOs, insurgent groups, etc. also have personality).
• Question of statehood is legal, not merely factual.
  • Facts matter for application, but criteria are supplied by law.
  • Prevents the “structural defect” whereby a State could avoid duties by denying the other entity’s statehood.
• Recognition (constitutive v declaratory theories) is treated separately (see Chap 6), but its practical overlaps are acknowledged.
• State succession (transfer, extinction, etc.) examined later (Chap 19).

Criteria for Statehood

• Classical foundation: Article I Montevideo Convention (1933).
  • $\text{(a) permanent population}$
  • $\text{(b) defined territory}$
  • $\text{(c) government}$
  • $\text{(d) capacity to enter into relations with other States}$
• List is a springboard; not every element is indispensable, and additional factors (e.g., independence) are crucial.

Population (Permanent Community)

• Requires a stable political community; no fixed numerical minimum.
  • Micro-states (Liechtenstein, San Marino, Monaco, Andorra) admitted to the UN despite tiny populations & areas.
• Population criterion operates in tandem with territory; facilitates evidence of organised society.

Defined Territory

• Exact boundaries NOT essential; effectiveness over core area suffices.
  • Examples: Albania $1913$, Israel $1949$ admitted with unsettled frontiers.
• No lower territorial size limit.

Government (Effective Authority)

• Effective, centralised authority is best evidence of a stable community.
• Not always necessary (Poland $1919$, Burundi & Rwanda $1962$ entered UN while governmental structures embryonic).
• Once State exists, civil war, invasion or natural disaster does not destroy personality.
• Effective government alone is insufficient because independence & representation must also be assessed.

Independence (Decisive Criterion)

• Guggenheim: two quantitative tests
  1. High centralization of organs.
  2. Exclusive executive & legislative authority in the area.
• Practical test: absence of foreign control that overrides decision-making systematically & continuously.
  • Åland Islands dictum set bar “very high”; modern practice more tolerant of external pressure, aid, or ad-hoc interference.

Dependent States (Five Situations Identified)

1. Entity lacks statehood due to complete subordination.
2. State concedes so much jurisdiction that sovereignty appears compromised.
3. State legally confers broad agency in foreign affairs upon another.
4. Client state suffers serious, but not total, foreign interference.
5. Special legal persons (mandates, trust territories, protectorates).

• Independence is contextual—must be analysed relative to the legal purpose in view (e.g., economic “independence” in the Austro-German Customs Union case).

Other Proposed / Historic Criteria

• Degree of permanence (time) – largely discarded; transient States can exist.
• “Willingness/capacity to observe international law” – criticised as circular.
• “Civilisation” requirement (Hyde) – now obsolete & euro-centric.
• Sovereignty often used synonymously with independence, but can confuse incidents (powers) with existence.

Associations, Confederations & Functional Entities

• Associations of States / Confederations retain full state personality of members; looser than federations or the EU.
• Protectorate arrangements (e.g., Morocco under France) illustrate representation vs subordination issues.
• Functional entities (Free City of Danzig) possess state-like traits yet created for specialised political purposes under IO supervision.

States in Statu Nascendi (Emerging States)

• Belligerent entities / provisional governments may possess interim legal status before full recognition.
• Self-determination can elevate certain liberation movements or exile governments.
  • Example: Palestinian people recognised as having entitlement to statehood despite protracted negotiations.

Case Studies

Germany Since $1945$

• Berlin Declaration (5 Jun 1945): Allies assume “supreme authority” over Germany.
• Country split into $4$ occupation zones; “Germany as a whole” concept retained.
• Evolution:
  • FRG (West Germany) – established $23$ May $1949$; declared sole legitimate German gov’t by Western Allies ($19$ Dec $1950$).
  • GDR (East Germany) – proclaimed $7$ Oct $1949$ with Soviet backing.
• Western objections to GDR: lack of recognition, democratic deficit, Soviet subordination, breach of German self-determination.
• Gradual mutual recognition:
  • Treaty FRG–USSR $12$ Aug $1970$ affirms frontier.
  • Basic Treaty FRG–GDR $21$ Dec $1972$ – each renounces representation of the other.
  • Both admitted to UN $1973$.
• Treaty on Final Settlement $12$ Sep $1990$ ends Four-Power rights; united Germany regains full sovereignty.

Palestine

• Oslo Accords 1993: five-year interim self-government aimed at permanent settlement under UNSC $242$ & $338$.
• Roadmap 2003 (Quartet): envisaged two-State solution; endorsed by UNSC $1515$.
• Negotiations stalled; settlement freeze issue $2010$.
• UN Bid $2011$: Security Council split; no admission.
• Recognitions: $\approx 137$ States; GA $67/19$ (2012) grants “non-member observer State” status.

Kosovo

• Declaration of Independence $17$ Feb $2008$.
• ICJ Advisory Opinion 2010: no rule of general international law prohibits declarations of independence; SC Res $1244$ not breached.
• Court did not rule on creation of a State or recognition duties.
• Recognitions as of $1$ Jul $2018$: $\approx 116$ States.

Achieving Independence: Secession & Self-Determination

• Self-determination: affirmed in UN Charter Arts $1(2)$, $55$; GA Res $1514(XV)$ (1960) & human-rights Covenants (Common Art $1$).
• Modes: secession, federation, autonomy, assimilation.
• Colonial context: right to independence widely accepted.
• Outside colonies: contentious.
  • Distinction between external (full) and internal (autonomy, democratic governance) self-determination.
  • Canadian Supreme Court, Quebec Reference (1998): unilateral right to secede arises only if a people is colonial, oppressed, or denied meaningful internal self-determination.
• Remedial secession remains debated (Kosovo, Crimea, Catalonia, South Sudan, Eritrea illustrations).

Identity & Continuity vs State Succession

• Continuity: legal personality persists despite changes in government or constitution.
• Succession: one international personality replaces another (e.g., union, annexation).
• Correct categorisation affects treaty obligations, assets, debts.

Conclusion / Contemporary Trends

• Explosive growth of States in $1948$–$1960$ (decolonisation) and $1990$s (USSR & Yugoslavia dissolution).
• Since $2000$, net increase minimal; strong systemic resistance to secession.
• Even widely recognised unilateral secessions (Kosovo, South Sudan) confront stability & legitimacy challenges.
• Palestine represents “remedial recognition” by majority of UN members, yet durable settlement elusive.
• Overall, future of most peoples envisaged within existing States via internal self-determination rather than new state creation.

Key References & Further Reading (selected)

• James Crawford, Creation of States in International Law (2nd ed, $2006$).
• J. Dugard, “The Secession of States and Their Recognition in the Practice of the International Community” ($2013$) $357$ Hague Recueil.
• M. Marek, Identity and Continuity of States in Public International Law ($1968$).
• Reference re Secession of Quebec ($1998$) $115$ ILR $536$.
• Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, ICJ ($2010$) $403$.