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Statehood Essay Notes

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Statehood Essay Notes 1 Statehood
Outline
Statehood is a fundamental structural concept in international law, which is predominantly made by states and for states.
In the past, only states were legal entities under international law. This changed with the creation of the UN by entities which were not states, such as Belarus, India and Ukraine.
Moreover, there was an advisory opinion of international court to the same effect.
 Reparation for Injuries Suffered in the Service of the United Nations, Advisory
Opinion (1949):
Facts: UN wanted to bring a claim for damages against for the assassination of its official in service in the Middle East. The UN Charter does not confer upon UN an explicit power to sue states like Israel. Question of legal personality rose as a preliminary issue for the court to decide upon. Because only entities with legal personality can be sued in any legal system - must be subject to law to bring claim or be at the receiving end of a claim.
The courts decided that the UN would be incapable of operating without an attribute of legal personality. When states create institutions having characteristics of the UN,
states must have intended to create a legal person under IL, with the capacity to operate on an international plane. As a result, court concluded that the UN had the capacity to bring a claim against Israel.
'The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community… In the opinion of the Court, the [United Nations] was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane...' States are legal constructs. Statehood is not a matter of fact. Whenever we try to decide whether such a construct exists, we have to point to the rules of its existence, making it a matter of law. Analogically, legal personality is defined by domestic law.
Federica: Statehood is like CIL. During periods of uncertainty, whereby entities purport to be States (secession, for e.g.), it is unclear if the requirements of Statehood are met. We only know in hindsight if it existed. After determining that an entity becomes a State, we backdate the beginning of their Statehood to their declaration of independence. This is so even though when independence was declared, Statehood was uncertain. The exercise is retrospective in that sense.
Criteria for statehood
Note: Under international law, there is a strong presumption of the continuity of statehood.
For e.g., most civil wars do not affect the legal personality of states. Thus, these criteria really only come into play during the creation of states.
Consider microstates, like Vatican City. What about the Principality of Sealand (definition:
The Principality of Sealand, commonly known as Sealand, is a micronation that claims
Roughs Tower, an offshore platform in the North Sea approximately 12 kilometres off the coast of Suffolk, as its territory)
The traditional starting point for analysis is Art 1 of the 1933 Montevideo Convention on the
Rights and Duties of States—

"The State as a person of international law should possess the following qualifications: (a)
permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States."
Note: The Montevideo Convention is not the original source of the definition of statehood.
Instead, the source of the definition is in customary international law. The Montevideo
Convention merely formalises a pre-existing customary rule. Also, note that the Montevideo
Convention is a regional treaty adopted in the 7 th International Conference of American
States, involving only 16 parties in Latin America.
Criticism: The fourth requirement is circular - how can one ascertain that a state has the
'capacity to enter into relations with other states', given that states usually enter into relations with entities that they regard as states (outside of international organisations and other entities like the Holy See).
Hence, it is helpful to unpack the requirements into (Crawford)
(i) Territorial community under government (encapsulating criteria (a), (b) and (c) of the
Montevideo Convention);
(ii) Independence
(iii)
Inexistence of legal obstacles to statehood (a negative criteria?)
EXAM PQ
Acknowledge which definition you're using - Montevideo or Crawford i.

Territorial community under government

Boundaries: It is not necessary for a state to have exactly defined or undisputed boundaries,
either at the time that it comes into being or subsequently. All that is required that there is core territory of sufficient consistency (German-Polish Mixed Arbitral Tribunal).

Eg. Israel is a state even though its borders have never been settled.

Population: There is no numeric threshold that has to be met, but the population has to be permanent. Relevance of the establishment of (legal) relations of nationality;

Nationals by birth

Nationals by descent

Naturalized nationals - foreigner applying for citizenship

Government: The government must be a "stable political organisation" in control of territory. This is a matter of degree.

 Aaland Islands case
When deciding when Finland became a state (it declared independence in 1917 but there was opposition within Finland, including by a section of the army, which still supported the old Russian regime), it was held that it only became a definitely constituted sovereign state when a stable political organisation had been created and the public authorities had become strong enough to assert themselves throughout the territories without the assistance of foreign troops.

Cf. Prior practice of giving former colonies independence without stable government (eg. DRC)
Thürer lists 3 characteristics of a failed state
(i)

(ii)

(iii)

Geographical and territorial aspects: internal and endogenous problem. Implosion of structures of powers and authority, disintegration and destructuring of States rather than their dismemberment.
Political aspect: internal collapse of law and order. Total or near total breakdown of structures guaranteeing law and order rather than the kind of fragmentation of
State authority seen in civil wars, where military or paramilitary forces rebel against the state.
Functional aspect: absence of bodies capable of representing the State at the international level and of being influenced by the outside world.

He also noted that other failed states like Cambodia, Sierra Leone and the DRC have continued to be recognised as states during their time of failure.

ii. Independence

Independence = sovereignty = the right to exercise the functions of a State to the exclusion of other states
 Island of Palmas (Netherlands v United States), PCA (Sole Arbitrator: Max Huber) 2
RIAA 829:
'Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.'
A state may, in the exercise of its sovereignty, voluntarily surrender its sovereign rights.
 Cf. Wimbledon:
Just because a State's liberty is restricted does not mean it is not independent/sovereign. So long as it is not under the legal authority of another State, it is independent/sovereign.

 Austro-German Customs Union case
Facts: the Treaty of Saint-German 1919 provided that the independence of Austria and that in the absence of the consent of the Council of the League of nations Austria will abstain from any act which will compromise her independence. In 1922 and 1931 Austria and Germany reached an agreement on a customs union.
Question: did these agreements contradict the 1919 treaty? Verdict: yes. Emphasis was placed on the likelihood of a political union occurring as a further step after the proposed customs union.
Importantly, Judge Anzilotti discussed the nature of independence as applied to states.
"Independence…is really no more than the normal condition of States according to international law; it may also be described as sovereignty…by which is meant that the
State has over it no other authority than that of international law.
The conception of independence… cannot be better defined than by comparing it with the…abnormal class of States known as "dependent States". These are States subject to the authority of one or more States. The idea of dependence therefore necessarily implies a relation between…a State which can legally impose its will and the State which is legally compelled to submit to that will. Where there is no such relation of superiority and subordination, it is impossible to speak of dependence.
…the legal conception of independence has nothing to do with a State's subordination to international law

with the…states with de facto dependence…
Restrictions upon a State's liberty, whether arising out of ordinary international law or contractual agreements, do not as such in the least affect its independence. As long as these restrictions do not place the State under the legal authority of another State, the former remains an independent State however extensive and burdensome those obligations may be."
Note: Units within a federal state which are allowed by the federal constitution some freedom to conduct their own foreign affairs are not states, but international persons (eg. The Ukraine in the USSR).
There is no prohibition against declarations of independence, under international law
 Kosovo Advisory Opinion (2010)
Facts: Kosovo was formerly a province of Serbia within the SFRY that was allowed considerable governmental autonomy because of its large ethnic Albanian majority. After its autonomy was curtailed in 1991, Kosovo unsuccessfully declared itself an independent state vis-à-vis Serbia, and fighting ensued, including a NATO bombing operation against Serbia, before the UNSC established the UNMIK (UN Interim
Administration Mission in Kosovo). In 2007, the UN Special Envoy proposed that
Kosovo be given autonomy with full powers of self-government under EU supervision.
This was rejected by Serbia, which continues to regard Kosovo as Serbian territory, and currently the European Union Rule of Law Mission in Kosovo (EULEX), acting under
UNSC Resolution 1244, provides most of the support to the Kosovo government.
Kosovo declared independence in 2008.
Analysis: UNSC Resolution 1244 Note the following that was held: "In no case, however, does the practice of States as a whole suggest that the act of promulgating the declaration was regarded as contrary to international law. On the contrary, State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence."
Crawford distinguishes between formal and factual independence. Independence may be formal (uncontested by other States or international organizations) or factual (when the territorial community is in fact capable of exercising 'the functions of a State' to the exclusion of other States). Both aspects must be present to a degree to sustain a claim to statehood.

Kosovo: factually but not formally independent

Background: Formerly a province of the Socialist Republic of Yugoslavia.
The Socialist Republic of Yugoslavia split into different countries, like
Montenegro, Croatia, Serbia, etc. Kosovo was trying to split from Serbia. The
Serbian troops reacted violently. NATO initiated a ceasefire. The UN adopted a resolution thereafter, Resolution 1244, which created a transitional government in Kosovo.
o Factual independence: In 2008, Kosovo declared independence. Kosovo is in factual control of its territory to the exclusion of the UN and Serbia. The UN
forces exists only nominally in Kosovo. Serbia has not exercised any public authority over the territory of Kosovo since 1999.
o Formal independence: Resolution 1244 remains in force - the UN has nominal power to exercise public authority in Kosovo. This Resolution has not been disapplied because the UKSC has not expressly decided so. Russia, a key ally of Serbia, refuses to disapply the Resolution. However, to date, 116 countries have recognised Kosovo as a State.

o Crawford: Kosovo has already met the requirements of statehood: the government has become independent of Serbia, it has been capable of exercising the functions alongside and in spite of the international presence in the territory, and has attracted a degree of international recognition that is atypical in cases of secession or independence outside the colonial context,
against the wishes of the parent state.
Palestine: formally but not factually independent

Background: Territory under British administration. After WWII, the UN
attempted to broker an agreement to divide Palestine into a Jewish state and an Arab state. In 1967, there was a ceasefire. Israel had previously conquered
Palestinian territory through several wars over the years.
o Formal independence: The Palestinian people have an uncontested right to form a state. This is recognized by the UN and 137 other states. Non-member observer status.
o Factual independence: But Israel occupies its territory, so there is no factual independence.

iii. Inexistence of legal obstacles (ties into legal independence too)

Certain legal rules, typically of a ius cogens character, may provide a basis on which an effective territorial community cannot become a state. The violation of these rules precludes the characteristic of statehood. A prominent contemporary example: the contested validity of
Crimea's secession from Ukraine and joining of Russia
 Kosovo Advisory Opinion at para 81: Declarations of independence are illegal if they ae "connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (ius cogens)."
 Article 2(4), UN Charter: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United
Nations."
 Declaration on Principles of International Law concerning Friendly Relations: 'The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.' (in Kosovo Advisory Opinion, the court held that this declaration reflected CIL, at para 80).
Crawford has suggested that the requirements of statehood have recently been supplemented by others of a political/moral character: independence achieved: (i) in accordance with the principle of self-determination (Southern Rhodesia), (ii) not by the use of force in violation of
Art 2(4) of the UN Charter (Turkish Republic of Northern Cyprus), and (iii) not in the pursuance of racist policies (Transkei). But these rules are arguably legal, not moral.
There are several examples.

Transkei, which was granted independence by South Africa in pursuance of its
Bantustan policy, was not recognised by any state other than South Africa. This was because it perpetrated white minority domination and dispossessed the African people of South Africa of their inalienable rights (including self-determination).
Southern Rhodesia, which no state recognised and on which the UNSC imposed economic sanctions, was racist and impeded efforts towards self-determination

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