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Statehood Essay Notes

Updated Statehood Essay Notes Notes

International Law Notes

International Law

Approximately 258 pages

International Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the major LLB aspects and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London). These notes were formed directly from a reading of the cases and main texts and are vigorous, concise and very well written. Everything is conveniently split up by topic as you can see by ...

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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 7th 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)

  1. Territorial community under government (encapsulating criteria (a), (b) and (c) of the Montevideo Convention);

  2. Independence

  3. Inexistence of legal obstacles to statehood (a negative criteria?)

EXAM PQ

Acknowledge which definition you’re using – Montevideo or Crawford

  1. 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...

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