+ Statehood

+ Statehood prior to the World War

 Right to respect

 Right to Protect

 Right to be recognized by the community of nations.

 Enter into relations.

+ States

 States most important subjects of International law.

 Montevideo Convention on the Rights and Duties of States (1933)

 Art. 1. The States as a person under international law should possess the following
qualifications (a) Permanent population (b) defined territory (c) government; and (d)
capacity to enter into relations with other States.

 Recognition
 The birth of a state is of course a question of fact, independent of law. States are
formed in historical process; they are subject to international law only after they
have been formed.
+ Recognition

 Constitutive and Declaratory Theory

 The constitutive. Before recognition the political community in question does not
have the full capacity of a state, of a subject of international law, and it is the
recognition by other states that gives it this capacity .

 The declarative theory. New community possesses the properties of a state even
before recognition and that a state which grants recognition does no more than accept
a fact.

 Is recognition of the State the same as the recognition of the government?

+ Luther V Sagor (1924)

 Luther was a British Citizen who used to run a Timber industry in Soviet Russia.

 On 1917 the Russian Government nationalized his factory and thereafter Mr Luther left Russia and
went to UK.

 1920. Mr. Sagor came to an agreement with Russian Nationalized business company to buy some
timber, the company sent timbers accordingly but when timers reached in UK

 Mr. Luther claimed that those timbers were his timbers, he pointed that as UK never recognized the
government of Russia as well as Russia wrongfully take over his factory, therefore, the civilized
court of UK cannot validate the rule of Russian law.

 JUDGMENT . The lower court held the judgment in Luther’s favour but on appeal to the Kings
Bench Division it held that they cannot interfere in an internal matter of another state, because in
the meantime Russia was given the de facto Recognition, the court also declare the retrospective
effective on that recognition form 1917.
+ Recognition of State

 Capacity to enter into relations.

 Past Treaties get revived.

 Property immunity from recognizing states – new successor state.

 Recognition is retro-active and hence the courts of the recognising States are not to
question the legality of the acts (past & future) of the New State.

 Right to obligations.
+ Legal Criteria for Statehood

 Population.

 Defined territory.

 Government.

 Independence.

 Degree of Performance

 Willingness to observe international law.

 Sovereignty.

 Function of State.

 Identity and continuity.

+ Population

 Permanent population.

 Used in association with the territory.

 Stable community.

 The absence of a physical basis will be difficult to establish the existence of the
state.
+
Defined Territory

 Control of the area.

 Defined frontiers and effective political establishment.

+ Defined frontiers and effective political
establishment

 Israel was admitted to the UN despite dispute over borders.

 Does Size matter in terms of territory? - Principle of universality.

 "In order to say that a State exists and can be recognized as such ...it is enough that
this territory has a sufficient consistency, even though its boundaries have not yet
been accurately delimited... There are numerous examples of cases in which
States have existed without their state- hood being called into doubt . . . at a time
when the frontier between them was not accurately traced."
(Deutsche Continental Gas-Gesellschaft v. Polish State, German-Polish Mixed Arbitral Tribunal, Aug. 1, 1929, )
+

Monaco (39000 approx.) Andorra (79000 approx.)

Second smallest sovereign state Sixteenth smallest sovereign state
UN admission 1993 UN admission 1993
+
Government

 Stable political community supporting legal order to the exclusion of others in the
given area.

 Effective government with a centralized administrative and legislative organs.

 Effective government is not a necessary condition condition to support statehood –

Poland, Burundi and Rwanda.

 Right to self determination the central rule to assess.

 Effective (?) government.

A general association of nations must be formed under specific covenants for the
purpose of affording mutual guarantees of political independence and territorial
integrity to great and small states alike.Woodrow Wilson (Paris conference, 1921)
+ Independence
 Montevideo Convention - capacity to enter into relations (Aaland Case).

 Independence is a decisive criteria for statehood.

 Two criteria:–
 Degree of centralization of its organs not found elsewhere.
 In the particular area the state is the executive and legislative authority.

 Practice on a continuing basis.

 Degree of centralization/ full centralization?

 Agency control and advice?

Dependent and association of States –discussed earlier.

+ Degree of Permanence
 Stable political community.

 Time is the element of statehood as is space.

 Permanence not necessary to the existence of a state as a legal order, and a state
which has a brief life may nevertheless leave an agenda of legal question on its
extinction.
+ Willingness to Observe International law

 Not often mentioned in international law but under criticism.

 Delictual and other state responsibilities are consequence to state responsibilities.

 Degree of civilization. Attained a degree of civilization, such as to enable them to

observe those principles of international law which are deemed to govern
members of the international society in relation to each other.

 ‘Degree of civilization’
+
Sovereignty

 As equivalence to independence.

 Also interpreted as the capacity of the State to create rights, privileges and
immunities in respect to other states and managing foreign relations.

 Germany and Morocco.

+ FRANCE v. UNITED STATES OF AMERICA (1952)

 CASE CONCERNING RIGHTS OF NATIONALS OF THE UNITED STATES OF

AMERICA IN MOR OCCO.

 Under this Treaty (Treaty of Fez), Morocco remained a sovereign State but it made
an arrangement of a contractual character whereby France undertook to exercise
certain sovereign powers in the name and on behalf of Morocco, and, in principle,
al1 of the international relations of Morocco.
+
Function as State

 Certain entities may exist which are difficult to regard as State, but which have
considerable international presence.

 Free city of Danzig.

 Statu nascendi.
+
Right to Self Determination
+
People’ Right to Self Determination

 The development began with the United Nations General Assembly Declaration on Granting
of Independence to Colonial Countries and Peoples.

 This resolution provided that colonialism be discontinued and that alien subjugation of
peoples was against the United Nations Charter.

 Proclaimed that all peoples possessed the right to self- determination.

 The United Nations also created a committee to implement this resolution.7

 The resolutions such as 2105 (xx),8 2446 (xxiii)9 and 2592 (xxiv)10 expanded on this
category to include conflicts against racist regimes. The developments culminated in the
Declaration on Principles of International Law Concerning Friendly Relations and Co-
operation among States in accordance with the Charter of the United Nations.11
+

 Declaration on Principles of International Law Concerning Friendly Relations and

Co-operation among States in accordance with the Charter of the United Nations
‘peoples under colonial domination, alien subjugation and those under
exploitation have a right to self- determination’.

 States must not use force to deny the peoples this right.

 The States are rather under a duty to promote the right to self- determination.

 The UN Charter

 Art.1 All peoples have the right to self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social and
cultural development.
+ ICCPR (Art. 1)

 1. All peoples have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social and
cultural development.

 2. All peoples may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means of
subsistence.

 3. The States Parties to the present Covenant, including those having responsibility
for the administration of Non-Self-Governing and Trust Territories, shall promote
the realization of the right of self-determination, and shall respect that right, in
conformity with the provisions of the Charter of the United Nations.
+

 India. The right does not extend to component parts or groups within independent
sovereign States and that the internal aspects of self-determination includes the
right of people to choose their own form of government and the right to
democracy and they do not and cannot include the right of a fraction of the people
to secede. The right of self-determination shall not be construed as authorising or
encouraging any action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and independent states.

 Nepal similarly refers to self-determination as, ‘the immediate granting of this

right to the people under the domain of colonialism.

 Sri Lanka also argues that the principle of self-determination cannot be

construed as authorising any action that ‘would dismember or impair, totally or in
part, the territorial integrity or political unity of sovereign and independent States.’