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The Law of Statehood: A Contemporary Perspective by Anrinita Guha & Aparajitha Narayanan

The Authors: Anrinita Guha & Aparajitha Narayanan are Law Students Studying at ILS Law College, Pune
  1. INTRODUCTION:

The study of a legal system without a clear conception of who or what fall under the ambit of ‘persons’ is a dangerous manoeuvre with a significant multitude of consequences. A subject of international law is an entity possessing international rights and obligations and having the capacity to a) maintain its rights by bringing international claims[i], and b) be responsible for its breaches of obligations by being subjected to such claims. This traditional outlook at the definition however fails to determine whether the relevant capacity which exists has been exercised in case on any existential queries. If either of the indices is absent, then the entity in question may have a controlled and constricting legal personality, that validating factor which indubitably establishes whether a specific entity is a subject of international law. Fortunately, a distinguishing feature of contemporary international law has been the wide range of participants. These popularly include- States, Entities Legally Proximate to States, Entities Recognised as Belligerents, International Administration of Territories Prior to Independence, International Organisations and Individuals. There also exist special types of personality- Public and Private Corporations, Non- Self Governing Peoples and Sui Generis entities. This appraisal comes as a disclaimer against flippant generalisations on the topic of legal personality. Given the occasional vagaries and the undeniable platitudes of the concept of subjects of international law, it has been argued whether the theory has any value. The answer must be in the affirmative. Conversely, facile debates as to what falls under the ambit lend uncertainty to the analysis of international law. It might be assumed, however, that a touchstone is furnished by the state, the entity longest contemplated as a person in international law and, to this day, the entity widely viewed as the most important legal actor.[ii] The fact remains that since 1945 the existence of States has provided the basis of the legal order.[iii] A contradiction in terms, instead, challenges a writer who turns to the State to help clarify the identity of legal persons in the international legal system. The irrefutable truth herein is that international legal sources provide no suitable definition of ‘State.’

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This essay begins by providing a synopsis of the definitions given by a variety of writers. With this examination in place, the authors would then rely on the source most often cited as an authority on the definition of the State-the Montevideo Convention of 1933. There would then be an in depth study and consequent dissection of the travaux preparatoires or the preparatory documents of the Convention, duly concluding that the reasons for formulation of the varied criteria established in the Convention were the governing laws and far reaching affirmations of that period in history. Alternative theories and categorisations detailing out the deficiencies of the Convention as a codifying instrument will be analysed and categorically scrutinised. It will further be argued that the problems existing in attempting to codify Statehood have risen due to the unassailable fact that the content of ‘State’ depends largely on context. This postulation will be supported by the concept of ‘Recognition’ which will be scrutinised in light of the continuing debate among specialists who deny the existence of Statehood and Recognition under the same umbrella. To erase this confusion, three major incidents: Post World War II-Germany, Palestine and Kosovo will be studied and a comparable exercise of favourably augmenting the issues of Statehood would be attempted. Concluding that a substantive rather than a provisional definition of Statehood needs to be developed , additional raisons d’être  will be proposed as to why statehood remains a concept ineffectually fleshed out in authoritative international legal sources, consequently eliminating its  inconsistencies with precise solutions.

  1. Defining Statehood:

Legal Writers have formulated a variety of definitions for Statehood.

Pasquale Fiore, in Italy, wrote as early as 1890:

“The State is an association of a considerable number of men living within a definite territory, constituted in fact as a political society and subject to the supreme authority of a sovereign, who has the power, ability and means to maintain the political organization of the association, with the assistance of the law, and to regulate and protect the rights of the members, to conduct relations with other states and to assume responsibility for its acts.”[iv]

Thomas Baty, in his 1930 Canons of International Law, called a state “an organized people, that is, an assemblage of human beings among whom the will of an ascertainable number habitually prevails.”[v] This would appear to place an emphasis on the quintessential aspect of “sovereignty”-the existence of an organized political power over a territory and its people.

It slowly became evident that multilateral organisations could govern more aspects of interstate relations. D.P. O’Connell, in his 1970 text, thus emphasized United Nations practice in his definition of statehood. He numbered territory and population among the criteria of statehood but noted that there was no minimum requirement for either. Competence to make treaties, he noted, is part of statehood but is not unique to states. In contemplating independence as a criterion for statehood, O’Connell noted as a paradox that while the state is not subordinate to any other entity, it is increasingly subordinate to international organizations.[vi]

On the other hand, Hans Kelsen attempted to define statehood in terms of law.

To Kelsen, territorial supremacy was less a norm in itself than a manifestation of the factually essential feature. The essence of the state was a legal system exercising control over a territory and its people. Kelsen’s formulation focused neither on independence nor territoriality. In light of future progress, its most important exclusion, however, would be the aspect of international legality. It is interesting that a writer conceiving of statehood as a legal order-a progressive conception in comparison to one based solely on effectiveness-did not much develop the idea that statehood required international legality.[vii] Kelsen nevertheless attempted an approach different from notions of statehood founded on undisciplined power.

A generous amount of literature, expressing a wide array of views, addresses statehood.

In attempting to define ‘state,’ the predicament, then, is not lack of academic sources.The problem, rather, is one of legal sources.’ Despite the length at which the literature discusses statehood and its parameters, there are few authoritative sources that offer a workable definition of the state.[viii]

The source most often cited as a textual basis for statehood is the Montevideo Convention of 1933 and, in particular, its section entitled On the Rights and Duties of States.[ix] The Montevideo Convention proposes four criteria for statehood. The entity hopeful of being regarded as a state must possess a permanent population; it must occupy a clearly defined territory; it must operate an effective government over the extent of its territory; and it must display capacity to engage in international relations-such capacity including the ability to fulfil international treaty obligations.[x] This list of criteria which will henceforth be referred to as the “Montevideo criteria” offers a laconic and a fairly agreeable yardstick to determine whether a community is a state. It is however not certain whether the Montevideo criteria provide a reasonable definition of statehood. The criteria hold solidarity in numerous efforts to define statehood. Indeed, many of the contemporary writers discussed above cite them.[xi] This may echo in return, the absence of a better model rather than the adequacy of the Convention itself. To appreciate the position of the Montevideo criteria in contemporary debate regarding statehood, it is vital, foremost to explore the background or the travaux preparatoires of the Convention.

III. Travaux Preparatoires of the Montevideo Convention:

The text of the Montevideo Convention does not explain the origins of the criteria it enunciates. Since its formulation at the Seventh International Conference of American States, however, the Montevideo Convention has been a primary point of reference in efforts to define statehood. James Crawford aptly calls Article 1 of the Convention the “best known formulation of the basic criteria for statehood.”[xii] Even though the Montevideo criteria have become a benchmark for the definition of the state, there is little to be realised when it comes to the origin of Statehood. That the framing of the Montevideo Convention has gone largely unexamined may reflect the fact that its content was a restatement of ideas prevalent at the time of the framing. So basal were the Montevideo criteria to contemporary observers that few thought to inquire as to their basis or origin.

Despite its pervasiveness after 1933, the enumeration of statehood criteria found in the Montevideo Convention has come under scrutiny. Some writers suspect that the Convention does not offer an absolute definition. Others have argued that it is over-inclusive, itemising elements not critical to statehood. It has also been speculated that the Convention is of limited law-making force and therefore, regardless of the value of its content, has little normative reach. This has given rise to a school of scholarly thought that demands the reasons for past reliance on the Montevideo Convention as an authoritative assertion of the characteristics of the state.

(A) Inadequacy of the elements: 

The criterion that has received the most scrutiny is that of capacity. The Convention specified that “capacity to enter into relations with the other states” was a prerequisite to statehood.” This, the fourth criterion on the Montevideo list, Crawford specifically identifies as problematic. Capacity, he writes, “is not a criterion, but rather a consequence, of statehood, and one which is not constant but depends on the status and situation of particular States.” [xiii] Ingrid Detter also writes representatively, “It could be argued that [capacity] is, in effect, a consequence, rather than a condition of statehood.”[xiv] The Akehurst treatise agrees that capacity is “not generally accepted as necessary.”[xv]The views of various other writers accord with this.”[xvi]

A second element of the Montevideo definition occasionally censured is that of territory. Starke and Shearer take the view that territory is not necessary to statehood, at least after statehood has been firmly established.[xvii] Crawford even suggests that effectiveness-the linchpin of Montevideo-is not critical to statehood. States annexed from 1936 to 1940, Crawford notes, continued to enjoy legal personality. Though their governments lost all territorial power, the Polish, Yugoslav, Czechoslovak, and Baltic states retained recognition, at least by the Allied Powers.’ In the context of the recent civil strife in Somalia, it has also been noted that statehood survives illegal occupation.’[xviii]It consequently appears to be the case that once an entity has established itself in international society as a State, it does not lose Statehood by losing its territory or effective control over that territory.

Assuredly, the Montevideo Convention was concerned with whether an entity became a state, not with how an entity might cease to be a state. Cases of entities subsisting as states while lacking one or another Montevideo criterion are nevertheless enlightening.

(B) Alternative Criteria:

At the same time, writers argue that the Montevideo definition is missing elements essential to statehood.’[xix] Crawford argues that the key criterion for statehood is independence. A putative state experiencing “substantial external control” also may lack the essential attribute of statehood.[xx] Freedom from outside constraints is the aspect of independence that some writers stress.’ Others describe independence as a form of self-containment, at least for certain functions. Baty called it “the existence among the people, or the bulk of the people, of a certain mutual reliance, not participated in by the outside world.”[xxi]Power to exclude other states may be a related factor. Writers outside the legal field have certainly identified exclusion of others as an essential attribute of state power.’[xxii] A sundry of authors have purported that Independence must be included as a criterion.

For some time, writers have argued that legality is a prerequisite to statehood.

State practice began addressing the criterion of democracy in the late twentieth century. Some writers argue that democracy has been added to the definition of statehood-or at least that it has become a criterion for recognition. Many states, in weighing whether and when to recognize Croatia, Slovenia, and the other successor states to Yugoslavia,[xxiii]expressed concern over democracy.[xxiv]

Even the membership of the United Nations has been conditioned to fall undee the ambit of the Statehood criteria.

  1. Recognition: A Congener of Statehood:

Recognition, the topic that raises doubts in relation with several of the proposed criteria above, has itself been purported as a criterion for statehood. The role of recognition was once debated, with some writers contending that recognition merely reflects or declares statehood already achieved, [xxv]and others contending that recognition constitutes the state.[xxvi] Most writers today assume that recognition itself does not create statehood.[xxvii]State practice continues to suggest, however, that recognition in certain situations can be important in the process of state creation. Recognition of Bosnia-Herzegovina and of the European micro-states are likely cases. A number of writers lean in the same direction.[xxviii] In seeking to define ‘state,’ recognition is a matter that will necessarily arise in discussion, even if it is rejected as an element of statehood.

The typical act of Recognition has two legal functions. First, the determination of Statehood, a question of law: such individual determination may have evidential value.[xxix] Secondly, a condition of the establishment of formal relations, including diplomatic relations and conclusion of bilateral treaties: it is this second function which has been described by some as ‘constitutive’, but it is not a condition of Statehood.

Above all, recognition is a political act and is to be viewed as such. Indeed, there is probably no other subject in the field of international relations in which law and politics appear to be more closely interwoven.[xxx]

This leads to a consideration that the practicalities of Recognition: the existence of a State us of little worth unless it is accepted as such into the community of nations. It is of little value to assert that Taiwan or Somaliland is a State if nobody will engage with it on such a basis.[xxxi]

  1. The Issues of Statehood:

Three major conditions affecting world order offer perspicacity into the issues of Statehood in the contemporary era:

(A) Germany since 1945:

Post World War II, the Allied Powers assumed “supreme authority with respect to Germany”, under which an Allied Control Council took the place of the German government.[xxxii] Though the Allies affirmed the integrity of Germany in principle, they divided the country into four Zones of Occupation, and, instead of a single Central government, the Commandeers-in-Chief of the Four Powers acted separately in each Zone and jointly with respect to Germany as a whole. Difficult questions of interpretation arose for the courts of the states in zonal administration.[xxxiii] The Soviet Union, in response to development in the Western Zones, on 7th October 1949 declared the establishment of a German Democratic Republic (GDR). A treaty of 20th September 1955 indicated that the GDR held general freedom of action in respect of “domestic and foreign policy” reserving for the USSR the “obligations of the Soviet Union and of the GDR under existing international agreements relating to Germany as a whole”.[xxxiv] The Western Allies resisted these developments. Whatever the legal characterisation of the process by which the GDR became consolidated as a State, its Statehood eventually received general recognition. It is clear that the Four Powers in 1990, relinquished their remaining joint powers in respect of ‘Germany as a whole’,[xxxv] also, purporting that ‘the United Germany shall have accordingly full sovereignty over its internal and external affairs.[xxxvi]

(B) Palestine:

Since 1945 there has been a consolidation of the view that statehood is a question of law rather than just fact. Peremptory norms have influenced this process, but it has nonetheless been highly politicised in particular cases, the Israel-Palestine conflict presenting an acute example.[xxxvii] The agenda between the government of Israel and the PLO has since 1993 (Oslo Accords of 1993) included ‘the permanent status negotiations’ which were to lead to an independent Palestinian state. A decade later the Israelis and the Palestinians still had not reached a final-status peace agreement. In November 2007 the Israeli-Palestinian Joint Understanding declared the intent of the parties to conclude a peace treaty, resolving all issues.[xxxviii] Peace talks stalled after Israel refused to extend a ten month freeze on settlement activity in the occupied Palestinian territory. That decision prompted Palestine to withdraw from direct talks with Israel. Though the parties had not reached a Final Status agreement, Palestine applied for admission for membership in the UN on 23rd September 2011. Some 130 states have recognised Palestine as a state.[xxxix]

(C) Kosovo :

Another unresolved case is that of Kosovo. States submitting observations in the Kosovo advisory proceedings addressed, inter alia, the right to self-determination and some posited that a State might be created under a right to ‘remedial succession.’[xl] The Court concluded that ‘general international law contains no applicable provisions of declarations of independence.’ Accordingly, the ‘Declaration of Independence of 17th February, 2008 did not violate general international law.’[xli] The Court chose not to address the consequences of such a declaration- whether a new State has been created or whether other states would be obliged to recognise (or to refrain from recognising) it. As of 1 January, 2012, some 85 states have recognised Kosovo.[xlii]

  1. CONCLUSION:

The very fact that the world continues to rely upon the Montevideo criteria for defining Statehood is a matter of perplexity. The Convention does not enumerate precisely the various elements which need to be established in stone before an entity can be granted the embellishment of ‘State.’

The Convention is fundamentally a panoramic view from a particular aeon. It elaborates on a concept that had been in flux over time concluding in its framing, which in turn has undergone a continuous shift. It delivers a definition of statehood highly reliant on the history, politics, and legal outlay of its era. At times it ends up over-achieving its own purpose, other times remaining in a constant state of inertia. Yet, adding to the paradox, even writers who have drawn attention to its deficiencies still quote it.[xliii] Its persuasive value is somehow responsible for its persistent usage. Nonetheless, it is common knowledge that it was binding only on the small number of Western Hemisphere states that were party to it. Though signed at Montevideo by nineteen states, the Convention was ratified by only five, as of the middle of 1936. Broms notes correctly that the Montevideo Convention “of course does not bind states other than those parties to [it].”[xliv]In any case, subsequent practice and treaty-making did not promote the definition that is its core. Legislative ambition in the 1933 text, if there was any to start, may well have waned for want of further sustenance.

Alternative criteria which find wide acceptance can be summarised as- Independence, otherwise described as impermeability or self determination, Popular process as the source of a claim to Statehood, Legality (external and internal), including compliance with jus cogens norms as well as democracy and minority rights, Organic bonds within the community claiming statehood, United Nations membership and Recognition. These elements are not equally likely candidates for inclusion in a new definition of the state. Some, such as independence, are widely viewed as prerequisites for statehood, while others, such as UN membership, are not. All would have to be addressed, however, in any formal process aiming to codify anew a definition of statehood.

The historical contingencies surrounding the idea of statehood suggest that any codification such as the Montevideo Convention will eventually require overhaul or replacement.[xlv] Whether political constraints on efforts to codify international law will permit a latter-day version of the Montevideo Convention remains to be seen.[xlvi]In any event, the growth of international law will necessitate that any such definitional endeavour be an on-going one, always open to revision and re-evaluation.

References

[i]  Reparation for Injuries Suffered in the Service of the United Nations, 1949 ICJ Rep. 174, 179.

[ii] I.A. Shearer, Starke’s International Law, 85 (1994).

[iii] Ian Brownlie, Rebirth of Statehood in Aspects of Statehood and Institutionalism in Contemporary Europe, 5 (Malcolm D. Evans ed., 1996).

[iv] Pasquale Fiore, International Law Codified And Its Legal Sanction Or The Legal Organization Of The Society Of States 36, 51, 109 (5th ed. 1918) (citing Article 40 of the Act of Berlin of July 13, 1878, which extended rights to subjects of Serbia).

[v] Thomas Baty, The Canons Of International Law, 9-10 (1930).

[vi] 1 D.P. O’Connell, International Law ,80-86 (2nd ed. 1970); 1 Lassa F.L. Oppenheim, International Law: A Treatise, 19 (Hersch Lauterpacht ed., 8th ed. 1955); Louis Henkin, International Law: Politics and Values, 16-17 (1995) at 283-285.

[vii] Hans Kelsen, Principles of International Law, 415-16 (2d ed. 1968).

[viii] Hermann H.-K. Rechenberg, Non-Governmental  Organizations, 9 Encyclopaedia Of Public International Law (Rudolf Bernhardt ed., 1986).

[ix] Convention on the Rights and Duties of States (Montevideo Convention), Dec. 26, 1933, 165 L.N.T.S. 19, 28 AM. J. INT’L L. (Supp.) 75 (1934) (reprinting text of Montevideo Convention).

[x] Article I of the Montevideo Convention reads: “The state as a person of international law should possess the following qualifications: (a) a permanent population (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

[xi] Supra note 2.

[xii] James Crawford, The Creation of States in International Law, 31, 35 (1979).

[xiii] Ibid., 47.

[xiv] Ingrid Detter, The International Legal Order 43 (1994).

[xv] Peter Malanczuk, Akehurst’s Modern Introduction to International Law , 79 (7th ed. 1997).

[xvi] Barry E. Carter & Philip R. Trimble, International Law 411 (1991) at 415-20, International Law Chiefly As Interpreted And Applied In Canada 271, (Hugh M. Kindred et al. eds., 4th ed. 1987) at 11-12.

[xvii]Supra note 2, 722-28.

[xviii] James Crawford, The Creation of States in International Law (1979) at 78-79

[xix] Nguyen Quoc Dinh Et Al, Droit International Public 398 (3d ed., 1994).

[xx]  Duff Development Co. v. Kelantan, [1942] A.C. 797, 800.

[xxi] Thomas Baty, The Canons of International Law 9-10 (1930) at 13.

[xxii] John Keegan, Warpaths: Travels of a Military Historian In North America 95-99 (1995).

[xxiii] Bosnia-Herzegovina and Macedonia.

[xxiv] M. Kelly Malone, Comment, The Rights of Newly Emerging Democratic States Prior to International Recognition and the Serbo-Croatian Conflict, 6 TEMP. INT’L& COMP. L.J. 81 83 (1992).

[xxv] Ti-Chiang Chen, The International Law Of Recognition, With Special Reference To Practice In Great Britain And The United States 3 (1951).

[xxvi] Oppenheim, International Law: A Treatise 19 (Hersch Lauterpacht ed., 8th ed. 1955) at 125.

[xxvii] D.J. Harris, Cases And Materials In International Law 139-40 (4th ed. 1991).

[xxviii] Jorri C. Duursma, Fragmentation and The International Relations Of Micro-States: Self Determination And Statehood (1996).

[xxix]  Brownlie’s Principles of Public International Law, 8th edition, edited by James Crawford (2012).

[xxx]  Lauterpacht (1947).

[xxxi] Brenhurst Foundation, The Consequences of Somaliland’s International (Non) Recognition Discussion Paper 2011/05 (2011) 77 BY 597, 618-619.

[xxxii] Statement on Control Machinery in Germany, 5th June 1945, 145 BFSP 803.

[xxxiii] Brehm v Acheson, 90 F.Supp 662 (SD Tex, 1950).

[xxxiv] 226 UNTS 201. Also see USSR-GDR Treaty of Friendship, Mutual Assistance and Co-operation, 12th June 1964, 553 UNTS 249, Arts 7,9.

[xxxv] Treaty on the Final Settlement with respect to Germany, 12th September 1990, 1696 UNTS 123, Art 7 (1).

[xxxvi] Ibid, Art 7( 2).

[xxxvii] Boyle (1990) 1 EJIL 301.

[xxxviii] Joint Understanding read by President Bush at Anapolis Conference 27th November 2007, released by the   White House, Office of the Press Secretary, available at www.unispal.un.org.

[xxxix] Genral Conference admits Palestine as UNESCO member state, 31st October 2011, Doc UNESCO_Pal-MemberState, UNESCO Press release, pg 14.

[xl] Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Opinion of 22 July, 2010, 82.

[xli] Ibid, 84.

[xlii] www.mfa-ks.net/ at 2,33.

[xliii] American Law Institute, Restatement of The Law (Third): The Foreign Relations Law of the United States § 201 cmts. a-e.

[xliv] Bengt Broms, States, in International Law: Achievements And Prospects, 121, 129 (Mohammed Bedjaoui ed., 1994) .

[xlv] Rosalyn Higgins, Problems And Process: International Law And How We Use It, 39 (1994).

[xlvi] James Crawford, State Practice and International Law in Relation to Unilateral Session: Report, (Feb. 19, 1997, visited Jan. 20, 1999) <https:llcanada.justice.gc.calnews/communiques/1997/factum/craw%5Fen.html>.

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