State and Territory 1

1. Chapter 1,2 and 5, The creation of States in International Law, James Crawford, Second Edition, Oxford

2. Chapter 4, Cases and Materials on International Law, DJ Harris, Sixth Edition.

3. Chapter 5, International Law, Malcolm N Shaw, Fifth Edition.

4. Chapter 5, 6, International Law, A South African Perspective, John Dugard, Third Edition.

Sub-topics

a) The criteria for statehoodb) Recognitionc) Self determination, Statehood and Secessiond) Failed statese) Recognition of government

The criteria for statehood

Introduction

• What is a state?• Special position of states under international

law

The criteria for statehood

• The traditional criteria for statehood are described in the Montevideo Convention of 1933‘the state as a person of international law should possess the following qualifications: a) permanent populationb) a defined territoryc) governmentd) capacity to enter into relations with other

states

• It has been suggested for a new entity to claim statehood, it need to meet international standards on human rights and self determination (Guidelines on the Recognition of New States in Eastern Europe and in soviet Union by the EC in 1991)

Permanent population

• No minimum population size is required• Over fifty states have populations less than

one million• Nauru has 11,218 inhabitants in 2005

Defined territory

• Not a necessary prerequisites of a statehood that a state has a clearly defined and undisputed borders

• Israel’s borders have been a subject of dispute for over 40 years

• Should have a stable community within an area over which its government has control

• Not necessarily to occupy a single territory

Island of Palmas Case (1928)

“Territorial sovereignty involves the exclusive right to display the activities of a state”

• Prior to the creation of Bangladesh in 1971, Pakistan was divided into East and West Pakistan separated by India

• Canada separates Alaska from the rest of U.S• Deutsche Continental Gas-Gesselschaft v

Polish State• North Sea Continental Shelf

Government

• A state must have a government that is in effective control of its territory and that is independent from any other authority

• Financial aid from other state would not affect independence unless couple with other evidence

• Aaland Islands Case

Capacity to enter into relations with other states

• The capacity to enter into relations with other states is a consequence of independence

• Not subject to the authority of other state in handling foreign affairs

• Island of Palmas Case (1928) “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”

Eg. South Africa

• South Africa agreed not to conclude treaties with any other state other than the Orange Free State without the permission of Britain based on the London Convention of 1884

• In 1910, South African Parliament was subordinate to Westminster as a result of the Colonial Laws Validity Act

• After WW1, South Africa enjoyed the capacity to enter into relations with other states for eg it became one of the original members of the League of Nations

• The Imperial Conference of 1926 resolved that the colonies and Britain were ‘equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs’

• The claimant entity must be recognized by at least some states to make this capacity a reality to give it functional independence

• The Turkish Republic Of Northern Cyprus (TRNC) is recognized only by Turkey

• In the case of Caglar v Billingham (Inspector of Taxes), the court held that the TRNC failed to qualify as a state:

• “in view of the non-recognition of the Turkish Republic of Northern Cyprus by the whole of the international community other than Turkey we conclude that it does not have functional independence as it cannot enter into relations with other states. It does not therefore satisfy the fourth requirement of statehood”

Austro-German Customs Union Case (1931)

“…the independence of Austria, according to Art 88 of the Treaty of Saint-Germain, must be understood to mean the continued existence of Austria within her present frontiers as a separate State with sole right of decision in all matters economic, political, financial or other with the result that that independence is violated as soon as there is any violation there either in the economic, political or any other field, these different aspects of independence being in practice one and indivisible..”

Respect for human rights and self determination

• The promotion of human rights has become a concern of international law since WWII

• In recent times, states have alluded to respect for human rights and self determination as a precondition for the recognition of statehood

• When the Soviet Union dissolved in 1991, the European Community indicated that it would recognize only those parts of the former of Soviet Union claiming to be independence states that are willing to protect and respect human rights

EC Guidelines on the Recognition of News States in Eastern Europe and in the Soviet

Union 1991

• Respect for UNC…………,democracy and human rights

• Guarantees for the rights of ethnic and nationals groups and minorities

• Respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement

• Assurances were sought from Slovenia, Croatia, Bosnia-Herzegovina and Macedonia as precondition for their recognition as states (EC declaration on Yugoslavia 1991)

• Initially mooted in the context of the requirement of effective government

• A government that denied basic rights could not be truly organized and effective

• This requirement is open to a number of criticisms:-

a) Many states would cease to qualify as states and face the withdrawal of recognition

b) Not fair to limit this requirement to new states only and to expect a higher moral standard from them than the existing states

c) States practice does not provide support for this proposition

Recognition

Recognition of states as subject of international

law

Recognition of states as subject of international

law

UnilateralAn individual state

recognizes that that an entity claiming to be a state meets the factual

requirement of statehood

UnilateralAn individual state

recognizes that that an entity claiming to be a state meets the factual

requirement of statehood

CollectiveA group of states

recognizes the existence of a

state directly or indirectly by admission

CollectiveA group of states

recognizes the existence of a

state directly or indirectly by admission

Unilateral recognition

• Constitutive School: the recognition of a claimant entity as a state creates or constitutes the state (additional requirement of statehood)

• Declaratory School: an entity becomes a state on meeting the factual requirement of statehood and that recognition by other state simply acknowledges (declares)’ as a fact something that has hitherto been uncertain’

Constitutive Schools

• States do not regard themselves having the obligation to recognise an entity as a state once it comply with the requirement of statehood

• Individual states free to determine the legal status of a state

• There are several objections to the constitutive view:

I. If the claimant state is recognized by state A and not state B, it becomes both a state and a non-state.eg North Korea

II.Glaring anomaly/grotesque spectacle, a state exist only in relation to another

III.If unrecognized state is not a state, it is not entitled to the rights or subject to the obligations of international law

IV.inconsistencies

• Political considerations do influence the decision and may prompt as state to recognize an entity prematurely or refusal to grant it recognition

• For eg. European Community recognized Croatia and Bosnia before they fulfilled the requirements of statehood for various political reason including to prevent escalation of violence

Declaratory schools

• Declaratory schools accept that an entity that meets the requirements of statehood becomes a state regardless of recognition.

• In S v Banda, the court conducted enquiry into the respective merits of the constitutive and declaratory approaches and found in favour of the latter on the grounds that:-

a)More objective and less politically subjectiveb)Supported by most writers

• Deutsche Continental Gas-Gesselschaft v Polish State

• Bosnia Genocide Case• Tinoco Arbitration

Methods of recognition• No rules are prescribed for the act of recognition• Usually it will take the form of public declaration by

the recognizing state which is conveyed to the claimant state.

• It maybe implied from the conduct of the recognizing state. However, it must be accompanied by clear evidence of an intention to recognize

• Can be inferred from an exchange of diplomats and the signing of a bilateral treaty

Friday, 31 October 2008 , New Kosovo Report

Malaysia recognized Kosovo

Today Malaysia recognized the Republic of Kosovo as an indepedent and sovereign country.

Chief of Liaison D'Affairs of Malaysia in Kosovo, Mustafa Mansor, handed the credential letter from Malaysia Foreign Minister Dr. Rais Yatim to Kosovar Foreign Minister Skender Hyseni, which confirms the recognition of Kosovo independence by the state of Malaysia.

 In the letter says:

"I would like refer to our cordial meeting at United Nations during the General Assembly session on September 27, 2008 in New York. I appreciate the oppertunity that we had to exchange views on issues of mutual interest including the developments in Kosovo.

I have the honour to convey to Your Excellency and through you to the Government of the Republic of Kosovo that the Government of Malaysia recognizes the independence of the Republic of Kosovo.

  I would like to take this oppertunity to extend my sincere good wishes to Your Excellency and the Government of Kosovo in all your future endeavours."   Malaysia becomes the 52nd country to recognize Kosovo independence.   Malaysia is a country that consists of thirteen states and three federal territories in Southeast Asia with a total landmass of 329,847 square kilometres (127,355 sq mi). The capital city is Kuala Lumpur, while Putrajaya is the seat of the federal government. The population stands at over 25 million. Malaysia gained its independence in 1957 from United Kingdom and as a unified federation in 1963.   Malaysia is a founding member of the Association of Southeast Asian Nations, member of the Organization of Islamic Conference and member of the Developing 8 Countries.

Collective recognition by the United Nations and decolonisation• UN Charter provides for two categories of

members: (1) original members [art 3] (2) subsequent membership [art 4]

• The General Assembly adopted the Granting of Independence to Colonial Countries and Peoples in 1960 in which it outlawed colonialism.

• Calls for immediate steps to be taken to transfer all powers to the peoples of those territory

• Once a state is admitted to the United Nations its acceptance as state for all purpose is assured

• Today, apart from Israel whose statehood is still denied by most Arab states, all members of the United Nations are accepted as states despite the fact that several probably would not have received widespread recognition by individual states using the traditional criteria

Collective Non-recognition

• UN may block the acceptance of a state by means of collective non-recognition.

• Eg. the non recognition of the Turkish Republic of Northern Cyprus and the puppet state of Manchukuo (the Assembly of the League of Nations adopted resolution not to recognize Manchukouo)

The principle of ex injuria jus non oritur

‘Non-recognition is based on the view that acts contrary to international law are invalid and cannot become a source of legal rights for the wrongdoer. That view applies to international law as one of the general principles of law recognized by civilised nations’

• An act in violation of a norm having the character of jus cogens is illegal, an therefore null and void. This applies to the creation of states and acquisition of territory

• States are under duty not to recognize such acts under customary international law (resolutions of GA and SC, Articles 40-41 of the draft articles on The Responsibility of States for Internationally Wrongful Acts)

• The following peremptory norms have been recognized by the United Nations for the purposes of non-recognition:-

a)The prohibition on aggression. The SC adopted a resolution declaring that the annexation of Kuwait had no legal validity and states were required not tot recognize that annexation

b)The prohibition on the acquisition of territory by means of force. (Israel’s forcible annexation of Golan Heights and East Jerusalem, the Israel’s ‘security wall’)

Security Council Resolution 662(1990)

Legal Consequences of the Construction of A Wall in the Occupied Palestinian Territory

(2004)“the Court observes that the obligations violated by Israel include certain obligation erga omnes….all States are under an obligation not to recognize the illegal situation resulting from the construction of the Wall in the Occupied Palestinian Territory, including in and around Jerusalem” They are also under obligation not to render or aid or assistance in maintaining the situation created by the Wall”