#3543 - Statehood - Public International Law

Basic Concepts

• International Personality

• Capacity to be the bearer of rights & duties under IL + capacity to maintain rights’(substantive + procedural)

• Distinguish

1. Objective legal personality – erga omnes (arises against the world)

2. Particular legal personality – binding against consenting states only

• Public International Organisations have legal personality at IL

• Reparation for Injuries Case (1949) – Swedish national & Chief UN Truce negotiator Bernadotte killed by private gang of terrorists in Jerusalem (then in possession of Israel). ICJ held that, in the event of its agent being killed in performance of duties, it could seek reparation for damage caused to UN & to the agent/persons entitled through him b/c UN is intended to exercise & enjoy functions & rights which can only be explained on the basis of possession of large measure of int. personality & capacity to operate on int. plane. UN’s ability to claim on behalf of B/his family isn’t expressed in Charter but can be implied by way of necessary implication of essentiality to performance of its duties + injury may be such that state wouldn’t be able to claim dipl. protection or agent could be stateless. Actions of UN aren’t based on agent’s nationality but on his status as an agent - doesn’t contradict nationality claims.

• Individuals – [partial] legal personality at IL

• Lauterpacht – in practice, states are no longer subjects of int. rights & duties

• ICJ Statute – only states can be parties to int. proceedings but a number of other instruments have recognised capacity of others

• There’s nothing in IL to prevent individuals from directly acquiring rights under treaty provided this is intended by contracting parties

• Non HR context – foreign investment claims under ICSID & BIT

• Customary IL obligations bind individuals directly regardless of law of their state & any contrary orders received from their superiors – crimes of IL are committed by men, not abstract entities, and that only by punishing individuals IL can be enforced.

• Insurgents, national liberation movements may also have personality at IL

• Sovereignty

• Totality of int. rights & duties recognised by IL as residing in independent territorial unit

• Not in itself a right/criterion of statehood

• Associated w/‘sovereign equality’ – a normative term/possibly unobjectionable

• Can’t say b/c state is sovereign, its conduct isn’t questionable, though!

Notion of Statehood

• Evans–misleading to speak of ‘creation of states’ not created the same way as cabinet maker creates a piece of furniture but emerge through spontaneous or organised political action on the part of comm. as a whole who articulate their common destiny in terms of political independence. To extent that there’s reliance on ‘effectiveness’ for purposes of determining existence of state, the role of the law is ex post facto.

• Crawford – purely empirical notion of statehood a state isn’t a fact in the sense in which a chair is but it has legal status attaching to certain state of affairs by virtue of certain rules & practices exclusive & gen. characteristics:

1. plenary competence to perform acts, make treaties, in int. spheres

2. exclusive competence re internal affairs (naturally, may be constrained by IL)

3. not subject to compulsory int. process, jurisdiction, settlement w/out consent

4. ‘equality’ in IL

• Core of statehood but will always be subject to context.

• Statehood = a form of standing, rather than a set of rights (states exist at int. level but this is a concept, not a place = denotes a range of rights/resp. at that level)

• Not having treaty making powers is conclusive against being a state.

• Quest. whether there’s objective criteria of statehood or open texture of rules enabling states to refuse the status to entities which in fact qualify to be treated as states?

• Evans’s critique: C’s analysis may work in context of states which emerge through consensual process but where they emerge out of conflict/dispute, the question is how to conceive a moment in which sovereign authority is created out of mere fact of forcible seizure of power.

• Higgins: while the concept has an undeniable core, application of component elements will depend upon:

1. purpose for which entity is claiming statehood

2. circumstances in which the claim is made

Criteria

• Pan American Union–Art 1 Montevideo Convention on Rights & Duties of States

1. Permanent population

2. Defined territory

3. Government

4. Capacity to enter into relations w/other states ( Evans – conclusion, rather than a starting point)

• Reflects customary IL

  • Evans – as a starting point, either too abstract (says little, does nothing to guide aspiring states; e.g. Palestine, Quebec) or too strict. No mention of independence, legitimacy, democracy, self determination.

  • Do we need either:

1. quantitative measure of intensity (qualities possessed to certain degree) – requires a threshold but unlikely to be possible to articulate in advance

2. qualitative evaluation (claims made justified in certain way – e.g. pr. of self determination) – relies upon prior establishment of int. recognised regimes of entitlement & resp.

• NO: both demand too much ques. is how do we move from fact to law or from cognition of existence of state to its legal recognition w/out assuming the thing being offered the imprimatur of legality s not somehow already in existence....

1. Permanent Population

• No minimum threshold

• e.g. Vatican, Monaco

• Not a rule of population’s nationality– nationality depends on statehood, not vice versa

• result of creation of new state on territory statelessness or automatic change of nationality? = unclear, no gen. obl. on state to grant nationality to all residents on territory

• Not a condition of statehood - cast in metaphorical terms must exist as if in relationship to an order of govt. over territory in which their presence as objects of coercion is necessary (Evans)

2. Defined Territory

• No minimum threshold

• But small size/fragmentation may have a negative effect in practice

• Sufficient consistency is enoughdefined or undisputed boundaries not a prerequisite to statehood

• Albania’s admission to League of Nations (1920) despite no fixed frontiers (settled by PCI Ad. Op.)

• North Sea Cont. Shelf – no rule that land frontiers must be fully delimited or defined

• German/Polish Mixed Arbitral Tribunal

• Main issue – ability to rightfully claim the territory as domain of exclusive authority (Evans)

• But in this way can only imagine the state establishing authority over terra nullius territory...

• Border v Territory

• Allows to dispose of ongoing border disputes w/out questioning statehood

1. border – consequence of possessing a territory (delimitation proceeds on legitimate entitlement on both sides)

2. territory – can’t be framed in terms of mere ownership/possession b/c concerns quest. as to very existence of legal person rather than spatial parameters

• e.g. emergence of Israel (1948) – entire territory carved out of defunct British Mandate

• A highly indeterminate quality of statehood – indispensable yet incapable of articulation in anything but abstract/metaphorical terms

• A constituent of govt. & independence, not a self-standing requirement (Crawford)– even substantial boundary dispute w/new state isn’t enough to bring statehood into question – only req. is that state must consist of certain coherent territory effectively governed

3. Independent Government

• Application difficult b/c criteria for statehood are nominal & exclusionary, concerned w/borderline cases...

• A central requirement + feeds into 2. IL defines territory by ref to extent of govt. power exercised/capable of being exercised

• Doesn’t apply during civil war/collapse of law & order in existing state

• Mostly aimed at recognition of ‘effective’ govt entities

• Govt effectiveness

1. Definition

1. power to assert monopoly over exercise of legitimate physical violence over territory (Weber)

• Evans – tautological; no available distinction b/w legitimate & illegitimate violence

2. unrivalled possession & control of public power established w/degree of permanence

2. Central role in Crawford’s thesis of statehoodnationality depends on statehood + territory is defined by ref to extent of govt. power = govt. effectiveness is the most important criteria

1. operates as legal principle - its effect conditioned by relevant principles (e.g. self-determination)

2. explains why relatively young political entities haven’t been recognised as independent

• e.g. Turkish Rep of Northern Cyprus & Southern Rhodesia

3. less strict in some cases e.g. Belgian Congo – granted hurried independence in 1960 as Rep of Congo w/little prep; public order broke down, secessionist factions sought independence, Belgian troops reinterred under humanitarian intervention guise by UN; ONUC established for restoring peace = clearly, no effective govt., yet a state = conclusion applicable principles

1. where new state is granted full/formal independence by a former sovereign, it’s presumed it has the int. right to govern its territory

2. where secessionist entities seek statehood by adverse claims, can only succeed by showing sufficient degree of effective/stable exercise of govt. powers

Statehood is not a simply factual situation it’s a legally circumscribed claim of right, especially as a claim to competence to govern a territory. Whether it’s justified, depends on facts + whether disputed. As a precondition to statehood, beyond a certain point, it’s relative.

3. Challenges to the concept

1. Effect of...