States in international law The creation of States

States in international law

The creation of States • At the beginning of the twentieth century there were some fifty acknowledged States. Immediately before World War Two there were about seventy-five. By 2005, there were almost 200—to be precise, 192. The emergence of so many new States represents one of the major political developments of the twentieth century. It has changed the character of international law and the practice of international organizations. It has been one of the most important sources of international conflict. ( James Crawford, The Creation of States in International Law, Second ed. , 2006, p. 4. )

Statehood and State • Article 1 of the Montevideo Convention on Rights and Duties of States provides: 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. • Question 1: If any entity satisfies the criteria provided by Article 1 of the Convention, is it a State in international law? Are the criteria provided by the article sufficient for Statehood, as well as being necessary? • Question 2: Who is competent to decide whether an entity has achieved the conditions laid down in the Convention and any additional Statehood criteria? What does UN member mean in this regard?

James Crawford’s position • Crawford considers some other possible conditions such as “permanence”, “willingness and ability to observe international law”, “a certain degree of civilization”, “recognition”, the existence of a “legal order” within the state, and “legality”.

Population and territory • A permanent population: the population may be changed, and not requiring a minimum number of inhabitants for an entity to qualify as a State; Even an entity with the population less than one million or even less, if it satisfies all the requirements for a State, it is a State in international law. • For Vatican City: it restricts its population to adult men and that the population is reproduced asexually, through recruitment. • Defined territory: This not means that all the territories of a State is without any dispute with other States, and the size is not required. For defined territory, what is considered critical is that there be “a certain coherent territory effectively governed”. A related international legal principle is the right of states to “ territory integrity”, as article 2(4) of the UN Charter: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Government and independence • Government: International law requires that an entity have an organized and effective government before it can be considered a state. Traditionally, there has been little concern with the form of the government, only its effectiveness. • Capacity to enter into relation with other states: The criterion is generally understood to signify independence from authority of other states, so that agreements with other states can be freely entered into. This is the decisive criterion of statehood, and the capacity to enter into international relations mainly depends upon the willingness of other states.

Vatican City • The Vatican City is governed by the Holy See, which is a non-member state maintaining a permanent observer mission to the UN. The Holy See is regarded as the “juridical personification” of the Roman Catholic Church. It is a full member of some UN specialized agencies and some European intergovernmental organizations. The Holy See receives and sends diplomatic representatives to other states. It can enter into treaties, address the UN General Assembly and participates as an associate member of the UN on the same basis as state delegations in UN conferences and meetings.

Statehood and recognition • The declaratory doctrine: Recognition of a new state is a political act, which is, in principle, independent of the existence of the new state as a subject of international law. So, Statehood is a legal status independent of recognition. • To this doctrine, once a State actually exists, the legality of its creation or existence must be an abstract issue: the law must take account of the new situation, despite its illegality. This doctrine pays much attention to effectiveness other than legitimacy. • “…the recognition of a State is not constitutive but merely declaratory. The State exists by itself and the recognition is nothing else than a declaration of this existence, recognized by the States from which it emanates. ” (German-Polish Mixed Arbitral Tribunal)

Recognition • The constitutive theory: the rights and duties pertaining to statehood derive from recognition. • “The full international personality of arising communities…cannot be automatic…As its ascertainment requires the prior determination of difficult circumstances of fact and law, there must be someone to perform that task. In the absence of a preferable solution, such as the setting up of an impartial international organ to perform that function, the latter must be fulfilled by States already existing. The valid objection is not against the fact of their discharging it, but against their carrying it out as a matter of arbitrary policy as distinguished legal duty. ” (Lauterpacht)

Two arguments to the rejection of the constitutive doctrine • First, if state recognition is definitive then it is difficult to conceive of an illegal recognition and impossible to conceive of one which is invalid or void. • A second difficulty with the doctrine is its relativism. As Kelsen points out that “…the legal existence of a state …has a relative character. A state exists legally only in its relations to other states. There is no such things as absolute existence. ”

Some examples for recognition: Kosovo issue • On 17 February 2008 the Government of Kosovo declared independence from Serbia. • On 8 October 2008, the General Assembly adopted the resolution 63/3, in which it asked the International Court of Justice to render its advisory opinion on the following question: Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law? • On 22 July 2010, the Court delivered its advisory opinion. The operative part of the opinion is as following: the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law. • http: //en. wikipedia. org/wiki/International_recognition_of_Kosovo

Kosovo issue • International reaction was mixed, and the world community continues to be divided on the international recognition of Kosovo. • As of 29 June 2013, the Republic of Kosovo has received 105 diplomatic recognitions as an independent state. Notably, 103 out of 193 (53. 4%) United Nations (UN) member states, 23 out of 28 (82%) European Union (EU) member states, 24 out of 28 (86%) NATO member states, and 34 out of 57 (60%) Organisation of Islamic Cooperation (OIC) member states have recognised Kosovo. The Government of Serbia does not recognise it as a sovereign state.

Canadian Supreme Court’s position concerning external self-determination • • 126. The recognized sources of international law establish that the right to selfdetermination of a people is normally fulfilled through internal self-determination—a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. External self-determination can be defined as in the following statement from the Declaration on Friendly Relations…as: “The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people. ” 127. The international law principle of self-determination has evolved within a framework of respect with the territorial integrity of existing states. The various international documents that support the existence of a people’s right to selfdetermination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state’s territorial integrity or the stability of relations between sovereign states.

EC’s practices on the recognition of new states • During the dissolution process of former Yugoslavia, in order to coordinate the policies of Member States on the recognition of new states and to arrive at common positions, on August 27, 1991, the European Community and its Member States established a Conference on Yugoslavia, as well as with an Arbitration Committee. All the members of the Arbitration Committee were the Presidents of German, Italy and other European State’s Constitutional Tribunals, none of them has any background or experience in international law. • On November 20, 1991 the president of the Conference on Yugoslavia asked the Arbitration Committee for its opinion on whether Yugoslavia continued to exist. The Yugoslav federal authorities and all six Republics made submissions. The Committee concluded in Opinion No. 1 that the answer depended on public international law conditions for statehood and further that “the existence or disappearance of the state is a question of fact; that the effects or recognition by other states are purely declaratory. ”

EC’s practices on the recognition of new states • • • On November 29, 1991 the Arbitration Committee concluded “that the Socialist Federal Republic of Yugoslavia is in the process of dissolution. ” This Opinion opened the way for the Member States of the EC to determine whether and under what conditions to recognize the former Yugoslavia as emergent sovereign states rather than as entities seceding from a continuing Yugoslavia. On December 16, 1991 the EC and its Member States issued Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union. http: //207. 57. 19. 226/journal/Vol 4/No 1/art 6. html • The cumulative effects of the Guidelines was to transform recognition of new states from Yugoslavia from a primarily legal and factual estimate of viability as sovereign entities to a primarily political estimate of future good behaviour. (Eileen Denza, European Practice on the Recognition of States, 36 European Law Review, p. 324)

The difference between Kosovo issue and Yugoslavia Issue for European States • As for Yugoslavia issue, the EC and the Member States adopted consistent practice; While for Kosovo issue, different States adopted different practices. • Reason: On February 18, 2008, the External Relations Council of EU stated that the case of Kosovo was sui generis and announced that the Member States would determine their individual relations with Kosovo “in accordance with national practice and international law, ” taking account into the different positions among Member States on the issue of recognition of Kosovo. And at that time, the Arbitration Committee did not exist anymore. So, quite different from the practice settled for other secession States concerning the former Yugoslavia, no coherent common policy for EU to adopt.

The practice of UN on Yugoslavia issue • On 19 September 1992 the Security Council adopted Resolution 777, in which it “considering that the state formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist, ” “the claim by the Federal Republic of Yugoslavia (Serbia and Montenegro) to continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations has not been generally accepted, ” and “considers that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations; and therefore recommends to the General Assembly that it decide that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly. ”

The practice of UN on Yugoslavia issue • • • On 7 October 1992, the General Assembly adopted Resolution 47/1, in which it “considers that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations, and therefore decides that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly. ” While the International Court of Justice adopted a quite different approach to the same issue. On 10 November 2000, the General Assembly adopted Resolution A/RES 55/12 titled “Admission of the Federal Republic of Yugoslavia to Membership in the United Nations. ” • Question: during the process abovementioned, where the membership of former Yugoslavia had gone, just as an original member of UN?

Non-recognition • If any situation or entities established and maintained through the unlawful use of force or in violation of Security Council decision, all the States should maintain non-recognition. • In 1983 the Turkish Cypriot authorities declared to create an independent state in Northern Cyprus (Turkish Republic of Northern Cyprus), the Security Council stated that the declaration was legally invalid and contrary to earlier Security Council resolution and called on all states not to recognize any Cypriot state other than the Republic of Cyprus. (SC R. 541(1983)). • Also in its Resolutions 661 and 662 of 1990, the Security Council required non-recognition of the purported annexation of Kuwait by Saddam Hussein in 1990.

The “external” and “internal” consequences of non-recognition • In Hesperides Hotels, Lord Denning pointed out that “ the executive is concerned with the external consequence of recognition, vis-à-vis other states. The courts are concerned with the internal consequences of it, vis-àvis private individuals. So far as the courts are concerned, there are many who hold that the courts are entitled to look at the state of affairs actually existing in a territory, to see what is the law which is in effective and enforced in that territory, and to give such effect to it －in its impact on individuals －as just and common sense require: provided always that there are no considerations of public policy against it. • District Court of Kyoto in its judgment of 7 July 1956 also pointed out that “private international law is designed to find the most appropriate law …and it is not concerned with adjusting the mutual relationship of sovereigns. Therefore, foreign law applied under private international law principles should not be limited to the law only of a recognized State or Government; effectiveness of foreign law should not depend on recognition.

Assignment • Comparing with the two judicial decisions sent to you, try to find their differences and provide your observations (a short essay no more than 2000 words).