Lecture 2
Chapter 5: States as Subjects of International Law
Under Int. Law States possess full, objective legal personality, they have full legal capacity with respect to
rights, powers and obligations within that legal system.
o Including ability to appear before int. tribunals to:
▪ Enforce rights under int. law
▪ To be subject to obligations under int. law
▪ To make binding int. agreements
▪ To enjoy some or all immunities
Criteria for Statehood
Relevant Case: Montevideo Convention Art 1
4 criteria for statehood:
1. A permanent population
2. A defined territory
3. A government and
4. The capacity to enter into relations with other states
Widely regarded as codifying existing CIL
Population:
- No min. requirement for population
- No concern as to how pop. came to reside there, ex. Unlike all other states, Vatican City,
citizenship is conferred on the grounds of professional appointment
- Pop. does not need to inhibit territory constantly- ex. Western Sahara Advisory OP. ICJ recognises
Nomadic Sarahawi pop. and their link to the territory of W. Sahara
Territory
- Territory crucial for statehood, as otherwise no meaningful control cannot be exercised by State
for an extended period of time
- No min. amount of territory, can be miniscule- ex. Vatican City exercises sovereignty over an
enclave of Rome, only 0.5 km2
- Defined territory does not have to mean fully settled boundaries for the state-Bosnia and
Herzegovina and Croatia- ex. Admitted in UN in 1992 despite boundary disputes with Yugoslavia
Effective Government
- Very subjective element- underlying idea is that a people must be sufficiently socially and
politically organized to be viewed as an entity
- State can only exist if it is in position to uphold its int. legal duties and obligations
- There needs to be a coherent political structure through which law and order can be guaranteed
, - Art. 4 of UN Charter: only allows states to be admitted into the UN- therefore when admitted it is
seen as a state
- Gov. collapse does not impact existence of a State
Capacity to enter into IR
- Essence of capacity to enter into relations with other states is independence
- A territory even with permanent pop. and a gov could not be a state if under the direct or
indirect control of another state
Emerging or Unsettled Criteria: Respect for democracy. HR and the right to self- determination
- Some state practice suggest statehood must conform with additional standards demanded by
int. community such as respect for democracy, HR and rights of minorities
o Ex. European Community (EC) declared entities seeking recognition as States could only
be recognised if they respected existing boundaries, guaranteed the rights if national or
ethnic minorities, displayed commitment to democracy, the ‘rule of law’ and HRs
▪ However theses elements have not been part of forma; determinative factors
for the admission to the UN
Self Determination
- Seen as additional criterion of statehood that has emerged
- Canadian gov. suggests that external self- determination may arise: “if a definable group is
denied meaningful access to gov. to pursue their political, economic, social and cultural
development”
- Relevant Articles: UN Charter Art 1(2), 2 UN Covenants on Human Rights at Art 1 (1)- Self-
determination has been referred to
- Violation of the right to self- determination might = denial of recognition from other states
- Ex. Rhodesia, its claim to statehood repeatedly denied by UN on basis that Rhodesian gov. drawn
exclusively from minority white settler pop. sought to impose apartheid on majority black pop.
- ICJ Advisory OP on Kosovo, Court distinguishes Kosovar declaration of independence from
Rhodesia, and N. Cyprus on basis that these ‘were or would have been connected with the
unlawful use of force or other egregious violations of norms of gen. int. law particularly jus
cogens norms.’
Recognition of States and Govs
Competing theories of recognition of States
Declaratory and Constitutive theory of recognition:
Constitutive Theory-
o States decide who are states
o Suggests that recognition by other States is necessary condition for statehood even if all
criteria for statehood is met
o Issue: also that act of recognition can be political, and is giving weighting of a legal
decision
Chapter 5: States as Subjects of International Law
Under Int. Law States possess full, objective legal personality, they have full legal capacity with respect to
rights, powers and obligations within that legal system.
o Including ability to appear before int. tribunals to:
▪ Enforce rights under int. law
▪ To be subject to obligations under int. law
▪ To make binding int. agreements
▪ To enjoy some or all immunities
Criteria for Statehood
Relevant Case: Montevideo Convention Art 1
4 criteria for statehood:
1. A permanent population
2. A defined territory
3. A government and
4. The capacity to enter into relations with other states
Widely regarded as codifying existing CIL
Population:
- No min. requirement for population
- No concern as to how pop. came to reside there, ex. Unlike all other states, Vatican City,
citizenship is conferred on the grounds of professional appointment
- Pop. does not need to inhibit territory constantly- ex. Western Sahara Advisory OP. ICJ recognises
Nomadic Sarahawi pop. and their link to the territory of W. Sahara
Territory
- Territory crucial for statehood, as otherwise no meaningful control cannot be exercised by State
for an extended period of time
- No min. amount of territory, can be miniscule- ex. Vatican City exercises sovereignty over an
enclave of Rome, only 0.5 km2
- Defined territory does not have to mean fully settled boundaries for the state-Bosnia and
Herzegovina and Croatia- ex. Admitted in UN in 1992 despite boundary disputes with Yugoslavia
Effective Government
- Very subjective element- underlying idea is that a people must be sufficiently socially and
politically organized to be viewed as an entity
- State can only exist if it is in position to uphold its int. legal duties and obligations
- There needs to be a coherent political structure through which law and order can be guaranteed
, - Art. 4 of UN Charter: only allows states to be admitted into the UN- therefore when admitted it is
seen as a state
- Gov. collapse does not impact existence of a State
Capacity to enter into IR
- Essence of capacity to enter into relations with other states is independence
- A territory even with permanent pop. and a gov could not be a state if under the direct or
indirect control of another state
Emerging or Unsettled Criteria: Respect for democracy. HR and the right to self- determination
- Some state practice suggest statehood must conform with additional standards demanded by
int. community such as respect for democracy, HR and rights of minorities
o Ex. European Community (EC) declared entities seeking recognition as States could only
be recognised if they respected existing boundaries, guaranteed the rights if national or
ethnic minorities, displayed commitment to democracy, the ‘rule of law’ and HRs
▪ However theses elements have not been part of forma; determinative factors
for the admission to the UN
Self Determination
- Seen as additional criterion of statehood that has emerged
- Canadian gov. suggests that external self- determination may arise: “if a definable group is
denied meaningful access to gov. to pursue their political, economic, social and cultural
development”
- Relevant Articles: UN Charter Art 1(2), 2 UN Covenants on Human Rights at Art 1 (1)- Self-
determination has been referred to
- Violation of the right to self- determination might = denial of recognition from other states
- Ex. Rhodesia, its claim to statehood repeatedly denied by UN on basis that Rhodesian gov. drawn
exclusively from minority white settler pop. sought to impose apartheid on majority black pop.
- ICJ Advisory OP on Kosovo, Court distinguishes Kosovar declaration of independence from
Rhodesia, and N. Cyprus on basis that these ‘were or would have been connected with the
unlawful use of force or other egregious violations of norms of gen. int. law particularly jus
cogens norms.’
Recognition of States and Govs
Competing theories of recognition of States
Declaratory and Constitutive theory of recognition:
Constitutive Theory-
o States decide who are states
o Suggests that recognition by other States is necessary condition for statehood even if all
criteria for statehood is met
o Issue: also that act of recognition can be political, and is giving weighting of a legal
decision
