I. Traditional Subjects of International Law A. States In addition to controlling territory, States have lawmaking and executive functions. States have full legal capacity, that is, they have the ability to be vested with rights and to incur obligations. B. Insurgents Insurgents are a destabilizing factor, which makes States reluctant to accept them, unless they show some of the attributes of sovereignty (e. g. control of a defined territory). Their existence is temporary; they either prevail and become a full-fledged state, or fail and disappear. II. Modern Subjects of International Law.
All new modern subjects of international law lack permanent and stable control over a territory. They have limited legal capacity (do not have a full spectrum of rights and obligations) and limited legal capacity to act (i. e. to enforce their rights). A. International Organizations B. National Liberation Movements C. Individuals III. Conditions for Statehood and the Role of Recognition Unlike national systems, the international legal order lacks a set of detailed rules regarding the creation of states. However, such rules can be inferred from custom.
A. Conditions for Statehood The Montevideo Convention of 1933 lays the traditional and most widely accepted criteria of statehood in international law. It states “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. Even today, these conditions continue to be regarded as the fundamental elements of statehood, but they are neither exhaustive nor immutable.
Other factors might be relevant such as self-determination and recognition, but one thing is clear – the relevant framework revolves essentially around territorial effectiveness. The need for defined territory focuses upon requirement for a particular territorial base upon which to operate. Therefore, for this reason at least, the “State of Palestine” which was declared in November 1988 in Algiers cannot be regarded as valid state. The Palestinian organizations did not control any part of the territory they claim.
Note, there 1 is no need for clearly defined boundaries. E. g. Albania, prior to WWI was recognized by many countries as an independent state, although its borders were in dispute. The existence of a permanent population is naturally required and there is no specification of a minimum number of inhabitants. As to whether a state has an effective government, the emphasis has been on the control the state exercises over the relevant territory, at the exclusion of all other entities. The degree of control required varies depending on how a state came to existence.
Where the prior sovereign over the territory has consented to the creation of a new state under a new government, a low degree of control may be sufficient in satisfying this requirement. The existence of an effective government is not a prerequisite for the recognition of a State. E. g. In the case of Croatia and Bosnia and Herzegovina both states were recognized as independent at a time when non-governmental forces controlled substantial areas of the territories in question in civil war conditions. The capacity to enter into relations with other nations:
States are not the only international law subjects who have this capacity, but this capacity is essential to statehood. Where this element is not present, there cannot be a state. The essence of such capacity is independence; it is a formal statement that the state is subject to no other sovereignty. B. The Role of Recognition Who gets to decide whether the above conditions are met?
There are two main theories on recognition: - declaratory theory of recognition : an entity is a state once the conditions of statehood are met regardless of the attitude of other states towards the new entity (e. g. Montevideo Convention, art 3 “The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.
The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law. ” - constitutive theory of recognition : only when other states decide that the above conditions are met, and consequently acknowledge the legal capacity of the new state, is the new state actually created. Criticism of constitutive theory: it contradicts the principle of effectiveness; it is inconsistent with the principle of sovereign equality of states; it is logically unsound since it would allow an entity to be a state with respect to those states that have recognized it, while lacking legal personality with respect to those that have withheld recognition.
C. Effects of Recognition Recognition testifies to the will of recognizing states to undertake international dealings with the new state, it shows that the recognizing states consider the 2 conditions of statehood met (Tinoco Concessions v. Costa Rica. The recognition or non-recognition by one state is not binding on other states, but has a certain amount of weight. Recognition is also legally relevant because it creates estoppel, which prevents the recognizing party from later contesting or denying the legal personality of the new state. Note that premature recognition (when the conditions for statehood are not met) has legal relevance in that it may amount to unlawful interference with the internal affairs of a state (e. g. Croatia – Opinion No.
5 (Croatia) of the Arbitration Commission. The Arbitration Commission on Yugoslavia in 1992 found that Croatia met the necessary conditions for statehood, but some commentators have considered the recognition by Austria premature since Croatia exercised effective control over only 1/3 of its territory). D. Modern Trends in the Recognition of States The dissolution of the USSR is an example of recognition practice and an illustration of modern trends. While almost all other states recognized the independence of the former soviet republics, the European Community has made the recognition contingent on additional requirements relating to more modern notions of human rights and democracy.
The EC adopted a Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union,” which sets down general conditions, requiring a new state: - respect UN Charter, the Helsinki Final Act, the Charter of Paris, especially with regard to the rule of law, democracy and human rights - guarantee the rights of ethnic and national groups and minorities - respect existing borders - accept relevant arms control commitments; and - to commit to settle through negotiation and by agreement all questions regarding state succession and regional disputes.
The Declaration stated that the Community and its members will withhold recognition in cases of aggression. There are situations where all the requirements for statehood a met, but a “state” is not recognized as such by the majority of states. This happens when there is a conflict between the traditional principle of effectiveness and the modern international law trend of withholding legitimacy when a situation, albeit effective, contravenes general values of the world community.
IV. Continuity and Termination of the Existence of States and Recognition of Governments A. Continuity and Termination of the Existence of States 3 Changes in government do not have an effect on the identity of States. States are bound by international acts of prior governments. See Tinoco v. Costa Rica. However, changes in the territory of a State, may affect its legal personality.
Changes in the territory result from the following occurrences: - dissolution of a state (e. g. USSR, FSRY, Czechoslovakia) - merger of one State with anther (e. g. in 1990 North and South Yemen merged to form the Republic of Yemen) - incorporation by one state of another (e. g. the incorporation of the Federal Republic of Germany of the German Democratic Republic) Problem: Are the rights and obligations of the former state binding on the new state entity? The matter is resolved by customary rules. - Rules regarding the succession to treaties (Vienna Convention o1978). Customary rules distinguish between localized and non-localized treaties. Localized treaties attach to the new entity.
Non-localized treaties are dealt with differently depending on whether they concern newly independent states or other states. For newly independent states, the clean slate principle applies For other states, the principle of continuity applies. - Rules regarding property (Vienna Convention 1983) Public assets and state archives – belong to the state on which territory they are located (Art. 8 of the Convention) Public debts – unless otherwise agreed, the State debt of the predecessor State passes to the successor States “in equitable proportion. ” (Art. 40 of the Convention).
Membership to international organizations – no admission to the UN is required for the merging state if the State it merged into is a member of the UN. In the case of dissolution, all resulting states must apply, unless a state can claim to be a continuation of the old state (e. g. the Russia successfully claimed to be a successor state to the USSR and needed not apply anew for admission to the UN). B. Recognition of Governments Where a new government is established through normal, constitutional processes, there is no question regarding the recognition of that government.
The new government is entitled to all the rights and obligations under international law. By contrast, when an entity comes to power through non-constitutional means, it is not automatically accorded such rights and obligations. The key issue for a State when deciding whether to recognize a new government is whether that government is in de facto control of its state. Sometimes this test is insufficient and States have taken other factors into account (e. g. whether the new government is ready to honor the international obligations of the predecessor, whether it is democratic, whether it has come to power.