“Kosovo, an explosive region that once was a province of Serbia, has been on a long road to a kind of independence with international supervision. During the negotiations, the United Nations Security Council faced the challenge of finding a formula to protect about 114,000 ethnic Serbs while giving the majority ethnic Albanians enough autonomy to gain their support. Serbia has insisted that Kosovo remain its province, and Russia, Serbia's ally, has been cool to early plans for autonomy.
Kosovo's two main groups were at war until 1999. Since then, NATO troops have kept the peace in Kosovo and will stay put after independence, although the United Nations office will most likely be replaced by another international organization with power to reject laws that conflict with United Nations agreements. The United States, Britain, France, Germany, Italy and Russia formed a group to work out the details of the plan to be put forward to the governments of Serbia and Kosovo.
Among the thorny issues was the fate of former Kosovo Liberation Army fighters and protection of Serbian religious institutions. The European Union set up a police force to monitor the work of the police, judges, prosecutors and even prison guards in a multiethnic Kosovo, where 90 percent of the two million people are ethnic Albanian Muslims. ”  Even though it seems unlikely that the United Nations Security Council (Security Council or UN Security Council) will take action to create a new and independent state named Kosovo.
In view of the fact that Russia probably will not give up its opposition to an independent Kosovo and could easily block such effort by the Security Council by veto , the question arises whether the UN Security Council has the authority to create states, assuming that there were a unanimous belief among permament members of the Security Council that it was necessary to create a new state. Another region - inter alia - in which the Security Council could theoretically be asked to create a new state is Iraq.
Since, “[t]he American invasion of Iraq in March 2003 toppled the brutal authoritarian government of Saddam Hussein, but unleashed a massive sectarian civil war that, as of late 2007, has no end in sight. ”  While it is highly disputed whether Iraq should continue to exist or should be partitioned into three separate states, again the question arises whether it could be the UN Security Council, that has the legal authority to decide on such issues. B. Raising the Question: Can the UN Security Council Create States?
In situations like Kosovo or Iraq where a region of a failed or weak state that seeks independence does not have the military and or political power to actually gain independence, a threat to international peace and security can arise. The political instability can lead to the collapse of the overarching state and result in waves of refugees that potentially can destabilize the political situation of the neighboring states. Such threat could be so intense that it might justify the use of force.
It is possible that the UN Security Council in such a situation would come to the conclusion that it might be necessary to create a new and separate state out of an existing or failed state. The question that would strike a jurist in that situation would be whether the UN Security Council has the authority to execute that idea. Answering this question is the task of this paper. C. The Scope of the Question Since “state creation” is a very broadly defined and discussed term, it seems necessary to clarify and define the term “state creation” for the context of this paper.
Creation in the context of the paper means a unilateral creative act by the Security Council that is based on its own initiative. This is meant to oppose the traditional theories about state creation that are established in international customary law, and is explained further to a certain extend in the following parts. As well it is important to note that the paper is about the lex lata, i. e. the law as it is and not about the lex ferrenda, the law in transformation or how it should be.
This is for the fact that the discussion about the lex ferrenda is merely political or philosophical and therefore beyond the task of the paper, which provides a clear legal analysis of a legal problem. This does not mean that the paper is limited to pure description of the current law; much more the paper focuses on the legal cutout of the question and illuminates legal boundaries that frame the legal authority of the Security Council. D. Roadmap of the Paper After this brief introduction the paper gives a short overview of the most common situations in which the questions of state creation arises.
This is followed by a rough summary of the status quo on the law of state creation. This roundup includes a definition of a state and a summary of the two main theories of state creation. After this, the paper explains why it is necessary that the possible authority to create states has to be conferred on the UN Security Council by a norm of international law and that article 38 of the Statute of the International Court of Justice (the Statute) is the appropriate legal mechanism to validate such a norm.
In the preceding section the paper undertakes a scrutiny of the Charter of the United Nations (UN Charter) as well as of the possibilities that the authority to create states is conferred to the UN Security Council by international customary law or international principles of law accepted by all civilized nations. The results of the scrutiny are summarized in the final conclusion. II. When does the Question of Statehood arise? There are six situation in which the question of statehood and therefore the question of state creation regularly arises: •Break-up of an existing state into a number of states.
• Secession or attempted secession by part of a territory of an existing state. •Cases in which foreign control is exercised over the affairs of an existing state. •Cases in which states have merged or formed a union. •Claims by constituent units of a union or federation to the attributes of statehood. • Territorial or non-territorial communities which have a special international status by virtue of treaty or customary law and which claim statehood or certain purposes. As for instances former colonies or territories like Puerto Rico or the U. S. Virgin Islands.
“Controversies that arise with respect to the existence of a new state occur on both the international and national levels. On the international level, the issue is likely to arise when the entity whose status is in controversy seeks admission or the right of participation in an international body open to states alone. […] These issues are normally decided by decision of the international body concerned . In this paper however, the focus is on a different process. A process in which an international body – the United Nations (UN) - represented by the UN Security Council, decides to create a state unilaterally.
III. Analysis of the Question . Definition: What is a State? To discuss the creation of a state it is necessary to have an idea what kind of entities are considered to be states under international law. Despite the fact that there are other definitions one prominent definition is given by Restatement (Third) of the Foreign Relations Law of the United States § 201: “Under international law, a state is an entity that has a defined territory and permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.
B. Customary International Law on State Creation “The question of whether an entity is a state and should be so treated has given rise to two opposing theories. One theory is that the act of recognition by other states confers international personality on an entity purporting to be a state. In effect, the other states by their recognition ‘constitute’ or create the new state. […] the opposing position is that the existence of a state depends on the facts and on whether those facts meet the criteria of statehood laid down in international law. Accordingly, a state might exist without being recognized.
”  The factors that are required by the latter position are, as a minimum, that the entity whose legal status is controversial are those stated in Restatement (Third) of the Foreign Relations Law of the United States § 201: a permanent population and defined territory, a government and the capacity to engage in relations with other governments. Since 1991 numerous additional factors have emerged , for example respect for the provisisons of the UN Charter, guarantees for the rights of national groups and minorities or respect for the inviolability of all frontiers .
A document that seems to support the declaratory theory of state creation is the Montevideo Convention on Right and Duty of States (Montevideo Convention), signed on December 26, 1933. The Montevideo Convention states in its first article that “[a] 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” and in its Article 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. ”  Whether the Montevideo Convention constitutes customary international law is disputed. In 1950 the International Court of Justice (ICJ) held that the Montevideo Convention does not even constitute regional international customary law.  On the other hand it seems the European Union has considered the Montevideo Convention to express customary law at least since 1991 .
After all it is not necessary for this paper to choose which theory should be followed since the “practical differences between the two [theories] have diminished”  because states tend to take the recognition by other states into consideration when they are deciding whether the necessary facts, required by the declaratory theory, are fulfilled and the purpose of this section of the paper is to give a survey rather than an intense analysis on the existing international customary law. C. What Kind of Law Is Applicable to Nationbuilding by the UN?
To get closer to the core issue of the paper now, it is necessary to limit the scope to the law that could be applicable in the event that the Security Council decides to create a new state. 1. Is the Principle of Positivism (Lotus) Applicable to the UN? Positivism is the leading, however as well criticized theory  about international law. The core idea of positivism in international law is that “international law is no more or less than the rules to which states have agreed through treaties, custom and perhaps other forms of consent.
In the absence of such evidence of the will of states, positivists assume that states remain at liberty to undertake whatever action they please. ”  This principle was prominently applied in the case of the SS Lotus.  In that case a French vessel (SS Lotus) had a collision with a Turkish one. After the collision in which eight Turkish sailors died the SS Lotus went to a Turkish harbor, where the officer of the SS Lotus who was on watch duty during the collision was prosecuted for his failure to prevent the collision. The French government claimed that Turkey had to provide evidence that Turkish courts had authority over that case.
The Permanent Court of International Justice, however, held that “In these circumstances all that can be required of a state is that it should not overstep the limits that international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty. ”  The underlying rationale is that a state is basically allowed to do whatever it wants, as long as there is no conflicting rule of international law. The question following from that is obviously whether the theory of positivism, in the sense that everything what is not forbidden is allowed, is applicable to the UN.
Since the UN has the legal capacity to conclude treaties , it could – on the first glimpse – be assumed that the principle from Lotus could be applied. However, a closer look will shows the opposite: The principle of Lotus is based on the principle of sovereignty of states, which means essentially that “a state is not subject to any external authority unless it has voluntarily consented to such authority. ”  If the UN had full sovereignty and could conclude any treaty it desires it could bind its members to any treaty it wants.
The legal basis for this would be Article 2 paragraph 5 of the Charter providing that “[a]ll members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, […]” and Article 25 of the Charter: ”The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. ”  Thus, the UN could bind its members even to treaties that are against their will. Since it is a fundamental issue of the UN Charter to ensure state sovereignty i. e. independence, territory and freedom, such actions would contradict the UN Charter .
Furthermore such conduct would conflict with the principle of sovereignty of the states as shown above. Having said that it is important to note that the sovereignty of states is one of the “axiomatic characteristic[s] of statehood”  therefore it must prevail over an assumed full sovereignty of the UN. Otherwise states would - by becoming a member of the UN - lose their sovereignty and hence end being states. From all this it can be concluded that the principle from Lotus case can not be applied to the UN.
The rationale from Lotus was that a state can do whatever it pleases the state, as long as there is no conflicting norm of international law. This ability would be lost if states could be bound to treaties against their will by the UN. That means that the UN can not do whatever it wants as long as there is no conflicting rule of international law. The logically only other possibility is that for the UN everything that is not allowed, is forbidden. Hence a special norm that provides the authority to create states must be found if the UN Security Council wants to create a state. The bottom line is that positivism requires that some specific source of law must be identified granting such a power to the UN Security Council. 2.
How to Find such a Norm? As shown above, to create a state the UN Security Council would need an authorization in the form of a norm. When the ICJ, which is the most important court in international law , decides cases it relies on article 38 of its statute to determine what rules are actually norms of international law. Usually, however, the ICJ is concerned with disputes between existing states. Additionally article 38 of the statute of the ICJ expands the doctrine of source, which has been “the principal intellectual instrument in the last century for providing objective standards of legal validation” .
The doctrine of source considers treaty and state practice accepted as law as valid international law. Art. 38 of the Statute ads as a source “general principles of law recognized by civilized nations”.  Because of the expansion of the doctrine of source and due to the fact that article 38 of the statute is usually applied in conflicts between existing states, the question arises whether art. 38 of the Statute is applicable to pretended norms of state creation.
A first impression could be that it does not apply to state creation: From the wording of the Statute could ,by applying the plain meaning rule , be assumed that it shall only apply to existing states. Article 34 paragraph 1 of the Statute provides: “Only states may be parties in cases before the Court. ” Art. 38 of the Statute sets out the rules which shall be applied to the disputes between the parties, which are existing states. Hence it could be concluded that Art. 38 of the Statute only defines the law applicable between existing states, not the law of state creation.
Thus, article 38 of the Statute could not be applied to identify the needed norms. That assumption, though, would as well mean that everything but states could not be legal persons in international law, as there would be no law under what these other legal entities could act. And “[i]ndeed, at one time the generally held view was that only fully sovereign states could be persons in international law. The realities, however, were more complex and over time many different kinds of entities have been considered as capable of having international rights and duties and the capacity to act on the international plane.
”  Given that there are other entities than states that can have a legal personality in international law, the rules for validation of international law can not be reserved exclusively for states. Otherwise there would be no way of identifying the applicable rules or international law would have to consist of two different bodies of rules: one for states and one for other entities. Since there is only one body of rules in international law, that applies to both, states and other entities, it becomes clear, that the same mechanism of validation can be applied. Thus, Art.
38 of the statute can be applied to validate the norms applicable to create a state. IV. Applying Article 38 of the Statute The first source of international law mentioned in Art. 38 of the Statute are treaties, followed by international customary law and general principles of law. Even though it still seems to be unclear whether Article 38 of the Statute establishes a hierarchy there is no harm in it to start the search for the permission granting norm with treaties. A. Is the Authority to Create States Given to the UN Security Council by International Conventions?
The only treaty that can deliver such powers for the Security Council is the UN Charter, which regulates the powers of the UN and the UN Security Council. Of special interest are Chapters VI, VII, VIII and XII of the Charter, since these lay down the specific powers granted to the Security Council . None of the articles in the mentioned chapters explicitly grant the power to create states to the UN Security Council. Hence the permission to create states can only be found by interpreting articles from the Chapters.
Since Chapter VI only deals with legally non binding actions of the Security Council, the analysis must start with Chapter VII. 1. Chapter VII of the Charter The legal authority conferred to the UN Security Council by chapter VII of the Charter is scoped by articles 39, 41 and 42 of the Charter. The first article to analyze therefore is Article 39 of the Charter. It provides: “The Security Council shall determine the existence of any threat to the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
” Hence, Art. 39 of the Charter requires in a first step that the Security Council determine a threat to the peace. The focus of this examination is not on the determination process. Therefore the following thoughts are only applicable in a situation when the Security Council has determined that a threat to peace exists. The only limitation mentioned in Article 39 as to the measures that the Security Council can undertake in such an event is the accordance of the measures with articles 41 and 42 of the Charter.
Article 41 and 42 both provide very broad language in their first sentences: “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions […]” and “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action [… including] force as may be necessary to maintain or restore international peace and security. ”  Obviously that does not draw a clear line limiting the extent of Security Council power.
However, in Art. 41 as well as in Art. 42 the second sentence provides examples of the measures that the Security Council may undertake, such as interruption of economic relations and rail or blockade and other operations by air, sea or land forces . Of course the measures that can be undertaken by the Security Council are not limited to these examples, as the words “may include” in Art. 41 and 42 demonstrate. Thus, the examples can help to clarify what kind of measures were meant by the drafters of the Charter since they can be seen as “rule examples”.
“Rule examples” is a very conmen legislative technique in German Criminal Law legislature and show by giving examples, which factual situations usually fulfill the elements of a crime. In fact they are the opposite of the rule of inclusio unius est exclusion alterius (to include one excludes the other), since they are not enumerative. “Rule examples” however give an impression what kind of factual situations are meant by the code . The examples in Article 41 of the Charter are:
“Complete or partial interruption of economic relations and rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. ” And in Article 42 of the Charter, they are: “demonstration, blockade, and other operations by air, sea, or land forces of members of the United Nations. ” All these examples are such actions that can be applied upon an aggressor who threatens peace or security. None of them indicates that the measures that can be undertaken by the Security Council include affirmative measures like creating a state.
Taking this into consideration raises doubts about whether the power to create states is really intended by the wording of Article 41 or 42 of the Charter. Since Article 41 of the Charter provides the legal framework for measures that do not include the use of force while Article 42 concerns those measures that include the use of force the analysis has to be split up. Following the systematic order of the Charter, the first article to analyze is Article 41 of the Charter. (a) Articles 39, 41 of the Charter.
Article 41 gives only examples of boycott measures  to enforce decisions of the Security Council. As it is the nature of law- or decision enforcement, the possible measures serve the function of penalizing certain acts or omissions by legal entities, which contradict the decision or law that has to be enforced. Hence enforcement norms as Articles 41 and 42 of the Charter can be reduced to “orders backed by threats” . In contrast the creation of a legal entity is an affirmative act.
An analysis of the actions undertaken by the Security Council until the 1990s under Article 41 of the Charter supports the view that the measures under Article 41 are limited to penalizing actions. Until the late 1960s “[the Security Council] ha[d] been primarily concerned with averting hostilities” . By this it only twice took action based on Article 41 of the Charter until 1990 . Both were boycott measures to penalize certain behavior by Rhodesia  and the Republic of South Africa .
And even until 1993 it only took certain boycott measures . “The most far-reaching use of Article 41 ordering measures not listed was made by Resolution 827 (1993) of May 25, 1993 setting up the international tribunal for prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of former Yugoslavia. The S[ecurity] C[ouncil] expressed the view that this measure could contribute to the restoration of peace and to halting these violations.
”  Hence it firstly has to be analyzed whether the creation of the international tribunal for prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of former Yugoslavia (ICTY) was ultra vires and therefore void. If that was the case it would not be necessary to include the creation of the ICTY into the analysis of the main question. (i) Was the Creation of the ICTY an Ultra Vires Act by the Security Council? The examination was prominently undertaken in the Tadic case .
Tadic, “the first defendant brought for trial before the I. C. T. Y. challenged the jurisdiction of the Tribunal on the ground, inter alia, that the Security Council had exceeded its powers under chapter VII of the U. N. Charter by establishing a criminal tribunal. ”  The court dismissed the motion of the defendant, referring to Article 41 of the Charter:”[…] The Article on its face, does not limit the discretion of the Security Council to take measures not involving the use of armed force.
[…] That it was not originally envisaged that an ad hoc judicial tribunal might be created under Chapter VII, even if that be factually correct, is nothing to the point. Chapter VII confers very wide powers upon the Security Council and no good reason has been advanced why Article 41 should be read as excluding the step, very appropriate in the circumstances, of creating the International Tribunal to deal with the notorious situation existing in the former Yugoslavia. This is a situation clearly suited to adjudication by a tribunal and punishment of those found guilty of crimes that violate international humanitarian law.
”  Hence the creation of an international tribunal was authorized by Article 41 of the Charter. This view of the trial chamber was confirmed by the ruling of the appeal chamber of the ICTY, which held that “the Security Council has a very wide margin of discretion under Article 39 to choose the appropriate course of action and to evaluate the suitability of the measures chosen, as well as their potential contribution to the restoration or maintenance of peace. ”  Both chambers however, emphasized that there are legal boundaries to the power of the Security Council.
As the Appeals Chamber stated in the same decision: “In any case neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law). ” To determine whether the creation of states is within the indicated legal boundaries is the purpose of this paper. Having said that and due to the fact that the creation of the ICTY was not ultra vires, it is necessary to incorporate the creation of the ICTY into the analysis of the authority of the Security Council in regard to state creation. (ii) Characterization of the Creation of the ICTY.
It could be argued that the creation of such a complex legal body as the ICTY is an affirmative act rather than a penalizing one. This would mean that, since the creation of the ICTY was, as shown above, not ultra vires, the authority of the Security Council under Articles 39, 41 of the Charter is not limited to penalizing actions. From that the inference could be drawn that the creation of states is within the powers of the Security Council under Articles 39 and 41 of the Charter. Hence it is necessary to determine whether the creation of the ICTY was a creative or a penalizing act.
For the view that the creation of the tribunal was an affirmative act speaks the act of creation of a complex legal body itself: It takes an affirmative act to set up a court and it obviously takes a larger amount of administrative effort to create a court with several chambers. On the other hand should the character of the creation of the ICTY be taken into consideration: As the trial chamber in the Tadic case stated:” This is a situation clearly suited to adjudication by a tribunal and punishment of those found guilty of crimes that violate international humanitarian law.
”  In another part of the opinion on the defense’s motion on jurisdiction the trial chamber expresses the penalizing character of the ICTY even more expressly by quoting James C. O’Brian in The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, who described the establishment of the ICTY in a four step process involving: ”(1) condemnation; (2) publication; (3) investigation; and (4) punishment” (emphasis by author). Hence it becomes clear, that even though the creation of the ICTY involved partly abstract creative and administrative acts, its character was nevertheless penalizing.
(iii) Conclusions on Articles 39, 41 of the Charter While the creation of a state can be characterized as an affirmative act, the wording of Article 41 of the Charter intends to limit the authority of the Security Council to penalizing measures. The practice of the Security Council is completely within these limits, even the most far reaching measure undertaken by the Security Council under Articles 39, 41 of the Charter i. e. the creation of the ICTY is a penalizing measure.
Since the creation of a state would not be a penalizing act but an affirmative one, Articles 39, 41 of the Charter do not provide the authority to create states to the Security Council. (b) Articles 39, 42 of the Charter By explicitly including the use of force Article 42 of the Charter provides an increase in the intensity of the measures which the Security Council can apply, compared to the measures under Article 41 of the Charter. Article 42 thereby is the next logical step in escalation in the event “that measures provided for in Article 41 would be inadequate or have proved to be inadequate” (U.N. Charter art. 42. ).
Having said that, it becomes clear that Article 42 - as well as Article 41 - “[a]s the ICJ correctly pointed out in its Certain Expenses advisory opinion , measures under Art. 42 constitute ‘enforcement measures’ against a state” . Again, and even stronger than in Article 41 of the Charter, the penalizing character of Articles 41 and 42 of the Charter is articulated. As shown above measures that fall within the category of abstract administrative and creative acts, as the creation of a state would do, are not covered by Article 42 of the Charter.
(c) Broader Interpretation and Modification of Articles 39, 41, 42 of the Charter The question might arise whether Articles 39, 41, 42 of the Charter are open to a broader interpretation under “the principle of maximum effectiveness”. This principle states that “texts […] should be interpreted […] to have the fullest value and effect [. ]”  (emphasis in original) . Despite the fact that it remains doubtful whether such a principle exists  it would in any case be limited by the wording and meaning of the text .
These very limits are elaborated in the above scrutiny. Hence even applying the principle of maximum effectiveness could not expand the powers of the Security Council to the extend that it could create states. Equally unsuccessful would be the attempt to justify a hypothetical creation of a state by the Security Council on the basis of a progressive modification of the Charter by the Security Council. Additional to the various arguments brought up against a progressive modification of the Charter concerning.
Article 27 (3) of the Charter prior to the Korean War , the possibility of a progressive modification of such Articles that concern the relations between the UN and states by the Security Council would ultimately lead to an application of the Lotus principle. This is because the Security Council than could change the Charter as it pleased and therefore undermine the sovereignty of all other member states, since they still would by Article 25 of the Charter be obliged to carry out the decisions of the Security Council.
Therefore Articles 39, 41, 42 are neither open to a broader interpretation nor can they be modified by the Security Council. (d) Concluding comments on Articles 39, 41, 42 of the Charter As the appeals chamber of the ICTY states in the Tadic case : ”The Charter […] speaks the language of specific powers, not of absolute fiat. ” The Chamber as well makes clear beyond any doubt that the powers of the Security Council are “l.