en_states

1.

LECTURE · PUBLIC INTERNATIONAL LAW
Subjects of IL — I
Statehood, Recognition
& Self-determination
Montevideo 1933 · Declarative / Constitutive · Succession · Peoples
Academic Lecture Series

2.

OUTLINE
Lecture Contents
Four parts
01
03
Statehood
02
Recognition
Montevideo Convention 1933 — four criteria + more.
Declarative vs constitutive theories; Stimson doctrine.
State succession
Self-determination
VCSST 1978, VCSSP 1983 — cases from USSR to Yugoslavia.
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04
External vs internal, Kosovo, Quebec, remedial secession.
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3.

PART I
Statehood
Montevideo criteria · Sovereignty · Additional criteria

4.

CHAPTER 01 · STATE
The state · primary subject of IL
From Westphalia (1648) to today — the fundamental actor
PRIMARY SUBJECT
The state is the paradigmatic subject of IL — sovereign, equal, and possessing full international legal personality. Other
subjects (IOs, individuals) derive their status from state consent or state creation.
Full personality
Sovereign equality
Territorial base
Rights to make treaties, engage in diplomacy, wage
One state, one vote — regardless of size or power.
Existence tied to control over a defined territory.
war, be a party in courts.
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5.

CHAPTER 01 · MONTEVIDEO
Montevideo Convention (1933)
The classical definition of statehood — Article 1
26 DECEMBER 1933 · URUGUAY
Convention on the Rights and Duties of States. Article 1: «The state as a person of international law should possess the following
qualifications».
Permanent population
Defined territory
(a)
(b)
A stable community of people inhabiting the territory.
Territorial base — no exact size required; borders may be disputed.
Government
Capacity
(c)
(d)
Effective political authority in control of territory + population.
Capacity to enter into relations with other states.
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6.

CHAPTER 01 · POPULATION
Criterion 1 · Permanent population
A stable community of people — no minimum number required
STANDARD
A stable community linked to the territory. No minimum size prescribed by IL — smallest UN member (Nauru) has ~10 000 inhabitants;
Vatican City has ~800.
No size threshold
Permanence required
IL does not prescribe a minimum population — micro-states are fully-fledged states.
Nomadic or seasonal presence insufficient — must be settled community.
Nationality nexus
Ethnic homogeneity
Not required that all inhabitants be nationals — but some legal nexus is expected.
Not required — most states are multi-ethnic; homogeneity is not a legal criterion.
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7.

CHAPTER 01 · TERRITORY
Criterion 2 · Defined territory
A territorial base — no minimum size, and borders may be disputed
NORTH SEA (ICJ 1969), PARA. 46
«The appurtenance of a given area, considered as an entity, in no way governs the precise determination of its boundaries» — states exist
even with disputed borders.
No minimum size
Disputed borders OK
Vatican City ~0.5 km²; Russia >17 M km² — both fully sovereign states.
Israel admitted to UN in 1949 despite unresolved borders — statehood not defeated.
Land + water + air
Stability required
Territory includes land, internal waters, territorial sea (12 nm), and airspace.
Some form of stable control — not merely momentary occupation.
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CHAPTER 01 · GOVERNMENT
Criterion 3 · Government
Effective political authority — the «effectiveness» requirement
EFFECTIVENESS PRINCIPLE
Government must exercise effective control over territory + population. Form of government (democratic, monarchical, socialist) is not a
criterion of statehood.
No form prescribed
Effective control required
IL neutral as to form — republic, monarchy, theocracy, one-party state all qualify.
«Failed states» (Somalia in 1990s) test the effectiveness criterion severely.
Threshold at formation
Government in exile
Effectiveness is more strictly required at moment of state creation than later.
Governments can persist during occupation (Belgium WWII, Kuwait 1990) without
loss of statehood.
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9.

CHAPTER 01 · CAPACITY
Criterion 4 · Capacity to enter into relations
Independence — the ability to conduct foreign affairs autonomously
MEANING
Often understood as «independence» — the state must be free to conduct its own external relations. Distinguishes states from federated units
or dependent territories.
External independence
Formal vs actual
Not subordinate to another state's authority in foreign policy.
Legal independence matters — even if economically dependent (Micronesia, Palau).
Federated units
Protectorates
US states, German Länder — lack full capacity for external relations.
Historical failure of criterion — protecting state conducts external affairs.
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CHAPTER 01 · ADDITIONAL
Additional / modern criteria
Beyond Montevideo — evolving requirements in modern doctrine
Independence
Legality of creation
Willingness + capability
Some authors treat as separate criterion — full
State cannot arise from violation of jus cogens
To observe international law — a functional
sovereignty required.
(aggression, apartheid) — Southern Rhodesia (1965).
requirement per modern doctrine.
Respect for HR + rule of law
Democratic form?
Absence of illegal use of force
EU 1991 «Guidelines on Recognition» — new criteria
Some scholars propose — but not accepted in general
Any state emerging via jus cogens breach — non-
applied to former Yugoslav/USSR states.
IL; UN neutral on regime type.
recognition duty (Stimson doctrine).
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11.

PART II
Recognition
Declarative · Constitutive · Governments · Stimson doctrine

12.

CHAPTER 02 · CONCEPT
Recognition of states
A political act with legal consequences
DEFINITION
A unilateral act by which one state acknowledges the existence of another state (or government) and its willingness to enter into legal
relations with it.
Express recognition
Implied recognition
Formal declaration — note verbale, joint statement, official proclamation.
Conduct implying recognition — establishment of diplomatic relations, treaty signing.
Individual vs collective
Recognition vs UN membership
Recognition by single state vs group of states (EU, OAS) — increasingly collective.
UN membership is not recognition — but recognition often accompanies admission.
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13.

CHAPTER 02 · DECLARATIVE
Declarative theory
Recognition merely confirms an already-existing fact
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».
Fact-based
Legal effect on relations
Statehood arises from meeting Montevideo criteria — recognition merely confirms.
Recognition establishes bilateral relations but does not create the state.
Consistent with equality
Dominant modern view
No state can «create» another by recognizing it — preserves sovereign equality.
Prevailing academic and ILC position — but not universally applied in practice.
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CHAPTER 02 · CONSTITUTIVE
Constitutive theory
Recognition creates statehood — the entity is «constituted» by recognition
OPPENHEIM · LAUTERPACHT
Recognition by existing states is a constitutive act that endows an entity with international legal personality — without recognition, no state
exists in the eyes of international law.
Positivist logic
Circular problem
Consent of existing states creates new subjects of IL — Westphalian tradition.
How can new state emerge without prior existence to be recognized?
«Duty to recognize»?
Modern minority view
Lauterpacht — objective criteria give rise to duty to recognize; rarely accepted.
Rejected by most scholars; but state practice sometimes reflects constitutive
elements.
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CHAPTER 02 · DE JURE / DE FACTO
De jure vs de facto recognition
Different qualities of recognition — retroactive effect
DE JURE
DE FACTO
Full recognition
Provisional recognition
Definitive, unconditional
Reserved, conditional
Formal, complete, and (as a rule) irrevocable recognition of legal existence —
Provisional recognition of effective control, without commitment to full legal
brings full diplomatic and treaty relations.
relations — can be upgraded to de jure.
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CHAPTER 02 · STIMSON
Non-recognition doctrine (Stimson 1932)
Duty not to recognize situations created by jus cogens breaches
ORIGIN · US SECRETARY OF STATE H. L. STIMSON, 1932
In response to Japan's creation of «Manchukuo» — Stimson declared US would «not recognize any situation, treaty, or agreement brought
about by means contrary to the Kellogg-Briand Pact».
Codified in ARSIWA Art. 41
Manchukuo (1931–45)
States must not recognize as lawful a situation created by serious breach of jus
Not recognized by most states after Japanese invasion — foundational precedent.
cogens.
Southern Rhodesia (1965)
Crimea (2014), TRNC (1983)
UNSC Res. 216, 217 — non-recognition of unilateral declaration of independence.
Modern application — no recognition of territorial changes by force or apartheid.
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CHAPTER 02 · GOVERNMENTS
Recognition of governments
Two doctrines — effective control vs democratic legitimacy
Estrada Doctrine
Tobar Doctrine
1930
1907
Mexico — refused to «recognize» new governments; automatic continuation of
Ecuador — no recognition of governments coming to power through unconstitutional
relations.
means.
Effective control
Democratic legitimacy
Classical
Modern trend
Recognize whoever effectively controls the territory + apparatus of government.
Recognize only democratically elected governments — Haiti 1991, Venezuela 2019.
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PART III
State succession
Vienna Conventions · Types · Case studies

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CHAPTER 03 · CONCEPT
State succession · concept
Transfer of rights and obligations between predecessor and successor states
VCSST 1978 · ART. 2(1)(b)
«State succession» means the replacement of one state by another in the responsibility for the international relations of territory — treaties,
property, debts, membership, nationality all affected.
Territorial change
Universal vs partial
Trigger event: cession, dissolution, unification, secession, decolonization.
Universal: predecessor ceases to exist entirely. Partial: only part of territory changes.
Subjects affected
«Clean slate» vs «continuity»
Treaties, state property, archives, debts, IO membership, nationality of population.
Two competing approaches — variously applied across succession scenarios.
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CHAPTER 03 · VIENNA
Vienna Conventions on State Succession
Two codifications — patchy ratification and limited practice
VCSST 1978
VCSSP 1983
Succession to treaties
Property, archives, debts
In force 1996 · ~23 parties
Not in force · ~7 parties
Distinguishes: newly independent states («clean slate»), separation of parts
Never entered into force — need 15 ratifications. Rules on succession to state
(continuity), unification. Codifies rules on which treaties successor state
property, archives, and debts — deeply contested area.
inherits.
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CHAPTER 03 · TYPES
Types of state succession
Five typical scenarios
Cession
Decolonization
Secession
Territory transferred from one existing state to
New state independent from colonial power — most
Part of state breaks away — Bangladesh 1971, Eritrea
another — Alaska 1867.
20th c. successions.
1993, South Sudan 2011.
Dissolution
Unification / merger
Continuation
Predecessor state ceases to exist — USSR 1991,
Two states merge — Germany 1990, Yemen 1990,
One state continues, others succeed — Russia
Yugoslavia 1992.
Tanzania 1964.
continued USSR; Serbia and FRY.
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22.

CHAPTER 03 · CASES
Landmark succession cases
From USSR to Kosovo — divergent practices
USSR (1991)
Yugoslavia (1992)
Russia declared «continuator» — took UNSC seat, treaty obligations. 14 other
«Dissolution» rather than continuation — all 5 successors admitted separately to UN.
republics = «successors».
Czech + Slovak Republics (1993)
South Sudan (2011)
«Velvet divorce» — dissolution by mutual agreement; both entered UN as new
Latest new UN member (2011) — negotiated referendum + agreement with Sudan.
members.
Kazakhstan (1991)
Kosovo (2008)
Independence from USSR — inherited nuclear weapons; returned to Russia by 1995.
UDI accepted by ~100 states; ICJ 2010 — UDI not in breach of IL, but no ruling on
statehood.
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23.

PART IV
Self-determination
External · Internal · Colonial · Remedial secession

24.

CHAPTER 04 · HISTORY
Self-determination · historical context
From Wilsonian principle to international legal right
1918
Wilson's 14 Points
1945
UN Charter Art 1(2)
1960
Colonial Declaration
President Wilson proclaims self-determination — first
«Development of friendly relations based on... equal
UNGA Res 1514 — «All peoples have the right to self-
modern articulation.
rights and self-determination of peoples».
determination».
1971
1975
1970
Friendly Relations
Namibia Advisory
Western Sahara
Advisory
UNGA Res 2625 — elaborates internal + external
ICJ — declares self-determination applies to all non-
ICJ — free and genuine expression of will of the
dimensions.
self-governing territories.
people is decisive.
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CHAPTER 04 · DIMENSIONS
External vs internal self-determination
Two dimensions of the right — with different scope
EXTERNAL
INTERNAL
Right to independence
Right to participate
Independence + int'l status
Political participation within state
Right of a people to determine international status — full independence, free
Right of a people to participate in political process of existing state —
association, or integration with another state. Fully recognized for colonial +
democratic governance, minority protection, cultural autonomy.
occupied peoples.
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CHAPTER 04 · FRAMEWORK
Legal framework of self-determination
Multiple treaties + declarations + ICJ jurisprudence
UN Charter
Common Art 1 ICCPR + ICESCR
Art 1(2), 55 — principle of «equal rights and self-determination of peoples».
«All peoples have the right of self-determination» — HR treaty status.
UNGA Res 1514 (1960)
UNGA Res 2625 (1970)
«Colonial Declaration» — right to self-determination of colonial peoples.
Friendly Relations — modes of implementation: independence, association,
integration.
Chagos Advisory (2019)
Palestinian Wall (2004)
ICJ — self-determination is CIL and jus cogens; UK's Chagos control unlawful.
ICJ — right of Palestinian people to self-determination confirmed.
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CHAPTER 04 · SCOPE
Colonial vs post-colonial self-determination
Application is bounded by territorial integrity of existing states
COLONIAL
POST-COLONIAL
Clear right to independence
Limited to internal
Undisputed application
Uti possidetis + territorial integrity
Peoples under colonial rule, foreign occupation, or racist regimes have
Peoples within existing sovereign states — right to internal self-determination
unqualified right to external self-determination (independence).
only, not to secession (unless remedial theory applies).
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CHAPTER 04 · REMEDIAL
Remedial secession theory
Extreme cases — «last resort» right to secede
«SAFEGUARD CLAUSE» · FRD 1970
Territorial integrity protected only when state «is conducting itself in compliance with self-determination... and possesses a government
representing the whole people».
Serious HR violations
No internal self-determination
Gross and systematic violations of human rights against the group.
Group is denied meaningful participation in the state's political life.
Last resort
Not yet accepted
All peaceful means of achieving internal self-determination exhausted.
ICJ Kosovo (2010) declined to rule; Quebec Reference (1998) — theoretical only.
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29.

ICJ · ADVISORY 141
Case · Kosovo Advisory Opinion (ICJ, 2010)
Accordance with IL of the Unilateral Declaration of Independence
BACKGROUND
17 Feb 2008 — Kosovo declares independence from Serbia. UNGA requests ICJ advisory opinion on whether UDI is «in accordance with
international law». Opinion issued 22 July 2010.
Narrow question
UDI not prohibited
Court answered only whether UDI as such violated IL — not whether Kosovo is a
General IL contains no prohibition on declarations of independence — UDI lawful.
state.
No remedial secession answer
Citation
Court expressly declined to address remedial secession theory.
ICJ Reports 2010, p. 403 · https://www.icj-cij.org/case/141
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30.

CHAPTER 04 · PRECEDENTS
Quebec Reference (1998) + Aaland Islands (1920)
Two landmark decisions on limits of self-determination
Aaland Islands (1920)
Quebec Reference (1998)
LN commission
Sup Ct Canada
Committee of Rapporteurs — Aaland Swedish-speaking population sought union with
Unilateral secession by Quebec would not be lawful under Canadian constitution or IL
Sweden. Denied — no right to secede from Finland; but strong autonomy required.
— but «clear question» + «clear majority» may create political obligation to
negotiate.
«Clear majority + clear question»
«Effectivity» principle
Test
Post-secession
Canadian doctrine — if voters clearly answer clear question in referendum, rest of
Even unlawful secession may lead to statehood if effective + recognized — factual
Canada has duty to negotiate secession in good faith.
outcomes shape legal status.
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31.

MODERN · ISSUES
Modern challenges of statehood + self-determination
Contested cases + emerging issues
Catalonia (2017)
Iraqi Kurdistan (2017)
Unilateral referendum + UDI — not recognized; Spain's Constitutional Court blocked.
Independence referendum — 92% for independence; boycotted by international
Limits of secession in a democracy.
community and Iraq.
Taiwan
Palestine
De facto state — meets Montevideo criteria; recognized only by ~13 states due to
UNGA «non-member observer state» (2012); ICJ Wall opinion (2004); statehood
PRC pressure.
contested.
Small island states
Somaliland
Rising seas may make territory uninhabitable — will they cease to be states? Tuvalu,
De facto independent since 1991; well-functioning; no recognition — political
Kiribati.
isolation of secession.
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KEY TAKEAWAYS
Summary
Montevideo (1933) — 4 criteria: permanent population + defined
01
territory + government + capacity to enter into relations.
Declarative theory (dominant) — recognition confirms; constitutive
02
Stimson doctrine + ARSIWA 41 — non-recognition duty when situation
03
created by serious breach of jus cogens.
State succession (VCSST 1978, VCSSP 1983) — 5 types; USSR-Russia
04
Self-determination — colonial: full right to external SD; post-colonial:
05
limited to internal SD.
theory (minority) — recognition creates statehood.
continuation vs Yugoslavia dissolution.
Kosovo Advisory (2010) — UDI not per se unlawful. Quebec Reference
06
(1998) — «clear question, clear majority» test.