LWN158: Public International LawSeminar 4: Sovereignty & Recognition of States

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Objectives for this week:• To understand the concept of state sovereignty and its

implications for international law• To critically consider the ways in which international law

regulates the acquisition of territory by States• To critically consider the ways in which an entity is recognised

as a State, including the role of other States’ recognition and the role of the doctrine of self-determination.

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What is a state?

• How would you define a state?• Could describe a state by reference to what states do:• States are the subjects and creators of international

law (treaties & custom)• States possess international legal personality – can sue

and be sued under international law• States can grant legal rights and responsibilities to

individuals or organisations• States are the ‘units’ through which international law is

created, interpreted and enforced.3

What is a state?

• A State, for the general purposes of international law, is a territorial unit, containing a stable population, under the authority of its own government, and recognised as being capable of entering into relations with other entities with international personality. (DW Greig, International Law, 2nd ed, Butterworths p. 92)

• Do you find this definition useful? Does it sufficiently distinguish between states and non-states?

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Concept of state sovereignty

• A state enjoys the benefits of sovereignty:• Equality under international law (Declaration on Friendly

Relations of States (1970))• International legal personality: creators and subjects of

international law; enjoy rights and bear duties under international law;

• Territorial sovereignty: ability to exercise jurisdiction and control within territory and over all those found in territory

• Non-interference from other States: exclusive jurisdiction over their domestic affairs, protected from interference from other states (principles of non-intervention and non-interference under UN Charter art 2)

• Immunity from the jurisdiction of other states (week 11)

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The elements of Statehood

• Montevideo Convention on the Rights and Duties of States, article 1:

The State as a person of international law should possess the following qualifications:

a) a permanent populationb) a defined territoryc) governmentd) capacity to enter into relations with other

States 6

(a) Permanent Population• Why is permanent population necessary for statehood? • Does it matter how big the population is?

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(b) A defined territory

• A state must have a defined territory• Territorial sovereignty is a key element of international law Essential link between statehood and territory

• What if two states are involved in a boundary dispute? • Does a state’s population have to reside within its territory?• What if a state’s population is forced to move?

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Acquisition of territory

Methods of acquisition:1. Cession2. Occupation3. Prescription4. Accretion 5. Conquest

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1. Cession

• Transfer from one sovereign to another. • Must be intention to transfer sovereignty. • Will be void if effected by threat or use of force (UN

Charter art 2(4)). • Ceding state can’t rescind, or give better title than it

possessed.• Distinguished from secession, whereby part of a State

seeks to become independent.

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2. Occupation

• A State may acquire unoccupied territory (that is, territory which is terra nullius)• May be terra nullius because either:• No sovereign ever existed; or• Previous sovereign has abandoned the territory• Clipperton Island case: must be clear intention to relinquish in

order to establish abandonment• Western Sahara case: territories inhabited by indigenous

peoples with social or political organisation are not terra nullius.

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Occupation cont/…• Assuming territory is terra nullius, two elements required

to establish occupation:1. Possession – formal act demonstrating intention to

occupy and usually involves actual settlement2. Effective occupation – some demonstration that

territory is in fact governed by new occupier• These elements are judged in the circumstances, in

context of location and habitability of territory (Clipperton Islands; Island of Palmas).

• Discovery of territory creates an inchoate title which must be confirmed through possession and effective control (Island of Palmas) – discovery alone is not enough to create territorial sovereignty.

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3. Prescription

• Acquisition of territory that was not terra nullius when it was acquired, but where state has been in possession for so long that it has been recognised as legal sovereign.

a) Immemorial possession – state has been in possession so long that competing claims are forgotten

b) Adverse possession – identity of previous sovereign is known, but new sovereign has exercised authority for so long that old sovereign deemed to have forfeited title

• Possession must be peaceful - no use of force • Any other stakeholders must have acquiesced, that is, not

protested the new state’s claim. • State claiming territory must have acted as if they were

sovereign (that is, possession exercised a titre de souverain) 13

4. Accretion

• Increase in territory through natural forces eg build up of sand or soil. • If gradual, imperceptible changes to river’s course

where river is border – territory changes too. • But if avulsion – that is rapid change eg by

flooding, then border remains where it was.

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5. Conquest

• Taking possession of enemy territory in time of war• Sovereignty is usually transferred in peace treaty. • No longer a valid way of acquiring territory – violates art

2(4) of UN Charter.• Principle of intertemporal law allows recognition of

sovereignty where conquered prior to prohibition on use of force and where sufficient number of governments recognise sovereignty. This can operate to validate title.

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(c) Government• Test for government involves two elements:

(i) Exercise of effective control over a defined territory;(ii) Independence (not subject to control by any other State or

external political power)

Aaland Islands Arbitration: emergence of Finland as independent state depended on when Finnish government could be said to be exercising independent effective control, without support of Russian troops.

• What kind of government is required? Does it have to be democratically elected?

• What happens when a state lacks or loses effective government?• What about changes in government? Changes to constitution?

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(d) Capacity to enter into relations with other States

• Two possible definitions:1. Political, technical, financial and other resources

to establish diplomatic relations with other states2. Willingness of other states to enter into relations

• How important is recognition by other states?

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Recognition of states

• Two theories of recognition:1. Declarative theory: recognition by other

states is just a confirmation that an entity has statehood, it does not create that statehood.

2. Constitutive theory: recognition by other states is a necessary precondition to statehood.

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Recongition of states cont/…

• Membership of international organisations• UN Charter art 4(1) ‘membership is open to all peace-loving

states’• Non-membership doesn’t mean an entity is not a state

• Recognition (or lack thereof) has evidentiary value in determining statehood: widespread non-recognition suggests problem with other elements of statehood (esp capacity to enter into relations)

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Emergence of new states

• New states can be created and become members of the United Nations.• The entity seeking independent statehood should satisfy

the Montevideo definition• Requires recognition by other states (either as separate

requirement or as part of Montevideo test)• Often through exercise of right to self-determination• Emergence of independent state has obvious impact for

territorial sovereignty of state of which it was previously a part. 20

Self-determination

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 21

International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, common art 1:

The purpose of UN is to ‘develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’

UN Charter, art 1(2):

Self-determination

Art 1: ‘The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the UN and is an impediment to the promotion of world peace and co-operation.’

Art2: ‘All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’

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Declaration on the Granting of Independence to Colonial Territories and Peoples, General Assembly Resolution 1514 (1960):

Who is entitled to self-determination?

• Final Report and Recommendations of an International Meeting of Experts on the Further Study of the Concept of the Rights of People for UNESCO (1990) – a ‘people’ has the following characteristics:

1.Common historical tradition2.Racial or ethnic identity3.Cultural homogeneity4.Linguistic unity5.Religious or ideological affinity6.Territorial connection7.Common economic life

• As well as these objective characteristics, must have subjective will to be identified as a people

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What does self-determination entail?

• For colonial or non-self governing territories, the right to self-determination required states to take steps to facilitate independence (GA Res 1514, art 5)

• But GA Res 1514 also recognised that ‘any attempt at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the Purposes and Principles of the UN Charter’ (art 6)

• Creation of independent nation for a people under the rule of another state would be interference with territorial integrity and sovereign rights.

• ICJ has attempted to reconcile these competing requirements, at least in the case of colonial peoples.

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Self-determination in the ICJ

• Western Sahara case (ICJ Reports 1975 at 12)• ‘The principle of self-determination, at least as it applies

to colonial and similar non-self-governing territories, has attained the status of customary international law.’• Eg Judge Dillard – in Western Sahara: ‘it is for the

people to determine the destiny of the territory and not the territory the destiny of the people’.• Any claim by Spain, Morocco or Mauritania over the

territory was subject to the customary law principle of self-determination.

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Self-determination in the ICJ cont/…

• East Timor: the right of peoples to self-determination is customary law with the status of a norm erga omnes• That is, obligations are owed by all states, all

states must respect self-determination.• The right is not limited to a colonial context,

but is enjoyed by all peoples. • Israeli Wall: confirmed erga omnes status 26

External and Internal self-determination

• Principle of territorial integrity acts as limitation on exercise of self-determination (Kosovo advisory opinion)

• Colonial or non-self governing territories do have right to independence – has led to creation of nearly 100 new states – but that right doesn’t apply for all peoples

• In other cases, independence will require the consent of the territorial sovereign in the form of recognition of independence.

• Where independence not possible, self-determination must be allowed through internal’ means, eg self-government or autonomy. 27