Sample Undergraduate 2:2 International Law Essay

What is the criteria for statehood in international law?

How can statehood be achieved by legal means in the post-colonial period, with a focus on Kosovo?

Introduction

The criteria for statehood in international law is often established by reference to the Montevideo Convention on the Rights and Duties of States 1933 (Montevideo Convention). In relation to the establishment of new states, from these four qualification ‘the government’ is most significant in relation to self-governance of peoples and the achievement of self-determination in international law. The Kosovo Albanian people sought to establish statehood through secession from the State of Serbia after the breakup of the former Yugoslavia; in particular, their representatives issued a Declaration of Independence from Serbia in 2008. The question will be addressed in three parts: first it will evaluate the criteria for statehood in international law, second it considers the issue of self-determination, finally it will conclude how the Kosovo Declaration of Independence fits within the existing framework on statehood in international law.

Statehood in International Law

International law was conceived originally as a system of rules governing the relationship of states among themselves.[1] The criteria for statehood therefore is of particular relevance to determining the primary subjects of international law. Article 1 of the Montevideo Convention presents four qualifications for the state as a person in international law: a permanent population, a defined territory, government and capacity to enter into relations with other states. [2] These requirements are regarded as representing in general terms the requirements of customary international law on the demands of statehood.[3]

The Arbitration Commission of the European Conference on Yugoslavia, in Opinion No.1 elaborated upon these characteristics in stating that a state is a community consisting of a territory and a population subject to an organised political authority and that such a state is characterised by sovereignty.[4] The Commission found that the particular constitutional rules were ‘mere facts’ but the form of political organisation was significant in that it was necessary to determine the governments influence over the population and territory.[5] The first two criteria therefore appear most consequential with the other factors being open to some forms of variance in the determination of the existence of statehood.

States are aggregates of the individuals and as such a permanent population is a criterion for statehood; however, there is no minimum population required within international law. Nauru is a tiny country in Micronesia whose population the United Nations put at around 11,000 in 2017 yet is considered to be a State.[6] States have also to be defined territorial units as discussed in the Island of Palmas case,[7]where it was found that territorial sovereignty involves “the exclusive right to display the activities of a State”. With this right also comes the duty to protect the rights of other states within its territory, including their integrity and inviolability in peace and war and the rights they may claim for their nationals abroad.[8] As with population, although territory is a requisite, there is no defined geographical size; furthermore territory can be contested, as it was between Israel and Palestine in 1948, yet Israel was admitted to the United Nations in 1949 despite its unsettled boundaries.[9] The fact that indefinite boundaries do not preclude a claim to statehood was clarified in the North Sea Continental Shelf cases.[10]

There appears to be a general consensus amongst those considering the criteria for statehood that they are ultimately aimed at the recognition of ‘effective’ entities of government.[11] A government is considered to have the power to assert a monopoly over legitimate coercive force within a territory, or that the government must demonstrate unrivalled possession and control of public power.[12] In the Aaland Islands case the International Committee of Jurists considered that Finland had not become a sovereign State until it had a stable political organisation and public authorities able to assert themselves throughout the territory without the assistance of foreign troops.[13] Nevertheless, once a State is established the absence of an effective regime does not nullify statehood as in the case of Somalia, whose central government collapsed in 1991.[14]

The final criteria for statehood is the capacity to enter into relations with other states, thus make agreements between themselves and other actors in international law. It also signifies independence from the authority of other states.[15] Sovereignty or independence is considered the principle criterion for statehood. Sovereignty is regarded as a double-sided principle; externally it means that states are equal, and internally it signifies the pre-eminence of power. Clear links exist between sovereignty and the requirement of a defined territory.[16]

Self-Determination

Self-determination is the right of peoples to determine their political status. It can be exercised within an existing State as well as through independence.[17] The legal principle of self-determination was expressed within the Declaration on the Granting of Independence to Colonial Countries and Peoples, which provides that all peoples have the right to determine their political status freely and pursue their economic, social and cultural development.[18] In the Western Sahara case, Judge Dillard explained in his separate opinion that “it is for the people to determine the destiny of the territory and not the territory the destiny of the people…”.[19] In relation to the criteria for statehood therefore, self-determination most closely effects the criterion of government.[20]  In the post Second World War period, many new States were created as a result of the decolonisation process; and as those States became part of the United Nations, they advocated the creation of the legal right to self-determination within States.

More recently in the post-Cold War period the question of how new States are created and how the criteria for Statehood applies to secessionist movements wishing to establish State entities as break-away territories from existing States has challenged the international legal principles of the criteria for Statehood. An agreed separation can create a new State outside the colonial context. Whether a people denied internal self-determination has a right to secede unilaterally is disputed. The role of recognition in the creation of Statehood has also been therefore accepted as a political means of giving legal significance to certain factual situations; however, this relationship is a complicated one.[21] In the process of the creation of statehood, there are two theoretical positions on the function of recognition.  According to the constitutive theory of recognition a State comes into being under international law through the by virtue of recognition.[22] The declaratory theory of recognition states that once the factual criteria for statehood have been established, that a new state comes into being as an international person due to the establishment of those criteria. In this scenario, recognition acknowledges an existing State. It can still have legal effects in relations between the States concerned. Recognition has been a key factor in the ongoing development of the independent state of Kosovo.

Kosovo: Declaration of Independence

Kosovo was a largely autonomous province of Serbia in the Socialist Federal Republic of Yugoslavia until its autonomy was curtailed in 1989.[23] When that federation disbanded, Kosovo remained within Serbia in the new Federal Republic of Yugoslavia (FRY), and the Kosovo Albanians, a majority in the province, were increasingly discriminated against by the Serbian regime. Ethnic cleansing occurred and NATO intervened with a bombing campaign in March 1999.[24] Security Council Resolution 1244 established an international civil administration for Kosovo, but at the same time also reaffirmed the commitment of Member States to the sovereignty and territorial integrity of the FRY. On 17 February 2008, representatives of the people of Kosovo, acting outside the framework of the interim administration, issued their ‘Declaration of Independence’ in which they declared Kosovo to be an independent and sovereign state.[25] They had been encouraged to an extent by the UN Secretary-General’s Special Envoy, Martti Ahtisaari, who in March 2007 recommended independence initially supervised by the international community.[26]

Kosovo’s Declaration of Independence was immediately recognised by a number of states, not all on the same terms.[27] It was rejected by other states including Serbia.[28] Many of the acts of recognition of the States however maintained a similar theme, that the situation of Kosovo was unique or sui generis, and that it should not be regarded as a precedent. States wishing to maintain their own sovereignty do not welcome the creation of an international legal right of secession for minority or indigenous groups.[29] If there were a precedent, then the Statehood of Kosovo could lead to a destabilising effect upon many States.[30] In the Kosovo Advisory Opinion, the International Court of Justice (ICJ)[31] did not decide whether Kosovo had become a State or whether there was a right of remedial secession. It concluded that the Declaration of Independence “did not violate any applicable rule of international law”.[32] It is difficult to conclude therefore whether or not Kosovo’s Declaration of Independence has helped to advance the position in international law of the legal creation of new States.

Conclusion

The criteria for statehood have long been established as part of customary international law as those expressed within the Montevideo Convention. However, these are not definitive and other criteria such as recognition of other states have become understood to be critical to the functioning of a state within international relations. In relation to the Declaration of Independence of Kosovo, the permanent population and defined territory preceded the Declaration. Institutions of self-government developed under the UN administration, while independence from international supervision remained an issue. Kosovo’s membership of the International Monetary Fund since 2009 illustrates its capacity to enter into international relations. Kosovo has now achieved widespread recognition as an independent state, although Serbia continues to reject its independence and Kosovo is not a UN member; the Declaration of Independence thus appears to be part of an ongoing process towards achieving statehood in this case.

Bibliography

Books/Journals/Online

Charlesworth H and Chinkin C, The Boundaries of International Law: A Feminist Analysis (Manchester University Press 2000)

Craven M, ‘Statehood, Self-Determination, and Recognition’ in Malcolm D Evans (ed), International Law (4th edn, Oxford University Press 2014)

Dixon M, Textbook on International Law (7th Edition, OUP Oxford 2013)

Dixon M, McCorquodale R and Williams S, Cases & Materials on International Law (6th edn, Oxford University Press 2016)

‘Kosovo Thanks You – Thank You from the Kosovar People!’ <https://www.kosovothanksyou.com/> accessed 8 June 2018

Mancini S, ‘Rethinking the Boundaries of Democratic Secession: Liberalism, Nationalism, and the Right of Minorities to Self-Determination’ (2008) 6 International Journal of Constitutional Law 553

Shaw MN, International Law (8th edn, Cambridge University Press 2017)

United Nations Population Division, ‘World Population Prospects’ (2017) <https://esa.un.org/unpd/wpp/DataQuery/> accessed 7 June 2018

Wallace RMM and Martin-Ortega O, International Law (8th edition, Sweet & Maxwell 2016)

Warbrick C, ‘Kosovo: The Declaration of Independence’ (2008) 57 International & Comparative Law Quarterly 675

International Monetary Fund, ‘List of Members’ Date of Entry’ (Kosovo, 29 June 2009).

Judicial Decisions

Aaland Islands case LNOJ Sp Supp 3 (1920)

Arbitration Commission of the European Conference on Yugoslavia, in Opinion No1 92 ILR pp 162

Island of Palmas case 2 RIAA 829 (1928)

Kosovo Advisory Opinion Accordance with international law of the unilateral declaration of independence in respect of Kosovo, Advisory Opinion of 22 July 2010

North Sea Continental Shelf cases ICJ Rep 1969 3

Western Sahara Advisory Opinion, 1975 ICJ Reports 12

Reference re Secession of Quebec [1998] 2 SCR 217, paras 126 and 134–138.

International Agreements and United Nations documents

General Assembly Resolution 1514 XV Declaration on the Granting of Independence to Colonial Countries and Peoples. 1960

Montevideo Convention on the Rights and Duties of States 1933

International Covenant on Civil and Political Rights, Article 1. UN General Assembly Resolution 273 (III). UN Security Council Resolution 1244 (1999). Report of the Special Envoy of the Secretary-General on Kosovo’s future status, S/2007/168.