Tag Archives: statehood

“a birth certificate of the reality of the state of Palestine”

Yesterday, the United Nations General Assembly voted to upgrade the status of Palestine to a “nonmember observer State” ostensibly recognizing the existence of a Palestinian State in the Middle East.  As has been pointed out by others, this move could mean that the Palestinian Authority could accept the jurisdiction of the International Criminal Court and thereby cede jurisdiction to that body to investigate alleged crimes taking place on its territory.

The existence of a State is supposed to be a matter of fact (see my earlier post on this subject). In fact, when Palestinian Authority President Mahmoud Abbas called upon the General Assembly to upgrade his organization’s status he called on them to certify an already existing reality. That the situation on the ground should not continue as it has for decades now is not in question. The problem is, at least for me, that I do not see “Palestine” as an already existing State, but rather one that should already exist.

The Montevideo criteria for Statehood, as generally recognized as being the required conditions for being a State, are (1) a permanent population, (2) a defined territory, (3) a government and (4) the ability to enter into international relations with other States. Two of these criteria are without a doubt satisfied, the Palestinian Territories have a permanent population and the Palestinian Authority has entered into international relationships. The problems are with the defined territory and government.

The lack of a defined territory is not so much a barrier to Statehood. There is a core of the Palestinian Territories that would be without a doubt part of any future State and no other State claims them. The border issues (which of course is a big issue) do not change the fact that a core territory exists. In this context recognition should be able to cure any defect in territorial integrity. In fact, this was and is the case with the State of Israel.

The real problem is that any Palestinian State (recognized or not) does not currently have a government with control over the territory. Until yesterday, the Palestinian Territories were still referred to as the Occupied Territories. Israel still maintains significant control in the area, not to mention controlling much of the borders, the payments of monies customs duties and the ability to intervene with force when it chooses to do so. If there is no control, there can be no sovereign State. Sovereignty is after all defined as the ability to exclude other powers, something the Palestinian Authority cannot do as of yet.

If Palestine is a State, it can act in self-defense to a violation of its borders and can call on others to assist in that defense. This means that the status quo ante recognition and at the time of recognition could be considered an act of aggression or war. In other words, actions that were not illegal (or at least not acts of war or aggression) would be transformed by a diplomatic act into serious international crimes. The new State could then refer the issue to the ICC or invite other States to fight Israel in a ground war. In the first case, the referral would have no teeth as the Palestinian forces have no ability to arrest and transfer accused to the Court without Israeli cooperation. In the second, recognition did nothing more than lead to war. Neither of these are results that the international community should welcome.

I do not mean to say by this that the Palestinians should not have a State. My only point is that declaring something that does not yet exist to be a reality is to live in a land of fantasy. And when one lives in a land of fantasy, and acts based on that false reality, sooner or later, the real world will come calling and the result will not be pretty.

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What Makes a State?

The issue of Statehood has been the focus, or at least central to, a series of posts here on TNIL over the past month or so. The subject of Statehood was the focus of a panel we covered at the American Society of International Law’s Annual Meeting. The issue of Statehood also played a central role in the decisionof the Prosecutor at the International Criminal Court to not open an investigation into allegations of crimes in the Palestinian Territories. I will try to briefly frame the issue in this post and suggest a way to view the legal criteria for the creation of a new State.

The Montevideo Convention on Statehood of 1933 sets out several requirements for Statehood. The criteria of the convention are: (1) a permanent population, (2) a defined territory, (3) government and (4) the capacity to entire into relations with other States.[1] The Convention, and prevailing law at the time, viewed States as a kind of sui generis legal entity operating and existing under its own authority and power. Article 3 provides,

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.

Article 6 then goes on to state,

The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.

The criteria of the Montevideo convention are for the most part good black letter law. Modern debate looks more to the pronouncements of Articles 3 and 6.

There is a debate taking place in the international legal world over whether or not satisfying the Montevideo criteria alone is enough to be a State or if recognition is also necessary. The two main doctrinal views are known as the declaratory and constitutive theories of Statehood.

The declaratory theory provides that the moment in which an entity satisfies all the conditions set out in the Montevideo convention the entity is a State.[2] This theory is close in line with the convention itself and the pronouncements of Articles 3 and 6. It however fails to adequately describe the creation of “States” in international practice. There are entities in the world that de facto satisfy the criteria of the Montevideo convention but do not as a general matter benefit from being “States” and do not receive or benefit form the rights that come with such a status. One example that comes to mind is the nominally Moldovan territory of “Transnistria”.[3] This non-State entity has essentially been independent since the collapse of the Soviet Union. It has a territory, a permanent population, a government and has engaged in relations with other States.[4] Notwithstanding its meeting the Montevideo criteria, it does not participate in international affairs as such because it lacks recognition. The lack of empirical validity to the declaratory theory might lead one to believe that the constitutive theory explains State formation, however, like the declaratory theory, it fails to explain the actual formation of States.

The constitutive theory sets out that it is the recognition of an entity as a State that makes it so. This theory would explain why “Transnistria” and other similarly situated entities[5] are not considered to be States. This theory, however, fails to explain why certain entities that have received numerous recognitions as such are not in fact States. It also raises the question of how many recognitions are necessary in order for an entity to become a State. One clear example of this problem is the “State of Palestine”. As of July 2011, the Palestinian Liberation Organization (PLO) was reporting that it had received at least 122 recognitions of its “Statehood”.[6] To put things in perspective, there are currently 193 members of the UN.[7] That means over half, 63%, of the United Nations recognizes Palestine as a State. However, not even the PLO’s negotiator’s website discusses Palestine as if it were already a State.[8] One simple reason for this might be that States serve a regulatory function in the world. Their function is to administer a portion of the planet where people live. If they cannot serve that function because they lack authority over a territory or people on the territory, no matter what you call them, they are not States. This is the case of Palestine: it has no effective control[9] of which to speak and therefore cannot, even with recognition, be a new State. The constitutive theory, like the declaratory theory, therefore would seem to provide little useful information standing alone on whether an entity is or is not a State.

Arguments can go round and around about the importance of recognition over fulfilling the Montevideo elements. The question still remains: what is it that makes a State? Articles 3 and 6 of the Montevideo convention make it clear that the recognition of an entity of as a State is not what makes it a State. However, even that convention makes room for recognition as an element in its requirement that the new State be able to enter into international relations. I propose that “Statehood” is the product of a balance between the Montevideo criteria and recognition. The more you have of one (criteria or recognition) the less you need of the other. However, in all cases, you need a little of both to be a State.

One example of the curative effect of recognition is the Vatican City State. This State was created in 1929 as a result of the Lateran Pacts between the Catholic Church and the Kingdom of Italy. The State is exceedingly small, only about 110 acres, and has a population just over 800, which is not permanent as it is not self-replenishing.[10] The recognition of the Vatican City State as a State, especially by Italy that surrounds it, allows it to operate as such even though it does not completely satisfy the Montevideo criteria. In other words, an entity with a government and a territory that can interact with other States does not need a permanent self-perpetuating population (as long as it has some form of population) in order to be a State if it is recognized as such.

Another example of slight deficiency in the Montevideo criteria that has been cured by recognition is the State of Israel. It would be hard to argue that Israel does not have a government or a population. However, its territory has been in dispute since the country declared its existence in 1948. International recognition of the State as such though has “cured” this defect in the criteria for Statehood and Israel has been allowed to join the United Nations and participate in other international institutions.

Where does all this leave us? Quite simply, it is necessary that a State have certain characteristics. It must have a territory, population, government and the ability to interact with other States. In addition, because the State is an entity that belongs to a wider community, it must be accepted, recognized at least to some extent, by that community. Recognition can also cure certain defects in the characteristics of a State as long as they are not too serious to prevent that entity from fulfilling its purpose. Having a two-tier system like this is to the benefit of the international community. If all that mattered were the Montevideo criteria, any warlord or group that could assemble enough force could carve out a new State simply by controlling a territory and nothing else. This would encourage any group that wanted their own State to simply take up arms instead of encouraging democratic compromise by requiring individuals and groups to work within the States they find themselves. On the other hand, if all that was required were recognition, the politics of State creation could easily leave the world of reality behind. States would be able to preclude new States from forming not because they are insufficient in some manner, but based entirely on politics without regard for how things are actually on the ground. By requiring a mixture of both the constitutive and declaratory theories, the international community created a system for membership that is self-regulating in the absence of a non-partisan/apolitical administrative body.


[1] Article 1, Montevideo Convention.

[2] One of the most prominent examples of this theory being accepted in practice comes from the Badinter Commission opinion number 1 dealing with the formation of States out of the disintegration of the Former Yugoslavia.

[3] See, http://en.wikipedia.org/wiki/Transnistria, citing, Jos Boonstra, Senior Researcher, Democratisation Programme, FRIDE. Moldova, Transnistria and European Democracy Policies, 2007; Gerald Hinteregger, Hans-Georg Heinrich (editors), Russia — Continuity and Change, Hinteregger, Gerald; Heinrich Hans-Georg (2004). Russia — Continuity and Change. (editors). Springer. p. 174; Rosenstiel, Francis; Edith Lejard, Jean Boutsavath, Jacques Martz (2002). Annuaire Europeen 2000/European Yearbook 2000. Martinus Nijhoff Publishers.

[4] By “States”, we essentially mean Russia in this specific case.

[5] A brief list includes, the Republic of Abkhazia, The Independent State of Azawad, Nagorno-Karabakh Republic, Turkish Republic of Northern Cyprus and the Republic of Somaliland. They are also all claimed by one or more other States.

[7] http://www.un.org/News/Press/docs/2006/org1469.doc.htm lists 192, but does not include South Sudan which joined in 2011.

[9] Effective control in this sense means, inter alia, the ability to exclude others from using coercion on its territory.

[10] The population is made up of celibate church figures all of whom are from somewhere else.

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ASIL Live-Blogging, “What Makes a State?”

Moderator: Karen Knop, University of Toronto

Speakers: Lea Brilmayer, Yale Law School; Valerie C. Epps, Suffolk University Law School; Deng Deng Nhial, Deputy Head of Mission, Embassy of South Sudan; Paul R. Williams, American University; Temur Yakobashvili, Ambassador of Georgia to the United States

Introduction by Karen Knop

“What makes a State?” is the perfect topic for this conference.  “Statehood” is the quintessential example of a simple definition that does not apply simply.  Of course, we have the four factors under the Montevideo Convention; however, we also know that there a number of exceptions to these factors in practice.  In addition, the debate between the constitutive theory of state recognition and the declaratory theory thereof only complicates matters further.  Thus, statehood is by no means a simple prospect.

Remarks by Paul Williams

Known for the idea of “earned sovereignty.”

Will blend “what makes a State” and self-determination in the discussion.

What makes a State?  Territory.  Full-stop.

You can always find a population.  You can always find a government.  As for sovereignty or capacity to enter into foreign relations, this is primarily political, not legal; therefore, it is not, or should not be, a factor for statehood.

So why the focus on territory?  Because of the interrelationship between statehood and self-determination.

There are two ways to become a State: fight your way out of an existing a State and form your own, or suffer terrible atrocities until the international community takes pity on you and recognizes you as a State (i.e. Kosovo).

What about consent?  Oftentimes, State consent is either involuntary or fallacious.

What about R2P?  States have the right to territorial integrity, and the duty to protect the civilian population.

What about the ICC?  The ICC adds moral clarity to these conflicts.

“Earned Sovereignty” refers to the engagement of the international community with a population over a period of time until it is ready to stand on its own.  Examples: East-Timor and Kosovo.

Encourages international lawyers to look at this development when trying to answer the ultimate question.

Remarks by Valerie Epps

Known for her strong critique on the ICJ’s Kosovo Advisory Opinion, “foam on the tide of time.”

Three themes: First, the clashing norms in international law that are enmeshed in topic of statehood.  Second, why we are stuck in a rut as international lawyers on this topic.  And third, what it will take to get out of this rut.

(On a side note, James Crawford has penned one of the greatest books on the topic of statehood.)

With respect to the first theme, what two contradictory norms come into play when discussing statehood?  First, sovereignty, territorial integrity, non-intervention, etc.; and Second, the human rights movement (in particular individual rights and obligations, such as the right to engage in the political process, the right not to be discriminated against, the right not to be tortured, the right to due process, etc.) and R2P.

With respect to the second theme, why are we stuck in a rut?  Kosovo Advisory Opinion: there is no rule under international law that prohibits ad hoc groups from declaring independence.  The ICJ’s decision was terribly unhelpful in answering the question, “What makes a State?”  Italy v. Germany: the ICJ “stoically upheld State sovereignty,” even in the face of claims of egregious human rights violations.  In both cases, the dissenting opinions offered helpful critiques of the arguably antiquated notions of statehood.

With respect to the third theme, what will it take to get out of this rut?  We need a clearer definition of “peoples.”  We need more clarification on the ideas of internal and external self-determination.  We need to work on forms of autonomy (e.g. Scotland, Wales, etc.).  If a people wants to be independent, they should be allowed to form their own State, and the notion that the parent State must first consent is outmoded.  Finally, we should not worry about so-called micro-states (See e.g. Luxembourg).

Remarks by Temur Yakobashvili

We have enjoyed 3,000 years of statehood, and look forward to 3,000 more.  The fact that “Georgia is a State” is not the result of the Soviet Union; it is the result of 3,000 years of statehood, as previously mentioned.

Independent v. “Fake” States

Since WWII, it has been very difficult to define “victory.”  As it relates to Georgia, Russia has occupied two areas of Georgia and has claimed “victory” as a result of this occupation.  That “victory” is Russia’s claim that South Ossetia and Abkhazia are independent States; “States” which consist of territory that Russia has ostensibly annexed from Georgia under the guise of independence.  As a result, South Ossetia and Abkhazia are “Fake States.”  Making matters worse, these “Fake States” are the product of ethnic cleansing and other crimes against humanity.  Therefore, the international community should not accept these “Fake States” as real States under international law; it should not allow Russia to use international terms to illegally retake land under a desperate attempt to reclaim the “glorious past” – and size – of the former Soviet Union.

Remarks by Lea Brilmayer

Importance of State Recognition: There are certain kinds of benefits that are available only to recognized States.  For example, financial assistance from the World Bank, UN, or bilateral and multilateral aid donors; security assistance from other States recognizing the entity as a State; political power that allows an entity to sign certain agreements and to enter into certain international organization; and juridicial rights that are extended only to States.

Importance of Statehood: In order to enjoy the full protections of international law for you and your peoples, you must be a State.  As mentioned above, small States or micro States are not a problem.

PANEL QUESTIONS

Question by Paul Williams: We all agree that the Montevideo Convention is antiquated, but what should we do to update the Montevideo Convention to reflect reality without increasing instability?

Answer by Valerie Epps: The real problem is that State power trumps all, and that the law accommodates itself to State power.  Thus, we must not allow State power to dictate law.

Answer by Temur Yakobashvili: In addition to the Montevideo Convention factors, we must first have security guarantees.  Second, we must deal with the refugee problem by providing for repatriation of displaced persons.  Third, the rights of the persons who reside on the territory must be preserved and protected.  These three elements are vital for finding a practical solution.

Answer by Lea Brilmayer: Third States should base their support for either a State or a break-away State based on which State is “right” legally speaking.

Additional remarks by Paul Williams: Kosovo is the case study for how many recognitions you need to be a State.  Currently, they have 78, and by their own standards, they need 100.  Nevertheless, in my personal opinion, I believe Kosovo is a State.

Additional remarks by Temur Yakobashvili: Kosovo is not the case study; it is the exception.

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