Creation and Incidence of Statehood
(p. 127) 5 Creation and Incidence of Statehood
1. Introduction
As noted in chapter 4, the state is a type of legal person recognized by international law. Yet, since there are other types of legal persons so recognized, the possession of legal personality is not in itself a sufficient mark of statehood. Moreover, the exercise of legal capacities is a normal consequence, rather than conclusive evidence, of legal personality: a puppet state may have all the paraphernalia of separate personality and yet be little more than an agency for another power. It is sometimes said that statehood is a question of fact, meaning that it is not a question of law.1 However, as lawyers are usually asking if an entity is a state with a specific legal claim or function in view, it is pointless to confuse issues of law with the difficulties of applying the legal principles to the facts and of discovering the key facts in the first place. The criteria of statehood are laid down by the law. If it were not so, then statehood would produce the same type of structural defect that has been detected in certain types of doctrine concerning nationality. In other words, a state would be able at its own unfettered discretion to contract out of its obligations under international law simply by refusing to characterize the other party as a state. A readiness to ignore the law may be disguised by a plea of freedom in relation to a key concept, determinant of many particular rights and duties, like statehood or nationality. To some extent this position anticipates the results of the examination of recognition in chapter 6. Nevertheless, as a matter of presentation the question whether recognition by one or more other states is a determinant (as mandated by the ‘constitutive theory’ of recognition) will be ignored in the present chapter. The subject of state succession is also excluded from this discussion: the subject-matter conventionally described by that label is considered in chapter 19.
Despite the importance of the subject-matter, the literature is rather uneven.2 Three factors have contributed to this. First, though the subject is important as a matter of (p. 128) principle, the issue of statehood does not often raise long-standing disputes. Secondly, much of the literature is devoted to broad concepts of sovereignty and equality of states and gives prominence to incidents of statehood rather than its origins and continuity. Finally, many rifts in relations between particular states concern issues of government rather than statehood.
2. Legal Criteria of Statehood
Article I of the Montevideo Convention on Rights and Duties of States provides: ‘The 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.’3 This brief enumeration is oft en cited,4 but it is no more than a basis for further investigation. Not all the conditions are necessary, and in any case further criteria must be employed to produce a working definition.5
(A) Population
The Montevideo Convention refers to ‘a permanent population’. This criterion is intended to be used in association with that of territory, and connotes a stable community. Evidentially this is important, since in the absence of the physical basis for an organized community, it will be difficult to establish the existence of a state.
(B) Defined Territory
There must be a reasonably stable political community and this must be in control of a certain area. It is clear that the existence of fully defined frontiers is not required and that what matters is the effective establishment of a political community.6 In 1913References(p. 129) Albania was recognized by a number of states in spite of a lack of settled frontiers,7 and Israel was admitted to the UN in spite of disputes over its borders.8
There is no fixed lower limit either of population or territory, and some recognized states have tiny quantities of both. At one time it was thought that the UN admission of ‘micro-states’, in particular the European micro-states of Liechtenstein, San Marino, Monaco, and Andorra, was precluded because of their size, but the principle of universality of UN membership prevailed. In the 1990s, all were admitted to membership—in the case of Andorra aft er significant reforms which removed doubts as to its independence from France and Spain.9
(C) Government
The shortest definition of a state for present purposes is perhaps that it is a stable political community supporting a legal order to the exclusion of others in a given area. The existence of effective government, with centralized administrative and legislative organs, is the best evidence of a stable political community.10However, effective government is in certain cases either unnecessary or insufficient to support statehood. Some states have arisen before government was very well organized, as, for example, Poland in 191911 and Burundi and Rwanda, admitted to the UN in 1962.12 The principle of self-determination—also discussed in chapter 29—was once commonly set against the concept of effective government, more particularly when the latter was used as an argument for continued colonial rule. The relevant question has become, instead, in whose interest and for what legal purpose is government ‘effective’? Once a state has been established, extensive civil strife or the breakdown of order through foreign invasion or natural disasters are not considered to affect personality. Nor is effective government sufficient, since this leaves open the questions of independence and representation by other states, discussed below.
(D) Independence
In the Montevideo Convention’s enumeration, the concept of independence is represented by the requirement of capacity to enter into relations with other states. Independence is the decisive criterion of statehood.13Guggenheim distinguishes the (p. 130) state from other legal orders by means of two tests which he regards as quantitative rather than qualitative.14 First, the state has a degree of centralization of its organs not found elsewhere. Secondly, in a particular area the state is the sole executive and legislative authority. In other words the state must be independent of other state legal orders, and any interference by such legal orders, or by an international agency, must be based on a title of international law.
In the normal case independence as a criterion may create few problems. However, there are sources of confusion. In the first place, independence may be used in close association with a requirement of effective government,15 leading to the issues considered earlier. Again, since a state is, in part, a legal order, there is a temptation to rely on formal criteria. Certainly, if an entity has its own executive and other organs, conducts its foreign relations through its own organs, has its own system of courts and legal system, and a nationality law of its own, then there is strong evidence of statehood. However, there is no justification for ignoring foreign control exercised in fact through the ostensibly independent machinery of state. But the emphasis is on foreign control overbearing the decision-making of the entity concerned on a wide range of matters and doing so systematically and on a continuing basis. The practice of states has been to ignore—so far as issues of statehood are concerned—forms of political and economic blackmail and interference directed against weaker members. Further there is a distinction between agency and control, on the one hand, and ad hoc interference and ‘advice’, on the other.16
(i) ‘Dependent States’
Foreign control of the affairs of a state may occur under a title of international law, for example as a consequence of a treaty of protection, or some other form of consent to agency or representation in external relations, or of a lawful war of collective defence and sanction leading to an occupation and imposition of measures designed to remove the sources of aggression. Allied occupation of Germany under the Berlin Declaration of 5 June 1945 is an example of the latter: supreme authority was assumed in Germany by the Allies jointly.17 Providing that the representation and agency exist in fact and in law, then there is no formal difficulty in saying that the criterion of independence is (p. 131) satisfied. Unfortunately, writers have created confusion by rehearsing independence as an aspect of statehood and then referring to ‘dependent states’, which are presented as an anomalous category.18 Here the incidents of personality are not sufficiently distinguished from its existence. The term ‘dependent’ is used to indicate the existence of one or more of the following distinct situations:
(1) the absence of statehood, where the entity concerned is subordinated to a state so completely as to be within its control (and the origin of the subordination does not establish agency or representation);
(2) a state which has made concessions to another state in matters of jurisdiction and administration to such an extent that it has in some sense ceased to be sovereign;19
(3) a state which has legally conferred wide powers of agency and representation in foreign affairs on another state;20
(4) a state, which in fact suffers interference from another state and may be a ‘client’ state politically, but which quantitatively is not under the complete and permanent control of the ‘patron’;
(5) a legal person of a special type, appearing on the international plane for certain purposes only, as in the case of mandated and trust territories and some protectorates.
The category of independence (or sovereignty used synonymously) can only be applied concretely in the light of the legal purpose with which the inquiry is made and the particular facts. In Austro-German Customs Union21the Permanent Court was asked whether the proposed customs union was contrary to the obligations of Austria under a Protocol of 1922 ‘not to alienate its independence’ and to ‘abstain from any negotiations or from any economic and financial engagement calculated directly or indirectly to compromise this independence’.22 By a majority of eight to seven the Court held that the customs regime contemplated would be incompatible with these obligations. Here the term ‘independence’ referred to a specialized notion of economic relations in a treaty, and the obligations were not confined to abstention from actual and complete alienation of independence. In Nationality Decrees the Permanent Court emphasized that protectorates have ‘individual legal characteristics resulting from the specialReferences(p. 132) conditions…under which they were created, and the stage of their development’.23 A protected state may provide an example of international representation which leaves the personality and statehood of the entity represented intact, though from the point of view of the incidents of personality the entity may be ‘dependent’ in one or more of the senses noted above. In US Nationals in Morocco the International Court, referring to the Treaty of Fez and the creation of a French protectorate in 1912, stated: ‘Under this Treaty, Morocco remained a sovereign State but it made an arrangement of contractual character whereby France undertook to exercise certain sovereign powers in the name and on behalf of Morocco, and, in principle, all of the international relations of Morocco’.24 In fact it appears that the relation was one of subordination and not agency.
Another aspect of dependency emerges in the context of former colonies. Postcolonial dependency has been analysed in the general framework of development economics and public administration. With regard to the latter, the colonial analogy is manifested in a state or other territorial unit being placed under partial or full administration by an international organization, thereby losing control over some or all aspects of governance and becoming dependent on the administrator.25 The discourse of development, on the other hand, created a scalar system of states—dividing states into ‘developed’ or ‘developing’—secured by positing an ostensibly universally attainable end point in the status of ‘developed’. This division made it possible for the West to mediate the potentially disruptive effects of formal sovereign equality and prevent it from leading to substantive equality. The economic institutions created the possibility for ongoing surveillance and interventions to transform ‘developing’ states.26 Numerous ‘developing’ states are reliant on foreign aid and loans from institutions such as the World Bank and the UN Development Programme. The economic assistance programmes usually have conditions attached to them. The conditions can relate, for example, to the use of the money, to the recipient’s policies on matters such as human rights, expropriation, or democratization. The recipient has little choice but to comply if it wants to gain and retain access to these funds. Such ‘developing’ statesReferences(p. 133) are reliant on foreign resources and consequently prone to influence and interferences by the ‘developed’ world.
It has been suggested that some of the post-colonial states have ‘failed’ and now require supervision by the international community or select states. Brooks has even argued that post-colonial states ‘rarely possessed the attributes of robust states in anything other than a purely formal legal sense’.27 To address the problem of ‘failed states’, Helman and Ratner proposed ‘United Nations Conservatorship’, envisaging three options whereby the UN ‘manages the affairs’ of the ‘failed state’.28 Pfaff declared that ‘[m]uch of Africa needs, to put it plainly, what one could call a disinterested neocolonialism’ and suggested that the European Union should ‘collectively assume such responsibilities in cooperation with Africans in an effort to arrest the conti-nent’s decline and put it on a progressive course’.29 This remains a minority position. Moreover, some African states are exhibiting solid growth and poverty reduction, supporting the view that the causes of the persistence of severe poverty, and hence the key to its eradication, lie within those countries themselves.30
A different side of post-colonial dependency is exhibited by the fact that some states elect to stay associated with the former colonial power. Guam is an American dependency, Aruba is part of the Kingdom of the Netherlands, the British Virgin Islands is a Crown Colony, and Anguilla is an ‘associated state’ of Britain. In these cases local authorities are responsible for most internal affairs, while ‘parent’ states are responsible for defence and external relations.31
(ii) Associations of states
Independent states may enter into forms of co-operation by consent and on an equal footing. The basis for the co-operation may be the constitution of an international organization, such as the UN or the World Health Organization. However, by treaty or custom other structures for maintaining co-operation may be created. One such structure, the confederation, has in practice either disintegrated or been transformed into a federation. Membership does not affect the legal capacities and personality of member states any more than membership of an organization and has less effect than membership of some organizations, for example, the European Union, which has a certain federal element, albeit on a treaty basis.32
References(p. 134) (E) A Degree of Permanence33
If one relies principally on the concept of a stable political community, it might seem superfluous to stipulate for a degree of permanence. Time is an element of statehood, as is space. However, permanence is not necessary to the existence of a state as a legal order, and a state which has only a very brief life may nevertheless leave an agenda of consequential legal questions on its extinction.34
(F) Willingness to Observe International Law
In the modern literature, this is not oft en mentioned as a criterion, and it has been subjected to trenchant criticism.35 Delictual and other responsibilities, even though no longer exclusive to states, are consequences of statehood, and it is indefensible to express as a criterion of statehood a condition which the entity can only accept because it is a state.
A more fundamental issue is whether some degree of ‘civilization’ is inherent in statehood. For example Hyde adds a further criterion: ‘the inhabitants must have attained a degree of civilization, such as to enable them to observe…those principles of law which are deemed to govern the members of the international society in their relations with each other’.36 However, it is usually omitted from enumerations of criteria and is redolent of the period when non-European states were not accorded equal treatment by the European Concert.37
(G) Sovereignty38
The term ‘sovereignty’ may be used as a synonym for independence, an important element in statehood considered already. However, a common source of confusion lies in the fact that ‘sovereignty’ may be used to describe the condition where a state has not exercised its own legal capacities in such a way as to create rights, powers, privileges, and immunities in respect of other states. In this sense a state which has consented to another state managing its foreign relations, or which has granted extensive extra-territorial rights to another state, is not ‘sovereign’. If this or a similar content is given to ‘sovereignty’ and the same ideogram is used as a criterion of (p. 135) statehood,39 then the incidents of statehood and legal personality are once again confused with their existence. Thus the condition of Germany after 1945 involved a considerable diminution of German sovereignty in this sense, and yet Germany continued to exist as a state. Considerations of this sort have led some to reject sovereignty as a criterion.40
An alternative approach is that of the International Court in US Nationals in Morocco, where the judgment described Morocco as a ‘sovereign State’, meaning that it had maintained its basic personality in spite of the French protectorate.41 It would be possible for a tribunal to hold that a state which had granted away piecemeal a high proportion of its legal powers had ceased to have a separate existence as a consequence. But it may be difficult to distinguish granting away of capacities and the existence of agency or representation, and there is a strong presumption against loss of status.
(H) Function as a State
Experience has shown that entities may exist which are difficult to regard as states but which have a certain, even considerable international presence. The Treaty of Versailles of 1919 created the Free City of Danzig, which had the legal marks of statehood in spite of the fact that it was placed under the guarantee of the League of Nations and Poland had the power to conduct its foreign relations.42 The Italian Peace Treaty of 1947 provided for the creation of the Free Territory of Trieste, which was to be placed under the protection of the Security Council.43 The type of legal personality involved in these two cases is a congener of statehood, and it is the specialized political function of such entities, and their relation to an organization, which inhibits use of the category of statehood.
(i) States in statu nascendi
A political community with considerable viability, controlling a certain area of territory and having statehood as its objective, may go through a period of travail before that objective has been achieved. In any case, since matters such as definition of frontiers and effective government are not looked at too strictly, the distinction between entities in statu nascendi and statehood cannot be very readily upheld.44 States notReferences(p. 136) infrequently first appear as independent belligerent entities under a political authority which may be called, and function effectively as, a provisional government. Once statehood is firmly established, it is justifiable, both legally and practically, to assume the retroactive validation of the legal order during a period prior to general recognition as a state, when some degree of effective government existed. Leaving questions of state succession on one side, the principle of effectiveness dictates acceptance, for some legal purposes at least, of continuity before and after statehood is firmly established.45
In particular, the principle of self-determination may justify the granting of a higher status to certain types of belligerent entities and exile governments than would otherwise be the case. In exceptional circumstances, a people may be recognized by the international community, and by interested parties, as having an entitlement to statehood, and thus as being a state in statu nascendi. Normally, this transitional status leads, without too much delay, to independence under the auspices of the UN. However, in the case of the Palestinian people, there has been an eccentric bilateral process in which the question of statehood has been in issue between the government of Israel and the Palestine Liberation Organization (PLO),46 which, in turn, has given rise to problems in multilateral institutions.47 The Palestine question is considered below.