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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 succession from the State of Serbia after the breakup of the former Yugoslavia; in particular, the 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. 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) a permanent population; (b) a defined territory; (c) a government; and (d) a capacity to enter into relations with other states”. These requirements are regarded as representing in general terms the requirements of customary international law on the demands of statehood.
The Arbitration Commission of the European Conference on Yugoslavia, in Opinion No.1 elaborated upon these characteristics in stating that ‘the state is commonly defined as a community which consists a territory and a population subject to an organised authority’ and that ‘such a state is characterised by sovereignty’. 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. 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 Micronesia with a population of around 11,315 people according to the United Nations yet is considered to be a State. States have also to be defined territorial units as discussed in the Island of Palmas case,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. “This includes the right to integrity and inviolability in peace and war, together with the rights which each State may claim for its nationals in foreign territory”. 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 statehood was still conferred on Israel. The fact that indefinite boundaries do not preclude a claim to statehood was clarified in the North Sea Continental Shelf cases.
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. 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. In the Aaland Islands case the International Commission of Jurists stated that in a legal sense an entity could not become a sovereign State “until a stable political organisation had been created, and until the public authorities had become strong enough to assert themselves without the assistance of foreign troops”. Nevertheless, once a State is established the absence of an effective regime does not nullify statehood as in the case of Somalia, who had no effective government between 1991 and 2004.
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. 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 is signifies the pre-eminence of power. Clear links exist between sovereignty and the requirement of a defined territory.
Self-Determination
Self-Determination is the principle by which the political future of a non-independent territory is determined in accordance with the wishes of its inhabitants. The legal principle of self-determination was expressed within the Declaration on Granting of Independence to Colonial Territories and Peoples, which provides that “all peoples have a right to self-determination ; by virtue of that right to freely determine their political status and freely pursue their economic, social and cultural development”. In the Western Sahara case, the ICJ found that the principle restraint which self-determination imposes is that “it is for the people to determine the destiny of the territory and not the territory the destiny of the people…”. In relation to the criteria for statehood therefore, self-determination most closely effects the criterion of government. 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. 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. 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. 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 is merely a political fact, rather than a legal act. 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 region of the Federal Republic of Yugoslavia(FRY) until the early 1990s. When the FRY disbanded it remained part of Serbia and the Kosovo Albanian minority were increasingly discriminated against by the Serbian regime. Ethnic cleansing occurred and NATO intervened with a bombing campaign in late 1998. Security Council Resolution 1244 established an international civil administration for Kosovo, but at the same time also reaffirmed the territorial integrity of Serbia. On 17 February 2008, the Assembly of Kosovo issues its ‘Declaration of Independence’ in which it declared Kosovo to be an independent and sovereign state. They had been encouraged to an extent by the UN Secretary General’s special representative’s conclusion in September 2007, that ‘supervised independence’ was the only pragmatic solution for the Kosovo situation.
Kosovo’s Declaration of Independence was immediately recognised by a number of states, not all on the same terms. It was rejected by a smaller number including Serbia. 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. If there were a precedent, then the Statehood of Kosovo could lead to a destabilising effect upon many States. In the Kosovo Advisory Opinion, the International Court of Justice (ICJ) failed to offer any opinion upon the legality of secession or of self-determination outside of the colonial context; they merely concluded that the Declaration of Independence “did not violate any applicable rule of international law”. 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 four criteria within the Montevideo Convention developed gradually through the actions of the UN in its mandate for Kosovo as a separate region of Serbia with self-governance, which further developed into potential statehood after the Declaration of Independence. Kosovo has now achieved widespread recognition as an independent state; 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)
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Shaw MN, International Law (8th edn, Oxford University Press 2017)
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Warbrick C, ‘Kosovo: The Declaration of Independence’ (2008) 57 International & Comparative Law Quarterly 675
Judicial Decisions
Aaland Islands case LNOJ Sp Supp 4 (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
International Agreements
General Assembly Resolution 1514 XV Declaration on the Granting of Independence to Countries and Peoples. 1960
Montevideo Convention on the Rights and Duties of States 1933