Exploring the boundaries of international law
Exploring the boundaries of international law

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Exploring the boundaries of international law

2.1 What constitutes a state?

For many centuries the concept of a state was ill-defined. In practice there was a degree of fluidity in the control of the territory and populations. A particular regime tended to be defined in terms of location rather than territorial boundaries. However, rivers, oceans and mountain ranges provided natural boundaries to early kingdoms. Hadrian’s Wall and the Great Wall of China are notable man-made demarcations of different kingdoms. Colonisation led to the creation of artificial boundaries between areas under the control of the different European states – most notably in Africa at the end of the nineteenth century. Many of these territories then became independent states, such as Zambia, Kenya and Sierra Leone.

The states of the Middle East have emerged in a variety of ways. At the end of the First World War the Sykes–Picot Agreement 1916 allocated the territories formerly under the control of the Ottoman Empire to the allies – such as France and the UK– as protectorates (mandates). Modern Iraq and Syria were both established by this process. Other states, such as Saudi Arabia, were formed from the amalgamation of territories held by different tribal leaders.

The Montevideo Convention on the Rights and Duties of States (the Montevideo Convention) 1933 sets out some generally accepted benchmarks and provides a good starting point for discussion; Article 1 provides that:

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.

  • Permanent population – this refers to a population that is linked to a specific piece of territory on a permanent basis. The population must be reasonably stable. In Western Sahara Advisory Opinion ICJ Rep 1975, 12, it was established that nomadic tribes qualified as a state, as they had links with the specific territory. There is no requirement for the population to be indigenous and the extent of social and cultural cohesion required is unclear. In practice, most of the population of a state will be its ‘nationals’ and have a right to reside in that state. The criteria of qualification for nationality is determined by national law. The size of the population is immaterial; it can be as small as San Marino at around 30,000 inhabitants, or as large as China at around 1.3bn.
  • Defined territory – this refers to the territory over which control of the state is exercised, and which demarcates the state from its neighbours. The size of the territory of states can vary widely from Russia with 17 million km2 to the principality of Monaco with 2 km2. The borders of the state’s territory need to be reasonably determinate. The existence of border disputes does not necessarily affect the existence of statehood; for instance, India and Pakistan exist as states even though they have a long-standing territorial dispute in Kashmir. The refusal to define the extent of the state boundaries is not fatal to the existence of statehood either; Israel has refused to put maximum limits on its claims to the Palestinian territories, but there is no doubt that Israel is a state. The fact that territory is threatened or invaded by an aggressor does not preclude or destroy the existence of statehood. For instance, in 1990 Kuwait remained a state even when invaded by Iraq. In the case of a new state emerging out of civil war, the rebel group claiming sovereignty will need to show control over a sufficiently defined area to claim independent statehood, as was the case in East Timor in Southeast Asia, and South Sudan and Eritrea in Africa.
  • Government – statehood requires the existence of a government in control of territory and population. It needs to be effective. The degree of control that the government has is likely to affect a state’s chances of long-term survival. The structure and legitimacy of the government are relevant to this issue only. The Montevideo Convention does not demand that the government is democratic or legitimate. The control exercised by the government does not need to be total. Civil war may provide a serious challenge to effective government, but the state still exists in international law, as in Libya in 2011 and Syria in 2012.
  • Capacity to enter relations with the other states – this element causes some difficulty, in theory, as it defines one of the consequences of statehood. It is helpful to focus on the requirement of legal capacity. Many territories fulfil the other requirements of the Montevideo Convention but are not states; for instance, Hong Kong and New South Wales. Their local/regional governments do not have the capacity to enter relations with other states. For legal capacity to exist there must be a degree of independence from any other state. The apartheid government of South Africa declared the black homelands (Bantustan), such as Transkei and Ciskei, to be independent self-governing states and so not within the borders of South Africa. This act was not recognised by the rest of the world, as in reality these areas were not independent of South African control. The degree of economic and social dependence on other states is not relevant to the existence of capacity; rather, it is a legal question of whether an entity has capacity to enter relations as a matter of right. An entity may satisfy the other criteria of the Montevideo Convention which are based on fact, but fail on this legal requirement.
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