NATIONAL LAW UNIVERSITY,

ODISHA

PUBLIC INTERNATIONAL LAW PROJECT

ON

THE CREATION OF NEW STATES IN INTERNATIONAL LAW

(A brief analysis through the criteria and the process involved in the formation of new States)

SUBMITTED BY: ANKITA DHABU (2013/BBA/009)

ANKITA SEN (2013/BBA/010)

ARCHITA MOHAPATRA (2013/BBA/015)

SUBMITTED TO: PROF. B. HYDERVALI

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................................................................................................. 3

Introduction ................................................................................................................................ 4

Recognition ................................................................................................................................ 7

a) The constitutive theory: .............................................................................................. 7

b) The Declaratory theory: ............................................................................................. 7

The criteria for statehood ........................................................................................................... 8

a) A permanent population: ........................................................................................... 8

b) Defined territory : ....................................................................................................... 8

e) Independence: ................................................................................................................ 9

Self determination ...................................................................................................................... 9

Relationship between Self Determination and use of force: ................................................ 11

Other considerations for statehood .......................................................................................... 12

a) Fundamental human rights: .................................................................................... 12

b) Democracy as a continuing condition : ................................................................... 12

Miscellaneous situations .......................................................................................................... 13

1) Entities not claiming to be States: ........................................................................... 13

2) Puppet States and the 1949 Geneva Conventions : ................................................. 13

3) Violation of treaties providing for independence: ................................................... 13

a) The original creation of States on unoccupied territory: ....................................... 14

b) Dependent States and other Dependent Entities: .................................................... 15

c) Devolution: ................................................................................................................... 15

d) Secession:.................................................................................................................. 16

e) The various forms of amalgamation or merger into ‘unions of states’ with distinct

legal personality: ................................................................................................................. 16

CONCLUSION ........................................................................................................................ 18

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TABLE OF AUTHORITIES

CASES

1) Legal Consequences for States for the Continued Presence of South Africa in

Namibia (South West Africa) Notwithstanding SC Resolution 246, 1971, 6, 31.

2) Madzimabamuto v Lardner-Burke (1968) 3 WLR 1229, 1250

3) Knox v Palestine Liberation Organisation,306 F Supp 2 d 424,437

4) AG v Sheng Fu Shen (1959 ) 31 ILR 349

5) Civil Aeronautics Administration v Singapore Airlines Ltd [2004] SGCA 3.

6) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.)

1986, I.C.J. 14, ¶ 202.

7) Barcelona Traction Case (Belgium v. Spain) 1970, I.C.J. 3, ¶ 33, (Feb. 5).

8) East Timor Case (Portugal v. Australia) 1995 I.C.J. 90, ¶ 29 (June 30).

9) Western Sahara, Advisory Opinion, I.C.J. 1975, 12.

10) Corfu Channel Case, 1949, I.C.J. 4, 35.

11) Nottebohm Case, 1955, I.C.J. 4.

BOOKS

1) Malcolm N. Shaw, International Law, 6th

edition, 2008.

2) Arthur Watts, Robert Jennings, Oppenheim’s International Law, 9th

edition.

3) Chen, Recognition, 2005.

4) Ian Brownlie, Principles of Public International Law, 8th

edition.

5) James Crawford, Creation of States in International Law, 2nd

edition.

CONVENTIONS AND TREATIES

1) Montevideo Convention 1933.

2) ILC Articles on State Responsibility, 2001.

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INTRODUCTION

At the beginning of the twentieth century there were some fifty acknowledged

states. Immediately before World War 2 there were about seventy-five. By 2005, there were

almost 200-to be precise, 1921.The emergence of so many new States represents one of the

major political development of the twentieth century. It has changed the character of

international law and the practice of international organisations. It has been one of the more

important sources of international conflict.

The creation of states is a complex process because it is a mixture of facts and laws

which involves the establishment of particular factual conditions and fulfilment of particular

normative criteria of statehood. The creation of states is important not only for a particular

state, but for the international community as a whole. The creation of states is the main topic

in the field of international law and is an important issue because it is the process which has

no end. Almost every day brings more news about new states and problems related with their

statehood, declarations of independence of break-away entities, recognition or non-

recognition of entities aspiring to statehood. One of the recently successfully created states is

South Sudan.

In April the media widely reported on the declaration of independence of an entity

called Azawad in North Mali where the Tuareg rebels proclaimed an independent state.

However, at this point it is important to mention that the creation of new states is almost

always contentious and practically every declaration of independence raises questions

concerning its legality. That is why there is a growing number of unrecognized entities who

seek the right to create new states. Many of them are members of the Unrepresented Nations

and People Organization. Forty seven entities are presently members of this organization.

Unresolved issues related to statehood result in a growing number of “unrecognized states”,

“de facto states”, “state-like entities”, “states-within-states” and “contested states”. Some of

those entities aspiring to statehood are not recognized at all (e.g. Somaliland or Puntland),

some 2 are recognized by a number of states, members of the United Nations (e.g. Turkey),

some are recognized, often on the basis of reciprocity, by other unrecognized entities. This,

for instance is the case of South Ossetia and Abkhazia being recognized by Transdnestria.

Recognition of new states is always both legally and politically motivated. From the

1 That is to say, 191 UN Members plus the Vatican City. This does not include Taiwan, Palestine or various

claimant entities

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perspective of existing states, the creation of new state can be sensitive for a number of

reasons. None of the existing states wants to lose her territory or to have its territory and

political independence threatened by the prospect of secession. Consequently, in most of the

cases, the creation of new states leads to internal and international conflicts. Conflicts related

with the creation of new states can also lead to the use of force and, potentially massive

violations of human rights by both the existing states aiming at the preservation of their

statehood and new entities aiming at secession and independence. The right to self-

determination of the people seems to be one of the most important principles of international

law guiding the creation of new states. In the 21stcentury, problems related to the territorial

status and statehood are likely to be the central point of international disputes.

It has long been inserted that, ‘The formation of a new State is... a matter of fact and

not of law.’2This position was supported by a wide spectrum of legal opinion. For example,

one of the most common arguments of the declaratory theory (the theory that statehood is a

legal status independent of recognition) is that, where a State actually exists, the legality of its

creation or existence must be an abstract issue: the law must take account of the new

situation, despite its illegality.3. Where a State does not exist, rules treating it as existing are

pointless, a denial of reality. The criterion must be effectiveness, not legitimacy. On the other

hand, according to the constitutive theory (the theory that rights and duties pertaining to

statehood derive from recognition by other States); the proposition that the existence of a

State is a matter of fact seems axiomatic.

Neither theory of recognition satisfactorily explains modern practice. Fundamentally

the question is whether international law is itself, in one of its most important aspects, a

coherent or complete system of law.4According to predominant nineteenth-century doctrine

there were no rules determining what were ‘States’ for the purposes of international law; the

2 Oppenheim (1

st edn.) vol. 1,264,209(1)

3 Cf Chen, Recognition, 38 (a state, if it exists in fact must exist in law).This proposition is a tautology, and the

problem of separate non-State entities was not in issue in the passage cited.

4 Cf Chen, Recognition, 18-19: ‘to argue that a State can become a subject of international law without the

assent of the existing States, it is necessary to assume the existence of an objective system of law to which the

new State owes its being.’ The point is that if the State owes its existence to a system of law, then that existence

to a system of law, then that existence is not, or not only a ‘fact’.

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matter was within the discretion of existing recognized States. The international law of that

period exhibited a formal incoherence that was an expression of its radical decentralisation.5

But if international law is still, more or less, decentralised in terms of its basic

structures, it is generally assumed that it is a formally complete system of law. For example

this is taken to be the case with respect to the use of force6 and nationality,

7 fields closely

related to the existence and legitimacy of States. This work investigates the question whether,

and to what extent, the formation and existence of states is regulated by international law, and

is not simply ‘a matter of fact’.

It is useful to review the changing opinions as the topic since the seventeenth century.

Grotius; Pufendorf, Hobbes and Victoria were among few writers who defined ‘State’. They

held different opinions .The basic criterion is that ‘To give a Nation the right to a definite

position in this great society, it need only be truly sovereign and independent...’ Sovereignty

is acquired by a State, either at the origin of the civil society of which it is composed, or

when it separates itself from the community of which it previously formed a part, and on

which it was dependent. This principle applies as well to internal as to external sovereignty

.But an important distinction is to be noticed. The internal sovereignty of a State does not, in

any degree, depend upon its recognition of other States. A new State, springing into

existence, does not require the recognition of other States to confirm its internal sovereignty

.The external sovereignty of any State, on the other hand, may require recognition by other

States in order to render it perfect and complete. If it desires to enter into that great society of

nations, such recognition becomes essentially necessary to the complete participation of the

new State in all the advantages of this society. Every other State is at liberty to grant, or

refuse this recognition.8

5The same incoherence has been noted in respect of the legality of war :Lauterpacht,Recognition,4-5

6 Cf Charter Art 2 (4); Corfu Channel Case, I.C.J Rep 1949 p4,35

7 Cf Nottebohm Case,ICJ Rep 1955 p 4

8 Elements (3

rd edn, 1846,), Pt I,ch II S-6.

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RECOGNITION

Although the early writers occasionally dealt with the problems of recognition, it had

no separate place in the law of nations before the middle of the eighteenth century. The

reason for this was clear: sovereignty, in its origin merely the location of supreme power

within a particular territorial unit necessarily came from within and did not require the

recognition of the other States. But this was a temporary accommodation. It is against this

background that the modern law of statehood and its relation with recognition must be

examined.

Article 69 defines it as- 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. There are two theories

underlying the recognition concept:

a) The constitutive theory:

The constitutive theory was the standard nineteenth-century model of statehood. In the

constitutive theory, a state exists exclusively via recognition by other states. The theory splits

on whether this recognition requires "diplomatic recognition" or merely "recognition of

existence". The constitutive theory, although it draws attention to the need for cognition, or

identification, of the subjects of international law, and leaves open the possibility of taking

into account relevant legal principles not based on ‘fact', incorrectly identifies that cognition

with diplomatic recognition, and fails to consider the possibility that identification of new

subjects may be achieved in accordance with general rules or principles rather than on an ad

hoc, discretionary basis.

b) The Declaratory theory:

The declaratory theory was developed in the twentieth century to address shortcomings of the

constitutive theory. According to declaratory theory, recognition of a new State is apolitical

act, which is, in principle, independent of the existence of the new State as a subject of

international law10

.

In the declaratory theory of statehood, an entity becomes a state as soon as it meets the

9 Article-6, The Montevideo Convention on Statehood of 1933

10 Chen, Recognition, 78

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minimal criteria for statehood. Therefore recognition by other states is purely "declaratory".

Neither theory of recognition satisfactorily explains modern practice. The declaratory theory

assumes that territorial entities can readily, by virtue of their mere existence, be classified as

having one particular legal status: it thus, in a way, confuses ‘fact' with ‘law'. For, even if

effectiveness is the dominant principle, it must nonetheless be a legal principle. And the

declaratory theorist's equation of fact with law also obscures the possibility that the creation

of States might be regulated by rules predicated on other fundamental principles—a

possibility that, as we shall see, now exists as a matter of international law

THE CRITERIA FOR STATEHOOD

The best known formulation of the basic criteria for statehood that laid down in

Article I of the Montevideo Convention on the Rights and Duties of States,1933: ‘The State

as a person of international law should possess the following qualifications :

a) A permanent population:

If States are territorial entities, they are also aggregates of individuals, and thus require a

permanent population: it is not a rule relating to the nationality of that population. Persons

could very well be regarded as nationals of a particular State for international purposes before

the State concerned had established rules for granting or determining its nationality. In the

absence of any treaty, a new State is not obliged to extend its nationality to all persons

resident on its territory.

b) Defined territory :

A state must possess some territory, though there is no rule prescribing the minimum area of

that territory.11

Nor is there any rule requiring the contiguity of the territory of the State. The

separation of East Prussia from Germany between 1919 and 1945,of East Pakistan from West

Pakistan before 1971,or of Alaska from the ‘lower Forty-Eight’ cast no doubt on the

statehood of Germany, Pakistan or the United States

c) Government:

11

Frank and Hoffman (1976) 8 NYUJIL 331,384-4 (‘infinitesimal smallness has never been seen as a reason to

deny self determination to a population’).

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This is regarded as central to it s claim to statehood. ‘Government’ or ‘effective government’

is evidently a basis for the other central criterion of independence12

.Governmental authority

is the basis for normal inter-State relations; what is an act of a State is defined primarily by

reference to its organs of government, legislative, executive or judicial.13

d) Capacity to enter into relations with other States:

Capacity to enter into relations with States at the international level is no longer, if it ever was

an exclusive State prerogative. 14

It depends partly on the power of internal government of a

territory, without which international obligations may not be carried into effect, and partly on

the entity concerned being separate for the purpose of international relations so that no other

entity both carries out and accepts responsibility for them.

e) Independence:

Independence is the central criterion for statehood.15

Different legal consequences may be

attached to lack of independence in specific cases .Lack of Independence may be so complete

that the entity concerned is not a State but an internationally distinguishable part of another

dominant State or an entity may be independent in some basic sense but act in a specific

matter under the control of another State so that the relation becomes one of agency, and the

responsibility of the latter State is attracted for the acts of the former.16

SELF DETERMINATION

An obvious area for inquiry is the relation between statehood and self determination: self

determination is at the most basic level, a principle concerned with the right to be a State.

This concept has been recognised as en erga omnes principle which the nation owes to the

international community as a whole.17

Our Aim is to look and determine whether self

determination has become criterion of statehood; and if so, with what effects...This principle

is firmly established in international law, in particular in relation to territories of colonial

12

For present purposes, government is treated as the exercise of authority with respect with respect to persons

and property within the territory of the State. 13

See ARSIWA 2001, Arts 4-7 for the normal situation of responsibility for acts of State organs or agencies. 14

Cf Opinion 1/94,Community Competence to Conclude Certain International Agreements,1994 ECR I-5276 15

See e.g., Higgins,Development,25-42 ; Kamanda, Legal Status of Protectorates,188-91; Verzijl, International

Law, vol II,455-90 16

The ILC Articles on State responsibility avoid the terminology of agency but allow that one State may be

responsible for the conduct of another in several contexts : where the latter acts on the instructions of the former

or under its direction or control in the relevant respect (ARSIWA, Art 8) 17

East Timor Case (Portugal v. Australia) 1995 I.C.J. 90, ¶ 29 (June 30).

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type. In Namibia Opinion18

,the court said that the subsequent development of international

law in regard to non-self governing territories, as enshrines in the Charter of the United

Nations, made the principle of self determination applicable to all of them(Art 73).This

passage was cited with approval by the court in the Western Sahara case also. The principal

of self determination is not a right applicable just too any group of people desiring political

independence, like sovereignty is a legal principle. The units to which the principle applies

are in the general those territories established and recognise as separate political units; in

particular it applies to the following:

a) Trust and mandated territories, and territories treated as non self-governing under

Chapter XI of the Charter

b) States, excluding for the purpose of the self determination rule those parts of States

which are themselves self –determination units as defined

c) Other territories forming distinct political-geographical areas, whose inhabitants are

arbitrarily excluded from any share in the government either of the region or of the

State, to which they belong, with the result that the territory becomes non-self

governing.19

d) Where a self-determination unit is not already a State, it has a right of Self-

determination: that is, a right to choose its own political organisation. Such right is to

be exercised by the people o the relevant unit without coercion and on the basis of

equality.20

e) It can result either in the independence of the self determining unit as a separate State,

or its incorporation into or association with another State.

f) Matters of self-determination are not within the domestic jurisdiction of the

metropolitan State.

Example: Rhodesia was a State, and that action against it, as based on contrary

preposition, had three prepositions- that it was unlawful; that recognition is constitutive, and

in view of its non-recognition Rhodesia was not a State; or that principle of self –

determination in his situation prevented an otherwise effective entity from being regarded as

18

Cf Namibia Opinion Rep 1971 p6, 31. 19

GA res 1541 (XV),Article 73 e of the Charter of the United Nations 20

See Johnson. Self-determination with the community of Nations, and the early classic studies by Wambaugh,

A Monograph on Plebiscites; Plebiscites since the World War.

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a State. In view of the consistent practice referred to, the first position is unacceptable. The

question of recognition as discussed already is in principle declaratory. It must be concluded

reached that Southern Rhodesia was not a State because the minority government’s

declaration of independence was and remained internationally a nullity, as a violation of the

principle of self-determination.21

Relationship between Self Determination and use of force:

1) The use of force against a self-determination unit by a metropolitan State is a use of

force against one of the purposes of the United Nations, and a violation of Article 2

paragraph 4 of the Charter

2) Annexation of a self-determination unit by external force in violation of self-

determination also does not extinguish the right.

3) Assistance by States to local insurgents in a self-determination unit may be

permissible, but in any event, local independence will not be impaired by the receipt

of such external assistance.

4) Where the local unit is a self-determination unit, the presumption against

independence in the case of foreign military intervention may be displaced or

dispelled. There is no prohibition against recognition of a new State which has

emerged in such a situation. The normal criteria for statehood-based on qualified

effectiveness –apply.

5) Where a State illegally intervenes in and foments the secession of part of a

metropolitan State other States are under the same duty of non-recognition as in the

case of illegal annexation of territory.22

6) An entity claiming statehood but created during a period of foreign military

occupation will be presumes not to be independent.23

21

The Privy Council in Madzimabamuto v Lardner-Burke (1968) 3 WLR 1229, 1250 did not consider this

position, arguing instead that Southern Rhodesia was not a State because the legitimate government was still

trying to reassert itself. 22

Cf Restatement (3rd

), Foreign Relations Law of the United Nations.S-202 (2): ‘A State has an obligation not to

recognise or treat as a State an entity that has attained the qualifications for statehood as a result of a threat or

use of armed force in violation of the United Nations Charter.’ 23

Knox v Palestine Liberation Organisation,306 F Supp 2 d 424,437 (SDNY,2004)

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OTHER CONSIDERATIONS FOR STATEHOOD

a) Fundamental human rights:

The Principal of self-determination is itself an aspect of human rights law, but apart

from this, there is so far in modern practice no suggestion that as regards statehood itself,

there exists any criterion requiring regard for fundamental human rights.24

In the Barcelona

Traction Case25

the court differentiated between obligations of a state towards the

international community as a whole and those arising vis-a-vis another state.

b) Democracy as a continuing condition :

Democratic principle is treated as internal analogue- as conditioning the entitlement to

statehood by reference to some general standard of participation by the people of the State,

for whose security and self expression the State presumably exists. The question of

democracy as an element of international law is not a simple one, especially as it tends to be

debated in terms of the possibility of external imposition, of a people being forced to be

democratic.26

Certain features of international law are themselves non-democratic, though

they may well serve other values: the presumption that the executive has comprehensive

power in foreign affairs; the supremacy of international law over national law, even when the

latter is democratically legislated; the conservative aspect of the principle of self-

determination, especially in is inhibiting effect on changes to established territorial

boundaries (uti possidetis); the principle of non-intervention.27

Thus, there is a room for the insistence on general standards of human rights and of

democratic institutions as an aspect of the stability and legitimacy of a new State. But this has

not matured into a peremptory norm disqualifying an entity from statehood even in the cases

of widespread violations of human rights.28

24

Fawcett (1965-6) 41 BY 103,112 referred to the Rhodesian case as a ‘Systematic denial of civil and political

rights. ‘It is submitted that the relevant rubric is self-determination. 25

Barcelona Traction Case (Belgium v. Spain) 1970, I.C.J. 3, ¶ 33, (Feb. 5). 26

Crawford (1993) 64 by 113, and for general review, Marks and Clapham, International Human Rights

Lexicon, 61-70. 27

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.) 1986, I.C.J. 14, ¶ 202. 28

Malcolm N. Shaw, International Law, (6th

ed. 2008).

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MISCELLANEOUS SITUATIONS

Apart from these, there have been miscellaneous situations where constraints have been said

to arise on State creation, not associated with serious branches peremptory norms which

includes the following:

1) Entities not claiming to be States:

Statehood is a claim of rights based on a certain factual and legal situation. The case of

Taiwan raises the possibility that an entity which does not claim to be a State, even though it

might otherwise qualify for statehood in accordance with the basic criteria, will not be

regarded as a State.29

2) Puppet States and the 1949 Geneva Conventions :

There is a presumption that an entity with the formal attributes of a State which is established

by a belligerent occupant is not independent and hence not a State in international law. This

situation arose in Manchuria. As a result of deficiencies in existing international law, the four

Geneva conventions of 1949 were concluded. The creation of puppets as a means of

indirectly violating the international occupations has been outlawed but have branded as

illegal.30

Article 47 establishes a categorical rule prohibiting puppet entities from being

created, or from achieving real independence over a period of time, and this view is

confirmed.31

3) Violation of treaties providing for independence:

A distinction must be made between formal or procedural violations and violations of

material provisions, and in particular of the purposes for or basic conditions upon which

independence is granted. In the former case violations will not affect statehood provided

genuine independence is attained. In the latter the presumption may well be against statehood

in the absence of compliance with the relevant provisions. Where a treaty is of such kind that

it extends beyond the immediate parties, no entity created in violation of material provisions

of the treaty will be recognised as a State.

29

Andorra before 1993 was another possible case of an entity not claiming statehood. The Restatement (Third)

has added as a criterion of statehood that the entity in question makes the claim to be a State. S-201. 30

Identity and Continuity,120 31

ICRC, Commentary (1958) IV,272-4 ;Draper, The Red Cross Conventions,38-9

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MODES OF THE CREATION OF STATES IN INTERNATIONAL LAW:

A categorisation of the various modes of a creation of new States provides a rigid,

over riding formula and includes the following:

a) The original creation of States on unoccupied territory:

At relevant times the position under international law has been the following:

1) Discovery has never been as such a basis of title to territory. The most discovery

could do was to create some priority for the discovering State visa-a –vies other

potential colonisers.32

Discovery in itself constituted a ground of sovereignty over

lands already occupied is unfolded and ethnocentric.33

2) To determine the status of any given entity in international law, it is necessary to look

at the particular characteristics of that entity, rather than relying on generalised

descriptions such as ‘protectorate’ or ‘indigenous people’.

3) The test that was applied was the existence of a settled system of government with

respect to a particular territory, whether or not the government was ‘civilised’,

‘European’ or ‘Christian’. The position taken by the International Court in Western

Sahara34

was generally the position applied both by the colonisation powers in the

eighteenth and nineteenth centuries and by third states.

4) The principle of inter temporal law requires that transactions completed at a particular

time be judged in accordance with the law in force at that time,

5) The protection given by contemporary international law to indigenous States and their

peoples was very limited. Their status could be recognised but subject to all sorts of

pressures to acquire their land, including the ultimate pressure of war.

6) Unless protectorate arrangements of an international kind remained in force,

indigenous groups who had granted their territory to the colonising power lost

whatever international status they may have had, from an in international point of

view the treaty of agreement under which the territory is transferred ceased to be an

international agreement at the moment of transfer, by reason of disappearance of one

of the parties

32

Jennings, Acquisition Of territory,4,29 33

Authority of Pope with respect to undiscovered lands was not even conceded by other Christian Princes 34

Western Sahara, Advisory Opinion, I.C.J. 1975, p.12.

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7) Colonisation, direct or indirect, has been the usual method of acquisition and

settlement, however in few cases, new States have been established on territory which

was previously not part of any of the State, or on territory abandoned or ceded by the

previous occupants.35

Examples:

1) Liberia-Despite of the internal problems it was facing, Liberia never became a colony

of any other State and is still an original member of both the league of Nations and the

United

2) Other Examples of this could be the Boer Republics, the free state of the Congo,

Israel, Taiwan etc

b) Dependent States and other Dependent Entities:

There arose a problem in regard to the granting of the territorial status to the dependent

entities. Merely because of their independence, many of these did not qualify as States,

though they possess a legal personality distinct from any other State. With the liberal view

on international personality taken in modern practice including UN membership practice,

the notion of a ‘half sovereign’ or ‘dependent State’ is unnecessary. Internatinalisation of a

dependent entity may have several effects. The status of the entity in question is more often

to be determined than in a bilateral arrangement. Apart from this, the status of entity is thus

made the subject of rights and duties between the various signatories: it will thus be

subjected to abrupt and especially unlawful change. The general effect is to consolidate and

possibly to enlarge the extent of local against metropolitan powers.

c) Devolution:

Two important methods by which new States are formed are the grant of independence by the

previous sovereign ( devolution) and the forcible seizure of independence by the territory in

question (secession).The distinguishing feature is the presence or absence of metropolitan

consent36

,although in some circumstances this distinction is formal and even arbitrary.37

The

importance of metropolitan consent varies in different situations, especially when the

principle of self-determination is at issue. Grants of independence can take different forms:

35

Verzijl, International Law, vol II,64-5 36

The term ‘metropolitan’ refers to the State on whose territory the new State is to be created, and in terms of

the manifestation of consent, to the government of that State. 37

Brownie (1961) 8 Rev Cont L 19, 26-7.

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immediate grant (which by far the most common modern method of transfer of governmental

authority) and gradual devolution (used before 1945) or accretion of power in a local unit to

the point where it is eventually seen as a separate State.

The most significant example of independence by gradual devolution is the Ottoman

Empire38

, the Philippines39

, the French and Netherlands Unions.40

d) Secession:

Until 1914, secession was the most common method of the creation of new States. Secession-

which may be defined as the creation of State by the use or threat of force without the consent

of the former sovereign 41

have been frequent and some of these have succeeded, in

particular Indonesia, North Korea, North Vietnam, Bangladesh. In addition, there are the

exceptional cases of Israel and a putative Palestinian State; the creation or attempted creation

of these States has occurred without the consent of the previous administration and as a result

of armed conflict. The application of the criteria for statehood to situations where statehood is

disputed by the previous sovereign; the relation between third State recognition and status;

the legality of secession in modern international law, and the legal incidents of the process by

which a seceding unit attains international status-these questions calls for a consideration.42

e) The various forms of amalgamation or merger into ‘unions of states’ with distinct

legal personality:

The four different kinds of political Union can be classified as: real and personal unions,

federations and confederations.43

Apart from the problem of characterisation, the main legal

problems of voluntary union have been those of succession to international obligations. In

most of the cases there is an existence of political union of two or more States with

substantial political and administrative continuity within the entities concerned, and a much

more extensive degree of ‘succession’ to legal relations-which extends even to membership

in international organisations44

- has accordingly been the established practice.45

38

At lug, Turkey and Some Problems of International Law, 108-36. 39

(1946) 15 DSB 66 40

On the French Union: Critique Francaise, vol II,524-67 41

Cf Marek, Identity And Continuity,62 42

Brilmayer (1991) 16 Yale JIL 177 43

De Jure Nature et Gentium VII, ch 5 (on the Forms of States’) 44

O’Connell. State Sucession, vol II,190-200 45

O’Connell (1963) 39 BY 54

CREATION OF STATES IN INTERNATIONAL LAW

17 | P a g e

SOME IMPORTANT CASES WHERE APPLICATION OF STATEHOOD WAS IN QUESTION:

Taiwan after various considerations was not considered as a State because it still has not

equivocally asserted its separation from China and is not recognised as a State distinct from

China. Its origins as a consolidated local de facto government in a civil war situation still

continue to affect it. But this does not lead to the conclusion that Taiwan has no status

whatever in international law. Courts faced with specific issues in relation to its status may

treat t it on a de facto basis as a ‘well defined geographical, social, and political entity with a

government having undisputed control of the island.46

Conflicts with respect to its limited

status in international law can be reconciled or avoided by interpretation.47

Executive

determination that Taiwan is not a State may result in denial of sovereign immunity but the

capacity of Taiwan government instrumentalities to sue and be sued in national courts is

widely accepted.48

Two recent cases, Hong Kong and Macao, show the variety of arrangements that can be made

to secure local autonomy within a framework of the recognition of sovereignty of the

metropolitan State. Both are transitional arrangements, for a minimum term of fifty years.

They are thus unrecognised as States.

46

AG v Sheng Fu Shen (1959 ) 31 ILR 349 47

US v Shaughnessy,218 F 2nd

316 (2nd

Cir 1954 ) 48

Civil Aeronautics Administration v Singapore Airlines Ltd [2004] SGCA 3.

CREATION OF STATES IN INTERNATIONAL LAW

18 | P a g e

CONCLUSION

The criteria for statehood and modern practice, have been examined at length in this project

.The basic problems that need to be addressed involves at first place, the concept of

‘sovereignty’ which as a criterion for plenary competence has been rejected .It is unhelpful

since both the legal and the effective capacities, rights, immunities of States may vary widely,

within the limits established by the criteria for separate independence. It is also misleading as

it implies a necessary and overriding omnipotence which States do not possess in law or in

fact.

Secondly, although the criteria for statehood provide a general, applicable standard, the

application of that standard to particular situations where there are conflicting and

controversial claims if at times difficult .Thirdly, while statehood is a legal concept with a

determinate, though flexible content ,it is probably the only such concept in the field of legal

personality49

Finally the application of this last principle to problems of the creation of States requires

some concern. Like the various accepted classifications of non-State entities, these modes of

the creation of States are distinguished here because of relevant common features. For

example, it is useful t distinguish cases of grant of independence by a former sovereign from

cases of forcible seizure, since in the former case the criteria for statehood are likely to be

more readily fulfilled. But these classifications remain in principle ones of convenience, and

a particular entity may achieve statehood in a variety of ways.

What is needed is not a more intrusive intervention doctrine, but more effective measures to

apply international law. These may in the last record involve military intervention, though the

overall record of sustained, successful military intervention is dismal. Above all a systematic

set of measures not involving the use or threat of force ,or the illusory ‘relief’ provided by an

intervention force, is required-including freer access of third world countries to agricultural

markets, appropriate arrangements for delivery of health care and medicine, and so on for a

better State.

49

Seyersted (1964) 34 Acta Scandinavica 3.