Foundations of Public International Law: Examine critically the requirements for the creation of a state in modern international law.
Essay 2000 9 Pages
Examine critically the requirements for the creation of a state in modern international law.
“The orthodox positivist doctrine has been explicit in the affirmation that only States are subjects of international law.” However, since international law is primarily concealed with the rights and duties of states, it is necessary to have a clear idea of what a state is. Problems of definition of statehood and of its application thus occupy an important place in the structure of international law. The disputes on this topic tend to be focused on factual issues rather than on the relevant legal criteria. The question of the criteria is a mixed fact and law question though. To create a state entities must fulfil certain criteria of statehood. There are different opinions on the essential criteria, which will be examined critically hereafter.
2. The Criteria of Statehood
To successfully create a state an entity must make sure to fulfil the criteria of statehood. The 1933 Montevideo Convention on Rights and Duties of States provides in Article 1:
The State as a person of international law should process the following qualifications:
( a ) a permanent population;
( b ) a defined territory
( c ) government; and
( d ) capacity to enter into relations with other states.
These four elements are the general approved criteria of statehood. The first three elements derive from the so-called “Drei-Elemente-Lehre” of German writer Georg Jellinek (also called doctrine of the three elements). The forth element was added to point out the importance of independence. An entity should not be under the authority of any other state. Some lawyers add self-determination and recognition as necessary criteria, which will be discussed and dealt with in a special part hereafter. They are not generally regarded as necessary criteria but more additional indications to prove legal personality .
2.1 Traditional Criteria
The traditional criteria of statehood is taken from the Montevideo Convention as shown above. The different criteria cannot really be considered alone. They are all linked to each other and form the appearance of a state altogether.
2.1.1 A permanent population
Entities claiming to become a state in international law need a certain population, inhabitants being citizens of the state. This is a factual criterion.
There is no lower limit to the size of the population (e.g. 500 persons residing in Vatican City, less than 170 are citizens). But it has to be the foundation of a human society united stably united in its territory, which will be examined hereafter. Some authors even think that it is not possible to affirm the existence of a state population within the meaning of international law, since the requisite communal life is lacking. The term population somehow indicates the existence a certain community, not just a number of human beings. Problems with the criterion of a permanent population can arise if people have more than one nationality or citizenship, or do not have it at all (e.g. permanent visitors, residents without citizenship), if a population is split up in different countries (e.g. exile, asylum) without a territory or if people migrate (e.g. Nomads) or move. Sometimes citizens can even be expelled from a territory at any time (e.g. Vatican). A defined population can be a problem if states are threatened by other states, the borders change, they are claiming a territory as their state which is part of an other country. The criterion is essential for the creation of a state. A permanent population and the defined territory factually constitute the physical basis for the existence of a state.
 Lauterpacht, International Law, p. 489.
 165 LNTS 19.
 Malanczuk, p. 75.
 Malanczuk, p. 80.
 O’Driscoll, Hutt River
 Malanczuk, p. 76.