PUBLIC INTERNATIONAL LAW
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Table of Contents
Due to the central role a state plays in the international relations, it is expected that there should be a clear, codified and acceptable definition of state in the international law. Since the formation of the United Nations in 1945, there have been several attempts to develop such a description. For instance, during the drafting of the Declaration of Rights and Duties of States (1949) and the Vienna Convention on the Law of Treaties (1956 &1966), there were efforts to describe the concept of state exhaustively, but none yielded a consensus. Despite the lack of consensus, the international law provides guidelines on the way to approach the idea of statehood. For instance, the existence of effective control is largely regarded as an essential consideration in determining the emergence of new States. The “principle of effectiveness” replaced the commonly acknowledged “policy of recognition” that allowed the existing states to determine authoritatively whether a (new) political society had adequate “legitimacy” and “civilisation” to be considered a sovereign state (and self-proclaimed civilised). This highly subjective 19th-century policy was eventually replaced with an objective and factual criterion (existence effective control over a specific territory).
In the case of Deutsche Continental Gas-Gesellschaft (1929), the importance of effective control in defining statehood was underscored. According to the arbitrator, a “state does not exist unless it meets the conditions of having a territory, a people occupying the territory, and a public power that is exercised over the territory and people. Additionally, the value of the principle of effectiveness has long been enshrined in legal doctrine. Shaw gives a summary of the importance of effective control. He observes that the “ultimate control and territory is the essence of a state.”
The Montevideo Convention on the Rights and Duties of States provides one of the most renowned definitions of statehood. Article 1 of the convention provides the traditional criteria for statehood. According to the Article, a state as a person of international law ought to possess the following features: (a) a permanent population, (b) defined territory, (c) government and (d) aptitude to enter into relations with other states.
The principle of cuius region, euius religion reflects the critical link between the development of a state and the ability to effectively control a defined territory. This principle has become increasingly important with the improving technical capabilities of border demarcation, the enhanced centralisation of power within the State and the rise of nationalism.
Regarding the size of a territory, the international law does not stipulate specific requirements. Therefore, a state may consist of a “micro-state” such as San Marino or massive ones such as Canada. States are not just territorial entities, but also consist of groups of individuals (permanent population). As a result, the existence of a permanent people is a fundamental requirement for statehood. However, there are no criteria for the size of the population. For instance, Andorra is a state despite its small population of approximately 68,000 inhabitants compared to India, which has a population of more than a billion. Additionally, the international law does not set standards on the nature of the population. Therefore, a community that makes up a state may be largely nomadic (Somali), may be ethnically homogenous (Iceland) or ethnically diverse (USA).
The third requirement for statehood is the presence of a government that can exercise independent and adequate authority over the territory and its populace. Since of all other criterion depends on the existence of a party, the presence of a government is the most critical criterion of statehood. It is the state that represents the government at the international community. The different arms of the government, the executive, legislature and the judiciary, act as indicated by the State. The government must have effective control over the territory and the populace and maintain its independence from foreign powers. Effective government is an essential criterion of statehood because it gives a state “the capacity to enter into relations with other states.”
Although the foreign relation requirement is regarded as a consequence of statehood and not a fundamental criterion, it is also a decisive standard for statehood. The ability to enter into relations with foreign states is related to state policy. Therefore, the statehood criteria do not necessarily impose an obligation on a state to enter into such relationships. Additionally, a state may be in these relations even when it does not have effective control of its populace or its territory. For example, despite Somalia being ungovernable, it has ambassadors in various states. Therefore, the ability to engage in foreign relations with states is a consequence rather than a criterion for statehood.
Independence is also required in claiming statehood. The sovereignty of a state is necessary for proving that the entity can exist and lead a separate existence. Additionally, the entity ought not to be a continuation of a different, but recognised the state. An independent state has to “exist as a separate entity within realistically coherent frontiers, and it should not be subject to the authority of another state or states. As a result, a state should not have other power apart from the international law.
The optional clause declaration refers to article 36 (2) – (5) Statue of the International Court of Justice. It provides a mechanism that enables party states to the Statute to lodge an optional clause declaration under which, subject to various provisos, they recognise ICJ jurisdiction as compulsory as between themselves and other states that have similar resolutions. Therefore, the clause functions as an invitation to other countries to agree to the compulsory jurisdiction of ICJ. Once accepted, the ICJ’s compulsory jurisdiction is then delimited by the acceptance scope of the declaring parties. The success of the necessary authority is based on the prior consent of willing states. The provisions of the article bring together a “network of engagements” that provide unique features and conceivable limitations.
According to the article, member-states can unilaterally accept ex-ante the mandatory jurisdiction of ICJ in “all legal disputes” that relate to treaties, international law, and obligations about other signatory states accepting the same obligations. Therefore, for the ICJ to enter a case, the two parties or litigant states must have assented to its jurisdictions, and the substance of their acceptance ought to be similar (principle of reciprocity). Paragraph 3 of the article holds that these declarations can be made “unconditionally or on reciprocity…or for a specific time.” Consequently, a state may qualify its acceptance by reservations that limit the scope of its acceptance. This practice of attacking reservations is recognised by the general rules of state and international law practice, but it is not expressly contemplated in the ICJ’s statue.
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The principle of reciprocity and the capacity of various states to condition their acceptance are fundamental factors that determine the existence and the scope of ICJ’s compulsory jurisdiction under this optional clause. Reciprocity requires that for the compulsory jurisdiction of the ICJ to be established under this optional clause, valid declarations of acceptance by states must be present and that both statements ought to accept the same obligations regarding content and scope. Further, if one of the resolutions has a reservation that is narrower than the counter-declaration, the counter-state can use the reservation to divest the ICJ jurisdiction or reduce the range of subject issues that can be handled by the court.
The principle of reciprocity is embodied in article 36 (2), and it is enshrined in international jurisprudence. Therefore, reciprocity is critical in establishing ICJ’s compulsory jurisdiction in two elements. Firstly, the two parties must have a valid declaration of a certificate. Secondly, the declarations should have the same obligations for all the involved parties. Although the principle of reciprocity demands the two state’s declarations to be reciprocal in extent and the subject, it is mandatory for them to be identical as ruled in the case of Norwegian Loans. However, in making the declarations, most states argue ex-abundant cautela, in their acceptance indicating that their acceptance is based on the condition of reciprocity.
According to Article 36 (3), the declaration can be made unconditionally or on the condition of reciprocity. Regardless of this restrictive formulation of the article, court jurisprudence and general international law practice have numerous examples of reservations. As a result, various types of reservations can be appended to declarations with effect to limiting the compulsory ICJ jurisdiction. A reservation rationale persona is the commonest and straightforward type of reservations. This reservation removes the ICJ’s compulsory jurisdiction over conflicts or disputes between a declarant state and a certain state or an amalgamation of states. In these circumstances, even if the litigating states have agreed to the optional clause, the reservation stops the court from considering the merits of the case due to lack of jurisdiction.
Reservation rationale temporis excludes ICJ from compulsory jurisdiction arising prior or after a certain date. A state may also declare that its declaration expires in a certain date or that it would be terminable upon notice. In such cases, the ICJ’s compulsory jurisdiction exists as long as the declaration of acceptance has not terminated or expired. A state may also use the rationale materiae. This type of reservation relates to the subject-matter of the dispute and excludes from the ICJ’s compulsory jurisdiction disputes that are identified by their nature, legal origin and categorization. However, the scope of this rationale can only be defined after the dispute has arisen. It may include among other things, issue belongs to domestic jurisdictions, boundary disputes for which previous dispute resolution had been agreed, dispute during armed conflicts or environmental cases.
Secession remains a controversial issue in the international law. It refers to the “severing a part of the state for the typical purpose of achieving independence.” Therefore, the matter is what Kosovo’s legal status is at the time the Kosovo Assembly claimed its independence. The UN resolution 1244 did not “interfere with Serbia’s official sovereignty over Kosovo; it did effectively curtail Serbia’s ability to govern the province.” A historical analysis of Kosovo’s legal status and its relationship with Serbia provides two tentative conclusions. Firstly, prior to the declaration of independence, Serbia legally exercised sovereignty over Kosovo. This is reinforced throughout Serbia’s history and has not been disputed by any other state, apart from Albania. Secondly, it is impossible for Serbia to resume its sovereign responsibility for the effective control of the Kosovo province. Serbia’s past actions towards Kosovo’s Albanian inhabitants and the small demographic representation of the Kosovar Serbs imply that it is not realistically possible to reintegrate the two territories. Therefore, there is not a clear legal solution for determining the legality of Kosovo’s effort to secede from Serbia.
In 1998, Canada’s Supreme Court made one of the most critical decisions: Reference re Secession of Quebec. This 1998 Reference is critical because, for the first time in modern history, a national court decided on the question of the legal characterisation of secession by a province or federated unit within a democratic state. Although the international law has not foreseen the possibility of secession, it offers a framework within which specific secession are favoured or disfavored, based on facts.
The legal concept of self-determination constitutes two distinct subsidiary elements. The default rule is the “internal self-determination” that is practically the protection of the rights of the minority within a state. According to the Quebec ruling, as long as a state offers a minority group the capacity to use their native language, practice their culture, and participate in the political community, then the minority group has internal self-determination. External self-determination or secession is often disfavored. In the re secession of Quebec, the Supreme Court held that the right to unilateral secession or self-determination arises only in the most extreme cases, and even in such cases, the circumstances should be defined clearly. Thus, in attempts to claim secession, including Kosovo’s case, the entity must at least show that:
Are the secessionists a “people,” in the ethnographic measure? The state from which the secessionists are seceding from has seriously violated their human rights. The domestic and international law does not offer effective remedies. Therefore, in exploring the Kosovo question, it is essential to ask whether the Kosovo Albanians are a people. The Canadian Supreme Court found that the meaning of the “people” is somehow “uncertain” in the international law. Historically, the international law has defined “a people” citizens of a nation-state, the occupant or inhabitant of a specific territory being decolonized by a foreign power, or an ethnic group. During the arbitration of the status of the Aaland Islands (1920-21), the arbitration commission of jurists held that for secession or self-determination, one could not treat a fraction of people as one would a nation as a whole. Therefore, the Aaland Islands were ruled not to have a sufficient case for secession because it inhabitant constituted only a small fraction of the Swedish “people.” The Kosovars may be viewed as a “people” having occupied Kosovo for centuries. However, they may also be seen as an enclave of the Albanian instead of a national. This definition of “a people” as a “nation” is criticised for being excessively restrictive. It remains an open inquiry whether increased support of Kosovo’s independence would trigger a shift in the definition of “a people” so that it no longer represents a “complete ethnic nation.” Such a definition would refer to “a people” as a homogenous ethnic enclave regardless being within a nation.
In relations to a serious violation of human rights, an entity had no right to secede without a clear manifest and continued the abuse of the state’s sovereign authority to the disadvantage of a specific section of the population. According to Resolution 1244, Kosovo was experiencing the grave humanitarian situation and also threatened international peace and security. NATO intervened in the Kosovo case due to these violations and human right abuses. However, Kosovar Albanians have also been accused of violating human rights. The fact that the international community is still in Kosovo is a clear indication that there are historic and ongoing human right abuses in the province. The other factor to consider is whether secession is the only viable solution. Before the declaration of independence, the political situation in the region did not offer any possible alternatives in resolving the conflict apart from secession. Additionally, over the years the international community has failed to show that an alternative resolution is possible.
Cases and Arbitrations
- Reference re Secession of Quebec  2 S C R 217; 37 ILM, 1998, 1342, at para 124.
- Aland Islands Case (1920) L.N.O.J. Special Supp., No.3, p. 3
- Brilmayer, Lea ‘Secession and Self-Determination: One Decade Later (2000) 25 Yale Journal of International Law 283.
- Malcolm Shaw International Law (4th ed, Cambridge University Press, 1997), 297.
- Montevideo Convention on the Rights and Duties of States, 26 December 1933, 165 LNTS 19.
Offered for reference purposes only.