Statehood Criteria

The competing theories of state recognition and their failings actively demonstrate that recognition of a state does not have any normative content per se, but rather, that the rules of state recognition, although legal rules, are legal vehicles for political choices. We have the dilemma of concurrently wanting the right cases to result in independent states while prohibiting the wrong ones from becoming so, and so we sail between political choices, using the language of law. The state is neither truly free to recognize another entity nor entirely bound. Differing cases require different legal criteria and different legal results. This flexibility in state recognition theory though, while depriving the act of any inherent legal meaning, has value in its utility for establishing lawful relationships.

This paper will argue that the reason we find it difficult to resolve the controversy over state recognition theory is because the international legal system translates political controversies into legal questions that can then be addressed through legal means. Legal actors, by announcing preference for one side of the question, often reveal certain legal and moral choices they are making about the nature of the state and the legitimacy of the international legal system - law and politics. In the area of state recognition, no theory of recognition has extinguished competition because no political choice has gained universal acceptance. The predominant political choice is most frequently deliberate indeterminacy, a co-existence of mutually opposing arguments. This indeterminacy is most likely deliberate because it permits the underlying rationale for the legal actor’s policies to change and evolve to suit the situation.

This paper examines the main justifications for recognising Kosovo’s independence: ‘remedial secession’ and ‘earned sovereignty’. Our paper begins by examining the applicability of the doctrine of remedial secession to Kosovo, the justifications for which can be seen clearly in the decade from 1989 to 1999. However, we argue that the doctrine of remedial secession was insufficiently ripe, in political and legal terms, to be used in 1999 to support Kosovo’s independence. An opposing approach is that of ‘earned sovereignty’ which aims to provide for the managed devolution of sovereign authority and functions from a state to a sub-state entity, resulting either in independence or rehabilitated autonomy within the host state. Based on the case of Kosovo, we propose an alternative explanation to this observed path towards ‘recognisable’ statehood: ‘remedial sovereignty’ whereby a people realise statehood by invoking remedial secession and undergoing a transitional period of mediated international administration, characterized by elements of sovereignty which are externally designed and internally earned. Therefore, we propose ‘remedial sovereignty’ as a useful paradigm to provide the international community with a framework to confer statehood on those peoples for whom there is no other choice, thereby resolving the ‘recognition dilemma’ experienced in the aftermath of the Kosovo’s declaration of independence.

International law, and international lawyers generally, tend to take a somewhat conservative approach to the formation of rules, so when confronted with the growing availability of leaked information naturally we might be cautious in considering how the leaks are affecting international law. This paper will assess the growing influence of leaked information on the rules of international law and argue in favor of their use. This paper is not especially focused on WikiLeaks, though it is representative of the phenomenon and is the source used primarily for this paper. Due to the presence of it and similar actors, the availability of leaked information is growing and leaked information is now becoming significant in international affairs.

This paper will walk through the various sources of law, generally following the structure of article 38(1) of the Statute of the International Court of Justice, although with some additions as may be relevant, and examine each source to see whether and how leaked information might contribute. As threshold matters, ex turpi causa non oritur actio, “the fruit of the poisonous tree”, and similar principles are examined, however, those principles can be dismissed for a number of reasons.

The first source of law to be discussed is treaties for two purposes. Firstly, the paper assesses the definition of a treaty and considers whether leaked information might amount to a secret treaty, and secondly, it assesses the evidentiary function of leaked information in interpreting treaties.

After treaties, the paper considers the ways in which leaked information might contribute to the formation of customary international law, primarily the ways in which leaked information might evidence practice and opinio juris.

Lastly, the author also considers the potential for leaked information to contain binding unilateral statements and the role that leaked information might play in the law-making function of international organizations.

Following the examination of the sources of law, the paper takes a brief detour to examine the ways in which leaked information might impact the international legal personality some entities enjoy. Leaked information might have a bearing on both the law to be applied and the facts to be established. In particular, the Holy See and Kosovo will be discussed.

We appear to be moving into an era of increased access and transparency of information, and inability to prevent the viral spread of leaks. Law, and international law in particular, must take cognizance of this change and absorb it. It is possible, although the growth in leaked information might have a greater effect in the future. It might even inspire changes in some of the more fundamental notions that underpin the law.

Functional state-like entities are contributing to the shift of international legal personality from an objective to a subjective regime. What we find are numerous situations where there is an entity that, for one reason or another, cannot be or will not be considered a state. However, the international community needs to engage with those same entities in various functional ways for pragmatic reasons. For lack of a different paradigm, the entity is therefore treated as if it were a state on a functional basis, while all the while continuing to refuse it formal statehood. The difficulty is that this treatment exposes a relativity in perceptions of statehood and may bring the objective statehood regime into doubt. Subjective statehood is increasingly the norm and suggests that objective statehood is not (or no longer) correct.

[Abstract] State remains the central actor, possessing a key-place within the international system even now, in our era of multi-level international organization. Since the late ’1990s to nowadays, the international community faced several precedents of ‘grey areas’, territorial situations of disputed legality and a plethora of ‘faits accomplis’ whose authors attempted to find justification under some interpretation of the modern or classical doctrine of International Law in order for their legality to be established and acknowledged. However, in most of these cases the initial illegality paved the way for the establishment of yet another ‘unlawful territorial situation’ stressing the normative persistence of the Principle of Legality (EX INIURIA IUS NON ORITUR) within the international legal order. Which are the Criteria of Statehood in the current international doctrine? Does non compliance with the Legality Principle at the initial phase of state-genesis exclude the possibility of a sovereign territorial entity’s lawful/acceptable creation? Does International Law impose upon the States-members of the international community a Positive Obligation of Non-Recognition vis-à-vis certain territorial entities? If yes, when does such an obligation arise? Does the –supposedly– newly established ‘Caliphate’ under the name ‘ISLAMIC STATE’ or ‘ISLAMIC STATE OF IRAQ AND LEVANT (SYRIA)’ satisfy the criteria of statehood? Could it be recognized as a State by the other sovereign actors of the international system? Is there a structural incompatibility so fundamental as to exclude any possibility of recognition? Read more on the newest addition to Curia.gr’s (google translate friendly site) international jurisprudence e-collection
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[Περίληψη] Το κράτος αποτελεί τον κεντρικό δρώντα, κατέχει τη θέση-κλειδί στο διεθνές σύστημα ακόμη και σήμερα. Ήδη από τη δεκαετία του ’1990 κι έως την εποχή μας, η διεθνής κοινότητα έχει έρθει αντιμέτωπη με πληθώρα φαιών ζωνών, αμφιλεγόμενων εδαφικών καταστάσεων και σωρεία faits accomplis τα οποία πασχίζουν να ανεύρουν διεθνο-νομική έκφραση και να εδραιωθούν εκ του λόγου τούτου στο διεθνές πεδίο. Στην πλειονότητα των περιπτώσεων ωστόσο πρόκειται περί «π α ρ ά ν ο μ ω ν  ε δ α φ ι κ ώ ν  κ α τ α σ τ ά σ ε ω ν» οι οποίες δοκιμάζουν την κανονιστική αντοχή της Αρχής της Νομιμότητας (Ex iniuria ius non oritur) εντός των κόλπων του σύγχρονου Διεθνούς Δικαίου. Ποια είναι τα κριτήρια τα οποία θέτει το τελευταίο τούτο για την σύσταση ενός Κράτους; Η μη τήρηση της Αρχής της Νομιμότητας κατά την ιδρυτική περίοδο απωθεί το ενδεχόμενο εδραίωσης μιας εδαφικής οντότητας; Πότε το Διεθνές Δίκαιο επιβάλλει θ ε τ ι κ ή  υ π ο χ ρ έ ω σ η  Μη Αναγνώρισης ορισμένης εδαφικής οντότητας στα κράτη-μέλη της διεθνούς κοινότητας; Το ‘Χαλιφάτο’ του ‘ΙΣΛΑΜΙΚΟΥ ΚΡΑΤΟΥΣ ΤΟΥ ΙΡΑΚ ΚΑΙ ΤΟΥ ΛΕΒΑΝΤΕ (ΣΥΡΙΑΣ)’ είναι κράτος; Θα μπορούσε να θεωρηθεί κράτος και να αναγνωρισθεί στο διεθνές πεδίο; Ή μήπως  υπάρχει μια θεμελιακή ασυμβατότητα;
Διαβάστε περισσότερα στο <http://curia.gr/to-islamiko-kratos-tou-irak-kai-levante-isil-mia-nea-proklisi-gia-tin-arxi-tis-nomimotitas-sto-diethnes-sistima-2/>

Az EnenKio Királyság nemzetközi jogilag ténylegesen létező, elismert illetve el nem ismert államnak tekinthető-e?

Szakértői vélemény:
Az említett "EnenKio Atoll Királyság" a nemzetközi jog jelenlegi szabályai alapján nem tekinthető önállóan létező, szuverén államnak. Ennek fényében nincs jelentősége annak a kérdésnek, hogy elismert, vagy el nem ismert állam-e. A T. Bíróság kérdésére adandó teljes válasz tehát úgy hangzik, hogy az "EnenKio Atoll Királyság" sem elismert, sem pedig el nem ismert módon nem alanya a nemzetközi jognak, nem önálló állam.

A részletes indokolás a következő oldalakon található.

The way Kosovo is achieving independence has been welcomed with antithetical opinions in the international community, especially with respect to international law. This paper attempts to shed light on the legal trajectory which brought Kosovo on the way to statehood. After determining that Kosovo has not, prima facie, any positive right to independence, its de facto statehood is contrasted with a few doctrines that could contribute to support it, namely self-determination, remedial secession theory, and international dispositive powers. The analysis finds that Kosovo independence might be legally justifiable under a collective recognition theory, possibly supported with
remedial arguments. Having further enquired over the effectiveness and the legitimacy of its independent status (statehood criteria), this article contends that such turn of
developments in Kosovo is better explained through more genuine political reasoning. The validity of independence as a solution is not debated in itself, but on the basis of the whole process the negative effects of reaching such outcome by the way of a onesided decision are discussed.

Most concerned observers and analysts have deplored the phenomenon known as ISIL, a movement in the Middle East that asserts a particularly abominable form of governance that deviates majestically from the norms of international law and world order, while calling itself a " state. " The prevalence of ISIL has wide-ranging consequences and implications for us all in the interstate system. ISIL tactics have been roundly condemned also by victims in and around the ISIL-claimed territories, as well as concerned parties abroad. At the same time, the evolution of ISIL holds a plethora of lessons about the radicalization of people in the form of a political movement asserting a common sectarian affiliation. ISIL's adherents explain their movement in the vocabulary of retribution for their foregoing persecution as a religious group. They also heap similar harm and suffering on undeserving others. That inhumanity ultimately negates the legitimacy of both the movement and its proclaimed political entity. Functions and Fundamental Questions The now-familiar pattern of the ISIL phenomenon exhibits a repertoire of behaviors that have come to characterize the state that its supporters claim to constitute. That claim also raises fundamental questions about the criteria of a state in the international system. The single legal instrument that specifies the requisites of statehood is found in the American states' Montevideo Convention on the Rights and Duties of States (1933). It provides that a bona-fide state is an administrative entity composed of (1) a defined territory (land and territorial waters), (2) a constituent population (of a people or peoples) and (3) institutions of government capable of conducting international relations and international cooperation. That personality also bears a complement of rights (vis-à-vis other states), as well as individual, collective, domestic and extraterritorial obligations. In the ISIL case, however, the acclaimed state is constructed not of indigenous peoples or populations, but, by demographic manipulation, carved out of territory belonging to other states and peoples through prohibited military and other means. That has taken place in currently ambiguous, constitutionally undefined and effectively unrecognized state borders. This contradiction prevails in breach of the sacrosanct international law principal of uti possidetis, which, since Roman times, has prohibited the partition or recolonization of territory belonging to peoples entitled to, and in the process of exercising independence (their self-determination). Manipulating Peoplehood, Flouting the Law In proclaiming its " state, " ISIL also has had to construct/invent the requisite constituent people criterion of a state by globally marshalling recruits who conflate adherence to a particular faith with a unique " nationality " status and set of material privileges as a measure toward promised redemption. The rights and privileges bestowed on those belonging to ISIL's super-nationality are not shared by persons of other faiths within the ISIL-controlled territory. By recruiting and transferring mercenaries from the Middle East region and abroad, the ISIL phenomenon has offered effective " citizenship " automatically upon recruitment to its statist project. By recruiting the citizens of * Joseph Schechla is coordinator of the Housing and Land Rights Network of Habitat International Coalition, based in Giza, Egypt.