This document provides an overview of the key concepts of statehood and sovereignty in international law. It discusses the definition of a state according to the Montevideo Convention criteria of having a permanent population, defined territory, government, and the capacity to enter into relations with other states. The document also examines the concept of state sovereignty and how territory can be acquired. It analyzes the right to self-determination and how this relates to the creation of new states.

1. LWN158: Public
International Law
Seminar 4:
Sovereignty & Recognition of States
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2. Objectives for this week:
• To understand the concept of state sovereignty and its
implications for international law
• To critically consider the ways in which international law
regulates the acquisition of territory by States
• To critically consider the ways in which an entity is recognised
as a State, including the role of other States’ recognition and
the role of the doctrine of self-determination.
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3. What is a state?
• How would you define a state?
• Could describe a state by reference to what states do:
• States are the subjects and creators of international
law (treaties & custom)
• States possess international legal personality – can sue
and be sued under international law
• States can grant legal rights and responsibilities to
individuals or organisations
• States are the ‘units’ through which international law is
created, interpreted and enforced.
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4. What is a state?
• A State, for the general purposes of international law, is a
territorial unit, containing a stable population, under the
authority of its own government, and recognised as being
capable of entering into relations with other entities with
international personality.
(DW Greig, International Law, 2nd ed, Butterworths p. 92)
• Do you find this definition useful? Does it sufficiently
distinguish between states and non-states?
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5. Concept of state sovereignty
• A state enjoys the benefits of sovereignty:
• Equality under international law (Declaration on Friendly
Relations of States (1970))
• International legal personality: creators and subjects of
international law; enjoy rights and bear duties under
international law;
• Territorial sovereignty: ability to exercise jurisdiction and
control within territory and over all those found in territory
• Non-interference from other States: exclusive jurisdiction over
their domestic affairs, protected from interference from other
states (principles of non-intervention and non-interference
under UN Charter art 2)
• Immunity from the jurisdiction of other states (week 11)
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6. The elements of Statehood
• Montevideo Convention on the Rights and
Duties of States, article 1:
The State as a person of international law
should possess the following qualifications:
a) a permanent population
b) a defined territory
c) government
d) capacity to enter into relations with other
States 6

7. (a) Permanent Population
• Why is permanent population necessary for statehood?
• Does it matter how big the population is?
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8. (b) A defined territory
• A state must have a defined territory
• Territorial sovereignty is a key element of international law
 Essential link between statehood and territory
• What if two states are involved in a boundary dispute?
• Does a state’s population have to reside within its territory?
• What if a state’s population is forced to move?
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9. Acquisition of territory
Methods of acquisition:
1. Cession
2. Occupation
3. Prescription
4. Accretion
5. Conquest
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10. 1. Cession
• Transfer from one sovereign to another.
• Must be intention to transfer sovereignty.
• Will be void if effected by threat or use of force (UN
Charter art 2(4)).
• Ceding state can’t rescind, or give better title than it
possessed.
• Distinguished from secession, whereby part of a State
seeks to become independent.
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11. 2. Occupation
• A State may acquire unoccupied territory (that is, territory
which is terra nullius)
• May be terra nullius because either:
• No sovereign ever existed; or
• Previous sovereign has abandoned the territory
• Clipperton Island case: must be clear intention to relinquish in
order to establish abandonment
• Western Sahara case: territories inhabited by indigenous
peoples with social or political organisation are not terra
nullius.
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12. Occupation cont/…
• Assuming territory is terra nullius, two elements required
to establish occupation:
1. Possession – formal act demonstrating intention to
occupy and usually involves actual settlement
2. Effective occupation – some demonstration that
territory is in fact governed by new occupier
• These elements are judged in the circumstances, in
context of location and habitability of territory
(Clipperton Islands; Island of Palmas).
• Discovery of territory creates an inchoate title which
must be confirmed through possession and effective
control (Island of Palmas) – discovery alone is not
enough to create territorial sovereignty.
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13. 3. Prescription
• Acquisition of territory that was not terra nullius when it was
acquired, but where state has been in possession for so long
that it has been recognised as legal sovereign.
a) Immemorial possession – state has been in possession so long that
competing claims are forgotten
b) Adverse possession – identity of previous sovereign is known, but
new sovereign has exercised authority for so long that old sovereign
deemed to have forfeited title
• Possession must be peaceful - no use of force
• Any other stakeholders must have acquiesced, that is, not
protested the new state’s claim.
• State claiming territory must have acted as if they were
sovereign (that is, possession exercised a titre de souverain)
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14. 4. Accretion
• Increase in territory through natural forces eg
build up of sand or soil.
• If gradual, imperceptible changes to river’s course
where river is border – territory changes too.
• But if avulsion – that is rapid change eg by
flooding, then border remains where it was.
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15. 5. Conquest
• Taking possession of enemy territory in time of war
• Sovereignty is usually transferred in peace treaty.
• No longer a valid way of acquiring territory – violates art
2(4) of UN Charter.
• Principle of intertemporal law allows recognition of
sovereignty where conquered prior to prohibition on use of
force and where sufficient number of governments
recognise sovereignty. This can operate to validate title.
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16. (c) Government
• Test for government involves two elements:
(i) Exercise of effective control over a defined territory;
(ii) Independence (not subject to control by any other State or
external political power)
Aaland Islands Arbitration: emergence of Finland as
independent state depended on when Finnish government
could be said to be exercising independent effective control,
without support of Russian troops.
• What kind of government is required? Does it have to be
democratically elected?
• What happens when a state lacks or loses effective
government?
• What about changes in government? Changes to constitution?
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17. (d) Capacity to enter into relations
with other States
• Two possible definitions:
1. Political, technical, financial and other resources
to establish diplomatic relations with other states
2. Willingness of other states to enter into relations
• How important is recognition by other states?
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18. Recognition of states
• Two theories of recognition:
1. Declarative theory: recognition by other
states is just a confirmation that an entity has
statehood, it does not create that statehood.
2. Constitutive theory: recognition by other
states is a necessary precondition to
statehood.
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19. Recongition of states cont/…
• Membership of international organisations
• UN Charter art 4(1) ‘membership is open to all peace-loving
states’
• Non-membership doesn’t mean an entity is not a state
• Recognition (or lack thereof) has evidentiary value in
determining statehood: widespread non-recognition suggests
problem with other elements of statehood (esp capacity to
enter into relations)
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20. Emergence of new states
• New states can be created and become members of the
United Nations.
• The entity seeking independent statehood should satisfy
the Montevideo definition
• Requires recognition by other states (either as separate
requirement or as part of Montevideo test)
• Often through exercise of right to self-determination
• Emergence of independent state has obvious impact for
territorial sovereignty of state of which it was previously
a part. 20

21. Self-determination
All peoples have the right of self-determination. By virtue of
that right they freely determine their political status and freely
pursue their economic, social and cultural development.
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International Covenant on Civil and Political Rights and International Covenant
on Economic, Social and Cultural Rights, common art 1:
The purpose of UN is to ‘develop friendly relations among
nations based on respect for the principle of equal rights and
self-determination of peoples’
UN Charter, art 1(2):

22. Self-determination
Art 1: ‘The subjection of peoples to alien subjugation, domination
and exploitation constitutes a denial of fundamental human rights, is
contrary to the Charter of the UN and is an impediment to the
promotion of world peace and co-operation.’
Art2: ‘All peoples have the right to self-determination; by virtue of
that right they freely determine their political status and freely pursue
their economic, social and cultural development.’
22
Declaration on the Granting of Independence to Colonial Territories and Peoples,
General Assembly Resolution 1514 (1960):

23. Who is entitled to self-determination?
• Final Report and Recommendations of an International Meeting
of Experts on the Further Study of the Concept of the Rights of
People for UNESCO (1990) – a ‘people’ has the following
characteristics:
1.Common historical tradition
2.Racial or ethnic identity
3.Cultural homogeneity
4.Linguistic unity
5.Religious or ideological affinity
6.Territorial connection
7.Common economic life
• As well as these objective characteristics, must have subjective
will to be identified as a people 23

24. What does self-determination
entail?
• For colonial or non-self governing territories, the right to self-
determination required states to take steps to facilitate
independence (GA Res 1514, art 5)
• But GA Res 1514 also recognised that ‘any attempt at the
partial or total disruption of the national unity and the
territorial integrity of a country is incompatible with the
Purposes and Principles of the UN Charter’ (art 6)
• Creation of independent nation for a people under the rule of
another state would be interference with territorial integrity
and sovereign rights.
• ICJ has attempted to reconcile these competing requirements,
at least in the case of colonial peoples.
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25. Self-determination in the ICJ
• Western Sahara case (ICJ Reports 1975 at 12)
• ‘The principle of self-determination, at least as it applies
to colonial and similar non-self-governing territories, has
attained the status of customary international law.’
• Eg Judge Dillard – in Western Sahara: ‘it is for the
people to determine the destiny of the territory and not
the territory the destiny of the people’.
• Any claim by Spain, Morocco or Mauritania over the
territory was subject to the customary law principle of
self-determination.
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26. Self-determination in the ICJ
cont/…
• East Timor: the right of peoples to self-
determination is customary law with the status
of a norm erga omnes
• That is, obligations are owed by all states, all
states must respect self-determination.
• The right is not limited to a colonial context,
but is enjoyed by all peoples.
• Israeli Wall: confirmed erga omnes status 26

27. External and Internal self-
determination
• Principle of territorial integrity acts as limitation on exercise
of self-determination (Kosovo advisory opinion)
• Colonial or non-self governing territories do have right to
independence – has led to creation of nearly 100 new states
– but that right doesn’t apply for all peoples
• In other cases, independence will require the consent of the
territorial sovereign in the form of recognition of
independence.
• Where independence not possible, self-determination must
be allowed through internal’ means, eg self-government or
autonomy. 27