Elements of a State in International Laws - Essay Example

?INTERNATIONAL LAWS (school) International Laws: Elements of a Introduction The man s of international laws set forth that for a state to exist and to be recognized as a state, four basic elements must first be present. These elements include: population (people), territory, government, and the capacity to enter into relations with other states. Other elements have been included, but the above four are the basic requisites and are respected and recognized by all countries as determinants of statehood. This paper shall critically evaluate the means by which a territory can become a state. This essay is being written in order to arrive at a thorough and extensive assessment of statehood, especially, in relation to territory. Discussion Much debate and conflict have been seen owing to the right of a state to claim statehood. To this very day, different territories are trying to claim statehood and independence from their mother states. These claimants have even waged violent conflicts with their mother states in their bid for independence and statehood. Their belief revolves around the fact that since they fulfil the elements of statehood, they deserve to be recognized as independent states. These beliefs are however often rebuked by their mother states who often claim that these territories are not independent states, and for as long as they have sovereignty over it, international bodies cannot recognize them as independent states. The means by which a territory can later become and be recognized as a state are basically focused on the four elements. After these elements are established, the processes of international laws have to be applied in order to secure recognition for the territory as a state. Based on Article 1 of the Montevideo Convention, a state, in order to be recognized as a person of international law, must possess the following elements: a permanent population; a defined territory; government; and the capacity to enter into relations with other states. Traditionally, many states were able to gain recognition via international bodies by fulfilling the above basic requirement, as well as the requirements of sovereignty and independence (UIO Faculty of Law, 2010). A territory can become a state by first having a sufficient number of people to make up a population. Different authors and scholars support this basic premise because it is a natural requirement for subsistence. There is no specific requirement as to the number of inhabitants only that, this population needs to be sufficient in the conduct of state functions (Shaw, 2003, p. 179). This population also needs to be permanently based on the territory. It is this qualification which disqualifies Antarctica for statehood. It does not have a permanent population. At different points of the year, explorers from different countries enter the continent, but they do not settle therein permanently and they eventually return to their own states (Fry, Goldstein, & Langhorne, 2002, p. 457). Conversely, even as Somalia’s population is not permanent, with its nomad residents drifting in and out of its territory, it still is considered a state because the people have the ultimate intention of going back (Fry, Goldstein, & Langhorne, 2002, p. 457). It is also important to note that there is also no requirement for the people to have common linguistic, ethnic, cultural, or historical characteristics. The size of the population does not also matter. Vatican City is a small state with a small population, but it is able to function and carry out its responsibilities and roles as a state (Fry, Goldstein, & Langhorne, 2002, p. 457). In order for a territory to be qualified for statehood, its population only needs to fulfil the minimum requirements of permanency and be of a sufficient number to carry out duties of statehood. This qualification for statehood is actually one of the easier elements to fulfil, and is often the least source of controversy for territories seeking statehood. Government as an element of statehood is crucial to the recognition of states. Max Weber defines government to be a “compulsory political association with continuous organisation whose administrative staff successfully upholds a claim to the monopoly of the legitimate use of force in enforcement of its orders in a given territorial unit” (as cited by Akpinarli, 2009, p. 7). Government is defined and described based on the establishment of states and the assessment of existing states. In the establishment of states, both internal and external sovereignty is needed. Internal sovereignty is needed in order to carry out the daily activities of the state within its borders and territories; whereas, external sovereignty refers to the independence of a territory in the international scene or legal order (Akpinarli, 2009, p. 8). For existing states, government is considered to be the existing political administration. There are various issues in relation to state’s ability to govern its people, especially in times of conflict. However, the current mandates of international law calls for states to be able to manage their internal conflicts and for other states to not interfere with the internal management of individual state processes. States therefore have to respect the sovereignty of other states in order to avoid international sanctions. Another element of the state is the capacity to enter into relations with other states. This requirement is not a strict requirement and does not affect the existence and recognition of a state under the Montevideo Convention (Malanczuk & Akehurst, 1997, p. 80). Under Article 3 of the convention, it makes mention of the fact that “the political existence of the state is independent of recognition by the other states” (Malanczuk & Akehurst, 1997, p. 80). In further explaining this requirement, colonies or territories cannot enter into agreements with other states. In the case of Taiwan which is not recognized by China as an independent state, it cannot therefore enter into agreements with other states in its behalf and have such agreements be supported or recognized by the mother state. The states entering into the agreement with the colonies or unrecognized territories such as Taiwan, cannot expect the agreements to be honoured as well. The major topic for this essay – territory – is a crucial element of statehood. Territory is referred to by the Montevideo Convention as “defined.” This means that the territory must be well-defined. It does not necessarily mean that it must be “absolutely defined”, but it is enough “for the main part or mass of the population and territory to be clearly identifiable, even if there is a certain ambiguity or controversy on the margins” (Bayefsky, 2000, p. 73). Opinions from the International Courts also set forth that states or territories may be recognized as states even before their borders are totally defined, and even when some of its territories are being claimed by neighbouring states (Bayefsky, 2000, p. 73). In effect, there are different states which are already recognized as such by other states and by international laws, however, every so often they are fending off border disputes with neighbouring states. Based on the above elements, and based on the mandates of the Montevideo Convention, to be a state, a territory must possess the following: a permanent population; a defined territory; government; and the capacity to enter into relations with other states” (Kreuter, 2010, p. 368). There are different angles by which the recognition of territories as states can be ensured. In considering the declarative theory, the Montevideo convention very much applies. This theory requires that prospective states must meet each of the four elements of statehood as mentioned in the Montevideo Convention and that the state must also declare its sovereignty (Kreuter, 2010, p. 368). Statehood does not therefore depend on the recognition of other states. There is much controversy surrounding this theory because other states insist that recognition by other states is needed in order to ensure that a territory can be considered as a state. In contrast to the declarative theory, the constitutive theory basically asserts that a state can become a legal entity once it is recognized by other states. In this case, recognition becomes apparent when a nation publicly acknowledges it as a state (Kreuter, 2010, p. 368). This theory did not gain much favour since the Second World War, but has recently been gaining notice in recent years. Critics however insist that this theory causes much uncertainty because other states may choose not to recognize the territory, even if other states do recognize it. They also insist that the necessity of recognition interferes with the right of a state to self-determination. They point out that the theory seems to put more importance on the recognition of a territory by other states, rather than on the right of a state to self-determination (Kreuter, 2010, p. 369). Territory as an essential element of statehood International law is founded on the state and the state is based on the concept of sovereignty which then expresses the supremacy of the government institutions in the management of the state’s internal affairs and the supremacy of the state in international affairs (Shaw, 2003, p. 409). Inasmuch as the state’s affairs is based on sovereignty, its legal rights and duties are based on territory. Without territory, legal entities cannot become states. It is, without doubt, an essential element of a state – it is also the most understood and widely accepted. There are about 200 territorial jurisdictions, and each jurisdiction is subject to territorial rights (Shaw, 2003, p. 409). Since the concepts of sovereignty are abstract concepts which can only be applied on a practical scale through a territory, it therefore also follows that territory is an important concept in international law. In fact, the principle wherein the state is considered to exercise power over its territory is regarded as a basic principle of international law (Shaw, 2003, p. 409). The conceptualization of international law on the exclusive right of the state within a territory means that territory became one of the fundamental rights and concepts of international law. Most nations have in fact bonded well with the lands which they have inhabited (Shaw, 2003, p. 409). Territory has become more than a defined portion of land inhabited by people, but it has also become a land which has served as a home for a group of people governed by formal statutory powers. The principle of respect for territorial integrity of states has been well-established in the international system. Different factors however have affected the territorial exclusivity of the state in international law (Shaw, 2003, p. 410). Technology and economics have gained much progress in recent years and they have ushered in interdependent activities among states which have somehow reduced their territorial exclusivity. International organizations have also grown in number in recent years and these organizations have somehow minimized the territorial restrictions involving state relations (Held, 2003, p. 162). Nevertheless, territory remains to be one of the most important and essential requisites of state relations. In the Island of Palmas case, the international court had occasion to express that “sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular state” (Shaw, 2003, p. 411). A state cannot be considered to be in control of a territory when it does not and cannot exercise sovereignty over such territory. It also refers to the exclusive competence of a state over a territory, and the obligation to protect the rights of other states. Territorial sovereignty is housed in the concept of title and title also refers to the factual and legal conditions where territory is deemed to belong to a particular territory or another (Shaw, 2003, p. 411). In effect, it refers to the possession of facts under international law which entails legal consequences for a particular territory. The discussion above which points out that a territory does not have to have settled boundaries is gaining much controversy in the Palestine controversy. To this date, the status of this territory has not been settled domestically and in the realm of international laws. While some experts like Francis Boyle (professor of International Law at Harvard University) support the position that Palestine fulfils the essential requisites of statehood, other experts deconstruct his position and declare that at the very least, Palestine does not even fulfil the essential elements to claim statehood. James Crawford, expert in international laws and a member of the International Law Commission, is firm in opposing the Boyle’s claims. He discusses that in assessing Palestine’s state requisites as set forth in the Montevideo Convention, Palestine does not fulfil the elements of statehood. “Its whole territory is occupied by Israel, which functions as a government in the territory” (Crawford, 1990, p. 308). The so-called functioning government of Palestine, known as the Palestine Liberation Organization has not been known to function as a government in terms of governing the occupied regions. The fact that the PLO is supposed to function legally as the government of Palestine is not sufficient as far as the Montevideo Convention is concerned, in qualifying a territory for statehood. In essence, the PLO has not been able to exercise full governmental powers and control over the Palestine territory. Even if they indeed have the right to exercise such powers and even when the Palestinian people recognize such right, is a matter to be rightly overlooked – based on the Montevideo Convention (Crawford, 1990, p. 309). The convention specified that a governing authority must exist in the current context – not in the future context. The discussion of statehood must always return to the concept of independence. Independence covers two elements – first, an organized community on a defined territory, exclusively practising self-governing power and secondly, the absence of the exercise of another state, and of the right of another state to exercise powers over the whole of such territory (Silverberg, 2009, p. 356). Based on such requisites, the presence of a clearly defined boundary is not a strict requisite to statehood. Boundaries are often based on established territories. However, territories are not something owned in the conceptualization of statehood. It is the foundation upon which a solid context of a state if based. Even as the PLO seems to exercise some power or authority over its territories, this authority does not fully comply with the requisites of the first element – the existence of an organized self-governing community (Crawford, 1990, p. 309). Furthermore, even if Israel’s claim over some of the Palestinian territories does not amount to a legitimate power over these territories, this does not make the claims of Palestine for statehood legitimate. In applying the constitutive theory to the Palestinian question, there is a fair amount of bias in wholly admitting to the statehood of Palestine because the recognition of statehood endowed it by other states can be a subjective process. Moreover, even as some 100 states have already recognized Palestine as a state, Palestine still has not mustered international support, enough for it to be recognized under the international realm as a state (Crawford, 1990, p. 310). Since the constitutive theory sets forth that failure of recognition as a state negates the enjoyment of the privileges awarded to recognized states, Palestine seems to remain a territory under Israeli rule. Moreover, since the recognition which is most needed by Palestine (that of US and Israel) has not been granted, Palestine cannot be considered a state (Crawford, 1990, p. 310). In further assessing the Palestine situation, other developments made in international law since the Montevideo Convention, can be considered. Notions of entitlement and disentitlement to statehood have been set forth in the years following the convention. In some cases, states which would have been classified as states have since been disqualified as states, including Rhodesia, the Bantustans, and the Turkish Federated States of Cyprus (Crawford, 1990, p. 310). Palestine in so many ways can be considered in the same category as the above disqualified states because it does not sufficiently fulfil the elements of statehood. The issue of Palestine involves the establishment of a new territory over which different states have existing claims. It is a territory which does not have sufficient legal status. The reservations about the status of Palestine are still very much present. The contention of Boyle on the legitimate status of Palestine is considered to be weak, based on the Montevideo Convention and based on the post World War II treaties and conventions under international laws. Since there are various questions which the country needs to settle before its statehood can be recognized, it is therefore important to disregard the manipulation of the essential elements of statehood which seek to advance the legitimacy of the territory under international laws (Crawford, 1990, p. 311). Another state whose bid for statehood has been rife with various problems is Somaliland. Somaliland has been traditionally a British territory (Hoyle, 2000, p. 80). In the 1990s, it declared itself unilaterally as a state separate from Somalia; but this declaration has not been recognized by other states. Its current status remains that of a territory of Somalia, but this has not stopped its authorities from expressing their bid for the territory’s recognition as a legitimate state. Opinions to this declaration have straddled both sides of the fence. Those who support its statehood argue so because apparently the state has a defined territory with people identifying themselves with that defined territory. They also claim that it possesses an effective government and its foreign relations are not contested by any other authority (Derouen & Bellamy, 2003, p. 686). It also possesses all the other signs which support its status as a state. It has a flag, a coat of arms, and a national anthem; and it has issued a currency, stamp, and passports. It has also carried out several successful elections and in the process has successfully installed a ruling President and local officials. Its economic viability has been considered highly resilient; it has had an active import and export process; and phone, internet, and fax services capability (Hoyle, 2000, p. 81). In sharp contrast to Somalia which has been rife with civil discontent and almost non-existent economic progress, experts are insisting that Somaliland deserves to be recognized as a state. Somalia does not have a police force, nor does it have a judiciary, civil service, electricity or postal service (Hoyle, 2000, p. 81). Most of its infrastructures and facilities have been looted with its archives and records in disarray. Somalia, in essence, does not fulfil the requisites of statehood. For which reason, experts argue that Somaliland must be allowed to secede from Somalia because Somalia as a legitimate state does not exist (Hoyle, 2000, p. 82). Other experts however, do not agree with the above arguments. They believe that since the OAU (Organization of African Unity) still recognizes Somalia as a state, the secession of Somaliland cannot therefore be considered a legitimate move. Even as the UN Charter recognized self-determination, it also recognizes the right to territorial integrity. It is therefore fundamentally against the UN Charter for states to unilaterally declare statehood, especially when the mother state is still very much recognized as a state (Hoyle, 2000, p. 83). Member states are also obliged to respect the territorial integrity of a state under the UN Charter. Somaliland has not completely been considered a cohesive territory. From the perspective of the OAU, self-determination can only be claimed once, after the decolonisation from Europe (Hoyle, 2000, p. 83). Therefore, since Somalia already claimed self-rule from Britain, and afterwards, Somaliland agreed to be under Somalia rule, the former cannot again claim self-rule and expect to be supported by the OAU. If Somaliland were to be allowed to declare self-rule, its actions would set forth a confusing and an endless right which would not be beneficial to the stability and integrity of states (Hoyle, 2000, p. 83). The case of Taiwan can also be discussed as one of the controversial, but crucial discussions in the settlement of statehood. Taiwan has also unilaterally declared its independence from China; an independence which has not been recognized by China. This issue has been rich with discussion in relation to the different points in support of either China’s or Taiwan’s position on this matter. One of the arguments in favour of Taiwan’s position is the fact that the territory indeed satisfies all the requisite elements of statehood, and therefore, should be recognized as such (Lauterpacht, Greenwood, & Oppenheimer, 2008, p. 264). In individually assessing the essential elements of statehood, first and foremost, Taiwan has a permanent population. And this element can be interpreted in favour of both Taiwan and China. There are about 20 million permanent residents of Taiwan. They live together as a part of the Chinese population and as a province of China (Shen, 2000, p. 1135). Some of them exist as a population with Chinese roots but independent of the influence of China; and this makes them an independent nation state. Taiwan also has a defined territory. In its most general understanding, a recognized state cannot exist without territory. In effect, territory is the necessary jurisdiction where a state can exercise its powers. The requirement of a defined territory to be recognized as a state is conceptualized in the sense that the territory of a putative state does not have to exceed a minimum size, and it does not have to conform to a particular form (Shen, 2000, p. 1135). Even as the defined territory is required, the perfect assignation of the boundaries of a state is not often clearly defined. As previously mentioned, a clearly delineated territory is not a requisite to statehood. “In order to say that a state exists...it is enough that this territory has a sufficient consistency, even though its boundaries have not yet been accurately delimited, and that the state actually exercises independent public authority over that territory” (as cited by Shen, 2000, p. 1135). China’s disputes with its neighbouring countries do not therefore negate its status as a state. This same principle applies to Albania who, for many years, has had boundary disputes with Serbia. But, to this day, its status as a state has not been put in question. In effect, the recognized state must have a territory of its own upon which it exercises its authority (Shen, 2000, p. 1136). If all of its territories under the power of an entity is being claimed by another entity, then “whether the former entity can claim statehood becomes highly questionable because it is doubtful whether it indeed owns a territory” (Shen, 2000, p. 1136). A self-owned territory cannot be separated from the sovereign power of the recognized state. In Taiwan’s case, it is true that there indeed exists a defined territory. However, in order to claim statehood, Taiwan must have a claim which is free of any other claims by another entity. The territory of Taiwan is not owned by any other state, other than China (Shen, 2000, p. 1136). The authorities governing Taiwan do not possess and control the territory and they do not have legal title to the territory. The territory cannot be considered Taiwan’s unless China abandons its claims over Taiwan. This is not likely to happen. As for its government, credit may be given to the Taiwanese authorities for managing the state affairs of Taiwan. Consequently, the Kuomintang authorities can be considered as the de facto government of Taiwan (Henckaerts, 1996, p. 270). However, it is not a central political entity which fulfils legal title and effectiveness. In this regard, Taiwan’s legal title still belongs to China. Finally, in assessing Taiwan’s capacity to enter into foreign relations, Taiwan does not have the requirement of sovereignty to enter into foreign relations with other nations. Their officials do not have the right or the capacity to enter into foreign relations with other states. In effect, a “non-sovereign and non-independent entity, no matter what it purports to be, does not have the necessary legal competence and qualifications to enter into relations with other nations on a state-to-state basis” (Shen, 2000, p. 1137). Some experts in international emphasize that the right to self-determination can be differentiated from unilateral secession from the former colonising states. Unilateral secession from an existing state cannot, by itself, be considered a right recognized by and enforceable under international laws (Shen, 2000, p. 1138). In effect, the right to secede from one’s mother state can only be recognized for those who have a recognized right to self-determination. The right to self-determination applies in the colonial context, and the term “peoples” refer to those in colonies or colonial territories. In essence, the right to self-determination does not support the right to unilateral secession from an existing and recognized state (Shen, 2000, p. 1138). For territories seeking to secede from an independent nation, in the current context, the domestic laws of the parent state must allow for such secession. In effect, for as long as mother states oppose the secession, a territory cannot unilaterally decide to secede from its parent state (Kohen, 2006, p. 297). The extent to which existing states oppose secession, as well as the degree of the state’s determination to keep a territory intact are all important factors which help determine whether secessionists can lawfully establish themselves as independent nations (Shen, 2000, p. 1139). In assessing whether the secessionist meets the important elements of statehood, its capacity to independently enter into relations with other states must be considered. For these secessionists, they often do not possess this capacity because they came into power based on a flawed and illegitimate claim. Other states would not recognize their power to enter into relations with them and eventually, any agreement made based on such illegitimate claims would not be honoured by other states (Giorgetti, 2010, p. 62). Conclusion Based on the above discussion, the means and the process of becoming a state and gaining recognition as a state is a complicated and dynamic process. It is a process rich in history and in legal requisites. In essence, the Montevideo Convention lays out the four essential requisites for statehood. These elements include: a permanent population; a defined territory; a government; and the capacity to enter into legal relations with other states. The importance of recognition by other states is also an unofficial requisite based on the constitutive theory. This failure of recognition seems to be affecting the status of other territories which have not been recognized as states. Nevertheless, it is a requirement which has to be considered in relation to the physical territory. This physical territory need not be particularly defined. In essence, failing to secure all its borders from disputes does not negate its status as a state. The lack of recognition by other states and the fact that international laws no longer recognize unilateral secession as a means of gaining statehood makes the process of gaining statehood a more difficult enterprise. For which reason, territories like Palestine, Taiwan, Somaliland, and Bosnia remain to be territories of parent states – not putative states. The qualifications for statehood are more difficult to fulfil in contemporary times because the stability and the protection of territories is one of the primary rights granted to independent states. The standards of international law are important principles which have managed so far to protect the interests of independent nations. Domestic disputes involving territories claiming independence have to undergo the thorough process of assessment before they can achieve statehood. These policies are in place because they help maintain the peace and harmonious relations between and among nation-states. Works Cited Akpinarli, N. 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