CHAPTER 2: THE STATE SYSTEM

The basic unit of the international legal system is the State. One may think of the State as a legal
“person” that has a status in international law similar to the status of a real person in national
law. The State has a will or “personality” by which it expresses itself; it is equal with other
States before the law; and it is seen as an indivisible whole.

It is important to notice from the beginning the difference between the State and that State’s
government. The State is an idea that has a great deal of meaning to its citizens and incredible
endurance over the long term despite whatever internal divisions and tensions it may suffer. The
stability of the State System rests on the stability of States, and for this reason international law
places a great deal of emphasis on a State’s continued legal existence and relative permanence of
its borders. The government of a State may change, through normal constitutional processes or
otherwise, and the State itself will continue to exist. As will be seen, even a total change in the
structure of government – for example, by rewriting the constitution – will not change a State’s
legal obligations to other States at the international level.
To get a better idea of how States operate under international law, it helps to compare the
activities of individuals in the national arena with the activities of States in the international
arena. Unlike the national legal system, the international legal system is incredibly decentralized
and loosely bound together, leading some scholars to the conclusion that the international system
is not a “legal” system at all but rather a changing network of moral bonds between largely
autonomous State actors. Consider this issue as you look at the following chart.

National Legal System International Legal System

Individual people have rights and duties under States have rights and duties under the law.
the law.
The government makes the laws (typically the There is no international government or
legislature). legislature that makes laws applicable to all
States. Rather, States have to consent to the
laws individually, either by entering into
treaties with other States or by creating
 customs through their behavior.
The judiciary decides on the rights and duties Although there are many international
of individual people. tribunals, for example the International Court
of Justice, none of them has compulsory
jurisdiction to decide on the rights and duties
of States. Rather, States must first consent to
the jurisdiction of an international court before
the court can make a decision about those
States’ rights and duties.
The government enforces the law (typically the Again, there is no international government
executive branch). with the authority to command States. This
has led some scholars to argue that there are no
real enforcement mechanisms at the
international level. Individual States, acting
alone or through the United Nations or some
regional organization like NATO, must enforce
their own rights. This results in uneven
enforcement of international laws. Is this a
problem? Is enforcement a matter of politics,
that is, at the discretion of powerful States?
Individuals have formal equality before the States also have formal equality before the law
law. Thus, the law applies the same to the in the international system. When States go
weak and the powerful, the poor and the rich. before the International Court of Justice, for
example, there are no special privileges
accorded to more powerful States. Still,
because enforcement is only possible with the
backing of a powerful State, the law in practice
may be applied unequally.

The State system came into being with the birth of the so-called “nation-state” in Europe
in the 16th and 17th centuries. Of course, certain international principles such as the binding
nature of peace treaties and the exchange of diplomats date back to ancient times. Nonetheless,
modern international law is based almost entirely on the State system and, as the student will see,
is derived in the first instance from the principle of State sovereignty that establishes the State as
the relevant unit that is to be ordered by international laws. In a sense, then, the first
international law is the law that established the State as the subject of international law.

The next question for theorists has been, what form will these international laws take that are to
order State relations? Roman law and Christian “Canon” law have had some influence here but
mostly through their expression of the so-called “natural law.” This natural law envisions some
natural ordering of the relations among nations according to a rational principle, for example the
desire for peace and harmony. One early theorist of natural law was Hugo Grotius, a Dutchman
of the late 16th century who is known as the “father” of modern international law. Later on –
predominantly in the 19th century – the theory of positivism came to dominate the field of legal
theory and had a strong influence on this question about the form that international laws should
take. As will be discussed extensively in subsequent chapters, positivism emphasized not some
abstract “natural” order of States but rather the consent of States as the basis for all the
international rules that bind States in their relations with one another.

It is positivists who raise the point that international law should not be called “law.” The
argument is that law, by definition, requires some centralized enforcing power. At the national
level, the government (particularly the executive) enforces the laws. In international relations
there is no centralized enforcing power. Rather, there is a loose amalgamation of individual
sovereign States who may or may not follow their own rules. Looking at the above chart, it is
clear that enforcement at the international level will be less consistent and law-like than
enforcement at the national level. Nonetheless, this theoretical prediction is not borne out in
practice to the extent that positivist scholars might predict. It has been noted that most States
obey most international laws most of the time. Other reasons have been given for State
obedience to international laws aside from the threat of enforcement, as will be made clear in the
section on State behavior. As the student will see, this text expressly rejects the positivist
criticism of international law. The student of course is advised to consider the arguments on
both sides of this issue as they are presented in subsequent chapters and come to his or her own
conclusions.

The traditional State system has suffered more recent changes from globalization and improved
technologies that force more expansive areas of international cooperation. In the traditional State
system, international laws at the international level applied only to States. That is, only States
had international “legal personality” – the ability to sue and be sued in international tribunals.
Only a State could commit international wrongs, and only a State had international rights which,
when violated, could form the basis for an international claim. The modern international system
is still a “State System,” composed of States, but many new actors now play a role in
international relations. Principal among these new actors are international organizations like the
United Nations and the World Trade Organization. Such organizations are composed of Member
States and act like States – like “super-states” in fact – entering into treaties with States and other
international organizations and taking on an international personality of their own with a
corresponding set of rights and duties under international law. International organizations thus
have gained international “legal personality”; they can sue and be sued in international tribunals.

Interestingly, in some international tribunals even individuals may assert rights against States. A
set of human rights laws has emerged that imposes obligations on States in respect of their
citizens. Through the work of international human rights tribunals, these laws increasingly
intrude beyond a State’s borders to redeem the rights of individual citizen-victims.

Hugo Grotius

There is no state so powerful that it may not some time need the help of others outside itself,
either for purposes of trade, or even to ward off the forces of many foreign nations united against
it. In consequence we see that even the most powerful peoples and sovereigns seek alliances…

Virginia Black, A Normative Critique of State Personality, 1983

Hugo Grotius held to a doctrine sometimes called “parallelism.” Since individual persons can be
virtuous and just, reasonable, dutiful and sociable, keep contracts and obey laws, then corporate
organizations like the state can also be virtuous, reasonable and just, can be sociable, obey laws,
conform to the same duties as individuals, etc. It seems that Grotius thought such analogous
predication an exemplary condition for international peace. As civil law regards and regulates
the rights and interests of persons, so should international law regard and regulate the rights and
interests of nations.

Hans Kelsen, The Pure Theory of Law, 1967

…The state is a relatively centralized legal order.

This centralization distinguishes the state as a legal order from the primitive pre-state order and
the super-state order of general international law. In neither order are the general legal norms
created by a central legislative organ but by way of custom, which means that the creation of
general legal norms is decentralized. Neither the pre-state nor the super-state legal order
establishes courts authorized to apply the general norms to concrete cases, but authorizes the
individuals subjected to the legal order themselves to render this function and, particularly, to
execute, by way of self-help, the sanctions prescribed by the legal order. According to primitive
law, it is the members of the murdered man’s family who take blood revenge against the
murderer and his family, which means, they are authorized to carry out the primitive punishment;
it is the creditor himself who can satisfy this claim against the debtor by taking some property of
the debtor and holding it in pawn. It is the government of the individual state which, according
to general international law, is authorized to resort to war or take reprisals against a law-violating
state, which means: against the subjects of the state whose government has violated the law.
True, the individuals who in the pre-state and in the super-state community create (by custom) or
apply the law and execute the sanctions, are legal organs and thus organs of the legal
community; but they are not functioning in the manner of division of labor and therefore not
centralized organs like a government, a legislature, and courts under a national legal order. The
legal order of primitive society and the general inter-national law order are entirely decentralized
coercive orders and therefore not states.
John R. Bolton, Is There Really ‘Law’ in International Affairs? 2000

Treaties are often analogized to contracts, agreements between people, businesses, or other kinds
of associations. This analogy is fundamentally wrong… [With contracts], the promises take
place within a system, where if one party breaches its promise, there is a defined way to get
remedies. There is a process to decide which promises are legitimate and a procedure to enforce
a court order that a party has breached a promise. The very concept of a contract, in other words,
takes place within a coherent universe.

Compare this to a treaty. A treaty is an exchange of promises – period. It is a flat

misunderstanding of reality to believe that there are enforcement mechanisms ‘out there’
internationally that conform to the kind of legal system that exists in the United States…

A treaty is primarily a compact between independent nations. It depends for the enforcement of
its provisions on the interest and the honor of the governments which are party to it. If these fail,
its infraction becomes the subject of international negotiations and reclamations, so far as the
injured party chooses to seek redress, which may in the end be enforced by actual war…

International law is not law; it is a series of political and moral arrangements that stand or fall on
their own merits, and anything else is simply theology and superstition masquerading as law.

Jonathan Baert Wiener, Global Environmental Regulation, 1999

…National legislation, at least in democracies, employs a version of Majority rule… By

contrast, the voting rule for international treaty law is Voluntary Assent: Treaties bind only
those who consent to be bound… The fundamental difference between [domestic voting rules]
on the one hand, and [international voting rules] on the other, is thus the ability to coerce
dissenters. Under [domestic majoritarian processes]… losing dissenters never have the option to
refuse to be bound by the law. Under a Voluntary Assent paradigm, dissenters cannot be
coerced; rules are binding only on those who agree to be bound…
As the number of participants who must be consulted increases, the cost of multiple negotiations
and the chance that a nation will act as a holdout, insisting on satisfaction of its interests as the
price for its assent, rise as well. Even if all countries would reap net benefits from the treaty,
uncertainty about others’ likely cooperation may induce strategic noncooperation (free riding).
Each party’s perception of its own gain in turn depends partially on its perception of whether
other parties are likely to keep their end of the deal; cooperation is thus endogenous, delicate,
and potentially difficult to arrange. Even after becoming parties to the treaty, nation-states can
withdraw or decide not to comply. Although such withdrawal or noncompliance might be made
illegal under the terms of a treaty, the practical question is whether any enforceable sanctions
could be brought to bear against the defector. The threat of withdrawal or noncompliance gives
the nation a continuing ability to exact concessions from other parties to the treaty.

The costs to the entire group of negotiating a consensus treaty can be high in terms of the time
and effort needed to craft a successful consensus, the side payments extracted by dissenters, and
the collective gains forgone when individual countries delay or block action on parochial
strategic grounds…

Questions:
1. Why do we say that a State has a “personality,” that it can act, that it can give its assent, that
it continues in its life even after a revolution and after new leaders take control over it?
Virginia Black has pointed out in “A Normative Critique of State Personality” (1983) that a
State is not at all like a person because a State does not have unity of mind or purpose; a
State is not “motivated” like an individual; a State does not need other States in the same way
that an individual needs social interaction with other individuals; and a State does not
respond to social pressure from other States. Do you agree? Is the “State” then a fictional
concept, behind which is a whole range of dissenting voices and changing officials? Is it
nonetheless a useful concept in international relations?
2. Is it better to say that international law is a “decentralized legal order,” or is it better to say
that it is not a legal order at all but rather something else? If we do not call international
rules “law,” does that take away from the authority of these rules and make it less likely in
the future that States will conform to them?
3. Is it true that States are independent of one another? One may argue that States, like
individuals, have many ways to exert pressure on other States and, in essence, “coerce”
dissenters. There are a number of organs through which a majority of States may exert
pressure, most obviously through the international press and by granting or denying foreign
aid. Also, because States depend on international trade, international communications, and
international travel, they are willing to bend to international rules in order to be able to
participate in these international activities.

2.1 State Sovereignty

Part A: Definition of Sovereignty and History

A State’s sovereignty is its independence. The word “sovereign” implies some ultimate
authority, a master with no master above him, a free and autonomous entity. The concept of
State sovereignty has two core elements. First, the State has exclusive control over its territory
and its internal affairs. Other States cannot go into Ethiopian territory without Ethiopia’s
permission. Second, States are autonomous entities and, in principle, cannot be bound to an
obligation without their consent. Treaties are not imposed on Ethiopia but rather entered into
upon Ethiopia’s free consent.

The concept of State sovereignty has many implications for interstate relations. The first
implication is that the State must speak with one voice at the international level. This is
important because, in reality, a State has many voices, dissenting political parties, and even
groups within its territory that oppose the central government. Other States, out of respect for
State sovereignty, are not supposed to engage in dealings with these sub-state groups at all.
Another point is that other States should not concern themselves with certain internal matters of
a sovereign State like the type of government a State adopts – whether monarchial, tyrannical,
democratic, socialist, or otherwise – or the State’s religion or the way a State treats its citizens.
In fact, other States should not concern themselves with anything that the State does within its
territory that does not affect other States.
The principle of State sovereignty is based on international customary law but it is often
confirmed in international treaties. For example, the UN Charter states in Article 2, Section 7:
“Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state…” This is an
affirmation of the first aspect of sovereignty, that a State should have exclusive control over its
internal affairs. Notably, it is an affirmation of State sovereignty vis-à-vis the UN, not vis-à-vis
other States. (The Charter in this article goes on to make an exception to the principle of
sovereignty for certain actions undertaken by the UN Security Council and so confirms
sovereignty and erodes it at the same time.) Another expression of State sovereignty is found in
the Declaration on Principles of International Law Concerning Friendly Relations and Co-
operation among States (a UN General Assembly resolution adopted in 1970, not a treaty):

[n]o state or group of states has the right to intervene, directly or indirectly, for any
reason whatever, in the internal or external affairs of any other state. Consequently,
armed intervention and all other forms of interference or attempted threats against the
personality of the state or against its political, economic and cultural elements are in
violation of international law.

State sovereignty and the modern nation-state really came into being in 1648 with the Treaty of
Westphalia that ended the 30 Years War in Europe. The War arose in part out of tensions
between Catholics and Protestants and fears of civil strife between these two religious groups.
Disputes between Catholic and Protestant communities in the same State came to involve
Catholic and Protestant rulers. As a result, nations were destabilized, rulers were afraid of
certain sections of the populace, and all of Europe was plagued by incessant scheming and
mistrust.

The Treaty of Westphalia resolved religious tensions by giving each State the power to
determine religious affairs within its own territory. The idea was to block interstate alliances
based on religious affiliation – for example, block Catholics in England from uniting with
Catholics in France – and force States to come to terms with different religious groups in their
territory within the framework of a single national identity. To put this point more broadly, the
Treaty recognized independent territorial States and gave State governments exclusive authority
to deal with their internal affairs. With the State government usurping religion as the ultimate
“sovereign” in domestic affairs, it can be said that the end of the 30 Years War saw the birth of
the modern secular state. (Note that Jean Bodin in his Republic had already elaborated the idea
of sovereignty in 1576.)

This gives us some history on the development of the first aspect of sovereignty – the exclusive
control by the sovereign over internal affairs – but what about the second aspect of sovereignty
relating to the freedom of States in their relations with other States? If States are truly
independent of one another, then their relations must be based on their free consent. A treaty is
binding on a State only so long as that State agrees to be bound by it. International customs
apply only so long as States continue to act in the customary way.

This is a logic that did not develop out of the Treaty of Westphalia. Rather, the concern with
State consent to international obligations came in the 19 th century with the emergence of the
theory of legal positivism. According to this theory, “law” properly defined includes only the
law posited by a sovereign and obeyed by subjects. The international system is not a system of
law at all because there is no international body to enforce obligations, hence no fear of
punishment on the part of States, hence no obedience by States. Once we accept the notion that
international law is not “law,” we fall back on the idea of complete and total autonomy for each
State. A sovereign State is a free State, and a free State does not abide by the will of other
States. Such arguments contribute to the idea that States are free even to the extent that their
consent will bind them only temporarily, until they consent to something else.

Whether or not one supports this second aspect of sovereignty – for policy reasons or otherwise –
is a separate issue. It is enough to note here that the second aspect of sovereignty is a recent
development and, seemingly, is not a necessary aspect of the State system. That is, the State
system functioned for many years without this emphasis on the complete independence of States
in their relations with one another.

Corfu Channel Case (U.K. v. Albania), individual opinion by Judge Alvarez, 1949.
By sovereignty, we understand the whole body of rights and attributes which a State possesses in
its territory, to the exclusion of all other States, and also in its relations with other States.

Sovereignty confers rights upon States and imposes obligations on them….

Some jurists have proposed to abolish the notion of the sovereignty of States, considering it
obsolete. That is an error. This notion has its foundation in national sentiment and in the
psychology of the peoples, in fact it is very deeply rooted…

…We can no longer regard sovereignty as an absolute and individual right of every State, as
used to be done under the old law founded on the individualist regime, according to which States
were only bound by the rules which they had accepted. Today, owing to social interdependence
and to the predominance of the general interest, the States are bound by many rules which have
not been ordered by their will.

Werner Levi, Contemporary International Law, 1991

Mainly as a result of new economic forces, the Holy Roman Empire broke down, which brought
about the collapse of the at least nominally centralized order of Europe and foreshadowed the
need for a different legal system…

As new centers of independent power arose, laws regulating their coexistence and relations were
needed… Gradually, the relationships of subordination and superordination under the
universalist reign of one emperor and pope were replaced by a system of coordination among
sovereign rulers. The feudalistic entities with their relatively uncertain borders gave way to
states based upon sharply defined territory… The preeminent role of territory in international
law began…

Once the multitude of specific limited jurisdictions… was replaced by the principle of
territoriality with one sovereign ruler as the basis of the state, a number of legal consequences
followed. One was the absolute power and exclusive jurisdiction of one ruler in his or her
territory. The second was the prohibition of interference by other monarchs in a state’s internal
affairs. The third was the rise of immunity. The fourth was the gradual elaboration of equality
among states in diplomatic practice and of the principles regulating this practice…

Stephen C. McCaffrey, Understanding International Law, 2006

The “modern” system of international law is generally regarded as having emerged in the
aftermath of the Thirty Years War, which ended with the Peace of Westphalia in 1648. With the
conclusion of this conflict came the end of the Holy Roman Empire…, the recognition of the
sovereign independence of its member states, and the consequent rise of the modern secular
state.

But with the disappearance of the unifying influence of the Empire, the question arose as to
whether anything would take its place; whether, that is, the very sovereignty of states – a
doctrine elaborated in Jean Bodin’s Republic in 1576 – meant that there was nothing binding
them together, no order governing their relations. It might be thought that the sovereignty of
nations is a negation of the notion that they are subject to law. A country’s sovereignty, so the
argument might go, means that it alone determines what it does or refrains from doing.
“Sovereignty,” wrote Philip Jessup in 1948, “in its meaning of an absolute, uncontrolled state
will, ultimately free to resort to the final arbitrament of war, is the quicksand upon which the
foundations of traditional international law are built.” If this is the true meaning of sovereignty,
there would seem to be little room for international law.
Yet Bodin himself never conceived of sovereignty in this way. As Brierly points out, for Bodin,
sovereignty “was an essential principle of internal political order, and he would certainly have
been surprised if he could have foreseen that later writers would distort it into a principle of
international disorder, and use it to prove that by their very nature states are above the law.”
Bodin’s sovereign, or supreme power, was an essential attribute of statehood. Bodin believed
that such a single source of authority, rather than a chaotic mass of independent ones, was the
defining characteristic of a state. However, he also held that the sovereign did not have absolute
discretion to act in any way he or she wished. Instead, Bodin’s sovereign was subject to certain
laws: “the divine law, the law of nature or reason, the law that is common to all nations, and…
the laws of government.” The latter are what we would call today constitutional law. Even
Bodin’s “supreme power,” therefore, was subject to the fundamental law of the state, as well as
other kinds of law.

Thus, the doctrine of sovereignty, as originally conceived, did not imply absolute, unbridled
power, even on the domestic level; and, it was never intended to apply to the relations of states
inter se, much less to imply that those relations were not governed by a body of law.
Unfortunately, however, it has subsequently been invoked as proof that international law is not
really binding on states, since they are “sovereign” and may do as they wish. Yet simple
observation of the way in which states relate to each other does not support such an anarchic
theory. Humans prefer order to chaos, and states, which are merely groups of humans organized
to serve certain purposes, do as well. While there is doctrinal debate about the basis, or source,
of international legal obligation, there is not significant disagreement about the general tendency
of states to observe international law.

Questions:
1. The Treaty of Westphalia was an agreement between European countries. Is State
sovereignty then a Euro-centric doctrine? How have other countries been incorporated into
such an international system of sovereign States? Does it make sense to impose one model
of the State (in other words, the sovereign Nation-State) on the rest of the world? Are there
other possibilities for international order?
2. Do you agree that State consent is the basis for all international law and thus the “quicksand”
on which international law is built? Or do you think that there are certain “constitutional
principles” in international law – such as the obligation to observe treaties – that do not
depend on the consent of States? How does international law come into being? Is it really
about conscious agreement between autonomous entities, or is it rather a system of order that
arises out of the “habits” of States, repeated behaviors over a period of time?

Part B: Erosion of State Sovereignty

State sovereignty is a background concept in international law. In fact, State sovereignty is an
international custom, established through the behavior of States, but it is a custom so
fundamental that it is not necessary to prove it when arguing before an international court. In a
sense, State sovereignty is a constituting principle in international law, somewhat analogous to a
constitutional provision in a particular State.

That said, it is not clear how this constituting principle relates to the body of international laws
that have been built up around it. Many people have argued that States are no longer free and
sovereign; that sovereignty has been eroded by international laws and international bodies; that
such laws and such bodies tend to restrain the activities of States from the outside. This
argument has been made numerous times in the Congress of the United States, for example, and
has led certain U.S. politicians to hold back support from international organizations like the
United Nations and the International Criminal Court for fear that the U.S. is giving up its
sovereignty. Imagine, for example, that the Dispute Settlement Body of the World Trade
Organization decides a case that in effect strikes down a domestic law of a Member State. The
WTO is saying to that State’s government, “You cannot have this law.” Must a State change its
laws to conform to the opinions of some panelists sitting at the WTO?

Imagine how you might raise a State sovereignty argument in an international case. Let us say
that Egypt is trying to prevent Ethiopia from building a hydro-electric dam on the Nile river. As
representative for Ethiopia, you might say the following: “This portion of the Nile is in
Ethiopian territory. According to the principle of State sovereignty, the Ethiopian government
has exclusive control over its own territory. Therefore it is our sovereign discretion whether to
build the dam or not.” On the other hand, Egypt may assert various treaty rights to the water that
flows from Ethiopia into Egypt and furthermore may remind Ethiopia of its obligation under
international custom to use its water resources in such a way as to not bring harm to downstream
neighbors. How do we resolve such a conflict between State sovereignty and other international
laws? Consider this problem as you go through the readings.

Jessica Matthews, Power Shift, 1997.

The absolutes of the Westphalian system – territorially fixed states where everything of value
lies within some states’ borders; a single, secular authority governing each territory and
representing it outside its borders; and no authority above states – are all dissolving.
Increasingly, resources and threats that matter, including money, information, pollution, and
popular culture, circulate and shape lives and economies with little regard for political
boundaries…. Even the most powerful states find the marketplace and international public
opinion compelling them more often to follow a particular course…

Lieutenant Colonel Jeffrey K. Walker, SPEECH AND COMMENT: The Demise of the
Nation-State, the Dawn of New Paradigm Warfare, and a Future for the Profession of Arms ,
2001.

It has become somewhat trendy within international law and political science circles over the last
few years to speak of the post-modern or "Post-Westphalian" international order. The argument
usually runs something like this. The international system has, since the Peace of Westphalia in
1648, contained only one type of relevant actor – the sovereign state run by a government in
exclusive charge of a geographically defined territory and people. This resulted from the horrible
depravations wrought by the religion-charged Thirty Years' War – that final and tragic
denouement of the Reformation. Although it took thirty bloody years to figure out, the European
powers came to the realization that trying to impose one's own ideas of what was spiritually
correct – like Lutheranism or Calvinism or Catholicism – on someone else's subjects was a
formula for producing unspeakable violence. The theory therefore ran for 350-odd years, based
on the original 1555 Peace of Augsburg rule that the religion of the sovereign determined the
religion of the state, that within their own borders, sovereigns could do as they pleased.
Admittedly, this rule was as often honored in the breach as in the observance, but that is what we
had as a basic international system for the better part of four centuries.

In contrast, the post-Westpahalian idea is that: 1) what a sovereign does to his own people isn't
necessarily his own business – and other states may rightfully intervene under certain conditions;
2) non-state entities such as international organizations, regional alliances, and non-
governmental organizations have a place at the international table; and 3) there are some
universally applicable ideas that no one gets to reject, such as the inherent right of persons to
fundamental human rights, the right of peoples to self-determination, and perhaps the right of
everyone to democratic governance and environmental protection.

It is simply incorrect – and getting less correct every day – to say that sovereign states are the
only relevant actors within the international system. Today, there are many forces that pull
mightily at the fabric of this time-worn monopoly of individual states. First and foremost among
these forces is a rapidly broadening and deepening global economic interdependence. The
paradigm example of a surrender of state sovereignty in the economic arena is, of course, the
European Union… Today, the EU is moving almost inexorably toward deeper social and
political union, with only a few self-selected and self-marginalized laggards like the United
Kingdom and Denmark resisting. Soon, even one of the most emotional and tangible symbols of
state sovereignty – national currency and coinage – will either disappear or undergo a radical
transformation within the Euro monetary area. Even the brass in your pocket will no longer
identify you as a Frenchman or a Spaniard or a German.

Economic interdependence runs much deeper, however, than just these formal regional
arrangements. Literally scores of international bodies have made significant and at least tacitly
consensual inroads on individual state sovereignty: the WTO, where trade disputes are
authoritatively adjudicated and effectively enforced; the World Intellectual Property
Organization, where international patent and trademark policy is set and enforced; meetings of
the world's major central bankers, where interest rate and inflation targets are set; the G-8, where
much international economic policy is hammered out; the association of the world's stock
markets, where international trading and settlement rules are determined; transnational anti-trust
enforcement, that makes it increasingly impossible for state governments to coddle and protect
national corporate darlings; the domination of world investment flows by a handful of
multinational banking conglomerates, whose allegiance is to shareholders and bottom lines, not
sovereigns; or development and marketing of drugs by just a few multinational pharmaceutical
companies, with enormous impact on everything from the worldwide price of aspirin to the
availability of anti-AIDS drugs in Africa. These are just a few examples of bodies or
organizations or informal groupings that wield significant influence over large swaths of the
world economy. Each and every one represents a whittling away of traditional notions of state
sovereignty…

Related to but separate from economic interdependence, the movement of people and ideas has
also accelerated since the end of the Cold War. Borders of every state – with the exception of
only the most autarkic countries like North Korea--have become remarkably permeable…

This frenetic and almost frictionless movement of people combines with another new
development in the international system, the free and rapid movement of ideas and information,
with the result that there just are not too many secrets any more. Every corner of the globe is
subject to the 24-hour news cycle – today even in the most remote reaches of the world, one can
find a hotel with CNN. The internet and the world wide web have, at least as far as information
and ideas are concerned, completely eliminated borders as well as distance.

This revolution – and it is undeniably a revolutionary development – in the movement of people,

information, and ideas has had, in my opinion, two significant effects. First, state governments,
even those controlling the most closed or authoritarian societies, can no longer escape notice. Be
it interethnic genocide in Rwanda or Bosnia, deliberate famine in Somalia, the desecration of
ancient Buddhist carvings in Afghanistan, or government corruption in the Philippines, it makes
it to the television screens and newspapers of a global audience near real-time. Some states have
tried to resist – China, for example, persists in attempting to regulate access to the internet, but
with remarkably poor results. An instructive example of the futility of fighting the tide of
information technology was the Tiannamen Square debacle in 1988. In that long-ago, pre-
internet day, dissent groups kept the world apprised of events in Beijing through the use of fax
machines. So the first major impact on sovereignty is the plain fact that would-be bad actors can
no longer do dirty deeds in the dark.

The second, and I think more important effect of this revolution in the movement of people,
information, and ideas is that what we are now beginning to witness is the capability for the
formation of instantaneous transnational communities of interest around almost any issue – big
or small. It's simply no longer necessary to have a state sponsor for an interested group of people
to effect changes within the international community. Anthony Lake, former national security
advisor to President Clinton, described this phenomenon as "technology enabling local groups to
forge vast alliances across borders, and . . . a whole host of new actors challenging, confronting,
and sometimes competing with governments on turf that was once their exclusive domain."

So our beleaguered nation-state…has essentially lost control over its economy and can no longer
effectively control the movement of information and ideas through and within its borders.

Could it get any worse for our nation-state? Well, yes it could.

Quick on the heels of the end of the Cold War, the rapid growth in economic interdependence,
and the revolutionary expansion in the movement of information came the resurgence of group
identification below the state level. When physical or political or economic survival had been in
question, people were more or less willing to sacrifice smaller group impulses for effective
membership in a militarily and economically viable nation-state – it was just the price that had to
be paid to keep a hostile neighbor or would-be hegemon from dominating significant parts of the
world. In short, grudging acquiescence to domination by people kind of like us was preferred to
subjugation to people very alien to us. This really began in response to Napoleon – Germany is a
prime example of 'kind of' similar peoples – and continued more or less unabated until the end of
the Cold War.

Interestingly, economic interdependence has actually hastened the centrifugal forces of self-
determining nationalism – and in some very interesting places. Italy, from unification in the 19th
century of a country patched together on vaguely linguistic and cultural grounds, has seen the
rise of an influential northern separatist party, the Lega Nord, that has held the balance in
government on one occasion and may well do so again. A powerful and – unlike the Basques in
the north – non-violent Catalan separatist movement has sprung up in the area of northeast Spain
centered on Barcelona. Most interestingly, the government of Tony Blair in the UK has delivered
on an election promise to devolve powers from the center to regional assemblies in Wales,
Scotland, and Northern Ireland. The success of these efforts in Scotland is manifested by the fact
that the avowedly separatist Scottish National Party is now the official opposition in the
Edinburgh Assembly. As a result, it is not an unreasonable possibility that we may see the end
of the United Kingdom in our lifetimes.

One characteristic these European nationalist-separatist movements have in common is an appeal

that runs something like this. "We're all in the EU now. Tiny Denmark and tinier Luxembourg
are in the EU as well. Our would-be independent country has a population and economy equal to
or greater than Denmark or Luxembourg, so why can't we go it alone within the EU, too?"
Coupled with the fact that more and more of the traditional functions of the central state
government are now performed in Brussels – labor and monetary policy, safety and health
regulation, environmental and business standards – this idea of finding one's own way within the
EU framework is attractive to many.

So the supposed sovereignty of our beleaguered nation-states continues to be undermined by

increasing economic interdependence, the instantaneous and unimpedable flow of information
and ideas, and the centrifugal forces of separatism. Of course, this is not to gainsay any future
role for the state as we know it--just a greatly changed and vastly reduced role.

James Crawford, International Law as an Open System, 2002

…[I]nternational lawyers have developed some strategies for dealing with [the power of
sovereignty], an attempt to produce a system of limitations on power when faced with the
assertion of an ostensibly unlimited or at least fundamentally uncontrolled power. Without
entering into details, it may be helpful if I catalogue six of the basic strategies:

(a) Limits on sovereignty as the result of the exercise of sovereignty (the principle of
consent)

The Wimbledon was a case decided in 1923, the very first interstate case to come before the
Permanent Court of International Justice, the predecessor of the International Court of Justice. It
was argued there that a treaty provision should be restrictively interpreted because otherwise it
would amount to an infringement on Germany’s sovereignty. The Court, in a passage echoed
many times since:

decline[d] to see in the conclusion of any Treaty by which a State… undertakes to

perform… a particular act an abandonment of its sovereignty. No doubt any
convention creating an obligation of this kind places a restriction upon the
exercise of the sovereign rights of the State, in the sense that it requires them to be
exercised in a certain way. But the right of entering into international
engagements is an attribute of State sovereignty.

Thus an argument from sovereignty is evaded by an appeal to sovereignty: if states could not
enter into binding international obligations, they would lack an attribute of sovereignty. The
problem shifts to the interpretation of the commitment actually made, which can then be treated
as a more narrowly legal and technical issue.

(b) Sovereign claims presumed to be conceded to other sovereignties (the principle of

equality)

Thus a claim made by a powerful state – for example, the United States’ claim to a continental
shelf adjacent to its coast, first made in 1945 – is accepted on the footing that the entitlement to a
continental shelf extends to all coastal states, irrespective of their power to enforce that claim.
The process of acknowledging a special right vested only in the most powerful states would
require much more by way of justification and acceptance…

(c) Limits on sovereignty derived from the coexistence of sovereignties (the principle of
coexistence)

Thus a state should not carry out activities on its territory which cause substantial damage to the
territory of other states. To quote the formulation contained in Principle 21 of the Stockholm
Declaration:

States have, in accordance with the Charter of the United Nations and the
principles of international law, the sovereign right to exploit their own resources
 pursuant to their own environmental policies, and the responsibility to ensure that
activities within their jurisdiction or control do not cause damage to the
environment of other states or of areas beyond the limits of national jurisdiction.
…
(d) The tolerability of limited sovereignty because sovereignty includes the capacity to
exceed those limits (sovereignty as non-subjection to the legal authority of another)

The idea that intrinsic limits on sovereignty exist but escape external enforcement goes back to
Vattel. In his Le Droit des Gens, the single most influential international law work of the period
before 1914, Vattel did not reject the idea that natural law and moral requirements bound the
state, but he denied that other states could do much about it: ‘If it [the state] abuse its liberty it
acts wrongfully; but other nations cannot complain, since they have no right to dictate to it.’
Sovereignty, although in principle limited, is defined as non-subjection to the rule of another,
and thus – short of war – the decision as to compliance becomes an essentially internal one, a
matter for the (‘subjective’) conscience of governments and public opinion.

(e) The tolerability of limited sovereignty because the existence of legal constraints is
not equated with their application in a given case (the principle of choice of means)

The principle of choice of means obviously applies in negotiation. It also applies to dispute
settlement, i.e. to controversies about the implementation of negotiated norms. It is classically
expressed, for example, in Article 33(1) of the United Nations Charter, which says that:

The parties to any dispute, the continuance of which is likely to endanger the
maintenance of international peace and security, shall, first of all, seek a solution
by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement,
resort to regional agencies or arrangements, or other peaceful means of their own
choice.

As the last phrase indicates, this is a menu and not a hierarchy. In consequence, even when there
is agreement on the content of a negotiated norm, the modalities of implementation may have to
be further negotiated, and the parties to any disagreement remain on an equal footing in that
regard.
…
(f) Sixthly, the cumulation of these strategies (the principle of a system of international
legal relations)

The five strategies listed here are obviously related to each other.... [T]hey are consequences of
the absence at the international level of a centralized authority of the kind we are used to
imagining as controlling each state…
Over time, the five strategies have combined with real societal needs and exhaustive diplomacy
to produce not a system governed by the rule of law but one that might be described as in a pre-
legal condition, one which is moving towards a relative state of order, although still
decentralized and highly differentiated. This description is not intended to deny the existence of
law or of a legal system at the international level. What it does suggest is that certain basic legal
values are not yet systematic, and given the iniquities daily reported and unreported, this is
certainly the case. We are still in a situation where international justice resides in enclaves…

Questions:
1. Is it true that State sovereignty as a concept has been eroded? Or, is it better to say that
sovereign States have limited themselves – bound their own hands – through their actions
and through their consent?
2. Individuals retain a residual freedom as individuals even when living in a community. For
example, on entering a community governed by law, an individual gives up his freedom to
steal. Nonetheless, that individual retains so many other freedoms, for example the freedom
to use his own property as he sees fit. Does the same logic apply to States? That is, States
retain a residual freedom to act, even though the community of States has forbidden certain
actions?
3. Imagine a world in which States no longer exist. There is one international government, with
an international legislature, executive, and judiciary. Do you think it would be possible for
this international government uniformly to manage population groups from London,
Shanghai, and Addis Ababa to rural towns in Siberia and Mongolia? If not, then won’t it be
necessary for this international government to have regional administrative units? And what
 would be the difference between such a regional administrative unit and a State operating
under international laws?

Part C: Theories of State Behavior

International lawyers tend to see in the international relations among States a web of legal
obligations that guide States’ behavior. That is, lawyers argue that States will perform treaties
and continue to follow international customs out of a sense of legal obligation on the part of the
officials in those States’ governments. Certainly it is true that most international laws are obeyed
most of the time.

The student should be aware, however, that, more so than in other legal subjects, there is a strong
political dimension to international legal relations. That means that international law is not about
memorizing a set of laws that will be applied uniformly to each and every State and situation.
The “laws” are more flexible, more subject to power relations, and therefore more elusive and
harder to grasp. The black-letter law still has important meaning for States, but it is not as clear
what this meaning is.

If students are asked to create international laws on their own, for example by drafting a treaty,
they usually place too much emphasis on objective fairness and legal consistency. They forget
that the overall quality of their laws as judged by the legal profession will not matter if most
States do not agree to these laws. International laws must incorporate previously established
claims that are defended by strongly interested States, whether fair or not (one thinks
immediately of Egypt’s claims to Nile waters); and, sadly, the ideal, objective law must give
way, in some cases, to the present interests of more powerful States. These are the necessary
sacrifices for consensus among States.

Many theorists argue that lawful behavior by States is merely a coincidence that arises out of a
mixture of other motives on the part of States. You can imagine the various concerns of a State
official – to satisfy the citizens of the State, to satisfy other officials, to work against enemy
States and help friends, to leave some lasting imprint on world affairs. The State is an aggregate
of State officials, and it does not obey the law because it has to obey the law but rather because it
is in its self-interest to do so at any given moment. Such theorists are quick to point out that
international laws are not enforced consistently. In fact, as mentioned already, there is no central
body in international relations with the ability to enforce international obligations – especially
not against powerful States. International laws that cannot be enforced are not “laws” at all but
rather more like suggestions. If this is true, then it is unlikely that the fear of punishment
prevents States from breaking international obligations, and again unlikely that a concern with
legality really motivates State officials to follow international norms.

Even theories based on self-interest, however, admit that it may be in a State’s self-interest at
least to give the impression of following international laws most of the time. Officials tend to
prefer predictability in State relations that only a legal system can provide. International
violations by these officials tend to be strategic and only on particular points rather than systemic
and against all of international law. In a cost-benefit analysis, it is apparent that breaking rules to
the point of undermining them has too great a cost. It is better to break rules occasionally and
attempt to hide this action than it is to break the rules openly and flaunt it.

The main problem with any theory of State behavior is that it is difficult to define what the
controlling interests of the State are. For example, a theory based on the State’s self-interest
merely begs the question, What is the State’s self-interest? How do we connect the individual
interests of State officials with the interests of the State? Are we talking about long-term
interests or short-term interests? Even if State officials are motivated by a concern with morals
or legality rather than self-interest, moral choices are not always clear and laws often conflict
with one another. We can hardly expect a State’s behavior to be consistent and predictable
through this maze of hard choices. Is it possible then to devise a theory of State behavior at all?
Perhaps States are inherently unpredictable.

Contemporary theories of State behavior can be divided broadly into (1) interest-based theories
including realism, institutionalism, and liberal theory; and (2) norm-based theories including
constructivism and legal process theories. The student should not be concerned so much with
memorizing the different schools of thought. Rather, the student should be careful to identify the
unexplained assumptions of some of these theories.

The student can contrast more modern theories of State behavior with the approach taken in
Thucydides’ History of the Peloponnesian War. While modern theories seek to turn the State
into a creature of predictable and mathematical movements, the Greek men in Thucydides’
History seem to assume that the State may be swayed at any given moment by the advice of its
councilors. Is the State’s behavior pre-determined, or may it be changed by advice from
theorists and law scholars? This is a question of free will.

Peter J. Katzenstein, Robert O. Keohane, and Stephen D. Krasner, International

Organization and The Study of World Politics, 1998.

Realism’s core assumptions can be variously classified, but four are particularly important: (1)
states are key actors in world politics; (2) states can be treated as homogeneous units acting on
the basis of self-interest; (3) analysis can proceed on the basis of the assumption that states act as
if they were rational; and (4) international anarchy – the absence of any legitimate authority in
the international system – means that conflict between self-interested states entails the danger of
war and the possibility of coercion…

The development of neoliberal institutionalism posed a serious challenge for realist analysis…
Drawing an analogy to problems of market failure in economics, [Keohane] argued that high
transaction costs and asymmetrical uncertainty could lead, under conditions such as those
modeled by Prisoners’ Dilemma (PD) games, to suboptimal outcomes. Chiefly by providing
information to actors (not by enforcing rules in a centralized manner), institutions could enable
states to achieve their own objectives more efficiently. Institutions would alter state strategies by
changing the costs of alternatives; institutionalization could thus promote cooperation. Keohane
argued that institutions mattered because they could provide information, monitor compliance,
increase iterations, facilitate issue linkages, define cheating, and offer salient solutions. Keohane
did not deny the importance of power, but within the constraints imposed by the absence of
hierarchical global governance, states could reap gains from cooperation by designing
appropriate institutions…

…For realism, power and conflict are inherent aspects of international politics. The interests of
states will differ. Force and coercion are always available options. The astonishingly peaceful
end of the Cold War and the collapse of the Soviet Union are not what a realist would have
expected…

Neoliberal institutionalism correctly anticipated that the end of the Cold War would not
undermine such institutions as NATO and the European Union, so it did not go through an
“agonizing reappraisal” such as that experienced by some realists. Indeed, institutionalists began
to apply their theory to security institutions such as alliances and to interpret post-Cold War
politics in institutionalist terms…

Claire R. Kelly, Realist Theory and Real Constraints, 2004.

The United States balks at the International Criminal Court (ICC). The European Union (EU)
bristles at relinquishing its ban on beef hormones. Argentina and the International Monetary
Fund (IMF) struggle to negotiate Argentina's rescue from a fiscal freeze. The United States and
its coalition of the willing enter Iraq, despite the opposition of other members of the United
Nations Security Council. The contentiousness of these events undermines the notion that
"international law" makes a real difference in state behavior. These are the hard cases, where the
resolution of a dispute is subject to factors other than the application of law or rules to the facts
of the dispute. Arguably, these cases support the realist premise that nations pursue power, and
thus, the realist critique that power matters more than law. According to the realist critique, hard
cases arise because states seek power and because states exercise their power to achieve relative
gains in power, despite international institutions, rules or norms…

These hard cases are symptomatic of international institutions achieving a greater degree of
"legalization" and "enmeshment." "Legalization" refers to the degree of obligation, precision,
and delegation achieved by regime rules. Enmeshment reflects nations' entanglement with the
regime and its rules. Hard cases arise from the evolution of "highly-legalized institutions" in
which nations become "enmeshed" because these regimes produce discernable obligations and
offer significant benefits for compliance.

Jack L. Goldsmith and Eric A. Posner, The Limits of International Law, 2005

The assumption that states act rationally to further their interests is not self-evident. All
components of this assumption – that the state is the relevant agent, that a state has an
identifiable interest, and that states act rationally to further these interests – are open to
question…

The existence of the state depends on the psychology of its citizens. If all U.S. citizens stopped
believing that the United States was a state, and instead began to believe that they were citizens
of Indiana or Texas or some other subunit, then the United States would cease to exist and
numerous new states would come into existence… Moreover, “the state” is an abstraction.
Although the identity of the state is intuitively clear, the distinction between the state and the
influences on it sometimes blurs. Relatedly, the state itself does not act except in a metaphorical
sense. Individual leaders negotiate treaties and decide whether to comply with or breach them.
Because the existence of a state and state action ultimately depend on individuals’ beliefs and
actions, one could reject the assumption that states have agency and insist that any theory about
the behavior of states must have micro-foundations in a theory of individual choice.

Despite these considerations, we give the state the starring role in our drama. The main reason
for doing so is that international law addresses itself to states and, for the most part, not to
individuals or other entities such as governments. NAFTA did not confer international legal
obligations on President Clinton or the Clinton administration, but rather on the United States.
The United States remains bound by these obligations until a future government withdraws the
United States from the treaty. Moreover, although states are collectivities, they arrange
themselves to act like agents, just as corporations do…
…
By state interest, we mean the state’s preferences about outcomes… [A] state… can make
coherent decisions based upon identifiable preferences, or interests, and it is natural and common
to explain state action on the international plane in terms of the primary goal or goals the state
seeks to achieve.

We generally identify state interests in connection with particular legal regimes by looking,
based on many types of evidence, to the preferences of the state’s political leadership…

We avoid strong assumptions about the content of state interests and assume that they can vary
by context. This distinguishes our work from the work of some realists, who assume that a
state’s interests are limited to security and (perhaps) wealth…

The concept of state interest used in this book must not be confused with the policy that
promotes state welfare. In every state, certain individuals or groups – elites, corporations, the
military, relatives of dictators – have disproportionate influence on leaders’ conduct of state
policy… The inevitable presence of these distorting mechanisms means that the “state interest”
as we use the term is not necessarily, or even usually, the policy that would maximize the public
good within the state…
…
Our theory of international law assumes that states act rationally to maximize their interests.
This assumption incorporates standard premises of rational choice theory: the preferences about
outcomes embedded in the state interest are consistent, complete, and transitive… And we do
not deny that states sometimes act irrationally because their leaders make mistakes, because of
institutional failures, and so forth. Our claim is only that our assumptions lead to better and
more nuanced explanations of state behavior
…As understood by economics, rationality is primarily an attribute of individuals, and even then
only as an approximation. The term’s application to collectivities such as corporations,
governments, and states must be performed with care… [W]hen states exist, people have
adopted institutions that ensure that governments choose generally consistent policies over time
– policies that at a broad level can be said to reflect the state’s interest as we understand the term.
…
…As is usual…in rational choice theory, we take state interests at any particular time to be an
unexplained given. Constructivists challenge this assumption. They seek to show that the
preferences of individuals, and therefore state interests, can be influenced by international law
and institutions… [But] constructivists have not shown that international law transforms
individual and state interests…
…
The relations between the two states at any time can be described as a set of rules. But here care
must be used, for several very different things might be going on. Consider a border between A
and B. The border is a rule that delineates the territory of each state, where it is understood that
neither state can send individuals or objects across the border without the permission of the other
state. Territorial borders are generally thought to be constituted and governed by international
law. Assume that states A and B respect the border. Our theory of international law posits that
one of four things might explain this behavioral regularity.

First, it is possible that neither of the two states has an interest in projecting power across the
border. State A does not seek resources in state B’s territory and would not seek them even if B
were unable to resist encroachment. A is barely able to control its own territory and wants to
have nothing to do with B’s. State B has the same attitude to state A. When a pattern of
behavior – here, not violating the border – results from each state acting in its self-interest
without any regard to the action of the other state, we call it a coincidence of interest.

There is a second possible explanation for the border. State A might be indifferent between one
border and another border deeper in what is now state B’s territory. The additional territory
might benefit state A, but it would also bring with it costs. The main concern for the states is to
clarify the point at which state A’s control ends and state B’s begins, so that the two states can
plan accordingly and avoid conflict. State B has the same set of interests and capacities. Once
the two states settle on a border, neither violates the border because if either did, conflict would
result. This state of affairs is called coordination. In cases of coordination, states receive higher
payoffs if they engage in identical or symmetrical actions than if they do not. A classic
coordination game from domestic life is driving: all parties do better if they coordinate on
driving on the right, or driving on the left, than if they choose different actions.
A third possible explanation for the border is cooperation. States A and B would each benefit by
having some of the other’s territory, all things being equal. But each knows that if it tried to
obtain more territory, the other state would resist, and a costly breakdown in relations, and
possibly war, would result, making both states worse off. Thus, the states agree (implicitly or
explicitly) on a border that reflects their interests and capacities, and the border is maintained by
mutual threats to retaliate if the other state violates the border. In such cases of cooperation,
states reciprocally refrain from activities (here, invasion or incursion) that would otherwise be in
their immediate self-interest in order to reap larger medium- or long-term benefits.

The final possibility is coercion. State A is satisfied with the existing border, but state B seeks to
expand its territory at A’s expense. If B is sufficiently powerful, it can dictate the new border.
Because state A is weaker and state B benefits from the extra territory whether or not state A
resists, state A yields (either before or after military conflict) and a new border is created. Other
states might or might not object: they also might benefit from the new border or be powerless to
resist it. Coercion results when a powerful state (or coalition of states with convergent interests)
forces weaker states to engage in acts that are contrary to their interests (defined independently
of the coercion).

This book argues that some combination of these four models explains the state behaviors
associated with international law…

Thucydides, History of the Peloponnesian War, 431-404 BC

[The following was a debate in Athens over what to do about the city of Mytilene. This city had
been an ally of Athens in the war against the Peloponnesians but had betrayed Athens and
rebelled from Athens’ influence. The Athenians decided to put to death the whole adult male
population of Mytilene and to make slaves of the women and children. They sent a ship to
communicate this decree to the Athenian commander in Mytilene for him to carry out the order.]
Next day, however, there was a sudden change of feeling and people began to think how cruel
and how unprecedented such a decision was – to destroy not only the guilty, but the entire
population of a state. Observing this, the deputation from Mytilene which was in Athens and the
Athenians who were supporting them approached the authorities with a view to having the
question debated again… [A]n assembly was called at once. Various opinions were expressed
on both sides, and Cleon… spoke again. It was he who had been responsible for passing the
original motion for putting the Mytilenians to death. He was remarkable among the Athenians
for the violence of his character…

“Personally I have had occasion often enough already to observe that a democracy is incapable
of governing others, and I am all the more convinced of this when I see how you are now
changing your minds about the Mytilenians. Because fear and conspiracy play no part in your
daily relations with each other, you imagine that the same thing is true of your allies, and you fail
to see that when you allow them to persuade you to make a mistaken decision and when you give
way to your own feelings of compassion you are being guilty of a kind of weakness which is
dangerous to you and which will not make them love you any more. What you do not realize is
that your empire is a tyranny exercised over subjects who do not like it and who are always
plotting against you; you will not make them obey you by injuring your own interests in order to
do them a favor; your leadership depends on superior strength and not on any goodwill of theirs.
And this is the very worst thing – to pass measures and then not to abide by them. We should
realize that a city is better off with bad laws, so long as they remain fixed, than with good laws
that are constantly being altered…

“As for me, I have not altered my opinion, and I am amazed at those who have proposed a
reconsideration of the question of Mytilene, thus causing a delay which is all to the advantage of
the guilty party. After a lapse of time the injured party will lose the edge of his anger when he
comes to act against those who have wronged him; whereas the best punishment and the one
most fitted to the crime is when reprisals follow immediately…

“…I say that no single city has ever done you the harm that Mytilene has done. Personally I can
make allowances for those who revolt because they find your rule intolerable or because they
have been forced into it by enemy action. Here, however, we have the case of people living on
an island, behind their own fortifications, with nothing to fear from our enemies except an attack
by sea against which they were adequately protected by the their own force of triremes [ships];
they had their own independent government and they were treated by us with the greatest
consideration. Now, to act as they acted is not what I should call a revolt (for people only revolt
when they have been badly treated); it is a case of calculated aggression, of deliberately taking
sides with our bitterest enemies in order to destroy us. And this is far worse than if they had
made war against us simply to increase their own power. They learned nothing from the fate of
those of their neighbors who had already revolted and been subdued; the prosperity which they
enjoyed did not make them hesitate before running into danger; confident in the future, they
declared war on us, with hopes that indeed extended beyond their means, though still fell short of
their desires. They made up their minds to put might first and right second, choosing the
moment when they thought they would win, and then making their unprovoked attack upon us.

“…What we should have done long ago with the Mytilenians was to treat them in exactly the
same way as all the rest; then they would never have grown so arrogant; for it is a general rule of
human nature that people despise those who treat them well and look up to those who make no
concessions. Let them now therefore have the punishment which their crime deserves. Do not
put the blame on the aristocracy and say that the people were innocent. The fact is that the whole
lot of them attacked you together…

“Now think of your allies. If you are going to give the same punishment to those who are forced
to revolt by your enemies and those who do so of their own accord, can you not see that they will
all revolt upon the slightest pretext, when success means freedom and failure brings no very
dreadful consequences?...

“…To feel pity, to be carried away by the pleasure of hearing a clever argument, to listen to the
claims of decency are three things that are entirely against the interests of an imperial power…”

So Cleon spoke. After him Diodotus…came forward…and spoke as follows:

“I do not blame those who have proposed a new debate on the subject of Mytilene, and I do not
share the view which we have heard expressed, that it is a bad thing to have frequent discussions
on matters of importance. Haste and anger are, to my mind, the two greatest obstacles to wise
counsel – haste, that usually goes with folly, anger, that is the mark of primitive and narrow
minds. And anyone who maintains that words cannot be a guide to action must be either a fool
or one with some personal interest at stake; he is a fool, if he imagines that it is possible to deal
with the uncertainties of the future by any other medium, and he is personally interested if his
aim is to persuade you into some disgraceful action, and, knowing that he cannot make a good
speech in a bad cause, he tries to frighten his opponents and his hearers by some good-sized
pieces of misrepresentation…
…
“…If we are sensible people, we shall see that the question is not so much whether they are
guilty as whether we are making the right decision for ourselves. I might prove that they are the
most guilty people in the world, but it does not follow that I shall propose the death penalty,
unless that is in your interests; I might argue that they deserve to be forgiven, but should not
recommend forgiveness unless that seemed to me the best thing for the state.

“In my view our discussion concerns the future rather than the present. One of Cleon’s chief
points is that to inflict the death penalty will be useful to us in the future as a means for deterring
other cities from revolt; but I, who am just as concerned as he is with the future, am quite
convinced that this is not so… You may well find [Cleon’s] speech attractive, because it fits
better with your present angry feelings about the Mytilenians; but this is not a law-court, where
we have to consider what is fit and just; it is a political assembly, and the question is how
Mytiliene can be most useful to Athens.

“Now, in human societies the death penalty has been laid down for many offences less serious
than this one. Yet people still take risks when they feel sufficiently confident. No one has ever
yet risked committing a crime which he thought he could not carry out successfully. The same is
true of states. None has ever yet rebelled in the belief that it had insufficient resources…to make
the attempt. Cities and individuals alike, all are by nature disposed to do wrong, and there is no
law that will prevent it, as is shown by the fact that men have tried every kind of punishment,
constantly adding to the list, in the attempt to find greater security from criminals… Either,
therefore, we must discover some fear more potent than the fear of death, or we must admit that
here certainly we have not got an adequate deterrent. So long as poverty forces men to be bold,
so long as the insolence and pride of wealth nourish their ambitions, and in the other accidents of
life they are continually dominated by some incurable master passion or another, so long will
their impulses continue to drive them into danger… In a word it is impossible…for human
nature, when once seriously set upon a certain course, to be prevented from following that course
by the force of law or by any other means of intimidation whatever.

“We must not, therefore, come to the wrong conclusions through having too much confidence in
the effectiveness of capital punishment, and we must not make the condition of rebels desperate
by depriving them of the possibility of repentance and of a chance of atoning as quickly as they
can for what they did. Consider this now: at the moment, if a city has revolted and realizes that
the revolt cannot succeed, it will come to terms while it is still capable of paying an indemnity
and continuing to pay tribute afterwards. But if Cleon’s method is adopted, can you not see that
every city will not only make much more careful preparations for revolt, but will also hold out
against siege to the very end, since to surrender early or late means just the same thing? This is,
unquestionably, against our interests – to spend money on a siege because of the impossibility of
coming to terms, and, if we capture the place, to take over a city that is in ruins so that we lose
the future revenue from it. And it is just on this revenue that our strength in war depends.

“…[W]e should recognize that the proper basis of our security is in good administration rather
than in the fear of legal penalties. As it is, we do just the opposite: when we subdue a free city,
which was held down by force and has, as we might have expected, tried to assert its
independence by revolting, we think that we ought to punish it with the utmost severity. But the
right way to deal with free people is this – not to inflict tremendous punishments on them after
they have revolted, but to take tremendous care of them before this point is reached…

“Consider what a mistake you would be making on this very point, if you took Cleon’s advice.
As things are now, in all the cities the democracy is friendly to you; either it does not join in with
the oligarchies in revolting, or, if it is forced to do so, it remains all the time hostile to the rebels,
so that when you go to war with them, you have the people on your side. But if you destroy the
democratic party at Mytilene, who never took any hand in the revolt and who, as soon as they got
arms, voluntarily gave the city up to you, you will first of all be guilty of killing those who have
helped you, and, secondly, you will be doing exactly what the reactionary classes want most.
For now, when they start a revolt, they will have the people on their side from the beginning,
because you have already made it clear that the same punishment is laid down both for the guilty
and the innocent…

This was the speech of Diodotus. And now, when these two motions, each so opposed to each,
had been put forward, the Athenians…still held conflicting opinions, and at the show of hands
the votes were nearly equal. However, the motion of Diodotus was passed.

Questions:
1. What do you think the “self-interest” of a State is in international politics? Do you agree
with the realists that the main goal of a State is to increase its power and wealth? Or is this
an oversimplification? Is it a simple thing for a State to increase its relative power and
wealth by the way the State treats other States in particular cases, for example in a dispute
over diplomatic immunities, or a dispute over the interpretation of a particular treaty?
2. Do you think that a State is concerned with its international image, that is, how other States
view its activities? One method of enforcing human rights norms in a particular State is by
reporting breaches of human rights in that State to all other States. The idea is that such a
report will “mobilize shame” and cause the offending State to change its behavior. Is it
likely that a State will feel shame before the international community for its bad actions?
3. Do international laws merely normalize pre-existing power relations? For example, an
international institution like the United Nations concentrates coercive power in the five
permanent members of the Security Council (U.S., Britain, France, China, and Russia).
Although all States may become “enmeshed” in the institution (the UN) and its rules, the
permanent members of the Security Council have retained some control over what the rules
are. Therefore, it is not the rules that are influencing the five permanent members but rather
the five permanent members who are influencing the rules.
4. Many realists, like Goldsmith and Posner in their book, reject the idea that international law
and institutions can affect State interests and State behaviors. In this respect, they are
limiting the options for State policymakers. It is one thing to advise policymakers that a
State should not follow international institutions and laws as a matter of good policy, and
quite another thing to tell policymakers that a State cannot follow international laws for their
own sake because a State always acts in its self-interest. Notably, the speakers in
Thucydides’ History focus on giving the State advice rather than telling the State inevitably
what the State will do.

2.2 State Formation and the Self-Determination of Peoples

Part A: Legal and Political Issues of Statehood

States come into existence in many different ways. A former colony may gain its independence;
a part of a State may split off to form a new State; an old State may die and dissolve into several
new States; or two States may merge to form a single new State. In these situations, the
international community must decide the question, When does an emerging entity become a legal
State with all the rights and duties of a State under international law?

One might expect that an international body like the United Nations would decide this question.
Unfortunately, this is not the case. International bodies may be influential in directing the
opinion of the international community, as we will see in a moment, but ultimately the decision
of how to treat an emerging entity – or indeed a long-existing entity – is left to the discretion of
each existing State. In other words, Ethiopia will decide for itself whether to recognize Israel as
a State or not, or indeed whether to recognize the U.S. as a State or not. Kenya likewise will
make a decision as to whether or not Israel and the U.S. are States. There are, of course, legal
criteria that tell us when an emerging entity has become a legal State (see below). Some scholars
have argued that, for example, Ethiopia has a duty under international law to recognize an
emerging entity as a State once that entity has met the legal criteria for statehood. This does not
change the fact that each State has a great deal of discretion in regard to its foreign relations and
there is little opportunity for the international community to force a State like Ethiopia to
recognize an emerging entity as a legal State. (The student should note that recognition of States
and recognition of governments are two entirely different issues. Recognition of governments
will be dealt with shortly.) More than just recognition, existing States will decide on an
individual basis whether or not to confer the benefits of Statehood on an emerging entity, for
example whether or not to enter into treaties with the emerging entity, whether or not to accept
embassies, and whether to entertain diplomatic representatives from the emerging entity in
international forums.

The purely legal question of when a State becomes a State is a different matter. The 1933
Convention on the Rights and Duties of States (known as the Montevideo Convention), sets out
four simple criteria for statehood. “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 the other states.” Seemingly, if an entity has these four
things, it is a legal State.

The four criteria have been interpreted rather liberally in application. In regard to the first
criterion, there is no minimum number of inhabitants necessary to make a State. The Pacific
Island State of Nauru has roughly 10,000 inhabitants; Lichtenstein in Europe has roughly 30,000
inhabitants. The fact that the population must be “permanent” means that Antarctica cannot be a
State because no one lives there year-round. (One might well ask, what will be the rights of
nomads in international law?) Second, an entity’s territory may qualify as a “defined territory”
even though its borders are disputed, as for example with Israel. Third, States have been
recognized in the midst of civil war when the States are seemingly without effective
governments. This was the case in Burundi and Rwanda which emerged from colonialism in a
state of virtual anarchy but nonetheless were recognized as States. (Notably, the requirement of
“effective government” may be more stringent when a new State is trying to assert its
independence against the will of a predecessor State, as when a part of a State wages a war of
secession in order to form a new State. At the same time, this requirement may be loosened in
cases of the legitimate expression of the right to self-determination – see below.) Finally, in
regard to the fourth and last criterion, there are many cases in which all or part of the foreign
relations of a State is undertaken by another State. The national defense of Liechtenstein is
managed by Switzerland; the defense of Monaco is managed by France. The emphasis here
should be on the capacity to enter into relations with other States; whether or not a State actually
takes up management of all of its foreign relations is not important for the question of Statehood.

As with other aspects of international law, the criteria of Statehood differ in theory and in
practice. In practice, even after new States have met the four legal criteria of Statehood, they are
not automatically recognized as States by other States. This is not to say that there are additional
legal criteria for Statehood but rather to point out that there is a strong political dimension to this
issue. After all, State formation usually involves taking away territory that previously belonged
to another State and for this reason is politically very sensitive.

There has been some debate in the scholarship about the role that recognition of States plays in
deciding whether an emerging entity is a State. As mentioned before, the benefits of Statehood
only come with recognition by other States. In theory, however, the weight of legal authority
rests with the so-called “declaratory” view that a State exists once it has met the four legal
criteria, whether or not it has been recognized by any other State. According to the Institut de
Droit International: “The existence of a new State with all the legal consequences attaching to
this existence is not affected by the refusal of recognition by one or more states.” (1936). The
other view is the “constitutive” view, holding that other States “constitute” or create a new State
by recognizing it. Although this theory gives proper deference to international politics, it does
not provide a clear point at which a State becomes a State and in fact may misrepresent the way
that States make recognition decisions. How many States must recognize an emerging entity as a
State before it can be a legal State? A majority of 100? Or what? And how should States make
this decision whether or not to recognize?

Similar problems arise when determining whether a State is no longer a legal State. In other
words, it is just as difficult to say when a State has died as to say when a State has been born.
Logically, it would make sense to apply the four criteria again and say that, when an existing
State can no longer satisfy all four criteria, it ceases to exist. In practice, this is not done.
International law places a great deal of emphasis on stability in international relations and thus
resists any sudden withdrawal of Statehood status. In short, a State may lose its government for
a time and still remain a State. A State may lose control over its relations with other States and
likewise remain a State, etc. For example, the collapse of the central government in Somalia
during most of the 1990s did not change Somalia’s status as a State in international law. Neither
did Iraq’s occupation of Kuwait for nine months alter Kuwait’s status as a State.

Philip C. Jessup (as U.S. Representative to the UN Security Council), Comments on the
Admission of Israel to the United Nations, 1948

The consideration of the application requires an examination of…the question of whether

Israel is a State duly qualified for membership. Article 4 of the Charter of the United Nations
specifies the following:

Membership in the United Nations is open to…peace-loving States which accept the
obligations contained in the present Charter and, in the judgment of the Organization,
are able and willing to carry out these obligations.

…My Government considers that the State of Israel meets these Charter requirements.

The first question which may be raised in analyzing Article 4 of the Charter and its applicability
to the membership of the State of Israel, is the question of whether Israel is a State, as that term
is used in Article 4 of the Charter. It is common knowledge that, while there are traditional
definitions of a State in international law, the term has been used in many different ways. We
are all aware that, under the traditional definition of a State in international law, all the great
writers have pointed to four qualifications: first, there must be a people; second, there must be a
territory; third, there must be a government; and, fourth, there must be capacity to enter into
relations with other States of the world.

In so far as the question of capacity to enter into relations with other States of the world is
concerned,… I believe that there would be unanimity that Israel exercises complete
independence of judgment and of will in forming and in executing its foreign policy…

When we look at the other classic attributes of a State, we find insistence that it must also have a
Government. No one doubts that Israel has a Government…
According to the same classic definition, we are told that a State must have a people and a
territory. Nobody questions the facts that the State of Israel has a people…

The argument seems chiefly to arise in connection with territory. One does not find in the
general classic treatment of this subject any insistence that the territory of a State must be exactly
fixed by definite frontiers. We all know that, historically, many States have begun their
existence with their frontiers unsettled. Let me take as one example, my own country, the United
States of America. Like the State of Israel in its origin, it had certain territory along the seacoast.
It had various indeterminate claims to an extended territory westward. But, in the case of the
United States, that land had not even been explored, and no one knew just where the American
claims ended and where French and British and Spanish claims began. To the North, the exact
delimitation of the frontier with the territories of Great Britain was not settled until many years
later. And yet, I maintain that, in the light of history and in the light of the practice and
acceptance by other States, the existence of the United States of America was not in question
before its final boundaries were determined.

…The reason for the rule that one of the necessary attributes of a State is that it shall possess
territory is that one cannot contemplate a State as a kind of disembodied spirit. Historically, the
concept is one of insistence that there must be some portion of the earth’s surface which its
people inhabit and over which its Government exercises authority. No one can deny that the
State of Israel responds to this requirement…
________________________________________________________________________

Questions of Statehood are particularly tricky when dealing with a rebel group that is trying to
secede from an existing State. The State that is losing territory (predecessor) almost always will
oppose the creation of the new State, and recognition of the new State by other States will be
perceived as an aggressive move or as interference with the internal affairs (sovereignty) of the
predecessor State. In fact, early recognition of a rebel group by another State is illegal – a
violation of the predecessor State’s sovereignty. It would seem that the international community
must wait until most of the fighting between the rebels and the central government has stopped.
As mentioned before, the four legal criteria will be applied more strictly, especially the criterion
of an effective government. The rebels will have to show to the international community that
they, rather than the central government of the predecessor State, have effective control over
their territory.

A rebel group usually begins its campaign for a new State with a “unilateral declaration of
independence.” Such a declaration of itself does not achieve a new State, but, without such a
declaration, an otherwise independent entity might not obtain Statehood. This is the case with
Taiwan, an entity of questionable status in international law that for a long time claimed to be the
rightful government of all of China. Taiwan did not declare its independence from China as a
separate State (even though Taiwan has every intention now of preserving its actual
independence from China). Taiwan’s appeal in the past has been for the recognition of its
government as the rightful government of all China rather than the recognition of its independent
Statehood. Many people in Taiwan now support Taiwanese independence, but China strongly
opposes the creation of a separate State of Taiwan. So Taiwan’s status remains uncertain.

Eritrea provides an interesting example of secession and State formation in Africa. Eritrea was
able to form an independent State in part because its request for Statehood came at the end of
civil war in Ethiopia and the fall of the “Derg” regime in 1991. Eritrean rebel forces were part of
the coalition that defeated the Derg, and, at the 1991 peace conference that established Ethiopia’s
transitional government, Eritrea was given permission to hold a referendum on independence.
The President of the transitional government informed the UN Secretary General of this and
requested that the Secretary General “make the necessary arrangements with the Provisional
Government of Eritrea to facilitate . . . United Nations supervision of the referendum.” Eritrea
did not declare independence at this time but rather waited for the referendum. The referendum
took place in 1993 and a majority of Eritreans voted for independence.

Eritrean independence has been characterized in different ways – as a case of deferred

decolonization from the Italians, as an illegal act in violation of international law, and as a
consensual arrangement with the transitional government of Ethiopia. What makes the Eritrean
case different is that, when Eritrea made its formal move towards independence in 1991, it did
not appear to act unilaterally. Eritrea did not make an immediate declaration of independence in
1991. Rather, Eritrea made a request to the transitional government and to the UN for a
referendum on independence. Whether this was a “request” or a “demand” is another matter. To
the international community, it appeared that Eritrea was following a fair procedure to achieve
its independence. After the referendum, other States did not have to worry about the perils of
“early recognition” of Eritrea as a State, and the UN, which had helped organize the referendum,
was ready to admit Eritrea as a member State.

David A. Ijalaye, Was Biafra at Any time a State in International Law? 1971.

[Biafra was a territory of Nigeria that attempted to secede from Nigeria during the Nigerian civil
war of 1967-1970 and ultimately failed. Five countries recognized Biafra: Tanzania, Gabon,
Ivory Coast, Zambia, and Haiti. Nigeria objected that such recognition was a violation of its
sovereignty and was contrary to the Charter of the Organization of African Unity.]

…Although Biafra had a government, it was very difficult to say that it had a permanent
population or a defined territory. These were the very things that the civil war had to decide…
Whenever part of an existing state breaks away to form another independent state, recognition is
always controversial; perhaps that was why no country came forward to recognize Biafra until
eleven months after secession [from Nigeria]…
…
The Organization of African Unity took a strong stand in favor of Nigeria… [As] Emperor Haile
Selassie of Ethiopia said:

The Organization of African Unity is both in word and deed committed to the principle
of unity and territorial integrity of its member states. And when this Mission was
established by our organization its cardinal objective was none other than exploring and
discussing ways and means together with and the help of the Federal Government,
whereby Nigerian national integrity is to be preserved and innocent Nigerian blood
saved from flowing needlessly. The national unity and territorial integrity of member
states is not negotiable. It must be fully respected and preserved. It is our firm belief
that the national unity of individual African states is an essential ingredient for the
realization of the larger and greater objective of African Unity.
It is interesting to note that, despite this strong statement in favor of Nigeria, the O.A.U. did not
at any of its subsequent meetings consider the grants of recognition accorded Biafra by the four
African states.
…
According to the declaratory theory, statehood or the authority of a new government exists as
such prior to, and independently of, recognition…

The act of recognition is thus a formal acknowledgment of an established situation… If an entity

does not fulfill all the factual conditions of statehood as required by international law, a
declaration of recognition by a state is invalid, and any consequential participation by the new
entity in international relations cannot be on the footing of international law. A clear example of
an illegal and thus invalid recognition is where the act of recognition is premature and thus an
unwarranted interference in the affairs of another state. In this connection, Brierly has laid down
these guiding principles:

It is impossible to determine by fixed rules the moment at which other states may justly
grant recognition of independence to a new state; it can only be said that so long as a
real struggle is proceeding, recognition is premature, whilst, on the other hand, mere
persistence by the old state in a struggle which has obviously become hopeless is not a
sufficient cause for withholding it.
…

[By the declaratory theory], the recognition of Biafra by Tanzania, Gabon, Ivory Coast, Haiti,
and Zambia would appear to be unjustifiable and illegal in that at the time of recognition “a real
struggle” was still proceeding, and it was not “abundantly clear that the lawful government has
lost all hope or abandoned all effort to assert its dominion.” In other words, the recognition
given to Biafra was, in the circumstances, premature, thus “constituting a tortuous act against the
lawful government [of Nigeria] and thus a breach of international law.”

According to the constitutive theory, it is the act of recognition alone which creates statehood.
This theory has some inherent difficulties. First, it is capable of creating an international
monster in that “the status of a state recognized by state A, but not recognized by state B, and
therefore apparently both ‘an international person’ and ‘not an international person’ at the same
time would be a legal curiosity.” The second difficulty is more substantial. How many
recognitions will be sufficient to constitute an entity a state in international law? …[I]t would be
difficult under this theory to conclude that recognition by only five small states was sufficient to
constitute Biafra an independent nation.

As it has been shown above, it is very difficult to justify the existence of Biafra as a state under
either theory, as it would appear that it received only premature recognition “which an
international tribunal would declare not only to constitute a wrong but probably also be in itself
invalid.” It is conceded that there are no clearly established customary or conventional rules of
international law governing premature recognition; but, as shown above, it seems that the
preponderance of juristic opinion is that premature recognition is wrong and illegal in
international law…

James Crawford, International Law as an Open System, 2002

…It has… always been possible for a group to separate from a state and to achieve independence
by achieving exclusive control over its territory – if necessary, by winning a war of
independence. The Spanish American colonies did so in the early nineteenth century, and the
Confederacy attempted to do so in the American Civil War. Secession of this kind was a
process, which could take years and which might or might not lead to a successful outcome.
From the perspective of different participants it might be seen either as an expression of an
inherent right to be free from oppression or as an act of treason. But, however described by the
participants, unilateral secession did not involve the exercise of any right conferred by
international law. International law has always favoured the territorial integrity of states, and
correspondingly, the government of a state was entitled to oppose the unilateral secession of part
of the state by all lawful means. Third states were expected to remain neutral during such a
conflict, in the sense that assistance to a group which had not succeeded in establishing its
independence could be treated as intervention in the internal affairs of the state in question, or as
a violation of neutrality…
But on the other hand international law has been prepared to acknowledge political realities once
the independence of a seceding entity was firmly established and in relation to the territory
effectively controlled by it. This had, and has, nothing to do with any pre-existing right in
international law on the part of any group or territory to secede. In international law before
1945, there was no such right. The only arguable basis in modern international law by which a
right to secession might exist would be by virtue of the principle of self-determination…
…
Since 1945, the only new states, emerging from situations which were not formally recognized as
colonial…, have been:
 Senegal (1960);
 Singapore (1965);
 Bangladesh (1971);
 the three Baltic States, Latvia, Lithuania, Estonia (all 1991);
 the eleven successor states of the former Soviet Union, Armenia, Azerbaijan; Belarus;
Georgia; Kazakhstan; Kirgizstan; Moldova; Tajikistan; Turkmenistan; Ukraine,
Uzbekistan (all 1991);
 the five successor states of the former Yugoslavia, Slovania, Macedonia, Croatia, Bosnia-
Herzegovina, Federal Republic of Yugoslavia (Serbia and Montenegro) (1991-2)
 Czech Republic and Slovakia (1993), and
 Eritrea (1993)
______________________________________________________________________________

Increasingly, States and international organizations like the European Union and the
United Nations are making express demands that must be met by new States before these States
will be recognized. It is not that existing States are adding to the four criteria for Statehood.
Rather, existing States are offering recognition in exchange for promises by the new States to
support human rights, prevent nuclear arms proliferation, etc. Recognition is being used as
political leverage to further certain policy goals at the international level.

One might take as an early example of such practice the response of the United Nations to
Rhodesia’s declaration of independence from Britain in 1965. The UN seemingly ignored the
four legal criteria of Statehood and “[c]condemn[ed] the usurpation of power by a racist settler
minority in Southern Rhodesia and regard[ed] the declaration of independence by it as having no
legal validity.” S.C. Res. 217. In fact, Rhodesia met all four criteria of Statehood. Rather, the
UN Security Council seemed to be asserting that Rhodesia (now Zimbabwe) was racist and
therefore not a State. The UN cannot force the non-recognition of a State by other States, but the
practical effect of the resolution was that other States would not conclude treaties with Rhodesia.
(This problem was not resolved until 1978 when a peace accord led to a majority government in
Zimbabwe.)

Roland Rich, Recognition of States: The Collapse of Yugoslavia and the Soviet Union, 1993.

The political need to take action in both the Yugoslav and the Soviet Union situations was
mounting. It was becoming clear that the application of the traditional criteria for statehood
would not provide the European Community, the principal mediator in the Balkan crisis, with a
sufficient choice of diplomatic tools with which to work. Recognition as a simple declaration of
an ascertainable fact did not provide sufficient means to allow the EC to influence the situation.
On 16 December 1991, the EC Foreign Ministers meeting in Brussels issued a ‘Declaration on
the Guidelines on the Recognition of the New States in Eastern Europe and in the Soviet
Union’29. Accompanying this Declaration was a ‘Declaration on Yugoslavia’30. These two
documents were significantly to influence international reactions on the issue of recognition of
the newly emerging states of Eastern Europe and, arguably, transform recognition law.

At the time the Declarations were issued, the EC countries had welcomed the return of the three
Baltic states into the community of nations but had not extended recognition to any ‘new States’
in Eastern Europe. Yet the use of this term in the title of the Guidelines document clearly
foreshadowed that they would. The Declaration begins by referring to the Helsinki Final Act and
the Charter of Paris, ‘in particular the principle of self-determination’. It then affirms the
readiness of the EC countries to recognize new states ‘subject to the normal standards of
international practice and the political realities in each case.’
The rider concerning political realities is a stark reminder of Lauterpacht’s comment that
recognition of states is a matter of policy but rarely has it been expressed in such a direct way.
The Guidelines describe the candidates for recognition as those new states which ‘have
constituted themselves on a democratic basis, have accepted the appropriate international
obligations and have committed themselves in good faith to a peaceful process and to
negotiations’. The Guidelines then list the following requirements:
 respect for the provisions of the Charter of the United Nations and the commitments
subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with
regard to the rule of law, democracy and human rights
 guarantees for the rights of ethnic and national groups and minorities in accordance with
the commitments subscribed to in the framework of the CSCE
 respect for the inviolability of all frontiers which can only be changed by peaceful means
and by common agreement
 acceptance of all relevant commitments with regard to disarmament and nuclear non-
proliferation as well as to security and regional stability
 commitment to settle by agreement, including where appropriate by recourse to
arbitration, all questions concerning state succession and regional disputes.
The Guidelines conclude with the warning that the EC countries ‘will not recognize entities
which are the result of aggression’ and, cryptically, that ‘they would take account of the effects
of recognition on neighbouring states.’

It could be argued that the Guidelines make the process of recognition more difficult because
they purport to retain the ‘normal standards of international practice’ while adding a series of
new requirements. In fact, however, the new requirements have tended to supplant the previous
practice which was largely based on meeting the traditional criteria for statehood.

Having set a new regime for recognition of states in ‘Eastern Europe and the Soviet Union’, the
EC then added further tests with regard to the situation in Yugoslavia. The Declaration on
Yugoslavia introduced a process for applying the Guidelines which required any Republic of the
Socialist Federal Republic of Yugoslavia (SFRY) to apply for recognition by 23 December 1991
stating whether:
 they wish to be recognized as independent states
 they accept the commitments contained in the above-mentioned Guidelines
 they accept the provisions laid down in the draft Convention under consideration by the
Conference on Yugoslavia – especially those in Chapter II on human rights and rights of
national or ethnic groups
 they continue to support
 the efforts of the Secretary General and the Security Council of the United
Nations, and
 the continuation of the Conference on Yugoslavia.

The written applications would then be submitted to the Arbitration Commission established in
parallel with the Conference on Yugoslavia for advice, and a decision would be taken and
implemented by 15 January 1992. The Declaration included an interesting final paragraph which
will be considered in relation to the SFRY’s Republic of Macedonia.

This method of requiring an application for recognition which is examined by an arbitrator and
then decided upon according to a set timetable is virtually unprecedented in recognition practice.
The invitation by the EC was thus extended to all six Republics of the SFRY but there was to be
no uniformity in the responses or the results.
…

All six Yugoslav republics responded to the invitation extended in the EC’s Declaration on
Yugoslavia but only four sought recognition. In his reply to the EC on 23 December 1991,
Serbia’s Foreign Minister recalled that Serbia acquired ‘internationally recognized statehood’ as
early as the Berlin Congress of 1878 and on that basis had participated in the establishment in
1918 of the Kingdom of Serbs, Croats and Slovenes which became Yugoslavia. He concluded
that Serbia ‘is not interested in secession.’
The reply of the Montenegrin Foreign Minister of 24 December 1991 was also in terms of
declining the EC offer to recognize Montenegro on the grounds that his country retained
potential international personality. ‘By the decision of the Berlin Congress of 1878 the then great
powers unanimously recognized the independence and sovereignty of Montenegro… When
Montenegro, upon unification became part of Yugoslavia, the sovereignty and international
personality of Montenegro did not cease to exist, but became part of the sovereignty of the new
state. In case Yugoslavia disunited and ceased to exist as an international entity, the
independence and sovereignty of Montenegro continue their existence in their original form and
substance.’

The other four republics of Yugoslavia requested recognition and undertook to comply with the
requirements listed in the EC’s Guidelines…
…
…Recognition has been a major political question for centuries. Britain declared war on France
for its action in recognizing the independence of the American colonies in 1778 and in 1816
Spain protested the recognition by Britain and others of the independence of the former Spanish
colonies in Latin America.
…
There have always been exceptions to the rule, but the international community had generally
come to accept the traditional criteria for statehood as the proper means for taking decisions on
recognition. The reason for this is that these criteria provide a way of maintaining consistency as
well as a defence against doubtful claims. They were found to be useful tools. But in the break-
up of the USSR and Yugoslavia, their utility came under question and the EC countries took the
view that recognition should be used more as an instrument of foreign policy rather than a formal
declaration of an ascertainable fact.

The formulation by the EC of the new criterion of ‘the political realities in each case’ introduces
a new level of ad hoc decision making that will, if this precedent is followed, make the issue of
recognition more uncertain and unpredictable than hitherto.
…
While the EC Guidelines are stated to be ‘subject to the normal standards of international
practice,’ their application in fact has thrown doubt on the relevance of the traditional criteria for
statehood. There has been widespread recognition of a state which has no control over one third
of its territory (Croatia). A country has been admitted to the UN while it was clear that its
government had no effective control over any areas including the capital city (Bosnia and
Herzegovina). A putative country (Macedonia) is being denied recognition because a
neighbouring country objects to its name even though it meets all traditional criteria and appears
to meet the conditions set by the EC.

Part B: The Right of Self-Determination

No principle has been as important to the formation of new States as the so-called “right of
peoples to self-determination.” This principle was articulated first as a right of colonized people
to self-government, but it has since been used to justify the creation of States in other ways, as by
secession. U.S. President Wilson was one of the first to advocate the right of self-determination,
following World War I. (Notably, the idea of the right of self-determination goes back at least to
the time of the American and French Revolutions, and Lenin also expressed this idea in his
revolutionary theses published in 1916. Wilson’s idea, however, as it was later incorporated into
the UN Charter, is the beginning of the history of the modern international law right of self-
determination.) Wilson envisioned “a post-war order informed by the notion that ethnically
identifiable peoples or nations would govern themselves.” Of course, in 1920 the right of self-
determination was not yet international law. As explained by a Committee report of the League
of Nations, “The recognition of this principle [of self-determination of peoples] in a certain
number of international treaties cannot be considered as sufficient to put it upon the same footing
as a positive rule of the Law of Nations.”

Whatever Wilson’s intentions, European powers continued to have colonies after World War I
and carefully ignored any right of these colonized peoples to self-determination. The League of
Nations, begun after World War I, included the “Mandates System” for the administration of the
colonies of the losing European powers (Germany, Austria-Hungry, and the Ottoman Empire).
Certain States were given “Mandates” to govern these colonies (for example, South Africa had a
Mandate to govern Namibia, a former German colony). The Mandates System did not provide
for independence of the colonies, but it did require the new rulers (Mandatory Powers) to treat
inhabitants better, for example duties “to endeavour to secure and maintain fair and humane
conditions of labour.” The League was responsible for oversight.

The right of self-determination, even at this time, was not exclusively a matter of decolonization.
Sadly, in the time leading up to World War II, Hitler invoked the right of self-determination to
unite German speaking peoples from other nations in Europe into one Reich.

The right of self-determination was affirmed as an international law when it was written into the
Charter of the United Nations in 1945. The right was included in Article 1 as one of the major
purposes of the United Nations: “To develop friendly relations among nations based on the
respect for the principle of equal rights and self-determination of peoples…” Notably, many of
the victorious Allied Powers like France, Britain, and the Netherlands still had their colonies.
For this reason perhaps the Charter did not call specifically for decolonization, nor did it explain
exactly what was meant by the self-determination of peoples. Seemingly, the right of self-
determination was not to redraw political boundaries according to “ethnically identifiable
peoples,” as Wilson would have had it, but rather to provide a basis for claims for better
treatment against an existing government.

Nowhere does the Charter specifically call for freedom for colonized territories. Apart from the
undefined “right of self-determination,” the UN Charter in Article 73 laid out some specific
duties of colonizing countries, “to promote to the utmost… the well-being of the inhabitants of
these [colonial] territories, and, to this end… to develop self-government, to take due account of
the political aspirations of the peoples, and to assist them in the progressive development of their
free political institutions…” These are ideal goals for political freedom, not specific
requirements that can be measured. The Charter continued the policies of the League of Nations
in stronger form, placing even greater responsibilities on the colonizers as part of their “sacred
trust” to promote the well-being of colonized people. The Charter set up a “Trusteeship
System,” similar to the Mandates System under the League, to administer colonies of the losing
powers. (Decolonization nonetheless took place after World War II and was more-or-less
completed by the mid 1970s.)

From the beginning, then, the right of self-determination is not clearly explained or defined. Is
this merely a right to a good (and maybe democratic) government? Or is this a right to have a
State of one’s own? If so, who are the “peoples” who have this right to their own State? May
“peoples” use violent means to form their new State (i.e. secession)? What about State
sovereignty and the State’s right to control its own territory? The biggest problem with the right
of self-determination is written into the UN Charter. That is, the UN Charter both guarantees the
right of peoples to self-determination and the right of States to territorial integrity. If self-
determination is to mean anything as a political right – with some real method of enforcement –
then it will pose a threat to a State’s territorial integrity. What will a politically oppressed
minority group do otherwise? Take a petition for self-determination passively to the central
government and be denied? The history of self-determination bears this point out. The right of
self-determination became the justification for decolonization, and forceful decolonization
inherently goes against a State’s right to territorial integrity. The guarantee of territorial integrity
seemingly would include all of a State’s territory, colony or otherwise.

Sadly, as the student will see, the right of self-determination has not become clearer with time.
Most of the international instruments that include the right of self-determination gloss over its
various contradictions and leave its definition vague. The International Covenant on Civil and
Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural
Rights (ICESCR), two of the most important international treaties on human rights, contain
identical statements affirming the right of peoples to self-determination. (The student should
note that Ethiopia is a signatory to both of these treaties.) The Covenants begin in Article 1 with
“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.” As with
the UN Charter, the Covenants do not go on to explain what is meant by the right of self-
determination or who the “peoples” are.
Interestingly, the ICCPR contains a separate article dealing with minority rights. Article 27
explains that “persons belonging to… minorities shall not be denied the right… to enjoy their
own culture, to profess their own religion, or to use their own language.” Some scholars have
argued that Article 27 should be interpreted as the exclusive article on minority rights, meaning
that minorities only have the right to culture, religion, and language, and not, as under one
interpretation of the right of self-determination, the right to their own State. If “peoples” was
meant to include “minorities” why did not the ICCPR specify “peoples and minority groups” in
Article 1? At the same time, why limit the rights in Article 27 to the right to culture, religion,
and language? Why not include self-determination in Art 27? These scholars argue that
“peoples” means the entire populace of a State. If the entire populace together has the right of
self-determination, then this can only mean the democratic right to have some say in
government, not the right to secede or form separate States.

The right of self-determination is contained also in the African Charter on Human and People’s
Rights. According to the African Charter, “[all peoples] shall have the unquestionable and
inalienable right to self-determination…” Again, the right is not clearly defined. (As will be
seen below, the African Commission on Human and People’s Rights has attempted to interpret
this right to self-determination in its opinions.)

The UN General Assembly has passed several resolutions concerning the right of self-
determination. (In fact, the General Assembly currently – 2007 – is considering the adoption of
the Declaration on the Rights of Indigenous Peoples which would define “peoples” and explain
in detail what the right of self-determination means.) General Assembly resolutions, as will be
explained later in this text, are not of themselves binding as international laws. They are,
nonetheless, definitive expressions of the opinions of the international community and can
become binding through time if complemented by the subsequent practice of States. In short,
these resolutions are important.

Two very important General Assembly resolutions make reference to the right of peoples to self-
determination. The first, passed in 1960, is the Declaration on the Granting of Independence to
Colonial Countries and Peoples. The resolution repeats the language of the ICCPR and ICESCR
in paragraph 2: “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.” More importantly, the resolution in paragraph 6 seems to resolve the conflict
between self-determination and territorial integrity in favor of territorial integrity: “Any attempt
aimed 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 Charter of the United Nations…”
The second resolution, passed in 1970, is the Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter
of the United Nations. This resolution seems to reinstate the tension between self-determination
and territorial integrity. It first explains that, “The establishment of a sovereign and independent
State, the free association or integration with an independent State or the emergence into any
other political status freely determined by a people constitute modes of implementing the right of
self-determination by that people.” Thus, the right to establish a new State (which implies the
right to secede at least in certain situations) is expressly confirmed. The resolution goes on to
restate the right to territorial integrity, with an added twist: “Nothing in the foregoing paragraphs
shall be construed as authorizing or encouraging any action which would dismember or impair,
totally or in part, the territorial integrity or political unity of sovereign and independent States
conducting themselves in compliance with the principle of equal rights and self-
determination…” (emphasis added). How do we read this? The last part might imply that a
State that does not comply with the principle of equal rights and self-determination (presumably
a State that denies certain political rights to minorities) has forfeited its right to territorial
integrity. So, it is okay for a minority group to secede when the government has denied political
rights to this group? The Canadian Supreme Court took up the exact issue, as will be seen.

Interestingly, Ethiopia deals with these same problems regarding the right of self-determination
in its constitution. Unlike the international instruments, Ethiopia’s Constitution is quite clear
about what the right of self-determination means, who the “people” are who can claim this right,
and how this right can be lawfully exercised. The Constitution states in Article 39 that, “Every
Nation, Nationality and People in Ethiopia has an unconditional right to self-determination,
including the right to secession.” So, at the beginning we know that self-determination includes
the right to secession. The Constitution goes on in the same Article to define “Nations,
Nationalities, and peoples” as “a group of people who have or share a large measure of a
common culture or similar customs, mutual intelligibility of language, belief in a common or
related identities, a common psychological make-up, and who inhabit an identifiable,
predominantly contiguous territory.” Finally, constitutional procedures are established by which
a people may secede. First, a demand for secession must be made by the people and approved by
two-thirds of the legislature of the people. Then the federal government will organize a
referendum on secession which must be approved by a majority vote.
______________________________________________________________________________

The following is an excerpt from a decision by the Canadian Supreme Court on the issue of the
right of the people of Quebec (a province of Canada) to secede from Canada. The student should
note that this is not a decision by an international tribunal and therefore bears less authority as a
definitive statement of international law. The Canadian Supreme Court takes an interesting
approach in its analysis however, and the case helps to clarify some of the issues involved in the
right of self-determination.

This is the first case presented in this text, and for this reason some explanation is necessary to
show the student how to read such cases. Many of the subsequent cases in the text will be cases
before international tribunals like the International Court of Justice, but the student’s reading of
all these cases will be in essence the same.

First, the student should make a note of where the case is being adjudicated, whether in a
national court, before the ICJ, or before some other international tribunal. The student should
know that international tribunals like the ICJ are not bound by their previous decisions. There is
no stare decisis, no slow development of common law in the international system. A decision of
the ICJ is a non-binding source of international law – it is binding on the parties before it in the
particular case but not generally binding on future parties in future cases. Decisions of
international tribunals are extremely persuasive, however, and, with international laws often
being unclear, “the imprimatur of a court attests to [international law’s] jural quality.” (from a
case decided by U.S. Justice Cardozo). In other words, a strong statement by an international
tribunal may mark a previously unclear principle with the authority of law.
The student should read cases in this text very carefully. Cases are models of legal analysis that
the student may follow. Also, in order to criticize cases, the student needs to know more than
just the general conclusions of the Court but how the Court reasoned. There are many ways a
student may organize his or her notes on a particular case. One particular method is suggested
here. The student should write down the basic facts of the case (what the dispute is about), the
procedural posture of the case (what court is hearing the case and how the case got there), the
main issues that the Court is considering, the main points that the Court makes in its analysis of
each issue, and finally the holding of the Court (the answer that the Court gives for the issue
raised). This method will be demonstrated here, but, with the rest of the cases in this text, the
student should do this him or herself.

Reference re Secession of Quebec, Supreme Court of Canada, 1998.

The recognized sources of international law establish that the right to self-determination of a
people is normally fulfilled through internal self-determination – a people's pursuit of its
political, economic, social and cultural development within the framework of an existing state. A
right to external self-determination (which in this case potentially takes the form of the assertion
of a right to unilateral secession) arises in only the most extreme of cases and, even then, under
carefully defined circumstances. External self-determination can be defined as in the following
statement from the Declaration on Friendly Relations as

[t]he establishment of a sovereign and independent State, the free association or

integration with an independent State or the emergence into any other political status
freely determined by a people constitute modes of implementing the right of self-
determination by that people. [Emphasis added.]

The international law principle of self-determination has evolved within a framework of respect
for the territorial integrity of existing states. The various international documents that support the
existence of a people's right to self-determination also contain parallel statements supportive of
the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to
an existing state's territorial integrity or the stability of relations between sovereign states.
The Declaration on Friendly Relations, the Vienna Declaration and the Declaration on the
Occasion of the Fiftieth Anniversary of the United Nations are specific. They state, immediately
after affirming a people's right to determine political, economic, social and cultural issues, that
such rights are not to

be construed as authorizing or encouraging any action that would dismember or impair,

totally or in part, the territorial integrity or political unity of sovereign and independent
States conducting themselves in compliance with the principle of equal rights and self-
determination of peoples and thus possessed of a Government representing the whole
people belonging to the territory without distinction. . . . [Emphasis added.]

Similarly, while the concluding document of the Vienna Meeting in 1989 of the Conference on
Security and Co-operation in Europe on the follow-up to the Helsinki Final Act again refers to
peoples having the right to determine "their internal and external political status" (emphasis
added), that statement is immediately followed by express recognition that the participating
states will at all times act, as stated in the Helsinki Final Act, "in conformity with the purposes
and principles of the Charter of the United Nations and with the relevant norms of international
law, including those relating to territorial integrity of States" (emphasis added). Principle 5 of
the concluding document states that the participating states (including Canada):

. . . confirm their commitment strictly and effectively to observe the principle of the
territorial integrity of States. They will refrain from any violation of this principle and
thus from any action aimed by direct or indirect means, in contravention of the purposes
and principles of the Charter of the United Nations, other obligations under
international law or the provisions of the [Helsinki] Final Act, at violating the territorial
integrity, political independence or the unity of a State. No actions or situations in
contravention of this principle will be recognized as legal by
the participating States. [Emphasis added.]

Accordingly, the reference in the Helsinki Final Act to a people determining its external political
status is interpreted to mean the expression of a people's external political status through the
government of the existing state, save in the exceptional circumstances discussed below. As
noted by Cassese, supra, at p. 287, given the history and textual structure of this document, its
reference to external self-determination simply means that "no territorial or other change can be
brought about by the central authorities of a State that is contrary to the will of the whole people
of that State".

While the International Covenant on Economic, Social and Cultural Rights and the International
Covenant on Civil and Political Rights do not specifically refer to the protection of territorial
integrity, they both define the ambit of the right to self-determination in terms that are normally
attainable within the framework of an existing state. There is no necessary incompatibility
between the maintenance of the territorial integrity of existing states, including Canada, and the
right of a "people" to achieve a full measure of self-determination. A state whose government
represents the whole of the people or peoples resident within its territory, on a basis of equality
and without discrimination, and respects the principles of self-determination in its own internal
arrangements, is entitled to the protection under international law of its territorial integrity.

Accordingly, the general state of international law with respect to the right to self-determination
is that the right operates within the overriding protection granted to the territorial integrity of
"parent" states. However…, there are certain defined contexts within which the right to the self-
determination of peoples does allow that right to be exercised "externally", which, in the context
of this Reference, would potentially mean secession…

The right of colonial peoples to exercise their right to self-determination by breaking away from
the "imperial" power is now undisputed, but is irrelevant to this Reference.

The other clear case where a right to external self-determination accrues is where a people is
subject to alien subjugation, domination or exploitation outside a colonial context…

A number of commentators have further asserted that the right to self-determination may ground
a right to unilateral secession in a third circumstance. Although this third circumstance has been
described in several ways, the underlying proposition is that, when a people is blocked from the
meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to
exercise it by secession. The Vienna Declaration requirement that governments represent "the
whole people belonging to the territory without distinction of any kind" adds credence to the
assertion that such a complete blockage may potentially give rise to a right of secession.

Clearly, such a circumstance parallels the other two recognized situations in that the ability of a
people to exercise its right to self-determination internally is somehow being totally frustrated.
While it remains unclear whether this third proposition actually reflects an established
international law standard, it is unnecessary for present purposes to make that determination.
Even assuming that the third circumstance is sufficient to create a right to unilateral secession
under international law, the current Quebec context cannot be said to approach such a threshold.
As stated by the amicus curiae, Addendum to the factum of the amicus curiae, at paras. 15-16:

[TRANSLATION] 15. The Quebec people is not the victim of attacks on its physical
existence or integrity, or of a massive violation of its fundamental rights. The Quebec
people is manifestly not, in the opinion of the amicus curiae, an oppressed people.
For close to 40 of the last 50 years, the Prime Minister of Canada has been a
Quebecer. During this period, Quebecers have held from time to time all the most
important positions in the federal Cabinet. During the 8 years prior to June 1997, the
Prime Minister and the Leader of the Official Opposition in the House of Commons
were both Quebecers. At present, the Prime Minister of Canada, the Right Honourable
Chief Justice and two other members of the Court, the Chief of Staff of the Canadian
Armed Forces and the Canadian ambassador to the United States, not to mention the
Deputy Secretary-General of the United Nations, are all Quebecers…

The population of Quebec cannot plausibly be said to be denied access to government.

Quebecers occupy prominent positions within the government of Canada. Residents of the
province freely make political choices and pursue economic, social and cultural development
within Quebec, across Canada, and throughout the world. The population of Quebec is equitably
represented in legislative, executive and judicial institutions. In short, to reflect the phraseology
of the international documents that address the right to self-determination of peoples, Canada is a
"sovereign and independent state conducting itself in compliance with the principle of equal
rights and self-determination of peoples and thus possessed of a government representing the
whole people belonging to the territory without distinction".

The continuing failure to reach agreement on amendments to the Constitution, while a matter of
concern, does not amount to a denial of self-determination. In the absence of amendments to the
Canadian Constitution, we must look at the constitutional arrangements presently in effect, and
we cannot conclude under current circumstances that those arrangements place Quebecers in a
disadvantaged position within the scope of the international law rule.
______________________________________________________________________________

Facts:
1. Quebecers, French-speaking people of Canada, want to secede from Quebec.
2. They have petitioned the Supreme Court of Canada to confirm their right to secede based on
the self-determination of peoples.
Procedural Posture (note, this information was not included in the excerpt above): The Canadian
Parliament asked the Supreme Court to assess the legality of unilateral secession under the
Canadian Constitution and international law.
Issues:
1. Does a minority people have the right to unilateral secession from the parent State? (If so, in
what circumstances?)
2. Have Quebecers been denied their “internal” right of self-determination such that they have a
basis for their claim for external self-determination?
Analysis:
1. As to the first issue, the Court considered whether secession is legal under international law:
a. Secession is “external” self-determination and is allowed only in carefully defined
circumstances.
b. A State has a right to territorial integrity and, as such, self-determination should
be exercised in such a way as to not conflict with this right.
c. There are three circumstances in which interference with a State’s territorial
integrity (by unilateral secession) may be justified: colonialism; alien subjugation
outside colonial context; and when internal self-determination has been denied.
2. As to the second issue, the Court considered whether Quebecers were given internal self-
determination by the government of Canada
 a. What criteria must be met to have internal self-determination? Access to
government (voting, ability run as a candidate); actual representation in the organs
of government (legislative, executive, and judicial); and maybe actual
representation in the military.
b. Quebecers have been granted their right to internal self-determination. Quebecers
are not “oppressed”; presumably, they can vote and participate in government like
any other Canadian citizen. Quebecers have filled the positions of Prime Minister
of Canada, members of the federal Cabinet, leaders in the House of Commons,
justices of the Supreme Court, and Chief of Staff of the Canadian Armed Forces.

Holding: A minority group may have a right to secession when the right to internal self-
determination has been denied, but in this case the Quebecers have failed to show that they have
been denied their right to internal self-determination and so they cannot secede from Canada.

Questions:
1. Who will determine whether a minority group has been denied the right of internal self-
determination and as such can proceed with its movement for secession? If this
determination is made by the minority group itself, won’t every group claim that it is being
oppressed to some degree? Is there any secessionist movement that claims that it would like
to secede despite the good treatment it has received at the hands of the government?
2. Is the right to vote enough for internal self-determination? Or must a minority group have
actual representation in all branches of government? Must the number of representatives
correspond exactly to the overall percentage of the minority in the population of the country?
If the U.S. is 5% African-American, then must at least 5% of the U.S. Congress be composed
of African-Americans if the U.S. is to claim that it has granted African-Americans the right
of internal self-determination?
3. Do minority groups have a right to a degree of autonomy in their local government? If a
minority group has a great deal of local autonomy, would it matter less that this minority is
not as well represented in the central government?
4. What do we do with social and economic data indicating that a particular minority group has
a lower literacy rate when compared with the majority, or has lower average income than the
 majority, or has lower life expectancy? Do these things indicate a lack of political
representation and a denial of the right to internal self-determination? Remember the
definition of self-determination from the ICCPR, that peoples have a right “to freely pursue
their economic, social and cultural development.”
______________________________________________________________________________
Alfred Rubin, Secession and Self-Determination, 2000.

It would thus seem that despite various treaties, there is no positive law right to secession. The
general multilateral treaty terms referring to national self-determination as a right represent
agreement as to moral or political principle, not legal entitlement… For example, if there is
universal acceptance of a right to reasonable compensation for work done as well as to self-
determination, and the price of self-determination is unemployment until a degree of economic
stability is achieved, there are two inconsistent rights, and which right dominates will depend on
the analyst’s own preferences.

Kristin Henrard and Stefaan Smis, Recent Experiences in South Africa and Ethiopia to
Accommodate Cultural Diversity: A Regained Interest in the Right of Self-Determination,
Journal of African Law, 2000.

…Plural societies and their difficulties inevitably raise the issue of what is the best way to
accommodate the population diversity they are faced with. In view of the fact that, on the one
hand, states basically want to avoid disintegration at all costs while, on the other hand, the
distinctive population groups in the state want their right to identity recognized, it appears crucial
to find ways to achieve unity in diversity in its most optimal balance.
…
…States are generally reluctant to recognize a right to self-determination to population
groups within a state, which can often be qualified as “minorities.” This reluctance is mainly
related to their fear that such a grant might lead to the territorial break-up of the state because it
would amount to a right to secession for these groups, contrary to the right to territorial integrity,
considered as a cornerstone of international law…
…
 …[T]here is no generally accepted let alone firm legal definition of “people.” This
concept is characterized by a certain indefiniteness as it seems doubtful that objective criteria can
be determined to describe it. Brownlie recognizes the continuing doubts and uncertainties about
the definition of the concept “people” but argues that the references to nationalities, peoples,
minorities and indigenous peoples in the debates on the right to self-determination would appear
to be inspired by the same idea. It can, however, not be denied that there are very divergent
opinions as regards the question whether or not and to what extent minorities could be
considered peoples with a right to self-determination…
…
Although the nations, nationalities and peoples have pursuant to the [Ethiopian] Constitution an
“unconditional” right to self-determination, it was the will of the drafters of the Constitution that
the right to self-determination would be exercised through constitutionally established
procedures. It seems that the drafters found their inspiration in the ICCPR and the African
Charter on Human and Peoples’ Rights… Regarding self-determination, the Constitution taken
as a whole is a very progressive document recognizing almost all aspects of the principle, even
those which are still controversial in international law…

……[T]he Constitution uses a mixture of subjective and objective criteria to define the
beneficiaries. In fact, according to the Constitution, a nation, nationality or people is “a group of
people who have or share large measure of a common culture or similar customs, mutual
intelligibility of language, belief in a common or related identities, a common psychological
make-up, and who inhabit an identifiable, predominantly contiguous territory.” Although there
is room for self-identification on other grounds, the core aspect used by the drafters of the
constitution to define the rightholders is a linguistic criterion…
…
…[I]f one compares the definition of the beneficiaries of self-determination in the Constitution
with the term “people” under international law, one must again conclude that the Constitution of
Ethiopia is representative of a progressive school of thought… If there is consensus in
international law… the term “people” refers to the inhabitants of a territorial unit… The
international community is generally reluctant to recognize that people themselves decide upon
their peoplehood for fear of being confronted with secessionary demands. As the Constitution of
Ethiopia explicitly recognizes a right of secession as an expression of self-determination, this
fear for secessionary self-determination is presumably less present in the case of Ethiopia.

Buchanan, The Morality of Secession, 1995.

“…among the strongest arguments and most widely applicable arguments for a right to secede
are the argument for rectificatory justice and the argument from discriminatory redistribution.
Under extreme conditions, secession may also be justified on grounds of self defense, and
perhaps more controversially in some cases where it is necessary for the preservation of a
culture…”

Lea Brilmayer, Commentaries on Lea Brilmayer, Secession and Self-Determination: A

Territorial Interpretation, 2000.

“…Secession…is correctly understood as an appropriate remedy for prior illegal annexation.”

…
“…What matters is not that it is a “people” who are seeking to be free. What matters is that this
group – whether a homogenous “people” or not – has a right to a particular parcel of land, a right
that was wrongfully taken from them by a powerful neighbor.”

Paul Szasz, The Irresistible Forces of Self-Determination Meets the Impregnable Fortress of
Territorial Integrity, 1999.

When the Territorial Integrity of a State is threatened anywhere in the world, other countries
instinctively come to its defense. This is what has happened in respect of Cyprus, which has
been effectively divided between a Northern (Turkish) sector and a Southern (Greek) one since
1974, when both sectors were ethnically cleansed; it is clear that the twenty percent Turks will
not live in a state with a massive Greek majority, but nevertheless the international community is
insisting there can be only one Cyprus – even if the United Nations must patrol the boundary
between the two sectors indefinitely.
…“…My proposition is that when Terrorism becomes so strong that it can no longer be
suppressed without an unacceptable level of State-Terrorism, then the state concerned has, either
as a victim of Violence or as its perpetrator, lost the legitimacy that enables it to insist on its
Territorial Integrity…”

Questions:
1. What if the struggle for self-determination, though justified, will necessarily involve a
temporary stoppage of economic activity and thus a lowering of standards of living in the
entire State? What if the territory that is attempting to secede contains resources which are
vital to the economy of the entire State? In such cases the right of self-determination may
conflict with some other human right, like the right to an adequate standard of living. How
do we choose between two equally authoritative human rights? Can we strike a balance
between the two rights?
2. If “peoples” is defined to include minority groups, how will we determine whether a group
qualifies as a legitimate “minority”? Just because all the members of your Public
International Law class have something in common, can you all be a minority group? Can
you all attempt to secede from the State of Ethiopia? No… Note that the Ethiopian
Constitution deals with this problem by defining minorities largely by language. If you
speak a different language, then you are a minority. But aren’t other types of groups equally
vulnerable to oppression by the central government? What about a religious group or a
political group or even a civil society organization? Then again, why should such minorities
be entitled to their own land and government?
______________________________________________________________________________

African States in particular are sensitive to the issue of self-determination. This is so because
many of the African States are composed of multiple ethnic groups – “peoples” who might make
a claim for self-determination. Consider the following decisions by the African Commission on
Human and Peoples’ Rights. Has Africa taken a different approach to this issue?

Katangese Peoples’ Congress vs. Zaire, African Commission on Human and Peoples’ Rights,
1995.
The Facts
1. The communication was submitted in 1992 by Mr. Gerard Moke, President of the
Katangese Peoples’ Congress requesting the African Commission on Human and Peoples’
Rights to: recognize the Katangese Peoples’ Congress as a liberation movement entitled to
support in the achievement of independence for Katanga; recognize the independence of
Katanga; help secure the evacuation of Zaire from Katanga.

The Law
2. The claim is brought under Article 20(1) of the African Charter on Human Rights’. There
are no allegations of specific breaches of other human rights apart from the claim of the denial of
self-determination.
3. All peoples have a right to self-determination. There may however be controversy as to
the definition of peoples and the content of the right. The issue in the case is not self-
determination for all Zaireoise as a people but specifically for the Katangese. Whether The
Katangese consist of one or more ethnic groups is, for this purpose immaterial and no evidence
has been adduced to that effect.
4. The Commission believes that self-determination may be exercised in any of the
following ways: independence, self-government, local government, federalism, confederalism,
unitarism or any other form of relations that accords with the wishes of the people but fully
cognizant of other recognized principles such as sovereignty and territorial integrity.
5. The Commission is obligated to uphold the sovereignty and territorial integrity of Zaire,
member of the OAU and a party to the African Charter on Human and Peoples’ Rights.
6. In the absence of concrete evidence of violations of human rights to the point that the
territorial integrity of Zaire should be called to question and in the absence of evidence that the
people of Katanga are denied the right to participate in Government as guaranteed by Article
13(1) of the African Charter, the Commission holds the view that Katanga is obliged to exercise
a variant of self-determination that is compatible with the sovereignty and territorial integrity of
Zaire…

Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United
Nations Declaration on the Rights on Indigenous Peoples, 2007.
…the ACHPR [African Commission on Human and Peoples’ Rights] is of the view that, a
definition [of indigenous populations] is not necessary or useful as there is no universally agreed
definition of the term and no single definition can capture the characteristics of indigenous
populations. Rather, it is much more relevant and constructive to try to bring out the main
characteristics allowing the identification of the indigenous populations and communities in
Africa.
…
The concept [used to identify indigenous populations] in effect embodies the following
constitutive elements or characteristics, among others…:
a) Self-identification;
b) A special attachment to and use of their traditional land whereby their ancestral land and
territory have a fundamental importance for their collective physical and cultural survival as
peoples;
c) A state of subjugation, marginalization, dispossession, exclusion, or discrimination because
these peoples have different cultures, ways of life or mode of production than the national
hegemonic and dominant model;

Moreover, in Africa, the term indigenous populations does not mean “first inhabitants” in
reference to aboriginality as opposed to non-African communities or those having come
from elsewhere. This peculiarity distinguishes Africa from the other Continents where native
communities have been almost annihilated by non-native populations. Therefore, the ACHPR
considers that any African can legitimately consider him/herself as indigene to the Continent.
…
Article 3 of the [Draft UN Declaration on the Rights of Indigenous Peoples] specifies that
Indigenous Peoples “freely determine their political status and freely pursue their economic,
social and cultural development.” Article 4 states that ”in the exercise of their right to self-
determination, the indigenous peoples have the right to autonomy or self-government in
everything that concerns their internal and local affairs as well as ways and means to finance
their autonomous activities.”
…
The ACHPR advises that articles 3 and 4 of the Declaration should be read together with Article
46 of the Declaration, which guarantees the inviolability of the integrity of Nation states. Article
46 of the Declaration specifies “that nothing in this Declaration may be interpreted as implying
for any State, people, group or person any right to engage in any activity or to perform any act
contrary to the Charter of the UN”.

In the opinion of the ACHPR, Articles 3 and 4 of the Declaration can be exercised only in the
context of Article 46 of the Declaration which is in conformity with the African Commission’s
jurisprudence on the promotion and protection of the rights of indigenous populations based
on respect of sovereignty, the inviolability of the borders acquired at independence of the
member states and respect for their territorial integrity.

In Africa, the term indigenous populations or communities is not aimed at protecting the
rights of a certain category of citizens over and above others. This notion does not also create
a hierarchy between national communities, but rather tries to guarantee the equal enjoyment of
the rights and freedoms on behalf of groups, which have been historically marginalized.

In this context, Article 20(1) of the African Charter is drafted in similar terms: “all peoples shall
have the right to existence. They shall have the unquestionable and inalienable right to self-
determination. They shall freely determine their political status and shall pursue their economic
and social development according to the policy they have freely chosen”.
…
In its jurisprudence on the rights of peoples to self-determination, the ACHPR, seized of
Communications/Complaints claiming for the enjoyment of this right within State Parties, has
constantly emphasized that these populations could exercise their right to self-determination in
accordance with all the forms and variations which are compatible with the territorial integrity of
State Parties…
…
…[I]f it is taken from the political perspective, the right of Indigenous Populations to self-
determination refers mainly to the management of their “internal and local affairs” and to their
participation as citizens in national affairs on an equal footing with their fellow citizens without
it leading to a total territorial break up which would happen should there be violation of the
territorial integrity of the State Parties. Therefore this mode of attaining the right to self-
determination should not at all be confused with that which issued from the Resolution
1514(XV) of the 14th December 1960 which is applicable to the populations and territories
under colonial dominance or foreign occupation and to which the UN Declaration, which is the
objective of this Advisory opinion, does not refer to at all.

In consequence, the ACHPR is of the view that the right to self-determination in its application
to indigenous populations and communities, both at the UN and regional levels, should be
understood as encompassing a series of rights relative to the full participation in national affairs,
the right to local self-government, the right to recognition so as to be consulted in the drafting of
laws and programs concerning them, to a recognition of their structures and traditional ways of
living as well as the freedom to preserve and promote their culture. It is therefore a collection of
variations in the exercise of the right to self-determination, which are entirely compatible with
the unity, and territorial integrity of State Parties.
…
On the basis of this Advisory Opinion, the ACHPR recommends that African States should
promote an African common position that will inform the United Nations Declaration on the
rights of indigenous peoples with this African perspective so as to consolidate the overall
consensus achieved by the international community on the issue.

Questions:
1. Did the ACHPR in these two cases decide the issue of self-determination differently from the
Supreme Court of Canada? Does the ACHPR recognize the right to secede in cases in which
the right to so-called “internal” self-determination has been denied to indigenous
populations?
2. Note that the ACHPR considers that discrimination or marginalization of a group helps us to
know that the group is in fact an “indigenous population.” The ACHPR goes on to explain
that indigenous populations do not have the right to secede outside of the colonial context.
By implication, if indigenous populations do not have the right to secede, then mere
 “marginalization” or “discrimination” cannot be the basis for seceding from a State. How
will indigenous populations enforce their rights?
3. Note also that the decision by the ACHPR in the Zaire case is somewhat at odds with its
advisory opinion on the UN Declaration on the Rights of Indigenous Peoples. The ACHPR
implied in the Zaire case that, had the Katangese brought evidence of severe human rights
abuses by the government of Zaire, then maybe they could have proven their right to secede:
“In the absence of concrete evidence of violations of human rights to the point that the
territorial integrity of Zaire should be called to question and in the absence of evidence that
the people of Katanga are denied the right to participate in Government as guaranteed by
Article 13(1) of the African Charter, the Commission holds the view that Katanga is obliged
to exercise a variant of self-determination that is compatible with the sovereignty and
territorial integrity of Zaire…”

Part C: State Territory and Borders

The formation of a new State inevitably brings with it the question of where the new State’s
boundaries will be. This problem is well known to Ethiopia, which has an ongoing dispute with
Eritrea (formed in 1993) over their shared border. Such disputes in Africa have been decided by
the principle of uti possidetis, ita possidetis (or just uti possidetis for short), a Latin phrase which
means literally, “[you may] keep what you had.” By this is meant that former colonies, on
gaining independence, will keep the borders established previously by the colonizing power.
The principle applies both to administrative boundaries in territories controlled by one sovereign
(e.g. Italy has two colonies that border one another) and boundaries established by treaty
between two sovereigns (e.g. Italy enters into a treaty with Ethiopia establishing the border
between Italy’s colony and the Ethiopian State). The borders of the new States will be
determined by looking at maps showing the administrative divisions of the colony or by treaties
entered into with the previous colonial power. To give a specific example, the border between
Chad and Niger was determined by the French administrative line that ran between these two
French colonies. The border between Niger and Nigeria, on the other hand, was determined by a
treaty between the French and the British.
That the principle of uti possidetis is still recognized in modern times may be offensive to the
student. After all, what business does France or England have establishing borders for African
States, splitting up previous African political units and ethnic groups? This is not a question of
rights or justice, however. The main problem is that there is no other peaceful way to determine
the territory and borders of States in previously colonized territories. Most people fear that any
alternative to the uti possidetis principle simply would result in endless wars over land. The
Organization of African Unity itself issued an opinion on this crucial matter. “Recognizing
the… necessity of settling, by peaceful means and within a strictly African framework, all
disputes between African States…,” the OAU declared “that all Member States pledge
themselves to respect the frontiers existing on their achievement of national independence.”

The real alternative to uti possidetis would have been to allow each particular ethnic group and
“people” to form a new State at the time of decolonization based on the right of self-
determination. As mentioned before, this is exactly what President Wilson had in mind when he
first articulated the principle of self-determination. For good or for bad, this is not what
happened during decolonization. Presumably, if decolonization had gone this way, there would
have been a lot more fighting in Africa and South America and Asia and a lot more States
formed.

Case Concerning the Frontier Dispute (Burkina Faso v. Mali), ICJ, 1986.

…[T]he principle of uti possidetis seems to have been first invoked and applied in Spanish
America, inasmuch as this was the continent which first witnessed the phenomenon of
decolonization involving the formation of a number of sovereign States on territory formerly
belonging to a single…State. Nevertheless the principle is not a special rule which pertains
solely to one specific system of international law. It is a general principle, which is logically
connected with the phenomenon of the obtaining of independence, wherever it occurs. Its
obvious purpose is to prevent the independence and stability of new States being endangered by
fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the
administering power.
It was for this reason that, as soon as the phenomenon of decolonization characteristic of the
situation in Spanish America in the 19 th century subsequently appeared in Africa in the 20 th
century, the principle of uti possidetis, in the sense described above, fell to be applied…

There are several different aspects to this principle [of uti possidetis]… The first aspect…is
found in the pre-eminence accorded to legal title over effective possession as a basis of
sovereignty… The essence of the principle lies in its primary aim of securing respect for the
territorial boundaries at the moment when independence is achieved. Such territorial boundaries
might be no more than delimitations between different administrative divisions or colonies all
subject to the same sovereign… [as with] the States Parties to the present case, which took shape
within the vast territories of French West Africa. Uti possidetis…upgraded former
administrative delimitations, established during the colonial period, to international frontiers…
…
…[I]t may be wondered how the time-hallowed principle has been able to withstand the new
approaches to international law as expressed in Africa, where the successive attainment of
independence and the emergence of new States have been accompanied by a certain questioning
of traditional international law. At first sight this principle [of uti possidetis] conflicts outright
with another one, the right of peoples to self-determination. In fact, however, the maintenance of
the territorial status quo in Africa is often seen as the wisest course, to preserve what has been
achieved by peoples who have struggled for their independence, and to avoid a disruption which
would deprive the continent of the gains achieved by much sacrifice. The essential requirement
of stability in order to survive, to develop and gradually to consolidate their independence in all
fields, has induced African States judiciously to consent to the respecting of colonial frontiers,
and to take account of it in the interpretation of the principle of self-determination of peoples.

Obiora Chinedu Okafor, After Martyrdom: International Law, Sub-State Groups, and the
Construction of Legitimate Statehood in Africa, 2000.

…The structural crises currently facing these post-colonial states stem from their structural
illegitimacy. Such illegitimacy has derived…from their lack of affinity with constituent sub-
state groups and their origins as external impositions rather than organic entities created through
an internal process of consensus-building…
…
…The [post-colonial African] leaders generally realized that the borders were far from ideal…
Having only just won their independence, [however,] they considered their most urgent mission
to be the construction of cohesive nation-states…
…
…According to Jeffrey Herbst, “…there is widespread agreement that the boundaries [in Africa]
are arbitrary, yet the vast majority of them have remained virtually untouched since the late
1800s, when they were first demarcated.”
…
…Despite this remarkable record [of no conflict between African states]…the post colonial
African state has faced internal crises virtually since the very moment of its independence…
…
Peer review, as used here, is the process of determining state legitimacy…according to the…
“say so” of pre-existing states…Infra-review [on the other hand] requires that the decision-
making process regarding state legitimacy pay significant attention to the say-so of sub-state
groups…
…
…Other states, the so-called peers of the would-be or established state, have traditionally
decided whether to admit a candidate to membership in the family of nations. A would-be or
established state that failed peer review was deemed illegitimate while a state that passed was
automatically legitimate…In the same vein, it did not matter how the candidate state treated its
sub-state groups or any other section of its population…
…
…The type of peer review that traditional international law mandated at least before the era of
the League of Nations, was Eurocentric in nature since it was conducted almost entirely by
European countries who decided amongst themselves which polities qualified as legitimate
states…These European states, influenced by their own historical experiences, ineluctably based
their peer review on a particular set of criteria that were not generally applicable. For example,
they assumed that all states ought to resemble the relatively homogenous European nation-state,
a disposition that formed the basis for launching the nation-building project in most African and
Asian states during the colonial era.
…
…Stabilizing norms of international law, such as uti possidetis and… territorial integrity of
established states, are important expressions of the law’s desire to upwardly homogenize state
populations. Both norms forbid the breakup of socio-culturally fragmented states into smaller
separate states…
…
…Under the contemporary law of the United Nations, threats to national unity and the territorial
integrity of established states still outrank protection of the rights of minority populations…
…
…Strict peer review has allowed many African states to avoid addressing minority rights
and sub-state group autonomy, contributing to the violence that often results from the processes
of state formation, survival and reconfiguration on the continent.
…
…internal legitimacy among a state’s citizenry has mattered far less to those in power than did
the opinion of the pre-existing states.

Questions:
1. Do you think that “legal title” should take precedence over “effective possession” in the
determination of sovereignty, as the ICJ posited in the Burkina Faso case above? Is this
consistent with other international law principles? As we saw previously, having an effective
government is one of the four legal criteria for Statehood. If the central government of a
newly decolonized State has effective control over only part of its territory, then should not
the State consist of only that part of territory?
2. Do you agree with Obiora Okafor that States formed on the basis of colonial boundaries
(according to the principle of uti possidetis) are structurally illegitimate? Does that mean that
“internal crises” are inevitable for post-colonial African States? Why can’t such a State work
to build its legitimacy for all the people in its assigned territory?
3. What is “peer review” according to Okafor? It is true that the criteria for Statehood – and
indeed the continued practice of State recognition – are Eurocentric, i.e. under the
 predominant control of Western countries. But what are the alternatives for determining that
a new entity is a State? Okafor seemingly wants “infra-review,” but this would be to turn the
question of Statehood over to the populace of the newly formed entity. How can we expect
to find a unified voice in the populace? Will there be a vote on whether Statehood has been
achieved for a particular stretch of territory, with the majority prevailing? Seen this way,
infra-review seems rather impractical.
______________________________________________________________________________

Case Concerning the Territorial Dispute (Libya/Chad), ICJ, 1994.

[The Court looked at the 1955 Treaty between Libya and France to determine whether the Treaty
was meant to settle all border questions or whether the Treaty was somehow inconclusive as to
the Aouzou Strip. The Court then looked at the colonial agreements that were incorporated into
the 1955 Treaty and determined the exact boundary line. The Court continued:]

66. Having concluded that a frontier resulted from the 1955 Treaty, and having established
where that frontier lay, the Court is in a position to consider the subsequent attitudes of the
Parties to the question of frontiers. No subsequent agreement, either between France and Libya,
or between Chad and Libya, has called in question the frontier in this region deriving from the
1955 Treaty. On the contrary, if one considers treaties subsequent to the entry into force of the
1955 Treaty, there is support for the proposition that after 1955, the existence of a determined
frontier was accepted and acted upon by the Parties. The Treaty between Libya and Chad of 2
March 1966, like the Treaty of 1955, refers to friendship and neighbourly relations between the
Parties, and deals with frontier questions. Articles 1 and 2 mention "the frontier" between the two
countries, with no suggestion of there being any uncertainty about it. Article 1 deals with order
and security "along the frontier" and Article 2 with the movement of people living "on each side
of the frontier". Article 4 deals with frontier permits and Article 7 with frontier authorities. If a
serious dispute had indeed existed regarding frontiers, eleven years after the conclusion of the
1955 Treaty, one would expect it to have been reflected in the 1966 Treaty…
67. The Agreement on Friendship, Co-operation and Mutual Assistance concluded between
Chad and Libya on 23 December 1972 again speaks in terms of good relations and
neighbourliness, and stresses adherence to the principles and objectives of the Organization of
African Unity, and in Article 6 the parties undertake to make every effort to avoid disputes that
may arise between them. They also pledge themselves to work towards the peaceful resolution of
any problems that may arise between them, so as to accord with the spirit of the Charters of the
Organization of African Unity and the United Nations. A further agreement was concluded
between the two States on 12 August 1974, at a time when the present dispute had reached the
international arena, with complaints having been made by Chad to the United Nations. While
friendship and neighbourliness are again mentioned, Article 2 states that the

frontiers between the two countries are a colonial conception in which the two peoples
and nations had no hand, and this matter should not obstruct their co-operation and
fraternal relations.

The Treaty of Friendship and Alliance that the Parties concluded on 15 June 1980 is one of
mutual assistance in the event of external aggression: Libya agrees to make its economic
potential available for the economic and military rehabilitation of Chad. The Accord between
Libya and Chad of 6 January 1981 also implies the existence of a frontier between those States,
since it provides in Article 11 that:

The two Parties have decided that the frontiers between the Socialist People's Libyan
Arab Jamahiriya and the Republic of Chad shall be opened to permit the unhindered and
unimpeded freedom of movement of Libyan and Chadian nationals, and to weld
together the two fraternal peoples.

68. The Court now turns to the attitudes of the Parties, subsequent to the 1955 Treaty, on
occasions when matters pertinent to the frontiers came up before international fora. Libya
achieved its independence nearly nine years before Chad; during that period. France submitted
reports on this territory to the United Nations General Assembly. The report for 1955… shows
the area of Chad's territory as 1,284,000 square kilometers.... Moreover United Nations
publications from 1960 onward continued to state the area of Chad as 1,284,000 square
kilometres … Libya did not challenge the territorial dimensions of Chad as set out by France.
69. As for Chad, it has consistently adopted the position that it does have a boundary with
Libya, and that the territory of Chad includes the "Aouzou strip", … In 1977 Chad submitted a
complaint to the Organization of African Unity regarding the occupation by Libya of the Aouzou
strip… Before the OAU, Libya's position was, inter alia, that the frontier defined by the Treaty
of 1935 was valid.
70. In 1971, Chad complained in a statement to the United Nations General Assembly that
Libya was interfering in its internal and external affairs. In 1977 it complained that the Aouzou
strip had been under Libyan occupation since 1973. At the General Assembly's thirty-third
session, in 1978, Chad complained to the Assembly of "the occupation by Libya of Aouzou, an
integral part of our territory". In 1977 and 1978, and in each year from 1982 to 1987, Chad
protested to the General Assembly about the encroachment which it alleged that Libya had made
into its territory.

71. By a communication of 9 February 1978, the Head of State of Chad informed the
Security Council that Libya had "to this day supplied no documentation to the OAU to justify its
claims to Aouzou" and had in January 1978 failed to participate at the Committee of Experts (the
Ad Hoc Committee) set up by the OAU. The Permanent Representative of Chad requested the
President of the Security Council to convene a meeting as a matter of urgency to consider the
extremely serious situation then prevailing. Chad repeated its complaints to the Security Council
in 1983, 1985 and 1986. Libya has explained that, since it considered that the Security Council,
being a political forum, was not in a position to judge the merits of the legal problems
surrounding the territorial dispute, it did not attempt to plead its case before the Council. All of
these instances indicate the consistency of Chad's conduct in relation to the location of its
boundary.
72. Article 11 of the 1955 Treaty provides that:
"The present Treaty is concluded for a period of 20 years.

The High Contracting Parties shall be able at all times to enter into consultations with a
view to its revision.

Such consultations shall be compulsory at the end of the ten-year period following its
entry into force.
The present Treaty can be terminated by either Party 20 years after its entry into force,
or at any later time, provided that one year's notice is given to the other Party."
These provisions notwithstanding, the Treaty must, in the view of the Court, be taken to have
determined a permanent frontier. There is nothing in the 1955 Treaty to indicate that the
boundary agreed was to be provisional or temporary; on the contrary it bears all the hallmarks of
finality. The establishment of this boundary is a fact which, from the outset, has had a legal life
of its own, independently of the fate of the 1955 Treaty. Once agreed, the boundary stands, for
any other approach would vitiate the fundamental principle of the stability of boundaries, the
importance of which has been repeatedly emphasized by the Court (Temple of Preah Vihear,
I.C.J. Reports 1962, p. 34; Aegean Sea Continental Shelf, I.C.J. Reports 1978, p. 36).

73. A boundary established by treaty thus achieves a permanence which the treaty itself does
not necessarily enjoy. The treaty can cease to be in force without in any way affecting the
continuance of the boundary. In this instance the Parties have not exercised their option to
terminate the Treaty, but whether or not the option be exercised, the boundary remains. This is
not to say that two States may not by mutual agreement vary the border between them; such a
result can of course be achieved by mutual consent, but when a boundary has been the subject of
agreement, the continued existence of that boundary is not dependent upon the continuing life of
the treaty under which the boundary is agreed…

75. It will be evident from the preceding discussion that the dispute before the Court, whether
described as a territorial dispute or a boundary dispute, is conclusively determined by a Treaty to
which Libya is an original party and Chad a party in succession to France. The Court's
conclusion that the Treaty contains an agreed boundary renders it unnecessary to consider the
history of the "Borderlands" claimed by Libya on the basis of title inherited from the indigenous
people, the Senoussi Order, the Ottoman Empire and Italy. Moreover, in this case, it is Libya, an
original party to the Treaty, rather than a successor State, that contests its resolution of the
territorial or boundary question…
Conference on Yugoslavia Arbitration Commission Opinion No. 3
[The following question was posed to the Arbitration Commission: Can the internal boundaries
between Croatia and Serbia and between Bosnia-Herzegovina and Serbia be regarded as frontiers
in terms of public international law?]

The Committee… takes the view that once the process in the SFRY [Socialist federal Republic
of Yugoslavia] leads to the creation of one or more independent states, the issue of frontiers, in
particular those of the Republics referred to in the question before it, must be resolved in
accordance with the following principles:

First - All external frontiers must be respected in line with the principles stated in the United
Nations Charter, in the Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the Charter of the United Nations…
and in the Helsinki Final Act…
Second - The boundaries between Croatia and Serbia, between Bosnia-Herzegovina and Serbia,
and possibly other adjacent independent states may not be altered except by agreement freely
arrived at.
Third - Except where otherwise agreed, the former boundaries become frontiers protected by
international law. This conclusion follows from the principle of respect for the territorial status
quo and, in particular, from the principle of uti possidetis. Uti possidetis, though initially applied
in settling decolonisation issues in America and Africa, is today recognized as a general
principle, as stated by the International Court of Justice in its Judgment of 22 December 1986 in
the case between Burkina Faso and Mali…:

Nevertheless the principle is not a special rule which pertains solely to one specific
system of international law. It is a general principle, which is logically connected with
the phenomenon of the obtaining of independence, wherever it occurs. Its obvious
purpose is to prevent the independence and stability of new states being endangered by
fratricidal struggles...

The principle applies all the more readily to the Republic since the second and fourth paragraphs
of Article 5 of the Constitution of the SFRY stipulated that the Republics' territories and
boundaries could not be altered without their consent.
Fourth - According to a well-established principle of international law the alteration of existing
frontiers or boundaries by force is not capable of producing any legal effect. This principle is to
be found, for instance, in the Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the Charter of the United Nations…
and in the Helsinki Final Act; it was cited by the Hague Conference on 7 September 1991 and is
enshrined in the draft Convention of 4 November 1991 drawn up by the Conference on
Yugoslavia…

Question:
1. There is so much emphasis on the stability of borders in international law that it seems that
international tribunals are willing to go out of their way to find a basis for upholding any
clearly demarcated border even if its legal grounding is questionable. In the case of the
dissolution of Yugoslavia, the Arbitration Commission applied the principle of uti possidetis
and analogized Yugoslavia to the colonial situation. The argument was that the
administrative borders within the SFRY were similar to the administrative borders between
former colonies under the same sovereign. Does this make sense? Why should new States
emerging from Yugoslav territory respect boundaries established by the federal Yugoslav
government? Would this not make a federal government somewhat hesitant to provide a
minority group with a strong local government and a great deal of local autonomy? The
stronger the administrative boundary surrounding the locality, the better the claim this
locality will have to Statehood.
______________________________________________________________________________

Problem 1: State formation.

The student should attempt to identify all relevant issues of international law in the problems.
For each issue the student should: (1) identify the issue, (2) state the rule, (3) apply the rule to
the facts, and (4) give a brief conclusion. This is the so-called “IRAC” method.
The imaginary State of “Ibex” is composed of two territories, “Fox” territory and “Zebra”
territory. The majority ethnic group in Ibex is the “Horns” who occupy most of the Fox territory.
Zebra’s inhabitants are mostly from the ethnic group the “Stripes” who form a small but vocal
minority in Ibex.

Zebra recently declared its independence from the State of Ibex. Although fighting continues
between the government of Ibex and the Stripes rebels, the people of Zebra have set up a
functioning government complete with a constitution, a governing council, a court system,
policemen, and even a postal service. Unfortunately, the borders of Zebra on all sides are
uncertain, as neighboring States took advantage of the fighting to claim some of Zebra’s
territory. Nonetheless, diplomats from Zebra have been negotiating with these neighboring
States to resolve the border issues, and a solution to some of the problems is likely. Zebra is now
petitioning the international community for recognition as a State.

Ibex stated before the United Nations General Assembly that any recognition of Zebra as a State
would be an illegal interference in the internal affairs of Ibex in violation of the UN Charter.
The Stripes of Zebra responded that they are engaged in a legitimate war of secession based on
their right of self-determination. The Stripes pointed out that their ethnic group has a far lower
average income than that of the majority Horns. The Stripes admitted that they are allowed to
vote in the general elections of Ibex and run for office, but they emphasized that they only
managed to elect a Stripe to national political office one time, as a legislator in a Congress of 200
people. The Stripes said that they have no way to voice their concerns to the Ibex government
and no way to get legislation passed in their favor. They claimed that this was one explanation
for their lower average incomes. Ibex responded that the territory of Zebra has a strong local
government with a great deal of freedom to govern itself. In fact, it was for this reason that
Zebra was capable of starting its rebellion. Ibex argued that it should not be punished for
allowing the Stripes so many political rights and that the Stripes had no right to secede.

Answer to Problem 1
Generally, answers to the problems will not be provided in the text. Instructors may work on the
problems with the students in class. The answers to the first problem are provided here in order
to give the student a better idea of how to answer.

1. Issue: Does Zebra fulfill the four requirements of Statehood? Rule: The requirements of
Statehood are (a) a permanent population, (b) a defined territory, (c) government, and (d)
capacity to enter into relations with the other states. Analysis: Zebra definitely has a
population. It also appears to have a functioning government – although the government
continues its war of secession with Ibex, the government clearly has administrative control
over its territory and performs the normal functions of a government in respect of its
territory. Zebra has demonstrated its capacity to enter into relations with other states by
negotiating with neighbors over their shared borders. The fact that Zebra’s borders are
uncertain does not prevent Zebra from having a defined territory. Conclusion: Zebra has
met the criteria for Statehood.

2. Issue: Is it unlawful for other States to recognize Zebra as a State? Rule: Whether or not to
recognize a new State is at the sovereign discretion of every State. Nonetheless, early
recognition would be unlawful as an illegal interference in the sovereignty of Ibex. In such a
case, the legal criteria of Statehood will be applied more strictly. Analysis: As explained
above, Zebra has satisfied the legal criteria of Statehood. Although fighting between Zebra
and Ibex is on-going, it is clear that it is Zebra and not Ibex that controls all of the ordinary
functions of government in Zebra territory. Conclusion: Other State may recognize Zebra at
their discretion.

3. Issue: Is Zebra right in claiming that the former borders of Ibex should apply as between
Zebra and its neighbors? Rule: The stability of interstate borders is recognized as a general
principle of international law. When a country gains independence, either from colonial
domination or, as in the case of Yugoslavia, from the dissolution of another State, the borders
will be those established by treaty of the predecessor State or those following the internal
administrative units of the predecessor. This is known as the principle of uti possidetis.
 Notably, international law will recognize a border jointly agreed upon by neighboring States
even if the border is a change from that previously established. Analysis: There is no legal
basis given in the problem that would justify the claims of Zebra’s neighbors to the former
territory of Ibex. Presumably, there are colonial treaties that establish the borders of Ibex
conclusively, and, at any rate, it is unlikely that these borders will be upset in contradiction of
the principle of the stability of international borders. In any case, once Zebra settles its
borders by negotiation, this will be recognized by international law. The border between
Ibex and Zebra will correspond to the former administrative border between Fox territory and
Zebra territory. Conclusion: Zebra’s neighbors have no basis in law for disputing their
border with Zebra.
4. Issue: Are the Stripes of Zebra engaged in a legitimate war of self-determination? Rule:
The right of self-determination may include a right to secession, but only under specified
conditions such as colonial domination, other foreign conquest, or denial of certain basic
political rights by the government. Analysis: There is no question of colonial domination or
foreign conquest here. The only justification for secession would be if Ibex denied the
political rights of Stripes peoples living in Ibex. (This issue will be analyzed below.)
Conclusion: Whether or not Zebra’s rebellion was legitimate when it started, it is clear now
that Zebra has become a State. Thus, the rebellion has become a war between States and
self-determination has become an issue of political rhetoric rather than a issue of legal
consequence.
5. Issue: Were the Stripes of Zebra denied their right to internal self-determination? Rule: At
least according to the Canadian Supreme Court, the right to internal self-determination
includes the right to participate meaningfully in politics and the right to actual representation
in the organs of government. The right of self-determination includes also the right to freely
pursue economic development. Analysis: Stripes were allowed to vote and run for office in
Ibex. Whether this constitutes meaningful participation in politics is another matter. The
Stripes were not really a presence at all in Ibex’s Congress. Nonetheless, the Stripes had
significant autonomy in their local government. This may be enough to satisfy the criteria of
meaningful participation. Actual representation in the organs of government by Stripes may
be extremely limited, but the extent of representation actually required by law has never been
clearly established. Finally, the Stripes’ lower level of economic development may indicate
 that Stripes have not been able to get the government of Ibex to address their concerns. This
would show a lack of internal self-determination. On the other hand, the Stripes’ lower
income may be explained by historical inequalities. So long as Ibex is continuing to work to
end inequalities, its territorial sovereignty should be respected. Conclusion: The Stripes’
had significant involvement in the government of Ibex and therefore were not denied their
right of internal self-determination.

2.3 State Succession

There are additional legal issues involved when the political map changes and control over
territory shifts from one State to another. Even if the international community unanimously
recognizes a new State, there remain certain “succession” issues, or in other words issues over
how property and rights will be transferred from the predecessor State to successor States. Will
the new State inherit the treaty obligations of its predecessor? Will the new State inherit
membership in international organizations? Will the new State inherit assets and debts of the
predecessor? Will the new State be responsible for wrongs committed by the predecessor State?

First, a note on vocabulary: “Succession of States” means the replacement of one State by
another in the responsibility for the international relations of territory; a “predecessor” State is
the parent State from which the new State is formed or territory transferred; and a “successor”
State is the new State, the “child” of the predecessor (or the State that inherits territory). To give
a concrete example, the dissolution of the Soviet Union resulted in a Succession of States. The
Soviet Union was the predecessor State; and Russia, Ukraine, Belarus, etc. were the successor
States. The student should note that succession issues arise basically in the same situations that
we dealt with before when considering recognition of States: decolonization, secession of part of
a State, dissolution of an entire State, and merger of two States to form one State. An additional
situation is relevant for succession: the transfer of territory from one State to another (no new
State is formed).

The first point to be made is that a succession of States should not be confused with a succession
of governments. For new governments, there is a simple rule. The new government will inherit
all the rights and obligations of its predecessor government. Some scholars have argued that this
does not make sense, considering that a change in government may be as dramatic, as violent, as
world-altering as a change in States. Why should a communist government that came to power
through a revolution be forced to respect the treaties of the very government it overthrew? Well,
according to international law, that is the way it is.

Unfortunately, international law in relation to succession of States is not clear. In theory, there
are two extreme positions, and in practice there is everything in-between. On the one hand is the
“clean slate” position, which holds that the successor State should assume none of the rights and
obligations of the predecessor State. The successor State starts its life with a “clean slate,” or in
other words with none of the baggage from the predecessor State. On the other hand is the
“continuity” position, which holds that the successor State should assume all the rights and
obligations of the predecessor State. Most of the time our answer to succession issues will fall
somewhere between these two extreme positions.
Even though international law in this area is hopelessly confusing, there is a relatively simple
method that the student can use to analyze succession problems. First, the student must know
some basic principles of contract law. In general, if two parties come to an agreement, the terms
of their agreement will govern any dispute that may arise. On the other hand, if the two parties
have not explained all terms in their agreement, as happens frequently, a domestic Court likely
will apply certain default rules to fill in the gaps. For example, the agreement may be for the
delivery of 100 kilos of mangos to a certain location in Addis Ababa. If the parties forget to
specify the delivery date, the Court may decide to enforce a “reasonable” delivery date, i.e. one
that accords with the business practices of people in this particular business and takes into
account the season for this type of mango, etc.

On the whole, the same is true for succession issues. The student should first look for an
agreement among the affected parties. If for example all the successor States of the Soviet
Union get together and enter into an agreement that clearly distributes the property of the Soviet
Union among all of them, then the student can rely on the terms of this agreement for the
purposes of determining State property for each successor State. If on the other hand there is no
agreement among the successor States, or the agreement is incomplete, then the student should
apply the default rules (which will be explained momentarily), just as in contract cases a Court
will fill in where the parties failed to specify terms.

Another principle of contract law is important here. The parties to a contract cannot make terms
that harm a “third party” who is not part of the agreement. There can be no “third-party
detriment.” The same is true for succession issues. Two successor States cannot get together
and distribute property and debt between them in such a way that harms the interests of another
successor State. Along the same lines, all successor States cannot get together and alter treaty
obligations in such a way that harms the interests of other State parties to the treaty. Obviously,
all successor States cannot get together and agree to cancel all debts of the predecessor. This
would harm third parties – the creditors that loaned the money.
So the objective is to bring all the interested parties to the table and have them conclude an
agreement. This is in reality how most succession issues are resolved. The student should
consider all the possible types of agreement. Predecessor States may negotiate among
themselves and with successors to determine the rights and duties of successors. Such an
agreement is called a devolution agreement. East and West Germany entered into three
devolution agreements to determine the rights and duties of their successor, unified Germany.
Also, in dissolution situations in which the predecessor ceases to exist, all successors may get
together and form an agreement. In cases of treaties successor States may negotiate with other
parties to the treaty on a case-by-case basis. For example, if there is a bilateral treaty between
the predecessor state and the U.S., the successor state and the U.S. can negotiate as to whether
the treaty will apply between them.

In the absence of agreement, the student must look to the default rules for State succession. In
truth, there are few default rules in State succession that have attained the status of international
law. Two important treaties on succession have been created, but few States have joined these
treaties. The first, the Vienna Convention on Succession of States in Respect of Treaties, was
completed in 1978. It has some seventeen members (including Ethiopia) and has entered into
force for these members. The second, the Vienna Convention on Succession of States in Respect
of State Property, Archives, and Debts, was completed in 1983. It is not yet in force for lack of
State signatories. (This means that, even for those States that have signed this treaty, the treaty is
not yet binding on them.) More than anything, the rules in these two treaties are persuasive
authority – the rules will be used to the extent that they provide logical solutions to practical
problems. Nonetheless, the student should note that (1) some scholars think that many of the
rules in these treaties are already binding as international customary laws, and (2) the rules are in
the background of negotiations over succession issues and may tell the parties what to ask for
and create expectations of what they deserve in their agreements. In this way the default rules in
these two treaties can be rather influential.

Let us look now first at the default rules for State succession in respect of treaties. The rules
vary depending on the type of situation. Nonetheless, certain general principles apply. First, the
student should remember that the treaties in question are between a State involved in State
succession (a predecessor State) and other State parties that are “innocent,” i.e. not involved in
this succession. The rules are intended to avoid prejudicing the rights of these innocent parties to
the treaty. Second, and along the same lines, the rules will not be applied if applying them
would somehow go against the underlying object and purpose of the treaty.

If the State is newly independent from foreign domination (for example a former colony that
gains independence), the State generally begins its life with a “clean-slate.” That is, the new
State inherits none of the treaty obligations of its predecessor. Of course, the principle of uti
possidetis still applies, so the new State will be bound by colonial treaties establishing borders.

If the new State is a product of dissolution (for example, successor States to the former
Yugoslavia), default rules for succession in respect of treaties will be more complex. According
to the Vienna Convention, most treaties will pass to the successor States. The question here is
whether the treaty concerns the territory of the successor State. Any treaty that deals with the
entire territory of the predecessor State will apply to all of the successor States. On the other
hand, if the treaty concerns the territory of only one or two successor States, then only those
successor States will be bound by this treaty. For example, the treaty might concern a dam on a
river that flows through only one of five successor States. In this case, only one successor State
will be bound by the treaty terms and the other four successor States will not be bound. Notably,
there are competing rules on this particular point. The U.S. Restatement, for example, says that
the treaties of the predecessor State will not apply to successor States unless the successor State
and the other parties to the treaty agree to be bound. (When faced with competing default rules,
the student simply should make note that international law in this area is not clear and that there
are different options.)

If the situation is not complete dissolution but rather partial dissolution (only part of the
predecessor State breaks off to form a new State, just as Eritrea broke off from Ethiopia), then
very similar rules apply as in a complete dissolution situation. The concern is how to deal with
the predecessor State which continues to exist after the formation of the new State or States.
According to the Vienna Convention, all treaties will continue to apply to the predecessor State
unless it can be shown that “the treaty related only to the territory which has separated from the
predecessor State.”

What if two or more States merge to form one State? The Vienna Convention says, apply all
treaties of the two predecessor States to the successor State, but only in the territory that was
controlled by the particular predecessor that entered into that treaty. According to this rule, the
treaties of East Germany would apply to the unified Germany but only in the territory of the
former East Germany.

Finally, when territory is transferred from one State to another, as for example when Britain
transferred Hong Kong to China, the Vienna Convention’s default rule is to cancel old treaty
obligations for the territory in question and apply the treaties of the acquiring State.
As with treaties, the default rules for property and debt are applied in the absence of an
agreement among the affected parties. For property the main question is, What type of property
is this? According to the Vienna Convention, immovable property will go to the successor State
in which the property is found. An example would be a building or a well or a communications
tower. The successor State that has the land under the building will get the building as well.
This is a logical rule; otherwise, buildings and other structures would have to be removed or
sold. A second category of property is moveable property, but “connected with the activity of
the predecessor State in respect of the territory to which the succession of States relates.” Any
property that we can connect to territory, including currency and state public funds located in the
territory of the successor, probably will stay in the territory where the moveable property is
found. Finally, moveable property not connected to territory (for example, any property outside
the territory or intangibles like bank accounts) will be distributed in some equitable fashion. If
the predecessor State continues to exist after succession, then it will take all moveable property.
(The justification is that this was the State that originally earned the money.) If the predecessor
State ceases to exist, moveable property is distributed equitably (for example, in proportion with
the distribution of debt and considering such factors as the population of the successor, national
income, etc.).

For debt, more than for treaties or property, the parties are likely to come to an agreement and
the default rules will not matter. That said, there are default rules, and they stand in the
background of negotiations. Naturally, successor States would prefer not to pay any debt at all.
Creditor States and organizations generally rely on two means of coercion. First, there is the
threat that if the successor State does not take up its portion of debt, it will not get any future
loans from the international community. Second, there is reliance on the fall-back default rules
that generally preserve the creditors’ rights.

The general rule from the Vienna Convention is that “the State debt of the predecessor State shall
pass to the successor States in equitable proportions, taking into account…the property rights and
interests which pass to the successor States in relation to that State debt.” (This rule will apply in
cases of dissolution, secession of part of territory, and transfer of part of territory.) Here, the rule
is saying that, for example, if the debt is incurred in building a fleet of aircraft, then the successor
State that gets the aircraft should also pay the debt. A more general rule could be applied,
however, that said that debt should pass to each successor in proportion to the total assets of the
predecessor that pass to each successor. (This is done sometimes by agreement but it is not the
default rule – although one supposes that it could be one form of distribution “in equitable
proportions.”.)

The default rules are different for new States emerging from foreign domination and for the
uniting of States. According to the Vienna Convention, States emerging from foreign
domination will inherit none of the debt of their predecessors, and a unified State will inherit all
of the debt of its predecessors.

Paul Williams and Jennifer Harris, State Succession to Debts and Assets: The modern Law
and Policy, 2001.

…[C]reditor states have been less obliged to follow the principles of international law, whereas
successor states generally have been held to those principles by the creditor states or other
successor states.

International law has played an effective role in further preserving the rights of creditor states
and in countenancing reasonable agreements reached by the successor states. In all of the recent
cases of state succession, the creditor states relied upon the international law of pacta sunt
servanda and the 1983 Vienna Convention to require that the successor states were bound by the
debt of the predecessor state and to dictate or consent to an allocation of that debt. This reliance
on international law naturally was coupled with a clear warning that if the successor states
wished to participate in the financial community, they would have to agree to service their
allocation of debt. In the case of the former Czechoslovakia, the creditor states also successfully
relied upon international law to sanction the agreement of the successor states to allocate the debt
on a two-to-one basis.
Although international law provided for the link between the allocation of the debts and assets of
the predecessor state, this link was only established in the cases of the former Soviet Union and
Czechoslovakia upon the initiative and for the benefit of the successor states. With respect to the
former Soviet Union, the creditor states ignored this link and pursued their own interest in joint
and several liability. In the case of the former Yugoslavia, the successor states were unable to
establish a link between the allocation of debts and assets among themselves, and the creditor
states showed no interest in establishing such a link. The lack of interest on the part of creditor
states in establishing a link between the allocation of debts and assets was short-sighted. If such
a link were created, successor states would be more willing and able to service their share of the
debt. Not only would the successor states see the allocation as just and fair, but they would be
able to use or convert their assets in order to generate income to pay the debt.

Similarly, although international law provides for an equitable allocation of debts and assets, it
has not been able to force or dictate an allocation by the successor states in non-consensual
break-ups, nor has it been able to persuade third-party states to become involved in allocating or
preserving the assets for future allocation…

…With respect to debts, it does appear that whether or not the break-up is consensual, the
creditor states will invoke the principles of equitable allocation and consent of creditors to ensure
that the debt is fully allocated in a manner likely to ensure that it is properly serviced…

The enhanced application of the role of international law with respect to succession to the debts
and assets of predecessor states would benefit from: (1) a requirement to consider the allocation
of assets when assigning liability for debts; (2) a detailed definition of an equitable allocation,
with criteria such as proportion of population and economic indicators as employed in the cases
of the former Soviet Union and former Czechoslovakia; (3) a greater willingness and ability of
international legal bodies to articulate and apply the principles of international law and to reject
expedited and vague conclusions; and (4) the rejection of inequitable principles such as joint and
several liability for all successor states regardless of their share of the assets or actual ability to
repay the entire debt of the predecessor state.

Questions:
1. In regard to succession of treaty obligations, should it matter what type of treaty it is? Will
the issues be different for a bilateral treaty (treaty with only two parties) concerning
economic development and a multilateral treaty (treaty with three or more parties)
concerning human rights?
2. Which debt should a successor State inherit? According to the Vienna Convention, the
successor State is liable only for debts owed to other States or international organizations like
the United Nations or World Bank. Others say that the successor should be liable for debts
 owed to private corporations as well (for example, money owed to a foreign corporation for
the construction of highways).
______________________________________________________________________________

Another consideration in the succession of States is, Which successor State will inherit the
predecessor’s membership in international organizations? If Yugoslavia was a member of the
UN, which of Yugoslavia’s successor States will take Yugoslavia’s seat? The simple answer is
that we look to the particular rules of the organization in question. In case of the UN, new States
must reapply for admission. Thus, if a State dissolves, all the successors will have to reapply for
admission to the UN. (Notably, if only a part of a State secedes and the predecessor State
survives – as in the case of Ethiopia and Eritrea – then the predecessor State will retain its
membership in the UN.)

The student should note, however, that, to the extent that we are dealing with a sensitive political
issue, the rules may be bent slightly. For example, the Soviet Union was one of the five
permanent members of the Security Council and thus had a veto power in important matters of
international peace and security. What if, after the dissolution of the Soviet Union, Russia as a
successor State had to reapply for admission to the UN? Presumably, as a newly joined State,
Russia would not be given a permanent seat on the Security Council. This would change the
structure of international power relations dramatically. Therefore, perhaps for this reason, the
UN allowed Russia to take the place of the Soviet Union at the UN. This is not the only time
exceptions have been made. When Pakistan split off from India at the time of independence
from the British, for example, the UN decided to allow India to keep the seat of “British India” at
the UN because India had a larger population than Pakistan. These cases should be contrasted
with what happened to Serbia and Montenegro who, together as the “Federal Republic of
Yugoslavia” (FRY), tried to succeed to Yugoslavia’s seat at the UN after the dissolution of
Yugoslavia. The UN did not permit the FRY to take Yugoslavia’s seat. This left the FRY in an
indeterminate position in the UN until eight years later Slobadan Milosevic’s rule ended and a
new government in FRY reapplied for UN membership.
The last succession issue is a simple succession issue. Successor States do not inherit wrongs
committed by predecessor States. Thus, if there is a case pending against a State before an
international tribunal and that State ceases to exist, the case will be dropped. Successor States
will not inherit liability.
______________________________________________________________________________

Problem 2: State succession.

State P (predecessor) dissolves into States S1, S2, and S3 (successors). State P had property and
outstanding debt. State P also had a treaty with neighboring State N to improve an existing dam
on a river that passed along the border of the two States.

After State P dissolves, States S1, S2, and S3 enter into a devolution agreement. The three States
agree to cancel all outstanding treaties of P relating to economic development in their territories.
The States do not agree, however, on the distribution of P’s assets and debt.
P owned a radio tower that now lies in the territory of S2, one of P’s successors. (A radio tower,
like a building, is affixed to the land.) After P dissolved, S2 sold the tower to a private business
for one million Birr and kept the money.

2.4 Recognition of Governments

Change of government is quite common. In democracies, elections often result in the formation
of new governments. For the purposes of international law, a change in government is not a
problem. As already discussed, the law strongly emphasizes continuity in international
obligations from one government to the next. The international obligations of a State do not
change when the government changes.

Problems may arise when a change in government happens through unconstitutional means, as
for example by revolution or military coup. In such cases, other States’ governments may not
like the new government and may want to change their relations with it. For the most part, this is
a political decision and not a matter of international law. Other governments have various
options for expressing their dissatisfaction with a new government. As an expression of
disapproval, other governments may refuse to recognize the government, cut off diplomatic
contacts, suspend travel to that country, or cut off trade and foreign aid. A further step may be
taken, somewhat more controversial: other governments may refuse to recognize a new
government and continue to recognize the previous government living in exile. After the
communist takeover in China in 1949, the U.S. refused to recognize the new communist
government and continued to recognize the previous government in exile in Taiwan as the
legitimate government of China. This went on until 1979 when the U.S. finally recognized the
communist government. Taiwan even occupied China’s seat at the UN from 1949 until 1971.

Each State has discretion as to how it will conduct its foreign relations. Recognition of new
governments is thus a decision for each State to make on its own. The issue of recognition is
separate from the issue of whether to continue diplomatic relations, travel, and trade. A
government may decide, again at its discretion, to recognize a new government but nonetheless
to cut off diplomatic relations and trade with a new government. A State also may make no
statement as to whether it recognizes or does not recognize a new government.

To the extent that recognition practice affects the internal affairs of a State – as would be the case
if lack of international recognition weakened a new government – it could be argued that
recognition of governments is an interference in the sovereignty of a State. The U.S. for some
time applied the so-called “Tobar Doctrine” which said that, in order to promote democratic
transfers of power, new governments formed by use of force or subversion of legitimate
democracies would not be recognized. The idea was to use recognition practice to promote a
certain type of government in other States. This certainly comes close to interference in another
State’s internal affairs. One aspect of sovereignty is the right to form whatever type of
government a State wants.

In the 1970s the U.S. moved away from this practice: “In recent years, U.S. practice has been to
deemphasize and avoid the use of recognition in cases of changes of governments and to concern
ourselves with the question of whether we wish to have diplomatic relations with the new
governments.” (1977). This is the prevailing view – that it is better not to engage in recognition
practice at all. This view was most strongly expressed in a statement by the Mexican foreign
minister Estrada, reproduced below. It has become known as the “Estrada doctrine.”

Despite the logic and current popularity of the Estrada Doctrine, there are situations when the
international community must determine the legitimacy of a new government. Imagine that a
small band of people takes over the central government of Ethiopia for a very brief period, say a
few months. This band of rebels never controls all the territory of Ethiopia but nonetheless
enters into treaties with other States. Then the legitimate government overthrows the rebels and
comes back into power. The legitimate government probably will not recognize the treaties
entered into by the rebels. But what about the other State parties? Are these treaties binding on
Ethiopia as a matter of international law or not?

For such cases, there are two opposite legal positions that one can take. First, there are the so-
called de jure criteria of governmental legitimacy. The question is, Does the government have a
legal title to govern (based on internal laws)? Going by these criteria, all governments formed
by revolutions are out. This presents obvious problems, considering the number of governments
formed illegally, including the U.S. government which was originally the product of a revolt
from Britain. On the opposite end there are de facto criteria. The only question here is whether
the government has effective control over the State’s territory. This is the accepted approach in
international law, clearly explained by William Howard Taft in his decision in the Tinoco Claims
Arbitration, reproduced below.

In recent years, the United Nations has taken action several times against governments that came
to power unlawfully. For example, in Sierra Leone in 1997 the national army seized power from
the democratically-elected President. The UN condemned this unlawful seizure of power, and
the UN continued to recognize the former democratic government and continued to seat its
delegation. With the help of such actions, the former government was restored to power the
following year. The UN responded similarly to violent changes of government in Haiti,
Afghanistan, and Somalia. In all of these cases the UN refused to recognize de facto
governments but rather, as the U.S. did in the 50s and 60s, continued its recognition of de jure
governments in exile as a means to censure undemocratic transfers of power. It seems as though
the UN is continuing the Tobar Doctrine in a different form.

Statement by the Mexican Foreign Minister Estrada, 1930.

It is a well-known fact that some years ago Mexico suffered, as few nations have, from the
consequences of that doctrine, which allows foreign governments to pass upon the legitimacy or
illegitimacy of the regime existing in another country, with the result that situations arise in
which the legal qualifications or national status of governments or authorities are apparently
made subject to the opinion of foreigners.
…
…[T]he Mexican Government is issuing no declarations in the sense of grants of recognition,
since that nation considers that such a course is an insulting practice and one which, in addition
to the fact that it offends the sovereignty of other nations, implies that judgment of some sort
may be passed upon the internal affairs of those nations by other governments, inasmuch as the
latter assume, in effect, an attitude of criticism, when they decide, favorably or unfavorably, as to
the legal qualifications of foreign regimes.

The Tinoco Claims Arbitration (Great Britain v. Costa Rica), Opinion of William Howard
Taft, 1923.

[The Tinoco government came to power in Costa Rica by military coup and ruled for two years
until the previous government regained control. During this time, the Tinoco government
entered into some international contracts, including one with a British oil company. With the
return of the previous government, these contracts were nullified. Great Britain argued that the
Tinoco government was the government of Costa Rica and that the contracts could not be
nullified.]
The non-recognition by other nations of a government claiming to be a national personality, is
usually appropriate evidence that it has not attained the independence and control entitling it by
international law to be classed as such. But when recognition vel non of a government is by such
nations determined by inquiry, not into its de facto sovereignty and complete governmental
control, but into its illegitimacy or irregularity of origin, their non-recognition loses something of
evidential weight on the issue with which those applying the rules of international law are alone
concerned. What is true of the non-recognition of the United States in its bearing upon the
existence of a de facto government under Tinoco for thirty months is probably in a measure true
of non-recognition by her Allies in the European War. Such non-recognition for any reason,
however, cannot outweigh the evidence disclosed by this record before me as to the de facto
character of Tinoco’s government, according to the standard set by international law.

Second. It is ably and earnestly argued on behalf of Costa Rica that the Tinoco government
cannot be considered a de facto government, because it was not established and maintained in
accord with the constitution of Cost Rica of 1871. To hold that a government which establishes
itself and maintains a peaceful administration, with the acquiescence of the people for a
substantial period of time, does not become a de facto government unless it conforms to a
previous constitution would be to hold that within the rules of international law a revolution
contrary to the fundamental law of the existing government cannot establish a new government.
This cannot be, and is not, true.
…
…The issue is not whether the new government assumes power or conducts its administration
under constitutional limitations established by the people during the incumbency of the
government it has overthrown. The question is, has it really established itself in such a way that
all within its influence recognize its control, and that there is no opposing force assuming to be a
government in its place? Is it discharging its functions as a government usually does, respected
within its own jurisdiction?

Statement by UN Secretary-General Trygve Lie on the Seating of the Communist

Government of China at the UN, 1950.
The Chinese case is unique in the history of the United Nations, not because it involves a
revolutionary change of government, but because it is the first in which two rival governments
exist. It is quite possible that such a situation will occur again in the future and it is highly
desirable to see what principle can be followed in choosing between the rivals. It has been
demonstrated that the principle of numerical preponderance of recognition is inappropriate and
legally incorrect. Is any other principle possible?

It is submitted that the proper principle can be derived by analogy from Article 4 of the Charter.
This Article requires that an applicant for membership must be able and willing to carry out the
obligations of membership. The obligations of membership can be carried out only by
governments which in fact possess the power to do so. Where a revolutionary government
presents itself as representing a State, in rivalry to an existing government, the question at issue
should be which of these two governments in fact is in a position to employ the resources and
direct the people of the State in fulfillment of the obligations of membership. In essence, this
means an inquiry as to whether the new government exercises effective authority within the
territory of the State and is habitually obeyed by the bulk of the population.

If so, it would seem to be appropriate for the United Nations organs, through their collective
action, to accord it the right to represent the State in the Organization, even though the individual
Members of the Organization refuse, and may continue to refuse, to accord it recognition as the
lawful government for reasons which are valid under their national policies.