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The state has been considered as the primary subject of international law, a fact that ignores other emerging legal entities, this notwithstanding, this possession of international legal personality cannot be used as a justification of statehood. This is due to the emergence of the so called puppet states which may have international legal personality but may lack in autonomy and independence.
Arguments in favor of this opinion have the idea that the existence of a state is de facto question and not de jure question. The incidence and continuity of statehood is determined by several factors ranging from the legal criterion of statehood to what qualifies states membership to international organization. These notes explain all the aspects of a state and statehood.
Legal Criteria of Statehood
The legal criteria of defining a state as an international legal personality is derived from article 1 of Montevideo convention on rights and duties of a state of the year 1933, which stipulates that a state as a subject of international law should possess the following qualifications:
A state should have permanent population. This is argued along the lines of boundaries or defined territory. This is because physical space is fundamental for the existence of any community or population and both are instrumental in the existence of a state.
For a state to be recognized it should have inhabitants and absence of population imply absence of statehood. This is an undisputable element of a state. Secondly, a state should have a defined territory. A state should have an established political community who must be in control of a particularly territory.
This however cannot be considered a primary requirement of existence of statehood as demonstrated by the recognition of Israel despite its border dispute with Palestine. Albania was also recognized as a state despite lacking settled frontiers. The territorial integrity of states has been eroded by agents of globalization and modern information technology.
The issue of porous borders has emerged as constant threat to states control of territory. Another requirement of statehood is availability of government. A state should have established government of any kind whether democratic or totalitarian system. The government should only be effective to discharge its mandate.
Presence of government just like the matter of territory cannot be used as outright characteristic of statehood since some states regained recognition even before an organized government was in place. Examples are Rwanda, Burundi and Poland who were admitted to the United Nations without governments.
Autonomy or independence is also another qualification of statehood. According to the Montevideo convention, the independence of a state is defined as its ability to enter into relations with other state states. This has been considered by the scholars of international law and jurists to be the right criterion of determining the international legal personality of a state.
However, autonomy which is a measure of existence of a state has been widely eroded by globalization and introduction of the concept of client state or agency state. A client state is that which suffers from interference by a patron state consequently some states have entered into treaties and concessions which at times compromise their jurisdiction and administration in discharge of their mandate.
Independence of under international law is not affected by factors such as federations or association of states. Another qualification of a state is degree of permanence. Time and space are critical elements of existence of a state. The issue of permanence has an element of a state has been questioned. This is because any state that becomes extinct leaves no consequence of legal question.
The willingness to observe international law has also been considered another fundamental element of statehood. This however has been heavily criticized on the basis that once a law is established, its observance becomes a matter of duty and principle rather than choice since international law once formulated becomes binding.
States must also have certain degree of civilization. This element of statehood was added by Hyde who argued that population residing within the state must exhibit certain degree of culture that enables them to observe the general principles of law that governs their relationship with other persons and also to accept to be bound by the same law.
Any society that refuses to be bound by any established law or which does not accept to enter into diplomatic relations with other states is considered to be uncultured. Another fundamental qualification of statehood is sovereignty.
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Sovereignty though often used interchangeably with independence the main distinction is that sovereignty may be used in the case where a state refuses to exercise its own legal capacities in a manner that creates power, rights and privileges in respect of other states. The situation of Germany after the end of World War II, led to criticisms of sovereignty as a criterion of defining statehood.
Last is that a state should really demonstrate as to function as a state. Though this is considered peripheral, but it is necessary requirement of a state. Some states have been known to exist but unnecessary to be regarded as political states. The peace treaty with Germany after World War I created a city of Danzig which was recognized as a state but placed under the guarantee of Poland and the League of Nations.
States Statu Nascendi
States in statu nascendi are those states which have viability, control particular territory but are driven by the desire to attain statehood. These states may at times be regarded as belligerent groups and exile governments who are driven by the desire to self determination. The erosion of territory and effective governments as basic criterion of states has led to the development of states in statu Nascendi.
Illegal occupation and influence of Jus Cogens
Jus cogens imply the principle of self-determination. The impingement of independence and invasion of territory translates into erosion of legal personality of states when it is undertaken outside the premise of international law. The principle of self determination has strengthened the resolute to give belligerent groups and exile governments’ higher status.
Membership of International Organizations and Agencies
The membership of a state to an international organization is based on contractual agreement as agreed upon by founding states. But accession is based on standing order and not a matter of right. Any international organ has the freedom to decide the requirements of membership which are set down in the legal and political instruments of its constituent charter which may or may not factor in the issue of statehood.
Article 4 of the charter of the United Nations states that membership is open to all peace loving states but admission of membership must be first is recommended by the Security Council accepted by the General Assembly.
Identity and Continuity of States
Continuity of states is important and there is general argument that states are not affected by expiry of term of government or when government is driven out of power. Change of government however alters some doctrines and treaty relations among nations. Continuity ensures that legal personality of the state is not affected and certain rights and powers of the state are not altered.
The political development in Eastern Europe where core states succeeded federals led to the introduction of the concept state succession. Sate succession imply that another international personality assumes the place of another international entity either through union or legal annexation. State succession implies ceding rights and powers and leads to change legal status by the concerned states.
Membership to the United Nations is not determined by matters of size, but the conditions set by article 4 of the charter has made it difficult for states like Monaco and San Marino to be members unlike small countries like Costa Rica and Luxembourg which fulfill these requirements. This does not however prevent these states from being international legal persons as these only depend on the ability of any state to fulfill the requirements of statehood.
Increase in cases of secession and breakaways of states has forced the United Nations to consider establishing what referred as associate membership which may lead to some states participating in the general assembly proceedings without vote, be given considerable terms in the contribution of expenses and to access resources of the specialized UN agencies like International Labor Organization.