The Subjects Of International Law

Introduction

The Montevideo Convention on the Rights and Duties of States is an international treaty signed in 1933 that establishes the definition and rights of statehood. The treaty outlines 4 key criteria for an entity to be considered a “state” under international law:

• A permanent population
• A defined territory
• An effective government
• Capacity to enter into relations with other states

The Montevideo Convention has become one of the foundational doctrines of international law and relations. It arose during a period of turmoil in Latin America, when various entities were claiming independence and statehood. The Convention aimed to provide objective criteria for evaluating these claims and determining which entities truly constituted states. By codifying the attributes of statehood, the Montevideo Convention brought clarity and consistency to processes of state formation and recognition.

The concept of “permanent population” means there must be a stable community of people concentrated in a defined territory. “Defined territory” signifies demarcated borders and jurisdiction over a geographic area. “Effective government” refers to institutional authorities with administrative control and independent governance. “Capacity to enter into relations with other states” indicates the authority to engage with other sovereign entities. These principles continue to guide international law today.

Permanent Population

International law does not prescribe any minimum population required for statehood. Rather, it refers to a permanent population in relative terms - a stable community of people inhabiting a defined territory. The permanence of the population is emphasized more than its size.

Factors that determine whether a population is permanent include:

• The population lives within the defined territory on an ongoing basis. It is not just a temporary or transient group.
• There are close links between the people and the territory, such that the land constitutes their natural habitat and homeland.
• Births significantly outnumber deaths over an extended period, indicating natural population growth rather than just immigration.
• There are means to support the population economically within the territory. The people are not totally dependent on external assistance.
• There is a shared sense of identity, culture and language that binds the community together within the defined borders.
• There are established institutions and governance structures to provide services to the population.

So in summary, international law does not require a minimum population threshold, only that the people inhabiting the territory display the attributes of a stable, permanent community tied to a particular land and able to sustain itself over generations. The population cannot just be a temporary presence.

Defined Territory

A defined territory is a key component of statehood under international law. For an entity to be considered a state, it must have a clearly defined territory over which it exercises full control and authority.

The Montevideo Convention states that a defined territory is one of the four criteria required for statehood, alongside a permanent population, a government, and the capacity to enter into relations with other states.

But what constitutes a defined territory? There are several important elements:

• Recognized borders. The borders of the territory must be clearly delineated and delineated, even if not fully agreed upon by bordering states. Unsettled or disputed borders do not preclude statehood.
• Exclusive control over territory. The state must exercise exclusive authority over the territory without interference from other states. There may be areas of limited control, but overall the state’s territorial control should be undisputed.
• Territory that is habitable and viable. The defined territory should contain habitable territory appropriate for human habitation and economic viability. A defined territory of pure desert or uninhabitable wasteland would be insufficient.
• Contiguous zone. The territorial area should represent a coherent territorial unit, not an unrelated disconnected patchwork of lands. Enclaves or anomalous exclaves may exist, but the core territory must be contiguous.
• Territorial features. Mountains, rivers, coastlines, etc that act as natural demarcations of the territory. While not strictly necessary, they reinforce territorial definition.

Overall, the defined territory requirement for statehood implies an identifiable territorial area under the undisputed control and administration of the state. As long as the territorial boundaries are clear and coherent enough to function effectively as a state, that satisfies the defined territory criterion. Minor uncertainties and disputes do not invalidate an entity’s claim to statehood.

Government

A defined government is a key criterion for statehood under international law. What constitutes a government for statehood?

At a minimum, there must be an authority exercising control over the territory and population. This authority needs to be independent from foreign control.

The government does not necessarily need to have full control or monopoly on the use of force within the territory. However, it must have overall functioning governance institutions and the ability to make collective decisions for the population.

The level of effective governance required is debated. Some argue near total effectiveness is needed, while others contend only partial effectiveness is sufficient if there is a reasonable expectation the authority could achieve full control.

The type of government system or ideology is irrelevant - any form of independent regime with functioning governance can potentially satisfy this criterion. Democracy is not mandatory.

While civil conflict or some regional instability does not negate statehood, the level of chaos must not prevent the central authority from exercising core functions of governance over the claimed territory. If large regions are outside government control, this could undermine the case.

Overall, the government requirement for statehood is assessed by its effectiveness and independence. But perfection is not required - even weak governance could suffice if the authority has reasonable capability for territorial control.

Capacity to Enter into Relations

A state’s capacity to enter into relations with other states is a key component of statehood and sovereignty under international law. This capacity refers to a state’s ability to engage in diplomatic relations and conclude binding international agreements with other states and entities.

For an entity to qualify as a state, it must have the legal competency to become party to international treaties and join international organizations. This requires independent and unhindered authority to sign treaties and exchange diplomats without external approval. A state controls its foreign relations and freely exercises its sovereign will in its interactions with other actors in the international system.

Capacity to enter into relations demonstrates that the state is not subject to external control over its diplomatic engagement. It has the international legal personality to act as a participant in international dialogue and negotiations. This evidences its standing as an equal and autonomous entity entitled to sovereign rights and privileges.

A state’s treaty-making power affirms its status under international law. By being able to independently negotiate, sign, ratify, and abide by treaties, the state shows it possesses original sovereignty and full jurisdiction over its territorial domain and population. This capacity for international agency is an essential criteria for statehood.

Sovereignty

Sovereignty refers to the full right and power of a governing body over itself, without any interference from outside sources or bodies. It is a core concept in international law and relations that has developed over centuries.

Some key elements that comprise sovereignty are:

• Independence: The governing authority exercises the right to independently make decisions and govern the territory under its control without outside influence. This includes the right to create laws and policies.
• Territorial authority: Sovereignty extends over a defined territory, within which the governing authority exercises full legal rights and powers. This includes asserting jurisdiction, collecting taxes, using force, and other governing functions within the territory.
• Territorial integrity: Other states have a duty to respect the territorial integrity and borders of a sovereign state. This means refraining from violating or annexing the territory without permission.
• Full and exclusive authority: The sovereign has absolute, non-divisible authority within its territory. No other authority is above it or has power within its borders.
• Equality: All sovereign states are juridically equal despite differences in size, power, wealth, etc.

The modern conception of sovereignty is often traced to the 1648 Treaty of Westphalia, which established sovereignty as the right of states to manage their own affairs internally and externally without outside interference. It remains a cornerstone of international law and diplomacy.

Self-Determination

The concept of self-determination refers to the right of peoples to freely determine their political status and freely pursue their economic, social and cultural development. The modern understanding of self-determination traces back to the Age of Enlightenment in the 18th century, when Western political philosophers developed ideas about individual liberty and the rights of man.

Several key historical developments helped advance the concept of self-determination:

• The American Declaration of Independence in 1776 declared that governments derived “their just powers from the consent of the governed.” This established the principle that people have the right to consent to their government.
• The French Revolution in 1789 popularized the ideals of liberty, equality and brotherhood. This fueled nationalist movements across Europe.
• U.S. President Woodrow Wilson advocated self-determination in his Fourteen Points speech in 1918. This speech called for allowing groups claiming nationality in Europe to have autonomous development.
• Wilson’s later Four Principles speech in 1919 argued that groups within nations should have self-determination to decide their national affiliation. This contributed to nationalism and independence movements after World War I.
• The 1941 Atlantic Charter signed by the U.S. and U.K. endorsed the right of all peoples to choose their form of government. This encouraged anti-colonial movements during and after World War II.
• The 1945 UN Charter enshrined self-determination as a guiding principle in Article 1. This paved the way for decolonization and independence for subjugated territories.

Over the 20th century, self-determination evolved from a political principle into a legal right in international law. It remains a complex and controversial concept central to autonomy movements today.

Self-Determination in International Law

The principle of self-determination developed gradually in international law throughout the 20th century. Several key legal instruments and documents enshrined and recognized the right of peoples to self-determination:

• The Atlantic Charter of 1941 set out the Allied vision for the post-war world, emphasizing that territorial adjustments should accord with freely expressed wishes of the peoples concerned.
• The UN Charter of 1945 devoted much attention to self-determination of peoples. Article 1(2) calls for “respect for the principle of equal rights and self-determination of peoples.”
• UN General Assembly Resolution 1514 (XV) of 1960, known as the Declaration on the Granting of Independence to Colonial Countries and Peoples, stated that all peoples have a right to self-determination and proclaimed the need to grant independence to colonial countries and peoples.
• The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both from 1966, enshrine in Article 1 that “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.”
• Helsinki Final Act of 1975 obligates signatories to “respect the equal rights of peoples and their right to self-determination.”

These landmark documents crystallized self-determination as a right in international law and created momentum for decolonization and greater self-governance worldwide.

Self-Determination vs Territorial Integrity

There is often tension between the principles of self-determination and territorial integrity in international relations and international law. On one hand, self-determination is seen as a fundamental human right of peoples to determine their own destiny and governance. This principle is enshrined in key documents like the UN Charter and the International Covenants on Human Rights.

However, the principle of territorial integrity holds that states have sovereignty over their recognized borders and territory. This is also seen as a key principle in the UN Charter’s call for states to refrain from the threat or use of force against each other’s territorial integrity.

Some of the key issues around this tension include:

• Defining who constitutes a “people” with a right to self-determination and struggles over self-determination movements within existing states. There are debates around how to balance minority rights versus territorial integrity.
• Uti possidetis juris principle that maintains newly decolonized states should have the same borders they had as colonies. This upholds territorial integrity but can conflict with ethnic boundaries.
• Secessionist demands and unilateral declarations of independence that cite self-determination but are seen as violating territorial integrity by parent states and sometimes the international community.
• Use of self-determination arguments or territorial integrity norms to justify interference or non-interference in conflicts. States often selectively apply these principles based on their interests and alliances.
• Difficulty balancing competing principles and norms. The ICJ noted this tension in its Kosovo advisory opinion, arguing resolution requires case-by-case assessment based on applicable law.

There are strong legal, political and ethical arguments on both sides of this issue. Ultimately, balancing these competing imperatives remains a complex challenge in upholding stability and rights in the international order.

Conclusion

In summary, several key concepts related to statehood and self-determination in international law have been explored. The Montevideo Convention outlined the four criteria for statehood - permanent population, defined territory, government, and capacity to enter into international relations. Sovereignty is recognized as a core attribute of statehood, encompassing independence, territorial authority, and integrity.

The principle of self-determination gained increasing prominence through the American and French revolutions, Woodrow Wilson’s Fourteen Points, and the UN Charter. However, tension exists between the right to self-determination and territorial integrity of existing states. International law has aimed to balance these competing imperatives through concepts like uti possidetis juris and agreements like the Helsinki Final Act.

Overall, statehood and self-determination remain complex and evolving areas of international law and relations. This examination provides a high-level overview of major principles and debates involved. Further analysis could explore specific case studies and implications for contemporary global affairs. At minimum, it is clear these foundational concepts continue to shape interactions between peoples, territories, and sovereign states in the international system.