Territorial Integrity and the Law of Statehood
Vidmar, Jure, The George Washington International Law Review
International law of statehood is marked by two fundamental problems: the inadequacies of the statehood criteria and the shortcomings of both traditional recognition theories-constitutive and declaratory. Based only on the statehood criteria and recognition theories, is it possible to answer whether Kosovo is a State or why Somaliland is not? This Article examines the theory of statehood and the emergence of new States in the postcolonial era. In the contemporary world, almost every territory is an integral part of a sovereign State and is protected in turn by the principle of territorial integrity. This principle does not prevent the emergence of new States, but it does ensure that new States do not emerge automatically once they satisfy the statehood criteria. This Article demonstrates that the prevailing doctrines of the law of statehood do not adequately consider the consequences and legal effects of the principle of territorial integrity. The emergence of a new State in contemporary international law is not dependent upon satisfying the statehood criteria; instead, it requires navigating a political process to overcome a competing claim to territorial integrity.
Suppose a dog was defined as an animal that possesses the following: (a) a snout; (b) four legs; (c) a tail; and (d) the capacity to play with other dogs. This definition accurately describes most dogs, but its adequacy is debatable. Do these criteria alone explain why a cat is a different animal from a dog? Under criterion (c), are dogs with docked tails still dogs?
Definitional criteria are often helpful conceptually but limited practically. Article 1 of the 1933 Montevideo Convention on Rights and Duties of States, which reflects the generally-accepted definition of a State under customary international law,1 provides that "[t]he State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) [the] capacity to enter into relations with other states."2 Applying these criteria, is it possible to determine whether Kosovo3 is a State or why Somaliland4 is not? The Montevideo criteria alone cannot answer these questions, just as the above definition of a dog fails to distinguish between cats and dogs.
Some writers argue that the Montevideo criteria have been supplemented by an additional set of legality-based statehood criteria.5 This amended set of criteria can perhaps explain why certain effective entities, such as Southern Rhodesia,6 were not States in situations of territorial illegality; but in cases like Somaliland, where there is no territorial illegality,7 the additional statehood criteria fail to explain why some effective entities are not States.
The answer could lie in the declaratory nature of international recognition,8 but common practice on this point is conflicting.9 For example, Macedonia became a State in 1992, despite a near universal lack of recognition,10 but Somaliland is still not a State, not even a non-recognized one.
This Article argues that the international law of statehood remains influenced by the nineteenth century perception of "state as effectiveness,"11 as well as by practices of decolonization in which colonial powers were entitled to a claim of territorial integrity in respect of oversees possessions.12 In contemporary international law States emerge differently. Currently, nearly all territories form an integral part of a sovereign State and are, in turn, protected by the principle of territorial integrity.13 This principle does not prevent the emergence of new States,14 but it does ensure that new States do not emerge automatically once they satisfy the statehood criteria. The statehood criteria influence this process but do not produce direct legal effects.
This Article first considers the traditional theories of statehood in Part II and argues that such theories are inadequate in contemporary international law, because they do not take into account the legal effects of the principle of territorial integrity. …