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Legal personality
An international legal person is capable of possessing international rights and duties and
it has capacity to maintain its rights by bringing international claims.
International organisations, individuals and certain other actors can also possess
(limited) international legal personality.
Peace of Westfailia? Was the start of legal, governed and sovereign entities.
States that exist in precarious ways have shown changes in the faces of many states ie
break up of USSR and Yugoslavia.
“The states 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 international relations
25 member states in 1900’s, 75 round about 20th century, now UN has however many (need
to google)
Articles are considered customary international law – customary international law are
binding rules for all states
Montevideo are considered customary international law criteria for what qualifies a state as
a state.
When the IOC made drafts on articles for states they included independents, the rights to
sovereign equality drafted four years before IOC, jurisdiction and ?
Permanent Population
Means people permanently existing within that place. IE there is always a population in
Edinburgh but people may be from international places. Islands cannot be classed as
permanent populations ie Galapagos cannot be populated – uninhabitable.
Nationality has become an issue due to free movement in EU, globalization. No longer
concered in permanent population. Ethnicity and nationality involved in how states are
formed.
Every individual who, on the date of the succession of states, had the nationality of the
predecessor
Defined territory
Vatican City is .4 square miles but it is considered a state. Massive states include USA, China,
India and Russia. No requirements on minimum or maximum.
Ability to control state may depend on size and control of borders.
The appurtenance of a given area, considered as an entity, in no way governs the precise
delimination of its boundaries.
States do not have precise set boundaries all the time. Court put on record that boundaries
need not be physical.
Government
Increasingly tricky aspect of statehood – one government, government heavily reliant on
other government from another country, appointed by another government.
Effectiveness only examined when a new state is coming into existence – threshold of
Montevideo
States can exercise capacity – trade relations, treaty relations. Depends on remaining
international community. If a state is willing to engage with another one then this is how
capacity takes place. If it does not would not have capacity and probably would not ne
considered a state under Montevideo convention.
Additional Criteria
Independence
- Aaland Island Case
- Island of Palmas arbitration
- Austro German Customs union case
Legitimacy
Soverignity
Permanence
Willingness to observe international law
A certain degree of civilization
Recognition
Legal Order
A new state can only come into existence if it does so independently without help or
existence of from another state.
Legitimacy – how did the state come into being? Did they separate – needed a referendum,
South Sudan, legitimate. Under pressure now.
Willingness to observe international law – only will be recognised they have to abide by the
rules of international law.
Legal Order – one of the most important parts to a state. Does a state have to be a
democracy. May not be the same thing that we subscribe to. Democracy does not work for
some people in the same way. Implicated in a way that can be restrictive to some, can be too
democratic – ie referendum. Democracy can also disguise autocracy. Ie a person can force
people to vote for them and have a 95% majority.
Rule of law is the basis of domestic and international system. Rules are set out in a way that
we know that they exist and are used at both domestic and international level.
Montevideo Convention is a treaty – ratified and binds states that ratified to it. Only ratified
by 43 states. Binding as treaty law – rules within it are for all international community as it is
customary law.