Criteria For Statehood Research Articles

The Rationale of Turkish Cypriot Position on Two-State Solution in Cyprus

This article examines the rationale behind the Turkish Cypriot position on the Two-State solution in Cyprus. The analysis consists of three interrelated parts. Initially, the question of whether Turkish Cypriots are entitled to ‘peoplehood’ that can exercise the right of self-determination according to international law is discussed. This is followed by evaluating the reasons driving the Turkish Cypriot side to exercise the right of self-determination and whether Turkish Republic of Northern Cyprus (TRNC) fulfills the criteria for statehood. In accordance with arguments carried out in the previous sections, the final part delves into the reasons for the Turkish Cypriot position on the Two-State solution in Cyprus in detail. It is argued that Turkish Cypriot people possess all of the attributes of statehood and are entitled to the same rights and status as the Greek Cypriot side currently exercises. Therefore, reinstating Turkish Cypriot people’s rights by reaffirming their sovereign equality and equal international status is necessary for a just and sustainable settlement in Cyprus.

The Problem of Recognition of Palestine in the context of the Palestinian People’s Realization of the Right to Self-Determination

The paper examines the problem of recognition of Palestine in modern international law. International documents and United Nations resolutions adopted on the issue of the conflict in Palestine are analyzed. The author, based on an analysis of international documents, concludes that Palestine meets all the criteria for statehood, but the Israeli occupation prevents the creation of a viable Palestinian state. Despite various efforts being made to reach a solution to the Palestinian issue, the peace process has reached a deadlock. This is facilitated by the policy and practice of the occupying power to consolidate the de facto position of the occupied territories in violation of its legal obligations. To date, Palestine is recognized by more than 138 states and the UN General Assembly has repeatedly confirmed the right to self-determination through resolutions. The efforts of the international community must be intensified to put an end to this irreconcilable conflict, which poses a threat to international peace and security.

Sovereignty as the Axis of State-Making: the Re-sovereignisation of the Republic of China/Taiwan’s South China Sea Claim

Abstract This article proposes to repostulate the sovereignty-statehood complex of the Republic of China (roc/Taiwan)—namely, the dynamism between its full-fledged sovereign capability and its indeterminate statehood—by using a critical-constructivist approach. To counter legal textualism and rigidity, a three-phase approach is developed to address the under-theorisation of this issue by analysing (1) the establishment of a modern nation-state governance system, (2) identifying the national of the nation-state polity, and (3) obtaining democratic authorisation of its sovereign practice. Therefore, a state should not be considered a static edifice but an ongoing process, fraught with re-instantiations of sovereign exercises via consistent practices, through which criteria of statehood can be re-contemplated and refined. The roc/Taiwan’s South China Sea claim thus effectively demonstrates that its re-sovereignisation remains unaccomplished and has produced a stalemate that substantially impacts the roc/Taiwan’s ongoing state-making efforts.

Post-colonial gaslighting and Greenlandic independence: When ontological insecurity sustains hierarchy

This article proposes the concept of ‘post-colonial gaslighting’ to analyse subtle forms of colonialism and domination in international relations and the persistence of hierarchies in the international system. It asks why Greenland, despite electoral majorities for independence, remains a part of the Kingdom of Denmark. Going beyond existing materialist explanations focusing on lack of economic development, the article deploys the framework of ontological insecurity to show how Danish elites through techniques of gaslighting challenge the post-colonial status of Greenland and prevent agency. The Greenlandic colonial experience is rejected and delegitimised, in turn providing the foundation for blaming Greenlanders for failing to live up to the criteria of statehood. The article thus breaks with widespread assumptions of voluntarism in the literature on non-sovereignty, as well as introducing mechanisms of contestation to the literature on ontological security. The theoretical contribution of the article is the conceptual marriage of the hierarchy and ontological security literatures through the concept of post-colonial gaslighting.

Will the ICJ Objectively Assess the Statehood of Palestine? A Brief Reflection

Abstract Is Palestine a state? The International Court of Justice (ICJ) is expected to address this question in the Case concerning Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America) during the preliminary objections stage. In the meanwhile, scholars have discussed possible options that international law can offer to deal with the question of Palestine’s statehood. The suggestions include, for example, state recognition, the Vienna formula, etc. This article, however, envisages that in determining Palestine’s statehood the ICJ is likely to adopt an objective assessment test on the basis of international legal criteria of statehood.

Statehood: A Grotian Moment 2

Abstract Grotian Moments are instances of accelerated formation of customary law, sparked by significant world events, such as wars, terrorism attacks, developments in technology, or natural catastrophes. This article will apply the Grotian Moment theory to the legal criteria of statehood, in an attempt to assess whether an evolution in specific elements of statehood has resulted in such paradigm-shifting Grotian Moments. In particular, this article will argue that the evolving political nature of our world order has contributed toward the need to re-conceptualize the legal theory of statehood. This article will thus posit that this constitutes a so-called Grotian Moment 2: a period of time when significant contestation of prevailing international legal norms and institutions occurs, and when novel thinking, norms and institutions attempt to replace elements of the old but may not succeed in doing so. This article posits that developments in the legal theory of statehood may be best described as Grotian Moment 2 although various historical and political developments have reshaped our contemporaneous conception of statehood, it may be argued that international law itself has neither contributed to the evolution of a new legal theory of statehood nor changed its own norms.

State Continuity in the Absence of Government: The Underlying Rationale in International Law

Abstract The traditional criteria for statehood assume that a state must have a government that enables state effectiveness. In the absence of a separate criterion for state continuity, the ‘constitutive elements’ for state creation have been regarded as also ‘continuative elements’ that preserve a state from extinction. However, practice has shown that a state can continue to exist even in the absence of government, which implies that simple assumptions on state continuity, paralleling rationale developed in the discourse of state creation, are inadequate as an explanatory framework for the situation and should thus be reconsidered. To this end, the article examines the underlying rationale for state continuity in the absence of a government, drawing a distinction between constitutive and continuative elements of statehood. Further, it suggests reframing the element of government as an entitlement belonging to the people and apprehending the state as a legally framed concept that cannot be simply determined by its effectiveness. In so doing, the article explores the role of international law in supporting the legal continuity of the state beyond effectiveness.

Foreign Policy and International Relations of the Principality of Transylvania

The subject of the paper is the international relations and recognition of the Principality of Transylvania. International law requires the existence of three mandatory elements in order to recognize a state. These are territory, population, and sovereign authority over them. If we focus on the Transylvanian state, meeting these requirements will not represent an issue. The interesting question is the fourth but not additional criteria of statehood in international law, international recognition. Without international recognition, a state cannot act as part of the international community, and there will always be a collision between claims of sovereignty by other states. In Transylvanian history, this collision existed with the Habsburg and the Ottoman Empire. The essay shows that the independent Principality of Transylvania had the recognition of other states, also having regular foreign policy and diplomatic relations. To demonstrate this statement, the essay is built on three points and breaks down as follows: the evolution of the state from the Eastern Kingdom of Hungary until the Principality of Transylvania, the foreign policy of the Transylvanian state, its directions and orientations and the international relations of the Transylvanian state, with evidence of state recognition.

1988 – Palestinian Declaration of Independence: A Tale of Poetry and Statehood

In 2018 Palestine instituted proceedings against the United States of America before the International Court of Justice (ICJ) for an alleged breach of the Vienna Convention on Diplomatic Relations (VCDR) after the US administration had relocated its embassy in Israel to Jerusalem. Palestine argues that Jerusalem is outside Israeli state territory and thus outside the ‘receiving state’ of the diplomatic mission. The US, however, had already stated in 2014, when Palestine acceded to the VCDR that Palestine did not qualify as a sovereign state and thus was not capable of acceding to the VCDR. Thus, the background to this dispute is the question of Palestinian statehood and the territorial boundaries of that state. 30 years prior to the start of the proceedings before the ICJ, the Palestinian Liberation Organization (PLO) had declared the independence of Palestine. As part of a series on “100 Years in Review: 10 Stories of International law”, this article revisits the Declaration of independence of 1988 and analyzes whether a Palestinian state has emerged under international law. First, this article provides a brief historical background to the territorial dispute that eventually ushered in the Declaration of Independence. Secondly, it highlights the relevant passages of the Declaration of Independence. Thirdly, it addresses the relevant theoretical legal underpinnings of the Declaration of Independence (self-determination and statehood). Finally, the article addresses whether Palestine fulfilled the criteria of statehood in 1988 or at a later stage.

To Be (a State) or Not to Be?

Abstract One of the traditional criteria for statehood under the Montevideo Convention is that an entity possesses an ‘effective government’. Against this backdrop, this article discusses the impact of belligerent occupation on Palestine’s ability to possess an effective government, and thus fulfil the criteria for statehood. It argues that, as a matter of law, the requirement of effective government should not be interpreted strictly. Statehood does not require an immutable threshold of effectiveness; rather, the criterion has been flexibly interpreted and applied in practice. Belligerent occupation is a factual circumstance calling for such a flexible interpretation. While occupation impairs an occupied entity’s ability to exercise the functions of government, it does not affect statehood. Within the framework of the Rome Statute, the fact that the Court has jurisdiction over situations of belligerent occupation confirms this interpretation. Moreover, when assessing whether an occupied entity meets the criteria for statehood, deficiencies in effectiveness should be weighed against the principle of self-determination and international recognition. Applying those considerations to Palestine’s situation, the conclusion seems warranted that it meets the criteria for statehood under general international law and can thus validly trigger the Court’s jurisdiction to investigate and prosecute alleged crimes committed on its territory.

Palestine v. US before the International Court of Justice?

In December 2017, the administration of President D. Trump decided to move the US embassy in Israel from Tel Aviv to Jerusalem. On 28.09.2018, Palestine initiated proceedings against the US in connection with the said transfer. According to the ICJ Statute, only the parties of concern can take part in the case before the Court. However, it does open the way for non-member countries that had presented a declaration of submission to the Court’s jurisdiction, to observe. If there are any doubts as to the validity or effects of the declarations, they are decided by the ICJ. In the present case, doubts are connected, in particular, with the status of Palestine as a State, with the status of Jerusalem and with the participation in the proceedings of all interested parties. It is unclear whether Palestine meets the criteria of statehood under international law,and the nation is far from being universally recognized. Nor may the GA Resolution 67/19 be viewed as sufficient collective recognition. Furthermore, we do have reasonable doubt as to whether this is sufficient collective recognition to be essentially constitutive of Palestine’s statehood. This situation is not changed by the acceptance by Palestine of the jurisdiction of the ICC nor accession to UNESCO and to a number of international treaties. On the other hand, the jurisdiction of Israel with respect to East Jerusalem is also disputed. Certain international bodies, including the UNSC, have expressed doubts equally regarding the incorporation of Jerusalem into Israel or that Palestine has claim to the city. The mere submission of a claim by Palestine does not prejudge the existence of a legal title to Jerusalem. The legitimation of Palestine to bring to international court a claim is thus disputable under the law on state responsibility. It is probable that the ICJ would avoid rendering a decision on merits of the dispute, doing so by referring to the principle of Monetary Gold that was formulated by the ICJ in a judgment on 15.06.1954 in a dispute between Italy, on the one hand, and Great Britain, France and the US, on the other. The subject of the dispute was the fate of gold owned by the National Bank of Albania, plundered by Germany in Rome in 1943.In accordance with an arrangement concluded at the Paris Conference on German reparations (14.01.1946), all gold found in Germany that was known to have been plundered was to be returned in proportional shares to the States concerned. In the case of Albania, however, difficulties appeared in connection with two issues: claims by some States (in particular Italy) resulting from nationalisation of the National Bank of Albania, and compensation in favour of the UK due to the ICJ judgement in the Corfu Channel. It was disputable whether the gold belonging formerly to Albania could be redistributed among the unsatisfied claimants without the consent of the Albanian State. The Tribunal avoided the problem and decided that it lacked jurisdiction. It refused to render judgment in a situation in which Albania did not participate in the trial; on the other hand, the ICJ has indicated on what terms Albania could join the proceedings. Albania did not meet the conditions, and the Court decided that it was unable to continue the proceeding.

1988 – Palestinian Declaration of Independence: A Tale of Poetry and Statehood

In 2018 Palestine instituted proceedings against the United States of America before the International Court of Justice (ICJ) for an alleged breach of the Vienna Convention on Diplomatic Relations (VCDR) after the US administration had relocated its embassy in Israel to Jerusalem. Palestine argues that Jerusalem is outside Israeli state territory and thus outside the ‘receiving state’ of the diplomatic mission. The US, however, had already stated in 2014, when Palestine acceded to the VCDR that Palestine did not qualify as a sovereign state and thus was not capable of acceding to the VCDR. Thus, the background to this dispute is the question of Palestinian statehood and the territorial boundaries of that state. 30 years prior to the start of the proceedings before the ICJ, the Palestinian Liberation Organization (PLO) had declared the independence of Palestine. As part of a series on “100 Years in Review: 10 Stories of International law”, this article revisits the Declaration of independence of 1988 and analyzes whether a Palestinian state has emerged under international law. First, this article provides a brief historical background to the territorial dispute that eventually ushered in the Declaration of Independence. Secondly, it highlights the relevant passages of the Declaration of Independence. Thirdly, it addresses the relevant theoretical legal underpinnings of the Declaration of Independence (self-determination and statehood). Finally, the article addresses whether Palestine fulfilled the criteria of statehood in 1988 or at a later stage.

POLEMIKE O STATUSU DRŽAVE I KRALJEVINE SHS

The article aims mainly at analyzing the issue of legal (dis)continuity between the Kingdom of Serbia and the Kingdom of Serbs, Croats and Slovenes (hereinafter the Kingdom of SCS) within the context of an international dispute between Germany and the Kingdom of SCS, and to revealing the reasons for different court decisions interpretations in a particular case. By using the techniques of historical-legal and analytical methods in researching into documents and secondary opinions given by politicians and constitutional lawyers, the paper first gives a brief overview of international circumstances that enabled the post-war states formation. It also summarizes different opinions regarding the legal status of the State of SCS and the character of the First-December Act taking into account historical and modern international and constitutional criteria. The conclusion is made in the context of discussion regarding the central issue that Ivan Žolger’s interpretation that despite the verdict in the particular case, the Kingdom of SCS was a new state, since it was not created in accordance with the 1903 Constitution of the Kingdom of Serbia. In addition to the argument that the State of SCS met the basic criteria of statehood, and that the formation of the Kingdom of SCS interrupted the constitutional continuity of the Kingdom of Serbia, the contribution of the paper lies in the argument that different legal opinions were not so much the result of legal ambiguities, but primarily a reflection of one, out of many, political battles fought between the conflicting state ideologies.

Western Sahara as a Hybrid of a Parastate and a State-in-Exile: (Extra)territoriality and the Small Print of Sovereignty in a Context of Frozen Conflict

AbstractThis article argues that the “declarative” parastate of the Sahrawi Arab Democratic Republic (SADR) claiming sovereignty over Western Sahara is better understood as a hybrid between a parastate and a state-in-exile. It relies more on external, “international legal sovereignty,” than on internal, “Westphalian” and “domestic” sovereignty. While its Algerian operational base in the Tindouf refugee camps makes it work as a primarily extraterritorial state-in-exile de facto, the SADR maintains control over one quarter of Western Sahara’s territory proper allowing it to at least partially meet the requirements for declarative statehood de jure. Many case-specific nuances surround the internal sovereignty of the SADR in relation to criteria for statehood: territory, population, and government. However, examining this case in a comparative light reveals similarities with other (secessionist) parastates. The SADR exists within the context of a frozen conflict, where the stalemate has been reinforced by an ineffective internationally brokered peace settlement and the indefinite presence of international peacekeeping forces. Global powers have played a major role in prolonging the conflict’s status quo while the specific resilience of the SADR as a parastate has been ensured by support from Algeria as an external sponsor. The path to sovereignty appears to be blocked in every possible way.

Princes, Armies, Sanctuaries

The Circum-Harz group of the Central German Únětice Culture (2200-1600 BC) was a highly stratified society, which arose from the merging of the Corded Ware and Bell Beaker Cultures. This process was advanced by princes who established their legitimacy as rulers on symbolic references to both cultures as well as on newly created traditions and historical references. Their power was based on armed troops, which appear to have been accommodated in large houses or longhouses. The hierarchical structure of the troops can be determined by both their distinctive weapons and the colours thereof. The prince of the Dieskau territory commanded the largest army and occupied a dominant position, expressed through the large Bornhöck burial mound and by the gold find of Dieskau, which itself most likely originated in the Bornhöck barrow. The article concludes with a discussion whether the Dieskau ruler was an actual head of a genuine state, according to the criteria put forth by Max Weber and Stefan Breuer. There is some indication that these criteria of statehood were fulfilled by the period associated with the Nebra Sky Disk at the latest, since this disk allowed the prince to act as ‘a representative of the gods before the community’ (Breuer 1998, 39).

Princes, Armies, Sanctuaries

The Circum-Harz group of the Central German Únětice Culture (2200-1600 BC) was a highly stratified society, which arose from the merging of the Corded Ware and Bell Beaker Cultures. This process was advanced by princes who established their legitimacy as rulers on symbolic references to both cultures as well as on newly created traditions and historical references. Their power was based on armed troops, which appear to have been accommodated in large houses or longhouses. The hierarchical structure of the troops can be determined by both their distinctive weapons and the colours thereof. The prince of the Dieskau territory commanded the largest army and occupied a dominant position, expressed through the large Bornhöck burial mound and by the gold find of Dieskau, which itself most likely originated in the Bornhöck barrow. The article concludes with a discussion whether the Dieskau ruler was an actual head of a genuine state, according to the criteria put forth by Max Weber and Stefan Breuer. There is some indication that these criteria of statehood were fulfilled by the period associated with the Nebra Sky Disk at the latest, since this disk allowed the prince to act as ‘a representative of the gods before the community’ (Breuer 1998, 39).

The Treachery of Images: Visualizing “Statehood” as a Tactic for the Legitimization of Non-State Actors

ABSTRACT This article establishes that visual displays of sovereignty were central to the escalation and projected legitimacy of a violent non-state actor. Contrary to conventional perspectives, it details that the unprecedented appeal of the so-called Islamic State was tied to a visual projection of statehood. Through an innovative methodology, this study conducts a qualitative, affordance-driven analysis of the global visual politics of Dabiq. It details how photographs taken by Islamic State militants and downloaded from a variety of sources online were strategically utilized as “evidence” of the constitutive criteria of statehood: of a permanent population, a defined territory, a government, and the capacity to enter into relations with other states. It demonstrates that this violent non-state actor utilized the affordances of digital visualizing technologies in order to position itself as a viable and competitive alternative to existing nation-states—as both a destination for migration and a legitimate threat to the established political order. This realization has implications for terrorism studies as well as for the visual politics of non-state actors operating in an era of intense mediatization.

Climate Change and Atoll Island States: Pursuing a ‘Family Resemblance’ Account of Statehood

Abstract‘Climate change inundation’ – the process whereby climate change-related impacts like rising sea levels, higher storm surges, and changing rainfall patterns interact with and exacerbate existing vulnerabilities like poverty, isolation, resource scarcity, and inadequate infrastructure – presents a unique challenge to the territorial, legal, and political infrastructure of low-lying coral atoll island states. This article uses the example of climate change inundation to illustrate some of the shortcomings of the mainstream ‘minimum threshold’ account of statehood. It then proposes an alternative account of the criteria of statehood as a set of overlapping similarities or relationships between state-like entities, drawing on Wittgenstein's concept of ‘family resemblances’. Although problematic in some respects, this family resemblance account provides a broader conceptual space for assessing the merits of alternative forms of statehood.

Scotland/UK Secession: International Legal Considerations

(Masters Thesis) In light of the upcoming 2014 Scottish independence referendum, this paper examines the classical and non-classical criteria of statehood required by international law for regions emerging from existing states by means of independence referendums. Also considered is the effect of legitimacy surrounding the referendum and secession processes on the political disposition of other states towards recognition of a future independent Scottish state.

Statehood, Effectiveness and the Kosovo Declaration of Independence

Although many attempts, States failed to find a general definition of statehood. The most authoritative description of the constitutive elements of statehood is contained in Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States, in which four criteria must be satisfied in judging statehood. They include the requirements that the putative state must occupy a defined territory, must operate effective government over the extent of such territory and must be in possession of a permanent population. Finally, the claimant to statehood must have the capacity to engage in international relations, taken to include the ability to fulfill treaty obligations. These criteria are also referred to as the traditional criteria for statehood. The traditional criteria of statehood are based on 'effectiveness' and such on the Latin maxim 'ex factis jus oritur' which means that certain legal consequences are attached to particular facts. However, the relevance of effectiveness is not, always, complete. State practice shows that a new criterion based on legality has to be taken into consideration in 'exceptional cases'. On 20 February 2008, Kosovo unilaterally declared itself independent. This declaration has been followed by its recognition from a number of States. Nonetheless, the formation of statehood is independent of recognition. In order to become a State, Kosovo has, firstly, to effectively fulfill the requirements of statehood stated in the Montevideo Convention and secondly, to have been created lawfully.