NATIONAL LAW UNIVERSITY,

ODISHA

PUBLIC INTERNATIONAL LAW PROJECT

ON
THE CREATION OF NEW STATES IN INTERNATIONAL LAW
(A brief analysis through the criteria and the process involved in the formation of new States)

SUBMITTED BY: ANKITA DHABU (2013/BBA/009)

ANKITA SEN (2013/BBA/010)
ARCHITA MOHAPATRA (2013/BBA/015)

SUBMITTED TO: PROF. B. HYDERVALI

CREATION OF STATES IN INTERNATIONAL LAW

TABLE OF CONTENTS
TABLE OF AUTHORITIES .............................................................................................................. 3
Introduction ................................................................................................................................ 4
Recognition ................................................................................................................................ 7
a)

The constitutive theory: .............................................................................................. 7

b)

The Declaratory theory: ............................................................................................. 7

The criteria for statehood ........................................................................................................... 8

a)

A permanent population: ........................................................................................... 8

b)

Defined territory : ....................................................................................................... 8

e) Independence: ................................................................................................................ 9
Self determination ...................................................................................................................... 9
Relationship between Self Determination and use of force: ................................................ 11
Other considerations for statehood .......................................................................................... 12
a)

Fundamental human rights: .................................................................................... 12

b)

Democracy as a continuing condition : ................................................................... 12

Miscellaneous situations .......................................................................................................... 13

1)

Entities not claiming to be States: ........................................................................... 13

2)

Puppet States and the 1949 Geneva Conventions : ................................................. 13

3)

Violation of treaties providing for independence: ................................................... 13

a)

The original creation of States on unoccupied territory: ....................................... 14

b)

Dependent States and other Dependent Entities:.................................................... 15

c) Devolution: ................................................................................................................... 15
d)

Secession:.................................................................................................................. 16

e) The various forms of amalgamation or merger into unions of states with distinct
legal personality: ................................................................................................................. 16
CONCLUSION ........................................................................................................................ 18

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TABLE OF AUTHORITIES
CASES
1) Legal Consequences for States for the Continued Presence of South Africa in
Namibia (South West Africa) Notwithstanding SC Resolution 246, 1971, 6, 31.
2) Madzimabamuto v Lardner-Burke (1968) 3 WLR 1229, 1250
3) Knox v Palestine Liberation Organisation,306 F Supp 2 d 424,437
4) AG v Sheng Fu Shen (1959 ) 31 ILR 349
5) Civil Aeronautics Administration v Singapore Airlines Ltd [2004] SGCA 3.
6) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.)
1986, I.C.J. 14, 202.
7) Barcelona Traction Case (Belgium v. Spain) 1970, I.C.J. 3, 33, (Feb. 5).
8) East Timor Case (Portugal v. Australia) 1995 I.C.J. 90, 29 (June 30).
9) Western Sahara, Advisory Opinion, I.C.J. 1975, 12.
10) Corfu Channel Case, 1949, I.C.J. 4, 35.
11) Nottebohm Case, 1955, I.C.J. 4.
BOOKS

1) Malcolm N. Shaw, International Law, 6th edition, 2008.

2) Arthur Watts, Robert Jennings, Oppenheims International Law, 9th edition.
3) Chen, Recognition, 2005.
4) Ian Brownlie, Principles of Public International Law, 8th edition.
5) James Crawford, Creation of States in International Law, 2nd edition.
CONVENTIONS AND TREATIES
1) Montevideo Convention 1933.
2) ILC Articles on State Responsibility, 2001.

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INTRODUCTION
At the beginning of the twentieth century there were some fifty acknowledged
states. Immediately before World War 2 there were about seventy-five. By 2005, there were
almost 200-to be precise, 1921.The emergence of so many new States represents one of the
major political development of the twentieth century. It has changed the character of
international law and the practice of international organisations. It has been one of the more
important sources of international conflict.
The creation of states is a complex process because it is a mixture of facts and laws
which involves the establishment of particular factual conditions and fulfilment of particular
normative criteria of statehood. The creation of states is important not only for a particular
state, but for the international community as a whole. The creation of states is the main topic
in the field of international law and is an important issue because it is the process which has
no end. Almost every day brings more news about new states and problems related with their
statehood, declarations of independence of break-away entities, recognition or nonrecognition of entities aspiring to statehood. One of the recently successfully created states is
South Sudan.
In April the media widely reported on the declaration of independence of an entity
called Azawad in North Mali where the Tuareg rebels proclaimed an independent state.
However, at this point it is important to mention that the creation of new states is almost
always contentious and practically every declaration of independence raises questions
concerning its legality. That is why there is a growing number of unrecognized entities who
seek the right to create new states. Many of them are members of the Unrepresented Nations
and People Organization. Forty seven entities are presently members of this organization.
Unresolved issues related to statehood result in a growing number of unrecognized states,
de facto states, state-like entities, states-within-states and contested states. Some of
those entities aspiring to statehood are not recognized at all (e.g. Somaliland or Puntland),
some 2 are recognized by a number of states, members of the United Nations (e.g. Turkey),
some are recognized, often on the basis of reciprocity, by other unrecognized entities. This,
for instance is the case of South Ossetia and Abkhazia being recognized by Transdnestria.
Recognition of new states is always both legally and politically motivated. From the
1

That is to say, 191 UN Members plus the Vatican City. This does not include Taiwan, Palestine or various
claimant entities

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perspective of existing states, the creation of new state can be sensitive for a number of
reasons. None of the existing states wants to lose her territory or to have its territory and
political independence threatened by the prospect of secession. Consequently, in most of the
cases, the creation of new states leads to internal and international conflicts. Conflicts related
with the creation of new states can also lead to the use of force and, potentially massive
violations of human rights by both the existing states aiming at the preservation of their
statehood and new entities aiming at secession and independence. The right to selfdetermination of the people seems to be one of the most important principles of international
law guiding the creation of new states. In the 21stcentury, problems related to the territorial
status and statehood are likely to be the central point of international disputes.
It has long been inserted that, The formation of a new State is... a matter of fact and
not of law.2This position was supported by a wide spectrum of legal opinion. For example,
one of the most common arguments of the declaratory theory (the theory that statehood is a
legal status independent of recognition) is that, where a State actually exists, the legality of its
creation or existence must be an abstract issue: the law must take account of the new
situation, despite its illegality.3. Where a State does not exist, rules treating it as existing are
pointless, a denial of reality. The criterion must be effectiveness, not legitimacy. On the other
hand, according to the constitutive theory (the theory that rights and duties pertaining to
statehood derive from recognition by other States); the proposition that the existence of a
State is a matter of fact seems axiomatic.
Neither theory of recognition satisfactorily explains modern practice. Fundamentally
the question is whether international law is itself, in one of its most important aspects, a
coherent or complete system of law.4According to predominant nineteenth-century doctrine
there were no rules determining what were States for the purposes of international law; the

Oppenheim (1st edn.) vol. 1,264,209(1)

Cf Chen, Recognition, 38 (a state, if it exists in fact must exist in law).This proposition is a tautology, and the
problem of separate non-State entities was not in issue in the passage cited.
4

Cf Chen, Recognition, 18-19: to argue that a State can become a subject of international law without the
assent of the existing States, it is necessary to assume the existence of an objective system of law to which the
new State owes its being. The point is that if the State owes its existence to a system of law, then that existence
to a system of law, then that existence is not, or not only a fact.

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matter was within the discretion of existing recognized States. The international law of that
period exhibited a formal incoherence that was an expression of its radical decentralisation.5
But if international law is still, more or less, decentralised in terms of its basic
structures, it is generally assumed that it is a formally complete system of law. For example
this is taken to be the case with respect to the use of force6 and nationality,

fields closely

related to the existence and legitimacy of States. This work investigates the question whether,
and to what extent, the formation and existence of states is regulated by international law, and
is not simply a matter of fact.
It is useful to review the changing opinions as the topic since the seventeenth century.
Grotius; Pufendorf, Hobbes and Victoria were among few writers who defined State. They
held different opinions .The basic criterion is that To give a Nation the right to a definite
position in this great society, it need only be truly sovereign and independent... Sovereignty
is acquired by a State, either at the origin of the civil society of which it is composed, or
when it separates itself from the community of which it previously formed a part, and on
which it was dependent. This principle applies as well to internal as to external sovereignty
.But an important distinction is to be noticed. The internal sovereignty of a State does not, in
any degree, depend upon its recognition of other States. A new State, springing into
existence, does not require the recognition of other States to confirm its internal sovereignty
.The external sovereignty of any State, on the other hand, may require recognition by other
States in order to render it perfect and complete. If it desires to enter into that great society of
nations, such recognition becomes essentially necessary to the complete participation of the
new State in all the advantages of this society. Every other State is at liberty to grant, or
refuse this recognition.8

The same incoherence has been noted in respect of the legality of war :Lauterpacht,Recognition,4-5

Cf Charter Art 2 (4); Corfu Channel Case, I.C.J Rep 1949 p4,35

Cf Nottebohm Case,ICJ Rep 1955 p 4

Elements (3rd edn, 1846,), Pt I,ch II S-6.

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RECOGNITION
Although the early writers occasionally dealt with the problems of recognition, it had
no separate place in the law of nations before the middle of the eighteenth century. The
reason for this was clear: sovereignty, in its origin merely the location of supreme power
within a particular territorial unit necessarily came from within and did not require the
recognition of the other States. But this was a temporary accommodation. It is against this
background that the modern law of statehood and its relation with recognition must be
examined.
Article 69 defines it as- The recognition of a state merely signifies that the state which
recognizes it accepts the personality of the other with all the rights and duties determined by
international law. Recognition is unconditional and irrevocable. There are two theories
underlying the recognition concept:
a)

The constitutive theory:

The constitutive theory was the standard nineteenth-century model of statehood. In the
constitutive theory, a state exists exclusively via recognition by other states. The theory splits
on whether this recognition requires "diplomatic recognition" or merely "recognition of
existence". The constitutive theory, although it draws attention to the need for cognition, or
identification, of the subjects of international law, and leaves open the possibility of taking
into account relevant legal principles not based on fact', incorrectly identifies that cognition
with diplomatic recognition, and fails to consider the possibility that identification of new
subjects may be achieved in accordance with general rules or principles rather than on an ad
hoc, discretionary basis.

b)

The Declaratory theory:

The declaratory theory was developed in the twentieth century to address shortcomings of the
constitutive theory. According to declaratory theory, recognition of a new State is apolitical
act, which is, in principle, independent of the existence of the new State as a subject of
international law10.

In the declaratory theory of statehood, an entity becomes a state as soon as it meets the

Article-6, The Montevideo Convention on Statehood of 1933

Chen, Recognition, 78

10

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minimal criteria for statehood. Therefore recognition by other states is purely "declaratory".
Neither theory of recognition satisfactorily explains modern practice. The declaratory theory
assumes that territorial entities can readily, by virtue of their mere existence, be classified as
having one particular legal status: it thus, in a way, confuses fact' with law'. For, even if
effectiveness is the dominant principle, it must nonetheless be a legal principle. And the
declaratory theorist's equation of fact with law also obscures the possibility that the creation
of States might be regulated by rules predicated on other fundamental principlesa
possibility that, as we shall see, now exists as a matter of international law

THE CRITERIA FOR STATEHOOD

The best known formulation of the basic criteria for statehood that laid down in
Article I of the Montevideo Convention on the Rights and Duties of States,1933: The State
as a person of international law should possess the following qualifications :
a)

A permanent population:

If States are territorial entities, they are also aggregates of individuals, and thus require a
permanent population: it is not a rule relating to the nationality of that population. Persons
could very well be regarded as nationals of a particular State for international purposes before
the State concerned had established rules for granting or determining its nationality. In the
absence of any treaty, a new State is not obliged to extend its nationality to all persons
resident on its territory.

b)

Defined territory :

A state must possess some territory, though there is no rule prescribing the minimum area of
that territory.11Nor is there any rule requiring the contiguity of the territory of the State. The
separation of East Prussia from Germany between 1919 and 1945,of East Pakistan from West
Pakistan before 1971,or of Alaska from the lower Forty-Eight cast no doubt on the
statehood of Germany, Pakistan or the United States

c)

Government:

11

Frank and Hoffman (1976) 8 NYUJIL 331,384-4 (infinitesimal smallness has never been seen as a reason to
deny self determination to a population).

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This is regarded as central to it s claim to statehood. Government or effective government
is evidently a basis for the other central criterion of independence12.Governmental authority
is the basis for normal inter-State relations; what is an act of a State is defined primarily by
reference to its organs of government, legislative, executive or judicial.13

d)

Capacity to enter into relations with other States:

Capacity to enter into relations with States at the international level is no longer, if it ever was
an exclusive State prerogative.

14

It depends partly on the power of internal government of a

territory, without which international obligations may not be carried into effect, and partly on
the entity concerned being separate for the purpose of international relations so that no other
entity both carries out and accepts responsibility for them.

e)

Independence:

Independence is the central criterion for statehood.15 Different legal consequences may be
attached to lack of independence in specific cases .Lack of Independence may be so complete
that the entity concerned is not a State but an internationally distinguishable part of another
dominant State or an entity may be independent in some basic sense but act in a specific
matter under the control of another State so that the relation becomes one of agency, and the
responsibility of the latter State is attracted for the acts of the former.16

SELF DETERMINATION
An obvious area for inquiry is the relation between statehood and self determination: self
determination is at the most basic level, a principle concerned with the right to be a State.
This concept has been recognised as en erga omnes principle which the nation owes to the
international community as a whole.17 Our Aim is to look and determine whether self
determination has become criterion of statehood; and if so, with what effects...This principle
is firmly established in international law, in particular in relation to territories of colonial
12

For present purposes, government is treated as the exercise of authority with respect with respect to persons
and property within the territory of the State.
13
See ARSIWA 2001, Arts 4-7 for the normal situation of responsibility for acts of State organs or agencies.
14
Cf Opinion 1/94,Community Competence to Conclude Certain International Agreements,1994 ECR I-5276
15
See e.g., Higgins,Development,25-42 ; Kamanda, Legal Status of Protectorates,188-91; Verzijl, International
Law, vol II,455-90
16
The ILC Articles on State responsibility avoid the terminology of agency but allow that one State may be
responsible for the conduct of another in several contexts : where the latter acts on the instructions of the former
or under its direction or control in the relevant respect (ARSIWA, Art 8)
17
East Timor Case (Portugal v. Australia) 1995 I.C.J. 90, 29 (June 30).

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type. In Namibia Opinion18,the court said that the subsequent development of international
law in regard to non-self governing territories, as enshrines in the Charter of the United
Nations, made the principle of self determination applicable to all of them(Art 73).This
passage was cited with approval by the court in the Western Sahara case also. The principal
of self determination is not a right applicable just too any group of people desiring political
independence, like sovereignty is a legal principle. The units to which the principle applies
are in the general those territories established and recognise as separate political units; in
particular it applies to the following:

a) Trust and mandated territories, and territories treated as non self-governing under
Chapter XI of the Charter
b) States, excluding for the purpose of the self determination rule those parts of States
which are themselves self determination units as defined
c) Other territories forming distinct political-geographical areas, whose inhabitants are
arbitrarily excluded from any share in the government either of the region or of the
State, to which they belong, with the result that the territory becomes non-self
governing.19
d) Where a self-determination unit is not already a State, it has a right of Selfdetermination: that is, a right to choose its own political organisation. Such right is to
be exercised by the people o the relevant unit without coercion and on the basis of
equality.20
e) It can result either in the independence of the self determining unit as a separate State,
or its incorporation into or association with another State.
f) Matters of self-determination are not within the domestic jurisdiction of the
metropolitan State.

Example: Rhodesia was a State, and that action against it, as based on contrary
preposition, had three prepositions- that it was unlawful; that recognition is constitutive, and
in view of its non-recognition Rhodesia was not a State; or that principle of self
determination in his situation prevented an otherwise effective entity from being regarded as
18

Cf Namibia Opinion Rep 1971 p6, 31.

GA res 1541 (XV),Article 73 e of the Charter of the United Nations
20
See Johnson. Self-determination with the community of Nations, and the early classic studies by Wambaugh,
A Monograph on Plebiscites; Plebiscites since the World War.
19

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a State. In view of the consistent practice referred to, the first position is unacceptable. The
question of recognition as discussed already is in principle declaratory. It must be concluded
reached that Southern Rhodesia was not a State because the minority governments
declaration of independence was and remained internationally a nullity, as a violation of the
principle of self-determination.21
Relationship between Self Determination and use of force:
1) The use of force against a self-determination unit by a metropolitan State is a use of
force against one of the purposes of the United Nations, and a violation of Article 2
paragraph 4 of the Charter
2) Annexation of a self-determination unit by external force in violation of selfdetermination also does not extinguish the right.
3) Assistance by States to local insurgents in a self-determination unit may be
permissible, but in any event, local independence will not be impaired by the receipt
of such external assistance.
4) Where the local unit is a self-determination unit, the presumption against
independence in the case of foreign military intervention may be displaced or
dispelled. There is no prohibition against recognition of a new State which has
emerged in such a situation. The normal criteria for statehood-based on qualified
effectiveness apply.
5) Where a State illegally intervenes in and foments the secession of part of a
metropolitan State other States are under the same duty of non-recognition as in the
case of illegal annexation of territory.22
6) An entity claiming statehood but created during a period of foreign military
occupation will be presumes not to be independent.23

21

The Privy Council in Madzimabamuto v Lardner-Burke (1968) 3 WLR 1229, 1250 did not consider this
position, arguing instead that Southern Rhodesia was not a State because the legitimate government was still
trying to reassert itself.
22
Cf Restatement (3rd), Foreign Relations Law of the United Nations.S-202 (2): A State has an obligation not to
recognise or treat as a State an entity that has attained the qualifications for statehood as a result of a threat or
use of armed force in violation of the United Nations Charter.
23
Knox v Palestine Liberation Organisation,306 F Supp 2 d 424,437 (SDNY,2004)

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OTHER CONSIDERATIONS FOR STATEHOOD

a)

Fundamental human rights:

The Principal of self-determination is itself an aspect of human rights law, but apart

from this, there is so far in modern practice no suggestion that as regards statehood itself,
there exists any criterion requiring regard for fundamental human rights.24 In the Barcelona
Traction Case25 the court differentiated between obligations of a state towards the
international community as a whole and those arising vis-a-vis another state.

b)

Democracy as a continuing condition :

Democratic principle is treated as internal analogue- as conditioning the entitlement to

statehood by reference to some general standard of participation by the people of the State,
for whose security and self expression the State presumably exists. The question of
democracy as an element of international law is not a simple one, especially as it tends to be
debated in terms of the possibility of external imposition, of a people being forced to be
democratic.26Certain features of international law are themselves non-democratic, though
they may well serve other values: the presumption that the executive has comprehensive
power in foreign affairs; the supremacy of international law over national law, even when the
latter is democratically legislated; the conservative aspect of the principle of selfdetermination, especially in is inhibiting effect on changes to established territorial
boundaries (uti possidetis); the principle of non-intervention.27

Thus, there is a room for the insistence on general standards of human rights and of
democratic institutions as an aspect of the stability and legitimacy of a new State. But this has
not matured into a peremptory norm disqualifying an entity from statehood even in the cases
of widespread violations of human rights.28

24

Fawcett (1965-6) 41 BY 103,112 referred to the Rhodesian case as a Systematic denial of civil and political
rights. It is submitted that the relevant rubric is self-determination.
25
Barcelona Traction Case (Belgium v. Spain) 1970, I.C.J. 3, 33, (Feb. 5).
26
Crawford (1993) 64 by 113, and for general review, Marks and Clapham, International Human Rights
Lexicon, 61-70.
27
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.) 1986, I.C.J. 14, 202.
28
Malcolm N. Shaw, International Law, (6th ed. 2008).

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MISCELLANEOUS SITUATIONS
Apart from these, there have been miscellaneous situations where constraints have been said
to arise on State creation, not associated with serious branches peremptory norms which
includes the following:

1)

Entities not claiming to be States:

Statehood is a claim of rights based on a certain factual and legal situation. The case of
Taiwan raises the possibility that an entity which does not claim to be a State, even though it
might otherwise qualify for statehood in accordance with the basic criteria, will not be
regarded as a State.29

2)

Puppet States and the 1949 Geneva Conventions :

There is a presumption that an entity with the formal attributes of a State which is established
by a belligerent occupant is not independent and hence not a State in international law. This
situation arose in Manchuria. As a result of deficiencies in existing international law, the four
Geneva conventions of 1949 were concluded. The creation of puppets as a means of
indirectly violating the international occupations has been outlawed but have branded as
illegal.30Article 47 establishes a categorical rule prohibiting puppet entities from being
created, or from achieving real independence over a period of time, and this view is
confirmed.31

3)

Violation of treaties providing for independence:

A distinction must be made between formal or procedural violations and violations of

material provisions, and in particular of the purposes for or basic conditions upon which
independence is granted. In the former case violations will not affect statehood provided
genuine independence is attained. In the latter the presumption may well be against statehood
in the absence of compliance with the relevant provisions. Where a treaty is of such kind that
it extends beyond the immediate parties, no entity created in violation of material provisions
of the treaty will be recognised as a State.
29

Andorra before 1993 was another possible case of an entity not claiming statehood. The Restatement (Third)
has added as a criterion of statehood that the entity in question makes the claim to be a State. S-201.
30
Identity and Continuity,120
31
ICRC, Commentary (1958) IV,272-4 ;Draper, The Red Cross Conventions,38-9

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MODES OF THE CREATION OF STATES IN INTERNATIONAL LAW:

A categorisation of the various modes of a creation of new States provides a rigid,
over riding formula and includes the following:
a) The original creation of States on unoccupied territory:
At relevant times the position under international law has been the following:
1) Discovery has never been as such a basis of title to territory. The most discovery
could do was to create some priority for the discovering State visa-a vies other
potential colonisers.32Discovery in itself constituted a ground of sovereignty over
lands already occupied is unfolded and ethnocentric.33
2) To determine the status of any given entity in international law, it is necessary to look
at the particular characteristics of that entity, rather than relying on generalised
descriptions such as protectorate or indigenous people.
3) The test that was applied was the existence of a settled system of government with
respect to a particular territory, whether or not the government was civilised,
European or Christian. The position taken by the International Court in Western
Sahara34 was generally the position applied both by the colonisation powers in the
eighteenth and nineteenth centuries and by third states.
4) The principle of inter temporal law requires that transactions completed at a particular
time be judged in accordance with the law in force at that time,
5) The protection given by contemporary international law to indigenous States and their
peoples was very limited. Their status could be recognised but subject to all sorts of
pressures to acquire their land, including the ultimate pressure of war.
6) Unless protectorate arrangements of an international kind remained in force,
indigenous groups who had granted their territory to the colonising

power lost

whatever international status they may have had, from an in international point of
view the treaty of agreement under which the territory is transferred ceased to be an
international agreement at the moment of transfer, by reason of disappearance of one
of the parties

32

Jennings, Acquisition Of territory,4,29

Authority of Pope with respect to undiscovered lands was not even conceded by other Christian Princes
34
Western Sahara, Advisory Opinion, I.C.J. 1975, p.12.
33

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7) Colonisation, direct or indirect, has been the usual method of acquisition and
settlement, however in few cases, new States have been established on territory which
was previously not part of any of the State, or on territory abandoned or ceded by the
previous occupants.35

Examples:
1) Liberia-Despite of the internal problems it was facing, Liberia never became a colony
of any other State and is still an original member of both the league of Nations and the
United
2) Other Examples of this could be the Boer Republics, the free state of the Congo,
Israel, Taiwan etc
b) Dependent States and other Dependent Entities:
There arose a problem in regard to the granting of the territorial status to the dependent
entities. Merely because of their independence, many of these did not qualify as States,
though they possess a legal personality distinct from any other State. With the liberal view
on international personality taken in modern practice including UN membership practice,
the notion of a half sovereign or dependent State is unnecessary. Internatinalisation of a
dependent entity may have several effects. The status of the entity in question is more often
to be determined than in a bilateral arrangement. Apart from this, the status of entity is thus
made the subject of rights and duties between the various signatories: it will thus be
subjected to abrupt and especially unlawful change. The general effect is to consolidate and
possibly to enlarge the extent of local against metropolitan powers.

c)

Devolution:

Two important methods by which new States are formed are the grant of independence by the
previous sovereign ( devolution) and the forcible seizure of independence by the territory in
question (secession).The distinguishing feature is the presence or absence of metropolitan
consent36,although in some circumstances this distinction is formal and even arbitrary.37The
importance of metropolitan consent varies in different situations, especially when the
principle of self-determination is at issue. Grants of independence can take different forms:
35

Verzijl, International Law, vol II,64-5

The term metropolitan refers to the State on whose territory the new State is to be created, and in terms of
the manifestation of consent, to the government of that State.
37
Brownie (1961) 8 Rev Cont L 19, 26-7.
36

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immediate grant (which by far the most common modern method of transfer of governmental
authority) and gradual devolution (used before 1945) or accretion of power in a local unit to
the point where it is eventually seen as a separate State.
The most significant example of independence by gradual devolution is the Ottoman
Empire38, the Philippines39, the French and Netherlands Unions.40
d)

Secession:

Until 1914, secession was the most common method of the creation of new States. Secessionwhich may be defined as the creation of State by the use or threat of force without the consent
of the former sovereign

41

have been frequent and some of these

have succeeded, in

particular Indonesia, North Korea, North Vietnam, Bangladesh. In addition, there are the
exceptional cases of Israel and a putative Palestinian State; the creation or attempted creation
of these States has occurred without the consent of the previous administration and as a result
of armed conflict. The application of the criteria for statehood to situations where statehood is
disputed by the previous sovereign; the relation between third State recognition and status;
the legality of secession in modern international law, and the legal incidents of the process by
which a seceding unit attains international status-these questions calls for a consideration.42

e)

The various forms of amalgamation or merger into unions of states with distinct

legal personality:
The four different kinds of political Union can be classified as: real and personal unions,
federations and confederations.43Apart from the problem of characterisation, the main legal
problems of voluntary union have been those of succession to international obligations. In
most of the cases there is an existence of political union of two or more States with
substantial political and administrative continuity within the entities concerned, and a much
more extensive degree of succession to legal relations-which extends even to membership
in international organisations44- has accordingly been the established practice.45

38

At lug, Turkey and Some Problems of International Law, 108-36.

(1946) 15 DSB 66
40
On the French Union: Critique Francaise, vol II,524-67
41
Cf Marek, Identity And Continuity,62
42
Brilmayer (1991) 16 Yale JIL 177
43
De Jure Nature et Gentium VII, ch 5 (on the Forms of States)
44
OConnell. State Sucession, vol II,190-200
45
OConnell (1963) 39 BY 54
39

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CREATION OF STATES IN INTERNATIONAL LAW

SOME IMPORTANT CASES WHERE APPLICATION OF STATEHOOD WAS IN QUESTION:
Taiwan after various considerations was not considered as a State because it still has not
equivocally asserted its separation from China and is not recognised as a State distinct from
China. Its origins as a consolidated local de facto government in a civil war situation still
continue to affect it. But this does not lead to the conclusion that Taiwan has no status
whatever in international law. Courts faced with specific issues in relation to its status may
treat t it on a de facto basis as a well defined geographical, social, and political entity with a
government having undisputed control of the island.46Conflicts with respect to its limited
status in international law can be reconciled or avoided by interpretation.47Executive
determination that Taiwan is not a State may result in denial of sovereign immunity but the
capacity of Taiwan government instrumentalities to sue and be sued in national courts is
widely accepted.48
Two recent cases, Hong Kong and Macao, show the variety of arrangements that can be made
to secure local autonomy within a framework of the recognition of sovereignty of the
metropolitan State. Both are transitional arrangements, for a minimum term of fifty years.
They are thus unrecognised as States.

46

AG v Sheng Fu Shen (1959 ) 31 ILR 349

US v Shaughnessy,218 F 2nd 316 (2nd Cir 1954 )
48
Civil Aeronautics Administration v Singapore Airlines Ltd [2004] SGCA 3.
47

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CREATION OF STATES IN INTERNATIONAL LAW

CONCLUSION
The criteria for statehood and modern practice, have been examined at length in this project
.The basic problems that need to be addressed involves at first place, the concept of
sovereignty which as a criterion for plenary competence has been rejected .It is unhelpful
since both the legal and the effective capacities, rights, immunities of States may vary widely,
within the limits established by the criteria for separate independence. It is also misleading as
it implies a necessary and overriding omnipotence which States do not possess in law or in
fact.
Secondly, although the criteria for statehood provide a general, applicable standard, the
application of that standard to particular situations where there are conflicting and
controversial claims if at times difficult .Thirdly, while statehood is a legal concept with a
determinate, though flexible content ,it is probably the only such concept in the field of legal
personality49
Finally the application of this last principle to problems of the creation of States requires
some concern. Like the various accepted classifications of non-State entities, these modes of
the creation of States are distinguished here because of relevant common features. For
example, it is useful t distinguish cases of grant of independence by a former sovereign from
cases of forcible seizure, since in the former case the criteria for statehood are likely to be
more readily fulfilled. But these classifications remain in principle ones of convenience, and
a particular entity may achieve statehood in a variety of ways.
What is needed is not a more intrusive intervention doctrine, but more effective measures to
apply international law. These may in the last record involve military intervention, though the
overall record of sustained, successful military intervention is dismal. Above all a systematic
set of measures not involving the use or threat of force ,or the illusory relief provided by an
intervention force, is required-including freer access of third world countries to agricultural
markets, appropriate arrangements for delivery of health care and medicine, and so on for a
better State.

49

Seyersted (1964) 34 Acta Scandinavica 3.

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