ROZANA BINTI ROSLAN

2011160359 (LWPLK7)

PUBLIC INTERNATIONAL LAW (LAW 510)

TEST 1

Question 1
The test for statehood under International Law is set out in the Montevideo
Convention on Rights and Duties of States (1933), which has now come to be
accepted as stating the customary law in the area. Stated that;
The State as a person of international law should possess the following
qualifications:
(a) A permanent population;
(b) A defined territory;
(c) Government; and
(d) Capacity to enter into relations with other states.
Discuss this Article
(10 marks)

The sources of International Law is Article 38 of the Statue of the International Court
of Justice (ICJ) which provides, the court functions to decide in accordance
international law such as dispute are as submitted to it shall apply international
conventions whether general or particular, establishing rules recognised by the
contesting States and International Custom as evidence of a general practice
accepted as law. Plus, the general of law recognised by civilised nations and subject
to article 59, judicial decisions and the teaching of the most highly qualified publicist
of the various nations. Under article 38(1) (a) of the statue of the ICJ, requires the
court to apply international conventions, whether general or particular, the word
convention means treaty which is an agreement made between two or more states
or other subjects of international law. Treaty is a generic term and that governs
treaties is known as the Law of Treaties. Whereas, under article 38(1) (b) of the ICJ
refers to international custom as evidence of a general practice accepted as law.

This provision makes it clear that there are two essential elements of international
custom which is state practice and opinion juris sive necessitates meaning that
opinion that an act is necessary by rule of law.
In spite of the modern complexities in the concept of international personality, we
have to acknowledge the primacy of states as subjects of international law.
According to Oppenheim : A state proper is in existence when a people is settled in
a territory under its own sovereign government. Therefore, there are four conditions
which must obtain for the existence of a state namely people, territory, government
and a sovereign government.
The Montevideo Convention on the Rights and Duties of State (1933) codified the
declarative theory of statehood as accepted as part of customary international law.
The treaty was signed on December 26, 1933 during the Seventh International
Conference of American States montevidoe, Uruguay. The convention was signed by
19 states and became operative on December 26, 1934.
The Montevideo Convention (1933) sets out the definition, rights and duties of
statehood. Article 1 of the treaty lay out four attributions for the statehood and
recognized as statement of customary international law namely: a permanent
population, a defined territory, government and the capacity to entire into relations
with other states.
a) A Permanent Population
Permanent does not mean that the population has to rest a minimum amount
of time at one place such as in the case of Reference Re Secession of
Quebec, whether Quebec had the right to secede from Canada. Even though
had the same ethnicity, permanent state in Canada, the same language and
permanent culture, they cannot be considered as the permanent population.
Regions inhabited by wandering nomads are understood to have a permanent
population and therefore are not terra nullius (a territory belonging to no one),
which itself can be legally acquired by existing states. In the case of Western
Sahara 1975, it was noted that the territory is populated by nomadic tribes
who can go freely across the desert. However, it was held that their link with
the territory is such that they may regard as its population. However, nomad
cannot be considered as a permanent population.

In the case of war Bosnia 1990, the culture had become dominant rather
than the religion, It was the ethnic cleansing or elimination of culture to form
another culture by way of killing and raping system. In this case, the
qualification of permanent population was acquired through the negotiation.
Permanent population can be created by treaty, like in the case of Upper
Savoy 1949 that a clear distinction be drawn between free zones of Upper
Savoy and the Gex district and the free zones in a number of sea-port. The
treaty was signed by the two countries.
b) Defined territory
For a state to exist there must be a defined territory. The control of territory is
the essence of a state. This is the basis of the central notion of territorial
sovereignty, establishing the exclusive competence of the state to exercise
sovereign authority within the territory and prohibiting foreign governments
from exercising authority in the same area without consent. The state must
coordinate of territory such as in 1975 there was a Resolution for border for a
country. For example, in the case of Palestine where the territories are divided
into the West Bank, the Gaza strip and East Jerusalem and the border
between the Palestinian and Israel is disputed. It has been pointed out that
the territorial integrity of Palestine has been recognized and confirmed in UN
Security resolutions, by the General Assembly and the ICJ. The doctrine of
effective control in order to show sovereignty like in the case of Pulau Batu
Putih, the Sultan of Johor had allowed Singapore to maintain the light house
in Pulau Batu Putih. Furthermore, a servant cannot own property unless given
by master such as in the case of Manchuko v Manchuria. Permanent territory
must be governed by legitimate government such as in the case of Sipadan
and Ligitan Island. Even though both islands are inhabitant by people but
many of tourists came to the islands. Malaysia had taken voluntary control the
island i.e effective control by Malaysian post. Therefore, Malaysia gained
territory through effective control.

c) Government
In order to be a State there must be a government. The government must be
effective within the defined territory and exercise control over the permanent

population. The government recognized by the United Nation (UN) must be a

government that is elected from democracy or a monarchy. Democracy
means that there must be an election, the process of voting and voluntary.
The government will be formed by the winning majority. Thus, government
must not became from uniform or military such as in coup de tat and in the De
Facto government such as in the case of Timor Timor or Timor Leste which
never been part of Indonesia.
The government must get recognition and able to make diplomatic relation. In
theory of recognition, the recognized government must be recognized the
whole government.
The existence of government must have effective control such as in the case
of Finland that became the state of Finland which declared independence on
December 4, 1917. However, the International Committee of Jurist held that
the exact date Finland became a State was when the public authorities had
became strong enough to assert themselves through the territories of the
State without the assistance of foreign troops and that was in May 1918.
d) Capacity to enter into relations with other state
Capacity to enter into relations with other states means that the State is an
independence in law from the authority of other States. In Austro-German
Customs Union case, Austria and Germany, by a protocol of 1931, reached a
preliminary agreement on a customs union establishing free trade between
the two States. Independence also means that the state must not being
colonial and conquered such as in the case of Machuko v Manchuria and the
case of Nigeria v Bank of Scotland.
Here, it can be concluded that the Article 3 of the Montevideo convention states that
the political existence of the state is independent of recognition by the other state
known as declarative theory of statehood. The state has the right to defend its
integrity and independence even before getting recognition.
In Article 6 stated that the recognition of a state 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 the relationship between international law and municipal law, it will be
often more important to determine the scope of application of rules of international
law before domestic tribunals and vice versa. In municipal law there are 3 major
effects of recognition which are firstly only a recognised state and government will be

able to sue before courts, secondly only a recognised state or government may claim
immunity from the jurisdiction of the courts and lastly the legislative, judicial and
executive acts of only a recognised state will be accepted as valid in the courts.
Since majority of the States that signed The Montevideo Convention emerged from
the former colonies, they agreed that to criteria that made easier for other dependent
states with limited sovereignty to gain international recognition. Furthermore,
independence and sovereignty are not mention in Article 1 of the convention.