ULUSLARARASI KAMU HUKUKU I

The Montevideo Convention provides that the state as a person of international law should possess the following qualifications: (a) permanent population; (b) defined territory: (c) a government; and (d) capacity to enter into relations with other State.

Andorra is an example of mini- (or micro-) states.

Colonies, protectorates, trusteeship, and mandate territories are types of non-self-governing territories.

The Frontier Dispute case confirms that the principle of self-determination now forms part of the customary international law.

The Central Commission for Navigation on the Rhine is the first example of an international organization established in 1815 by the Congress of Vienna.

The most important characteristic of the international personality of an entity is its treaty-making power.

Hans Kelsen primarily champions the view that considers individuals alone as subjects of international law

The International Criminal Court was established in 2002 to try individuals for crimes enlisted in the Rome Statute.

It is through recognition that a state expresses its approval of the new state or the new government.

De facto recognition is conditional, temporary and provisional.

An entity, to be considered a state, must have certain characteristics, such as territory, population, government, and sovereignty.

Article 1 of the 1933 Convention on Rights and Duties of States (the Montevideo Convention) provides that “the state as a person of international law should possess the following qualifications: (a) permanent population; (b) defined territory: (c) a government; and (d) capacity to enter into relations with other States.”

In order to have a claim over Statehood, an entity should have the capacity to enter into relations with other states and must be accepted so by others. This requirement is also the most important factor in granting recognition to a new entity. A state cannot fulfil this requirement unless it has independence.

Uti possidetis means “as you possess, as you hold.” The principle vests in either of the belligerents at the end of a war all territory occupied or controlled by them.

A protectorate is always the creation of a treaty. It involves a certain measure of control, and a total or partial loss of sovereignty. In many cases, it has involved the loss of control of foreign relations and the disappearance of the protected state from the community of nations. In spite of common features possessed by protectorates under international law, they had individual legal characteristics resulting from the special conditions under which they were created and from the level of their development.

However, these arrangements cannot be termed as treaties, since the local rulers did not enjoy an international personality necessary to conclude a treaty.

The mandate system was created after the First World War under Article 22 of the Covenant of the League of Nations to deal with the future administration of the overseas possessions of the “Axis” states of Germany and the Ottoman Empire. Three categories of mandates (A, B and C) were devised for those territories “according to the stage of their development” (Art. 22 of the Covenant of the League).

International organizations are established by treaties and their international personality can be ascertained by looking at their constitutions. It is, however, rarely that the constitution of an international organization would provide and clothe it with international personality. Consequently, the question of whether an institution possesses an international personality can be answered by examining the type of functions, powers, privileges and immunities exercised by it.

The first example of an international organization is the Central Commission for Navigation on the Rhine (CCNR), which was created in 1815 by the Congress of Vienna.

The most important characteristic of the international personality of an entity is its treaty-making power.

The treaty-making power of international governmental organizations is well entrenched in the United Nations practice. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations confirms that governmental organizations have the capacity to enter into treaties. However, their international personality is confined to their constituent instruments, resolutions, and decisions, which determine the limits of their personality. Thus, the legal personality of international organizations is now an accepted fact. However, unlike states, they do not enjoy unlimited power. Their personality, in fact, can be brought to an end by amending or terminating the constituent instruments.

Different criteria are applied in the recognition of a state and of a government. Before a new entity is recognized as a state, it should fulfil the essential attributes of Statehood as mentioned in Article 1 of the Montevideo Convention, that is, a permanent population, defined territory, a stable government, and the capacity to conduct its international relations independently.

In contrast to the constitutive theory, the declaratory theory (also called evidentiary theory) considers that a new state or a new government exists independent of recognition. The recognition is merely an evidence of the fact that the government. The state practice widely confirms the evidentiary theory because of the political nature of the act of recognition. If the majority of nations have granted recognition, refusal by a single state or few states would not affect the situation.