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Home  > Tamilnation Library  > Politics > The Creation of States in International Law - James Crawford


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from the preface:

James Crawford writes...

"Since the development of the modern international system, statehood has been regarded as the paramount type of international personality; indeed, in doctrine if not in practice, States were for a time regarded as the only international persons. This is no longer so; but the political paramountcy of States over other international actors, with whatever qualifications, continues, and Statehood remains the central type of legal personality.

Problems of definition and of application of the definition, of statehood thus occupy an important place in the structure of international law....

Perhaps the most controversial issue in this area is the relationship between statehood and recognition. The view that recognition is constitutive of State personality derives historically from the positive theory of international obligation. However, this view does not correspond with State practice; nor is it adopted by most modern writers.

On the other hand, in this as in other areas, relevant State practice - including recognition practice, especially where recognition is granted or withheld on grounds of the status of the entity in question - is of considerable importance.

Against this background, this study examines the criteria for statehood in international law, and the various ways in which new States have been created in the period since 1815.

Traditionally, the criteria for statehood have been regarded as resting solely on considerations of effectiveness. Entities with a reasonably defined territory, a permanent population, a more or less stable government and a substantial degree of independence of other States have been treated as States. Other factors, such as permanence, willingness to obey international law, and recognition, have usually been regarded as of rather peripheral importance. To some extent this represents the modern position.

However, several qualifications are necessary.

In the first place, this standard view is too simple. Much depends on the claims made by the entities in question, and on the context in which such claims are made.

In some circumstances, criteria such as independence or stable government may be treated as flexible or even quite nominal; in other cases they will be strictly applied.

Apart however from the necessary elaboration of the criteria for statehood based on effectiveness, a serious question arises whether new criteria have not become established, conditioning claims based on effectiveness by reference to fundamental considerations of legality.

Practice in the field of self-determination territories is the more developed, but the same problem arises in relation to entities created by illegal use of force...

Problems of the creation of States have commonly been regarded as matters 'of fact and not of law'. This view was again simplistic, since it assumed the automatic identification of States, whether by recognition or the application of criteria based on effectiveness.

In practice, identification and application of the criteria to specific cases or problems raise interesting and difficult problems...."

James Crawford has been Whewell Professor of International Law in the University of Cambridge and a Professorial Fellow of Jesus College, Cambridge since 1992.  Since September 1995 he has been Co-Director of the Research Centre for International Law, University of Cambridge. He was formerly Professor of Law at the University of Adelaide (1983-86) and Challis Professor of International Law and subsequently Dean, Faculty of Law, University of Sydney, Australia (1986-92).


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