Defining Statehood, The Montevideo Convention and Its Discontents PDF
Defining Statehood, The Montevideo Convention and Its Discontents PDF
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Defining Statehood: The Montevideo
Convention and its Discontents
THOMAS D. GRANT*
* Ph.D. candidate, Cambridge University, Faculty of Law. AB, Harvard (1991); JD,
Yale (1994). Member, bars of Massachusetts, New York, and Washington, DC. The writer
thanks the US/UK Fulbright Commission and Cambridge Overseas Trust for supporting his
study at Cambridge. This article profited from suggestions on an earlier draft by Professor
James R. Crawford, the Author's Ph.D. supervisor.
I. INTRODUCTION
one time, international lawyers believed that states were the only
persons under international law.3 Putting aside whether in truth writers
ever generally excluded non-state actors from international law,4 it does
appear that modem developments have increased the relative legal
status of such actors. Strengthening the role of the individual in
international law is critical in this regard.5 Intermediate between states
3. D.P. O'CoNNELL wrote in 1970, "A half century ago the international lawyers could
content themselves with the proposition that 'States only are subjects of international law."'
O'CONNELL, supranote 2, at 80. Louis Cavar6 wrote in 1962 that, though by then international
society "also consist[ed] of members besides states," international society once had been
"exclusively interstatal" ("exclusivement interdtatique"). 1 LouIs CAVARt, LE DROIT
INTERNATIONAL PUBLIC PosrrIF 7 (1962). See also ROSALYN HIGGINS, PROBLEMS AND
PROCESS: INTERNATIONALLAWANDHOWWEUSEIT 39 (1994) ("The classic view has been that
international law applies only to states."); IGNAZSEIDL-HOHENVELDERN, CORPORATIONS INAND
UNDER INTERNATIONALLAW 5 (1987) ("The idea that public international law addressed itself
only to States and that therefore only States could be persons and subjects under public
international law was not abandoned until the end of the nineteenth century."); HANS KELSEN,
GENERAL THEORY OF LAW AND STATE 342 (Anders Wedberg trans., 1949) ("The traditional
opinion that subjects of international law are only States, not individuals, that international law
is by its very nature incapable of obligating and authorizing individuals, is erroneous.").
4. FIORE, for example, wrote as early as 1890 that, though the individual is not a person
under international law like the state, the rights of the individual at international law are not
solely those rights the individual enjoys as a citizen of a state. Some rights at international law,
Fiore argued, ran directly to the individual human being. PASQUALE FIORE, INTERNATIONAL
LAW CODIFIED AND ITS LEGAL SANCTION OR THE LEGAL ORGANIZATION OF THE SOCIETY OF
STATES 36, 51, 109 (5th ed. 1918) (citing Article 40 of the Act of Berlin of July 13, 1878,
which extended rights to subjects of Serbia). Kelsen observed that individuals were subjects
of international legal obligation under the norm against high seas piracy and under Article 2 of
the International Convention for the Protection of Submarine Telegraph Cables (Paris, Mar. 14,
1884); and that individuals enjoyed recourse to international tribunals under the Versailles
Treaty and the German-Polish Convention ofMay 15,1922 (regarding Upper Silesia). KELSEN,
supra note 3, at 345-48. The Permanent Court of International Justice apparently also
acknowledged individual rights in Polish PostalService in Danzig, 1925 PCU, ser. B, No. 11
(Advisory Opinion of May 16) (affirming Polish right to collect and distribute mail throughout
the Free City of Danzig and, moreover, to finish that service to individuals as well as to state
organs).
5. See, e.g., Clive Parry, The Function of Law in the International Community, in
MANUALOFPUBLICINTERNATIONALLAW 52 (Max Sorensen ed., 1968). "International law now
applies in many places and in many contexts directly to the individual." MYRES S. MCDOUGAL
ET AL, HUMAN RIGHTS AND WORLD PUBLIC ORDER: THE BASICPOLICIES OFAN INTERNATIONAL
LAW OF HUMAN DIGNITY 96 (1980) ("The principal participants in the world social process.
are individual human beings."); CAVARt, supra note 3, at 7 (noting in 1962 that, though not
yet far advanced, an evolution had begun toward conceiving international society as composed
of individuals); P.K. Menon, The InternationalPersonalityoflndividualsin InternationalLaw:
A Broadening of the TraditionalDoctrine, 1 J. TRANSNAT'LL. & POL'Y 151 (1992). Human
rights law since World War II has militated toward a greater role for the individual in
international law. One precursor to the trend in academic writing was SIR HERSCH
LAUTERPACHT,ANINTERNATIONALBILLOFTHERIGHTSOFMAN (1945). A first step in United
Nations practice was the UniversalDeclarationof HumanRights, General Assembly resolution
217(III), UN Doc. A/810, Dec. 10, 1948. Two further milestone UN Resolutions on the matter,
the 1966 International Covenant of Civil and Political Rights and International Covenant of
Economic, Social, and Cultural Rights, are extensively discussed in JORRI C. DUURSMA,
FRAGMENTATION AND THE INTERNATIONAL RELATIONS OF MICRO-STATES: SELF-
DETERMINATION AND STATEHOOD (1996). For comprehensive overviews of the rise of human
13. See 546 PARL DEB., H.L. (5th ser.) 710-11 (1993), reprintedin 64 BRIT.Y.B. INT'L
L. 610-11 (1993) (noting that, though not a state, the European Community, under Article 210
of the Treaty of Rome, "does enjoy legal personality").
14. See Michael Singer, JurisdictionalImmunity ofInternationalOrganizations:Human
Rights andFunctionalNecessity Concerns,36 VA. J. INT'LL. 53,71 (1995) (noting that, though
not yet viewed as an international person, the OSCE has been given legal personality in the
municipal courts of its members).
15. On the origin of the Commonwealth from an international legal perspective, see
O'CONNELL, supra note 2, at 346-56.
16. For an overview of the status of international organizations as international legal
persons, see N.D. WHITE, THE LAW OF INTERNATIONAL ORGANISATIONS 27-56 (1996).
17. STARKE'SINTERNATIONALLAW 85 (I.A. Shearer ed., 1 th ed. 1994) ("[S]tates are the
principal subjects of international law."); PARRY, supranote 5, at 2,9 (noting that, though other
actors are assuming elements of personality under international law, "international law is and
remains essentially a law for states," and calling the state "the foundation of the legal system
we seek to expound."); HENKIN, supra note 2, at 17 (though rejecting view that states are the
only persons under international law, noting that international law is a system "ofstates, made
by states, perhaps largely-still-for state"); GEORGDAHM ETAL, 1 VOLKERRECHT 125 (1989)
("Subjekte des V6lkerrechts sind in erster Linie die Staaten."); McDOUGAL ET AL, supra note
5, at 98 (though skeptical of placing too much emphasis on the state, acknowledging that "[i]n
a territorially organized world, the nation-state remains, despite the growing role of other
groups, a dominant participant in the shaping and sharing of all values"); PETER MALANCZUK,
AKEHURST'SMODERNINTRODUCTIONTOINTERNATIONALLAW (7th ed. 1997) ("[I]nternational
law is primarily concerned with the rights and duties of states."); HIGGINS, supra note 3, at 39
("International law is, for the time being, still primarily of application to states. States are, at
this moment of history, still at the heart of the international legal system."); CARTER &TRIMBLE,
supra note 2, at 411-416 ("States are the principal persons under international law.");
INTERNATIONAL LAW CHIEFLY AS INTERPRETED AND APPLIED INCANADA, supra note 1, at 11
("States are the principal subjects of the international legal system.").
18. Brownlie, supra note 1, at 5.
19. The term 'publicist' in this context is a term of art used in public international law
writing. The same usage occurs in the Statute of the International Court of Justice, Article
38(1)(d), where "the teachings of the most highly qualified publicists of the various nations"
are designated a subsidiary means for determining rules of law. Statute of the International
Court of Justice, Annex to the U.N. CHARTER, June 26, 1945, art. 38, para. l(d), 59 Stat. 1055,
T.S. No. 993 [hereinafter I.C.J. Stat.].
20. Politicalreasons for the paucity of international legal sources defining statehood have
been noted elsewhere. For example, ideological divisions among United Nations member states
have impeded efforts by the International Law Commission to work out a draft definition of
statehood. See DUURSMA, supra note 5, at 112-113 (examining difficulties preventing the
International Law Commission from codifying statehood); JAMES CRAWFORD, THE CREATION
OF STATES IN INTERNATIONAL LAW 31 n.1, 35 (1979). I focus for purposes of this article on
conceptual reasons why defining statehood is difficult, rather than the political obstacles to the
project.
21. Cavar6 covered the development of international law generally and traced exhaustively
the development of definitions of statehood. See CAVARt, supra note 2, at 10-97. Covering
similar ground, see MALCOLM N. SHAW, INTERNATIONAL LAW 12-23 (4th ed. 1997); I
SHERSTON BAKER, HALLECK'S INTERNATIONALLAW ORRULES REGULATING THE INTERCOURSE
OF STATES IN PEACE AND WAR 2-22 (3d ed. 1893) (from ancient Hebrew writers through the
French and American Revolutions).
22. See FRANZVON LISZT, DAS VOLKERRECHT: SYSTEMATISCH DARGESTELLT 65-66,70-
72 (1904).
23. FIORE, supra note 4, at 106.
24. THOMAS BATY, THE CANONS OF INTERNATIONAL LAW 9-10 (1930).
25. Id. at 11.
26. Id. at 13.
27. Hans Kelsen, The Pure Theory of Law and Analytical Jurisprudence,55 HARV. L.
REV. 44, 64-65 (1941-42).
28. Id. at 69-70.
29. In his own discussion of Manchuria, Kelsen was interested in whether recognition or
acquiescence could cure the illegality of a territorial acquisition done by force, not in the
putative statehood of 'Manchukuo.' HANS KELSEN, PRINCIPLES OFINTERNATIONALLAW415-16
(2d ed. 1968).
30. See OPPENHEIM, supra note 2, at 118-23. See also CAVAR, supra note 2, at 253-94
(population), 294-303 (territory), 303 (calling political power "a really decisive third element,"
distinguishing the state from other entities having population and territory).
31. See, e.g., R.W.M. Dias, Legal Politics: Norms Behind the Grundnorm, 26(2)
CAMBRIDGE L.J. 233 (1968); J.M. Eekelaar, Principlesof Revolutionary Legality, in OXFORD
ESSAYS INJURISPRUDENCE 22, (A.W.B. Simpson ed., 2d ser. 1973); J.M. Finnis, Revolutions
and Continuity of Law, in id. at 44.
32. CAVARt, supra note 2, at 8.
33. PARRY, supra note 5, at 6. Parry was also interested in the contrast between great
increases in the power of the state over the affairs of its own subjects and contemporary curbs
on the power of the state in international relations. See id. at 5-6.
Die Staaten, wie sie heute bestehen, sind vielmehr ein Produkt der Geschichte,
Gebilde des politischen Lebens, und an diese Wirklichkeit schliellt sich die
rechtliche Begriffsbildung an .... Der Staat ist die Organisation, in der die in
einem bestimmten Raum derErde ansiissigen Menschen zusammengefaBt werden,
ein zu einer konkreten Lebensordnung zusammengeschlossener Inbegriff von
Menschen, Einrichtungen, Anstalten, Beziehungen, der vom Recht als 'Person,'
als Einheit gedacht wird. Der Staat knfipft also an eine geschichtliche und
politische Wirklichkeit an, aber er ist im letzten doch ein gedankliches Wesen.
[States, as they endure today, are very much a product of history, creatures of
political life, and in this sense conform with legal abstraction .... The state is
the organization in which a people, settled in a definite area of the planet, has
been embraced, an amalgamated embodiment of persons, institutions,
establishments, and relations which, through a concrete regimen
[Lebensordnung], is under law thought of as a 'Person,' as a unity. The State
thus binds together an historical and political reality, but it is [in the final
analysis] a conceptual organism.]
Id. at 125-26.
38. See CARTER &TRIMBLE, supra note 2, at 413-18 (though proposing that capacity is
more an effect than a criterion of statehood).
39. AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW (THIRD): THE FOREIGN
RELATIONS LAW OFTHE UNITED STATES § 201 cmts. a-e (including "capacity" as a criterion of
statehood, but not expressly "independence") [hereinafter RESTATEMENT].
40. See HIGGINS, supra note 3, at 39-41.
41. See STARKE'S INTERNATIONAL LAW, supra note 17, at 85 ("[o]f the term 'state' no
exact definition is possible, but so far as modem conditions go, the essential characteristics of
a state are well settled," and reciting the standard criteria, though noting that territory may well
not be necessary).
42. See NGUYEN QUOC DINH ET AL, DROIT INTERNATIONAL PUBuC 398 (3d ed., 1994).
43. See, e.g., id. ("L'6tat est un phnomene historique, sociologique et politique pris en
compte par le droit." ["The State is an historical, sociological and political phenomenon of
which the law takes account."]); HENKIN, supra note 2, at 7 (noting the "objective criteria" but
positing that for some purposes history, geography, culture, language, and mythology are also
elements).
44. International law sources, as enumerated by Article 38 of the Statute of the
International Court of Justice, do include the "teachings of the most highly qualified publicists
of the various nations." I.C.J. Stat. art. 38, para. 1(d). However, the Statute characterizes this
source as a subsidiary means of determining international law. Academic writing is not,
therefore, the international lawyer's first choice when seeking legal definitions or statements of
the substance of law. The practice of states in conjunction with opiniojurissive necessitatis
(what states really do and what they indicate they are obliged by law to do) and treaties and
conventions (contracts between or among states) are the most authoritative sources. See id.
45. See, e.g., DUGARD, supra note 35, at 8 n. 1; James Crawford, The Criteriafor
Statehood in InternationalLaw, 48 BRIT. Y.B. INT'L.L. 93, 111 (1976-77); M. Kelly Malone,
Comment, The Rights ofNewlyEmergingDemocraticStatesPriortoInternationalRecognition
and the Serbo-CroatianConflict, 6 TEMP. INT'L & COMP. L.J. 81, 83 (1992); J.D. van der
Vyver, Statehood in InternationalLaw, 5 EMORY INT'L. L. REV. 9, 14 (1991).
46. Convention on the Rights and Duties of States (Montevideo Convention), Dec. 26,
1933, 165 L.N.T.S. 19, 28 AM. J. INT'L L. (Supp.) 75 (1934) (reprinting text of Montevideo
Convention).
47. Article I of the Montevideo Convention reads: "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 the other states." Id.
48. See, e.g., STARKE'S INTERNATIONALLAW, supranote 17, at 85; RESTATEMENT, supra
note 39, § 201 cmt. a; HIGGINS, supra note 3, at 39; DINH ET AL., supra note 42 at 399;
MALANCZUK, supra note 17, at 75-79; CARTER & TRIMBLE, supra note 2, at 412-13.
49. CRAWFORD, supra note 20, at 36.
50. The signatories were Honduras, the United States of America, El Salvador, the
Dominican Republic, Haiti, Argentina, Venezuela, Uruguay, Mexico, Panama, Bolivia,
Guatemala, Brazil, Ecuador, Nicaragua, Colombia, Chile, Peru, and Cuba. 28 AM. J. INT'LL.
(Supp.) 52 (1934). Ratifications as of May 1936 had been deposited at Pan-American Union
archives in Washington, D.C. by five powers: the United States, Dominican Republic, Chile,
Guatemala, and Cuba. 65 L.N.T.S. 19, No. 3802.
51. See, e.g., David A. Ijalaye, Was 'Biafra' at any Time a State in InternationalLaw? 65
AM. J. INT'LL. 551 (1971); Michael C. Small, Enforcing InternationalHuman Rights Law in
FederalCourts: The Alien Tort Statute and the Separation of Powers,74 GEO. L.J. 163, 196
n.240 (1985); P.K. Menon, Some Aspects of Recognition:Recognition of States, 67(3) REVUE
DE DRorr INTERNATIONALDE SCIENCES DIPLOMATIQUES ET POLITIQUES 161 (1991); DUGARD,
supra note 35, at 7 & n.1; DAHM ET AL, supra note 17, at 188, 209, 234; KNUT IPSEN,
VOLKERRECHT 56 (1990); HIGGINS, supra note 3, at 39; Frederic L. Kirgis, Jr., Admission of
"Palestine"as a Memberofa SpecializedAgency and Withholding the PaymentofAssessments
in Response, 84 AM. J. INT'L L. 218, 219 (1990); BROWNLE, supra note 5, at 72-73; Anne-
Marie Burley, Law Among Liberal States: Liberal Internationalismand the Act of State
Doctrine, 92 CoLUM. L. REV. 1907, 1926 n.45 (1992); Marc Weller, The International
Response to the Dissolution of the Socialist FederalRepublic of Yugoslavia, 86 AM. J. INT'L
L. 569,588 n.122 (1992); Kevin Sneesby, NationalSeparation:Canada in Context-A Legal
Perspective,53 LA. L. REV. 1357, 1377-78 (1993); James A. Casey, Sovereignty by Sufferance:
The Illusionof Indian TribalSovereignty, 79 CORNELLL. REV. 404,431 (1994); Daniel Orlow,
Of NationsSmall: The Small State in InternationalLaw, 9 TEMP. INT'L & COMP. L.J. 115, 117
(1995); Judith V. Royster, The Legacy ofAllotment, 27 ARIz. ST. L.J. I n.4 (1995); Michael P.
Scharf, Musical Chairs:The Dissolution of States and Membership in the United Nations, 28
CORNELL INT'L L.J. 29, 32 (1995); Svetozar Stojanovic, The Destruction of Yugoslavia, 19
FORDHAM INT'LL.J. 337,359 (1995); Andrew L. Strauss, BeyondNationalLaw:The Neglected
Role of the InternationalLaw of PersonalJurisdictionin Domestic Courts,36 HARv. INT'LL.J.
373, 409 n.125 (1995); Justus R. Weiner, Hard Facts Meet Soft Law-The Israel-PLO
Declarationof Principlesandthe Prospectsfor Peace:A Response to Katherine W. Meighan,
35 VA. J. INT'L L. 931, 940 (1995); Christine Biancheria, Restoring the Right to Have Rights:
Statelessnessand Alienage Jurisdictionin Light of Abu-Zeineh v. Federal Laboratories, Inc.,
11 AM. U. J. INT'LL. & PoL'Y 195, 235 & n.223 (1996); DUURSMA, supra note 5, at 112-13,
116, 118. For a particularly interesting reliance on the criteria, see S v. Banda, 1989 (4) SALR
519, 529-30 (Bophuthatswana General Division) (holding that despite universal non-
recognition, an apartheid 'Homeland' was a state and citing Montevideo as an authoritative
source).
52. United States Department of State Press Relations Office Notice, Nov. 1, 1976, quoted
in Eleanor C. McDowell, ContemporaryPracticeof the UnitedStates Relating to International
Law, 71 AM. J. INT'L L. 337 (1977).
53. See, e.g., Robert R. Wilson, InternationalLawin Treatiesof the UnitedStates, 31 AM.
J. INT'L L. 271, 283-84 (1937) (inquiring whether the Montevideo Convention is merely
declaratory of existing international law or legislative); James W. Garner, The United States
"Neutrality" Law of 1937, 19 BRrr. Y.B. INT'L L. 44, 62 (1938) (suggesting that the
Montevideo Convention invalidates or conflicts with the Neutrality Act of 1937); Felice
Morgenstern, "Extra-Territorial"Asylum, 25 BRIT. Y.B. INT'L L. 236, 240, 244, 257, 258
(1948) (discussing only the asylum provisions of the Montevideo Convention); C. Wilfred
Jenks, The Conflict ofLaw-Making Treaties,30 BRIT. Y.B. INT'LL. 401,424 (1953) (remarking
on the relation between the Montevideo Convontion and the Havana Convention of 1928).
54. GEORGJELINEK,ALLGEMEINESTAATSLEHRE, 396 etseq. (3d ed. 1914). Akehurst and
Malanczuk note the link between the Montevideo criteria and Jellinek. See generally
MALANCZUK, supra note 17.
55. HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAW 29 (James Brown Scott ed.,
Oxford: Clarendon Press 1936) (Richard Henry Dana, Jr. ed. 1866).
56. Id. at 25.
57. JAMES LORIMER, THE INSTITUTES OFTHE LAW OF NATIONS 109 (1883).
58. See HANNIS TAYLOR, INTERNATIONAL PUBLIC LAW 75 (1902).
59. ["a collectivity-fixed on a delimited territory-juridically organized"]. GEORGES
SCELLE, PRECIS DE DROrr DES GENs: PRINCIPES ET SYSTEMATIQUE 74 (1932).
60. WILLIAM E. HALL, A TREATISE ON INTERNATIONAL LAW 18 (A. Pierce Higgins ed.,
Oxford: Clarendon Press 1924) (1890).
61. Id. at 19.
64. See WHEATON, supra note 55, § 19, at 27 ("Wherever, indeed, the absolute or
unlimited monarchical form of government prevails in any State, the person of the prince is
necessarily identified with the State itself: 'L'Etat c'est moi.' ['I am the State.']").
65. See WEBER, supra note 63, at 540-42 (noting also that Napoleon re-established
hereditary titles such as 'Duke').
66. C.H. Alexandrowicz, The Theory of Recognition In Fieri,34 BRrr.Y.B. INT'LL. 176,
190 (1958).
67. Justi, Steck, Martens, and Klueber are discussed at length in Alexandrowicz, supra
note 66. The works that Alexandrowicz takes as representative of their views are JOHANN
HEINRICH GOTTLIEB VON JUSTI, HISTORISCHE UND JURISTISCHE SCHRIFTEN [HISTORICAL AND
LEGALWRITINGS] (1760); JOHANN CHRISTIAN WILHELM STECK, VERSUCHE OBER VERSCHIEDENE
MATERIENPOLITISCHERUNDRECHTLICHERKENNTNISSE [EXAMINATION OFDIFFERENT MATrERS
OFPOL1TICALAND LEGAL KNOWLEDGE] (1783); GEORG FRIEDRICH MARTENS, A COMPENDIUM
OF THE LAW OF NATIONS FOUNDED ON THE TREATIES AND CUSTOMS OF THE MODERN NATIONS
OF EUROPE 18 et seq. (Cobbett trans., 1802) (1789); JEAN LOUIS KLUEBER, DROIT DES GENS
MODERNES DE L'EUROPE [MODERN INTERNATIONAL LAW IN EUROPE] (1831).
68. Alexandrowicz, supranote 66, at 194 (quoting WHEATON, supranote 55, at 114-17).
69. Portugal's claims in south-central Africa were probably the most prominent example
of attempted application of the doctrine. Portugal in Africa is discussed, infra, this part.
Acquisition of territory, of course, is not synonymous with statehood. Oppenheim warns, "The
acquisition of territory by an existing State and member of the international community must
not be confused ... with the foundation of a new State." OPPENHEIM, supra note 2, § 209, at
544. At the same time, acquisition of territory and statehood bear an important relationship.
Both involve the status of a territorial fact under international law. Over the last century, the
international community has seldom recognized territorial acquisition absent a demonstration
by the claimant that it exercises effective control. Obtaining recognition of a claim to statehood
required a similar factual showing. This view of the territorial character of statehood and of title
was the prevailing one at the time the Montevideo Convention was signed. But, as discussed
above, it had not always been. For further discussion of the relationship between statehood and
sovereignty, see J.G. Starke, The Acquisition of Title to Territoryby Newly EmergedStates, 41
BRrr.Y.B.INT'L.L.411-16(1965-66). See also ROBERTYEWDALLJENNINGS,THEACQUISITION
OFTERRITORYININTERNATIONALLAW (1963); Sovereignty: Its Acquisition and Loss, 1 Moore
DIGEST §§ 80-89, at 255-301; MALCOLM N. SHAW, TITLE TO TERRITORY IN AFRICA:
INTERNATIONAL LEGAL ISSUES (1986).
70. JENNINGS, supra note 69, at 75.
71. This was apparently the case in Australia. However, in its Western Sahara Advisory
Opinion, the International Court of Justice studied late nineteenth century theories of territorial
acquisition and determined that lands in northwest Africa acquired by Spain in the 1880s were
not treated as terra nullius. Western Sahara, 1975 I.C.J. This is significant in that it illustrates
that even at the high tide of European colonial expansion, not all territory was viewed as 'no
man's land.' It may be that viewing territory as terra nullius was the exception rather than the
rule.
72. The Permanent Court of International Justice in Legal Status of Eastern Greenland
stated, "[In] many cases the tribunal has been satisfied with very little in the way of the actual
exercise of sovereign rights, provided that the other State could not make out a superior claim.
This is particularly tre in the case of claims to sovereignty over areas in thinly populated or
unsettled countries." Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (Ser. A/B)
No. 53, at 22, 46 (Apr. 5, 1933). The Permanent Court noted Danish claims to protected the
"Eskimo people" from "uncontrolled contact with white races," but it did not admit of any state-
making ability in the indigenous population. Id. at 37. In fact, the Court, though addressing
European acquisition of title to territory by conquest, seems to have excluded that the native
people could maintain a claim to title through force of arms. Id. at 47.
Chippewa Indians of the Mississippi and Lake Superior, 6 Martens Nouveau Recueil (ser. I)
610 (1849). These treaties typically provided, in exchange for an extensive territorial cession
by an indigenous people, government pledges of annual stipends and retirement of tribal debt
to American creditors. It would be interesting to inquire whether the United States offered the
more generous treaties of cession to those tribes that borrowed from Americans. Tribes
indebted to American creditors would have had an inroad to processes of authority that other
tribes lacked: indebted tribes had a contractual relationship with U.S. creditors, who in turn,
as influential American citizens, could have shaped federal policy toward indigenous peoples.
It would have served the creditors' interest to secure a guarantee against the insolvency of an
indebted tribe. Moreover, it would have served the creditors' interest to preserve the legal
continuity of the indebted tribe. It is therefore plausible that creditors lobbied Congress to draft
treaties of cession in such a way that: (1) tribal debts were covered by the federal government
(curing the insolvency problem); and (2) the indebted tribes retained legal personality (curing
the continuity problem). Treaties of surrender contained terms harsh in comparison to the terms
of treaties of cession. See, e.g., Treaty of Surrender of the Navajo Tribe of Indians, Sept. 9,
1849, U.S.-Navajo Tribe of Indians, 14 Martens Nouveau Recueil (ser. 1) 582 (1856). It would
be interesting to inquire whether tribes subject to treaties of surrender had borrowed less from
American creditors than the more leniently treated tribes party to treaties of cession.
77. See, e.g., Treaty of Surrender of the Navajo Tribe of Indians, supra note 76; Treaty of
Submission of the Utah Tribe of Indians, Dec. 30, 1849, U.S.-Utah Tribe ofIndians, 14 Martens
Nouveau Recueil (ser. 1) 696 (1856).
78. Act of Mar. 3, 1871, ch. 120, 16 Stat. 566 (codified as amended at 25 U.S.C. § 71
(1988)), quoted in I Moore DIGEST, supra note 69, § 17, at 37.
79. 24 F. Cas. 344 (C.C.D. Mich. 1852) (No. 14,251), noted in I Moore DIGEST, supra
note 69, § 17, at37.
80. Other examples of treaty-making between the expanding European powers and non-
European nations include: Agreement between Rear-Admiral Thomas and the King of the
Sandwich Islands, July 31, 1843, Gr. Brit.-Haw., 5 Martens Nouveau Recueil (ser. 1) 477
(1847)(a set of provisions between Great Britain and King Kamehameha III of Hawaii); Treaty
of Protection, Nov. 3, 1883, Fr.-Firdou, 9 Martens Nouveau Recueil (ser. 2) 699 (1884)(a
protectorate treaty between France and the King of Firdou in West Africa); and Treaty of
Friendship between the United States and the Queen of Madagascar, May 13, 1881, U.S.-
Madag., 11 Martens Nouveau Recueil (ser.2) 732 (1887). This last, interestingly enough,
contained articles of mutual recognition.
81. Marston, tracing the development of the law of the territorial sea, notes that, before
World War II, submarine soils outside territorial waters were viewed as a res nullius to which
State acts of effective occupation could extend sovereignty (provided those acts did not impede
free passage and use of superjacent waters). See Geoffrey Marston, The Incorporationof
ContinentalShelf Rights into United Kingdom Law, 45 INT'L & COMp. L.Q. 13, 16 (1996).
82. BROWNLIE, supra note 5, at 151-52 (noting that Denmark, Finland, Norway, and the
United States, though interested in the Arctic, did not make claims based on contiguity doctrine
there).
83. See id. at 152.
84. See DONAT PHARAND, CANADA'S ARCTIC WATERS IN INTERNATIONAL LAW 8-9, 30
(1988). Similar claims were being made at around the same time in regard to Eastern
Greenland, the less hospitable side of the mostly-ice-capped North Atlantic island. See Danish
Arguments in Eastern Greenland, (Nor. V. Den.), 1933 P.C.I.J. (Ser. A/B) No. 53, at 46 (Apr.
5).
85. See PHARAND, supranote 84, at 53, quoting 12 DOCUMENTS ONCANADIANEXTERNAL
RELATIONS 1566 (1946).
86. See id. at 54, noted in CAN. H.C. DEB. 700 (1953-4).
87. Canada for some time has taken an expansive view of its sovereignty over ocean areas
as well. See, e.g., Lawrence L. Herman, Proofof Offshore TerritorialClaims in Canada,7
Dalhousie L.J. 3, 4-11 (1982); J.Y. Morin, Les Eaux Territorialesdu Canada en regard du
Droit International,I CAN. Y.B. INT'L L. 82, 104-06 (1963). The Canadian Department of
External Affairs stated in 1973 that "Canada... claims that the waters of the Canadian Arctic
Archipelago are internal waters of Canada, on an historical basis." Letter from the Bureau of
Legal Affairs (Dec. 17, 1973), in 12 CAN. Y.B INT'L L. 279 (1974). The Arctic Waters
Pollution Prevention Act of 1970 made this assertion law. The United States protested the Act
in a note: "[I]ntemational law provides no basis for these proposed unilateral extensions of
jurisdiction on the high seas, and the United States of America can neither accept nor acquiesce
in the assertion of such jurisdiction." 1970 CAN. H.C. DEB., app. A, at 5923 (Apr. 15, 1970).
When the United States proposed submitting the matter to the ICJ, Canada amended its
acceptance of ICJ jurisdiction by excluding therefrom: "[D]isputes arising out of or concerning
jurisdiction or rights claimed or exercised by Canada... in respect to the prevention or control
of pollution or contamination of the marine environment in marine areas adjacent to the coast
of Canada." 22 EXTERNAL AFFAIRS 130-31 (1970) (text of letter from the Canadian
Ambassador to the United Nations to the Secretary-General modifying Canadian acceptance of
ICJ jurisdiction). Exorbitant claims to waters adjacent to Canadian territory and expansive
claims for national jurisdiction over environmental matters are unsurprising antecedents to the
high seas fisheries incidents of March 1995. Canadian Coast Guard vessels fired upon and then
seized a Spanish fishing trawler, Estai,in international waters. The Estai incident resulted in
a diplomatic crisis between Canada and the European Union, and it also highlighted differences
among EU member states over fisheries policy. Eventually, the EU sided with Canada. See
Tim Harper, Angry Crowd Gathering to Greet Ship, TORONTO STAR, Mar. 12, 1995, at A12;
Juliet O'Neill, Spanish Crews Warn of Violence after 'Sellout' by European Union, OTTAWA
CITIZEN, Mar. 17, 1995, at Al; Fred Langan, CanadaClaims Victory in Fish War with Spain:
Dancing and Beer on Board as Trawler Leaves Newfoundland, DAILY TELEGRAPH (London),
Mar. 17, 1995, at 14.
88. ERIC AXELSON, PORTUGAL AND THE SCRAMBLE FOR AFRICA, 1875-189 1, at 8 (1967).
89. See id. at 3, 8.
94. In April 1998, Indonesia and Malaysia agreed to submit a dispute concerning Sipadan
and Ligitan islands to the International Court of Justice. Doctrines of territorial acquisition and
title could come into play during the adjudication of the matter. See Nov. 10, 1998 Order in
Case Concerning Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia/Malaysia),
availableat International Court of Justice home page (visited Feb. 12, 1999) <http://www.icj-
cij.orgl>, Docket, n.1 1.
95. Chapter VI of the General Act made this dual provision:
Chapitre VI
Art. 34. La Puissance qui dordnavant prendra possession d'un territoire sur les c6tes du
Continent Africain situ6 en dehors de ses possessions actuelles, ou qui, n'en ayant pas eu
jusque-l, viendrait aen acqudrir, et de meme, la Puissance qui y assumera un protectorat,
accompagnera l'acte respectif d'une notification adress6e aux autres Puissances signataires du
pr6sent Acte, afin de les mettre a meme de faire valoir, s'il y a lieu, leurs r6clamations.
Art. 35. Les Puissances signataires du pr6sent Acte reconnaissent l'obligation d'assurer, dans
les territoires occup6s par elles, sur les c6tes du Continent Africain, l'existence d'une autorit6
suffisante pour faire respecter les droits acquis et, le cas 6ch6ant, la libert6 du commerce et de
transit dans les conditions oti elIe serait stipulde.
[Chapter VI
Art. 34. The Power that hereafter takes possession of a territory on the coasts of the African
continent situated outside its actual possessions, or which, not having any [territory] there,
comes to acquire some, and likewise the Power that there assumes a protectorate, shall
accompany the respective act with notification addressed to the other Powers signatory of the
present Act, in order to assure respect for any such claims, should they be challenged.
Art. 35. The Powers signatory of the present Act recognize the obligation to assure, in
territories which they occupy on the coasts of the African continent, the existence of authority
sufficient to enforce respect for vested interests and, if the case should arise, freedom of
commerce and of transit upon conditions where stipulated.]
General Act of the Conference of Berlin, Feb. 26, 1885, 10 Martens Nouveau Recueil (ser. 2)
426(1885). See also BISMARCK, EUROPE ANDAFRICA: THE BERLUNAFRICA CONFERENCE 1884-
1885 AND THE ONSET OFPARTTION (Stig F6rster et al. eds., 1988).
100. British Guyana suggested that title may be imputed through partial control of a
coherent territorial unit. This emphasis on coherent territorial units seems related to the concept
of 'self-determination units' proposed by James Crawford. See CRAWFORD, supra note 20, at
105-106.
101. Island of Palmas (Neth. v. U.S.), 2 R.I.A.A. 829 (Perm. Ct. Arb. 1928).
102. Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (ser. C) No. 62,at 747.
103. Minquiers and Ecrehos (Fr. v. U.K.), 1953 I.C.J. 46, 101-102 (Nov. 17) (Individual
Opinion of M. Levi Carneiro).
104. Western Sahara, 1975 I.C.J. 35, 1 92.
105. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984
I.C.J. 296, 102 (emphasis in original).
106. East Timor (Port. v. Austl.), 1995 I.C.J. 89, 110, 1 4 (separate opinion of Judge Oda).
Going a step further, it may even be that an entity can become a state in
the first instance without having yet acquired territory. Though not a
common event in state practice, 'nationhood' has been attributed to
entities that never before enjoyed any territorial control. France
recognized Poland and Czechoslovakia as 'nations' during World War
I. Though Poland had once been a state, this had little direct legal
consequence. The Polish National Committee which benefitted from
French recognition was headquartered at Paris, had never had a seat in
Poland, and could make no realistic claim of continuity to a state which
had disappeared from the map of Europe in 1815. Poland and
Czechoslovakia had no territory, yet the French act "recognized their
right to raise an army, to have a national flag, to have military tribunals
authorized to judge their nationals."' 3 An extensive set of state-like
competencies was thus recognized in entities lacking any territorial
foothold, and, more remarkably, never having had a territorial foothold.
Further reasonably well-established propositions, though not in
themselves excluding 'territory' as a requirement of statehood, further
erode the territorial criterion. That territory need not be
extensive-indeed, that there is no territorial minimum required of a
state-is essentially agreed." 4 It is also fairly clear that ambiguity as to
the territorial limits of a putative state does not defeat its claim to
statehood. 25 A prevalent discontent over the Montevideo definition12is 6
that it includes elements that are not clearly necessary to statehood.
Convention served the apartheid-era courts in South Africa has no special legal consequence
for the Convention, but the precedent from a political standpoint is anything but complimentary.
127. See, e.g., DINH ET AL,supra note 42, at 398-399 (arguing that the Montevideo criteria
are "necessary but not sufficient.")
128. CRAWFORD, supra note 20, at 58.
129. See id. at 59-60.
130. Citing Duff Development Co. v. Kelantan, [1942] A.C. 797, 800, Crawford lists
protectorates in this third category of derogations from independence (see id. at 61-62), puppet
states (see id. at 62-65), and, citing the World War II independence of Syria, purported but
largely substanceless grants of colonial independence (see id. at 65-68).
131. See DINH ET AL, supra note 42, at 398 (positing no state "subordinate to any other
member of the international community"); O'CONNELL, supra note 2, at 284 (identifying lack
of subordination as key to statehood).
132. BATY, supra note 24, at 13. Henkin writes of statehood involving "privacy" or
"impermeability." HENKIN, supra note 2, at 10-12. Kelsen used the term "impenetrability" in
a related, though distinct, sense: 'The principle that the national legal order has exclusive
validity for a certain territory, the territory of the State in the narrower sense, and that within this
territory all individuals are subjected only and exclusively to this national legal order or to the
coercive power of this State, is usually expressed by saying that only one State can exist on the
same territory, or-borrowing a phrase from physics-that the State is 'impenetrable."'
KELSEN, supra note 3, at 212.
133. John Keegan, the military historian, for example, describes the French colonial empire
in North America as one based not so much on control of territory as on exclusion of non-
French fur traders. JOHN KEEGAN, WARPATHS: TRAVELS OF A MILITARY HISTORIAN INNORTH
AMERICA 95-99 (1995).
134. See, e.g., INTERNATIONAL LAW CHIEFLY AS INTERPRETED AND APPLIED IN CANADA,
supra note 1,at 13; CAVARt, supra note 2, at 8, 38; OPPENHEIM, supra note 2, at 119-23
(distinguishing "full sovereign" from "non-full sovereign" states). Emphasis on independence
is not new. See LISZT, supra note 22, at 65-66.
135. See O'CONNELL, supra note 2, at 284.
136. SeeDAHM ETAL, supranote 17, at 131 (distinguishing political and military autonomy
from legal autonomy and identifying only the latter as a prerequisite to statehood).
137. SCHWARZENBERGER, supra note 35, at 249 (1976). Higgins writes that the state is "not
simply an emanation of another state, lacking an essential core of independence." HIGGINS,
supra note 3, at 41. It is not clear whether Higgins restricts this to legal aspects of
independence or whether by "emanation" means something more general.
138. See DUURSMA, supranote 5, at 122-26 (discussing 'formal' and 'actual' independence
generally), 200-04 (independence of Liechtenstein), 257-59 (independence of San Marino),
305-10 (independence of Monaco), 367-70 (independence of Andorra), 413-16 (independence
of the Vatican City).
139. See Thomas D. Grant, Between DiversityandDisorder: A Review ofJorri C. Duursma,
Fragmentation and the International Relations of Micro-States: Self-Determination and
Statehood, 12 AM. U.J. INT'LL. & POL'Y 629 (1997) (book review).
140. See RESTATEMENT, supra note 39, § 201 cmt. f.
141. See id. reporter's note 8.
142. Two instruments formalized consent and are viewed as critical to the state formation
process in the space of the former Soviet Union. See Agreement Establishing the
Commonwealth of Independent States, Dec. 8, 1991,31 I.L.M. 143; Protocol of Alma Ata, Dec.
21, 1991, 31 I.L.M. 151.
143. See generally LAUTERPACHT, supra note 5; DUGARD, supra note 35; OPPENHEIM,
supra note 2.
144. Opinion 4 on International Recognition of the Socialist Republic of Bosnia-
Herzegovina by the European Community and its Member States, 31 I.L.M. 1501 (Badinter
Commission 1992).
145. See discussion infra this part.
150. Among the early contestants to the view was Dermott J. Devine, who disputed J.E.S.
Fawcett on the matter. See J.E.S. FAWCETT, THE LAW OF NATIONS 38 (1968); Dermott J.
Devine, Requirements of Statehood Re-examined, 34 MOD. L. REV. 410, 415-16 (1971).
Latterly, Dahm, Delbriick, and Wolfrum have declined to characterize legality as a criterion of
statehood. See DAHM ET AL, supra note 17, at 133 ("Auch seine vlkerrechtliche Legitimitat
ist keine Bedingung, von der seine Existenz abhdngig wMre." ["Its [the state's] existence is not
dependent upon any condition to legitimacy under public international law."]).
151. See CRAWFORD, supra note 20, at 260-261.
152. Mikhail Gorbachev resigned on December 26, 1991, and the Soviet Union came to an
end. After the failed putsch of August 1991, dissolution of the Union had accelerated. As early
as March 1991, Lithuania had declared its intent to leave the USSR. Georgia had declared
independence on April 9, 1991. Most of the remaining republics declared independence in the
immediate aftermath of the attempted coup: Estonia on August 20, Ukraine on August 24,
Belarus on the 25th, Moldova on the 27th, Azerbaijan on the 30th, Uzbekistan and Kyrgyzstan
on the 31 st, Lithuania and Latvia on September 6, Tajikistan on September 9, and Armenia on
September 23. Russia itself declared independence from the USSR on August 24, 1991.
Turkmenistan took its independence on October 27, and Kazakhstan waited until December 16.
See CENTRALINTELLIGENCE AGENCY, THEWORLDFACrBOOK 1993-1994, at 16-17,24,32-33,
104-05, 124, 180, 190, 192-93, 202-03, 229-30, 287, 332-33, 352, 347-48, 362 (1993).
157. See Chuck Sudetic, Serbs Proclaim Autonomy in Another Yugoslav Region, N.Y.
TIMES, Jan. 10, 1992, at Al, availablein 1992 WL 2123037; What's News, WALL ST. J. EUR.,
Jan. 10, 1992, available in 1992 WL-WSJE 2038096 (also noting the tumultuous area of
Bosnia).
158. Report (English Edition) of the Committee on Foreign Affairs and Security on
Relations between the European Community and the Republics ofthe Former Yugoslavia, EUR.
PARL. Doc 7 (1992).
159. Recognition ofSlovenia and Croatia, Relations between the European Community and
the Republics of the Former Yugoslavia, EUR. PARL. Doc. 14 (1992).
160. Guidelines, supra note 154.
161. Articles 5 through 25 of the Croatian Constitutional Law of Human Rights and
Freedoms and the Rights of National And Ethnic Communities or Minorities in the Republic
of Croatia address the rights of minorities. These Articles, among other provisions, guarantee
"full observance of the principles of nondiscrimination"; "the right to identify, culture, religion,
public and private use of a language and alphabet and education"; in areas where a majority of
inhabitants speak a different tongue or use a different alphabet, official adoption of that tongue
and alphabet; use of ethnic symbols and songs; freedom of association for ethnic purposes;
education in minority tongues; a minimum representation in the national parliament; and self-
government in areas where a minority people in the republic possess a local majority. Croatia,
arts. 5-25 (Dec. 4, 1991), translatedin 5 CONsTITUTIONS OFTHE COUNTRIES OF THE WORLD
140-148 (Albert P. Blaustein & Gisbert H. Flanz eds., Marta Kiszely trans., 1992); Slovenia
(Dec. 23, 1991), translatedin 17 id. at xx.
162. See, e.g., DAHM ET AL, supra note 17, at 125-29; DINH ET AL., supra note 42, at 398;
HENKIN, supra note 2, at 7.
163. Duursma approaches this problem in MICRO-STATES, see supra note 5, but it would
have to be developed further to address doubts about its applicability in practice. See Grant,
supra note 139, at 655-56.
Despite the widely held view that further criteria are necessary to
make a satisfactory definition of the state, no proposals codifying
statehood have been accepted since the Montevideo Convention.
Crawford attributes this problem in part to a political reluctance by
states to announce a clear definition of statehood. 7 '
If the community of states today hesitates to announce what
constitutes a state, a preliminary question arises. Why in 1933 did the
Pan-American powers do it? For one thing, as noted earlier, notions of
effectiveness and territoriality-the cornerstones of the Montevideo
definition of the state-prevailed at the time of the framing of the
Convention. The ideas were in the air. Several additional factors
appear to have made the time ripe for such an exercise as well, however.
First, the Latin American states that constituted the majority of
signatories to the Convention had codified international norms before.
It may fairly be said that the readiness of Latin America, as a regional
international law system, to commit law to code was distinct. Consider,
statehood."). For further citations to declaratists, see BROWNLIE, supra note 5, at 89 n.7. For
a prominent assertion of declaratory doctrine recently, see Opinion 1 of the Badinter
Commission (Nov. 29, 1991) ("[T]he effects of recognition by other States are purely
declaratory." 92 ILR 165 (1993). The Commission reiterated this view in Opinion 8 (July 4,
1992). See id. at 201 (1993).
170. See MALANCZUK, supra note 17, at 80; CARTER & TRIMBLE, supra note 2, at 416
(suggesting that other states decide what makes a state); see generally DUURSMA, supra note
5 (noting that recognition in certain ambiguous claims to statehood may have constitutive
effect).
171. See CRAWFORD, supra note 20, at 31 n.1.
172. See Declaration of Sr. Don Genaro Estrada, Secretary of Foreign Relations of Mexico,
in 25 AM. J.INT'LL. 203 (Supp. 1930) (formal statement explaining that Mexico will no longer
recognize governments and takes the view that such recognition is contrary to international law,
or at least to Latin American regional practice); see also 44 AM. J.INT'L L 617, 621 (1950)
(statement by Dr. Tobar, former Minister of Foreign Affairs of Ecuador, holding that non-
recognition of governments created contrary to their national constitutions is legal and
desirable). The so-called Estrada and Tobar doctrines, though opposite in their treatment of
recognition, exemplified a willingness in Latin America to make official declarations as to
international law.
173. See Forewordto RESTATEMENT, supra note 39.
174. 22 AM.J. INT'LL. 171 (Supp. 1928).
175. 16 AM. J. INT'LL. 41 (Supp. 1922).
176. 25 AM.J. INT'LL. 63 (Supp. 1931).
177. See Speech by President Warren G. Harding, June 21, 1923, reported in 17 AM. J.
INT'LL. 533 (1923).
178. 1949 ILCY.B. 61, para. 69; 1956 ILC Y.B., vol. 11, at 107, para. 4; 1966 ILC Y.B.
192; see also 1974 ILC Y.B. 19, para. 76.
179. See Remarks by Mr. Bilge, 1973 ILC Y.B., vol. 1, at 175, para. 39 (quoted in
DUURSMA, supra note 5, at 113 n.18).
180. This was required under the December 16, 1991 EC Guidelines before Montenegro
received recognition. Like other new putative requirements, it was arguably, however, a
condition for recognition rather than a criterion of statehood.
181. Reaffirmation of such commitments was also required under the Guidelines and was
a matter of concern in connection with Ukraine, Belarus, and Kazakhstan.
182. See generally Crawford, supra note 165, for the legal scope of self-determination.
VIII. CONCLUSION
185. See, e.g., INTERNATIONAL LAW CHIEFLY AS INTERPRETED AND APPLIED IN CANADA,
supra note 1, at 11-13 (calling the Convention the "best-known formula" but noting that
supplemental criteria are now required); see also MALANCZUK, supra note 17, at 75-80 (citing
and quoting Montevideo Convention but rejecting capacity as a prerequisite of statehood and
suggesting that recognition might be a prerequisite); RESTATEMENT, supranote 39, § 201 cmts.
a-e (relying on Montevideo criteria but adding criterion that entity make a claim to statehood.).
186. See H.L.A. HART, THE CONCEPT OF LAW (2d ed. 1994).
187. Pactasunt servanda is the doctrine that "states have the general duty of performing
honestly and in good faith the obligations contracted by virtue of treaties." FIORE, supra note
4 at 264. However, on changes in the principle of pacta sunt servanda since the Vienna
Convention on the Law of Treaties of 1969, see Gerardo E. Do Nascimento E. Sliva, The
Widening Scope ofInternationalLaw, in THEORY OF INTERNATIONAL LAW AT THE THRESHOLD
OFTHE 21ST CENTURY: ESSAYS IN HONOUR OF KRZYSZTOFSKUBISZEWSKI 235, 238-40 (Jerzy
Makarczyk ed., 1997).
188. See 1945 I.C.J. Acts & Docs. 38.
189. These are the ingredients of customary international law. See BRIERLY, supra note 5,
at 59-62 ("Custom in its legal sense means something more than mere habit or usage; it is a
usage felt by those who follow it to be an obligatory one."); OPPENHEIM, supranote 2, at 25-26
("International jurists speak of a custom when a clear and continuous habit of doing certain
actions has grown up under the aegis of the conviction that these actions are, according to
International Law, obligatory or right."); SHAW, supra note 21, at 60-76; RESTATEMENT, supra
note 39, § 102(2) n.4 (defining customary international law as deriving "from general and
consistent practice of states followed by them from sense of legal obligation"); BROWNLIE,
supranote 5, at 7-I1 (discussing opiniojurissive necessitatis,its formation, and modes of proof
thereof).
194. Higgins observes that the term 'state' is fluid, changing "depending on the
circumstances and the context in which the claim of statehood is made." Compare, however,
with Higgins's advocacy of the Montevideo criteria, which seem to cast statehood in more static
terms. See HIGGINS, supra note 3, at 39.
195. One context in which international legal authority might be developed on the
definition of 'state' is the putative independence of Chechnya. Though the Russian federal
government has lost effective control over the territory of Chechnya, no state has yet recognized
Chechnya as independent. Moreover, states and multilateral organizations calling for a
resolution to the Chechen crisis have made clear that any solution must respect the territorial
integrity of Russia and that the territory ofRussia includes Chechnya. See Crawford, supra note
164, para 57. Chechen leaders, however, have claimed that Chechnya was never part of Russia
and therefore territorial integrity is not at issue. Putting aside whether such a claim is
sustainable, this may well equate Chechnya to the Baltic States-entities that in some writers'
opinion did not appear in 1991 as new states but as states restored. The republic president,
Asian Maskhadov, has proposed that a panel of legal and historical experts be set up to address
the status of Chechnya. If such a panel does in fact convene, it may well have to grapple with
the definition of the state.