Law 5110 Study Guide - Quiz Guide: Montevideo Convention, Sovereign State, De Jure
The subject of IN law:
States
- States are the most important and most powerful subjects of IN law.
- Membership of the UN is not synonymous with statehood.
- Membership of the UN depends on political considerations as well as legal facts.
- Non-membership of the UN does not necessary constitute a denial of statehood (a state may choose
or is forced to stay outside the UN system).
According to art. 1 of the Montevideo Convention on Rights and Duties of States 1933, ‘state as a person
of IN law should possess the following qualifications:
Permanent population – There must be some population liked to a specific piece of territory on more or
less permanent bases and who can be regarded in general parlance as its inhabitants.
Defined territory – A state must have some defined existence that makes it out clearly from it neighbours,
however a refusal to define the extent of the state precisely defined territory is not fatal to statehood. Also
the fact the exciting or emerging state’s territory is under threat does not mean or prevent existence of
statehood.
Government – IN order for a state to function as a member on IN community it must have a practical
identity on the IN plane. This is the government, which is primarily responsible for the vindication of and
ensuring compliance with IN rights and duties of the state. The executive authority must be effective
within the defined territory and exercise control over the permanent population (established state does not
lose its statehood when it ceases to have an effective government, e.g. Syria or a state may have two
government each of which are recognised by different states).
Capacity to enter into legal relations – A state must have a legal independence, this mean that a state
will exist if the territory is not under lawful severing authority of another state. (e.g. Hong Kong is under
legal authority of China). Thus a state with legal independence has the legal capacity to enter relations
with other states on their own behalf as a matter of right.
Manner of attainment of capacity to enter into legal relations – If a territory declaring factual
independence is able to claim the right of self-determination, then it seems that this is sufficient to attain
legal independence and statehood. A former colonial territory has the right to achieve independence by
virtue of this principal and it seems not to matter whether this is done voluntarily with the assent of the
former colonial power or against its whish. The natural consequence of this is the acceptance of a right of
secession, whereby defined groups in an existing state declare independence under self-determination and
claim statehood in IN law (e.g. former Soviet Union).
Commission rejected the idea that ethnic groups and minorities as such enjoyed a right of self-
determination. Such people enjoy the right under IN law to have their identity as a separate ethnic group
recognised by the ‘mother’ state, but not in a way that guaranteed them independent statehood.
There are also some evidence to suggest that a state must achieve their statehood lawfully before it will
be full effective in IN law, and there are several general principals of IN law that could have an impact on
here;
- IN law prohibits the use of armed forces
- The practice of racial discrimination
Document Summary
States are the most important and most powerful subjects of in law. Membership of the un is not synonymous with statehood. Membership of the un depends on political considerations as well as legal facts. Non-membership of the un does not necessary constitute a denial of statehood (a state may choose or is forced to stay outside the un system). 1 of the montevideo convention on rights and duties of states 1933, state as a person of in law should possess the following qualifications: Permanent population there must be some population liked to a specific piece of territory on more or less permanent bases and who can be regarded in general parlance as its inhabitants. Defined territory a state must have some defined existence that makes it out clearly from it neighbours, however a refusal to define the extent of the state precisely defined territory is not fatal to statehood.
