Introduction
The world today that is divided into continents has been further split into territories that are under jurisdictions of authorities that run and manage the affairs of the specific territories. These territories are marked as states. The types of territorial rules differ from one state to the other depending on the existing political organization of the states. States all over the world are governed by international law, which is a law that regulates the interaction and existence among states.
States are based on territory as well as the type of governance and authority to which they submit. A state, therefore, comes out as a mode of rule over a given sovereign territory. All states should ideally have systems of governance in place to rule their people. The systems should include an executive arm of government, a judicial system that should be in charge of the laws of that country, and a political system that acts as a check to the government.
Though this composition should be the ideal situation, not all states subscribe to it due to different reasons. According to the international law as put forth by Cuba (1999), â…any entity that meets the international criteria on statehood can be a state.â[1] The issue of title to territory then comes in as to who handles territorial matters. Are states free to define their destinies? As such, the international legal body has to be in place to authorize and control the declaration of territories among states. A state needs to be recognized by the international community for it to be fully accepted as a state and for it to interact with other states effectively[2].
However, states have to exercise self-determination, which is a lawful right that gives citizens a chance to define their destiny as provided for by international law. Different legal theories have been postulated on recognition, which includes the constitutive theory of recognition and declaratory theory. Though there are rules on statehood, title to territory, and self-determination, the paper presents the application of the three elements in a bid to find out whether the rules are adequate to deal with the current contested claims for statehood.
Application of Statehood
To find get a better understanding of a state and statehood, one needs to describe what a state is in the first place by finding out what constitutes a state. According to Nurul, a state can be described as a sovereign territory, which has a government in place and can interact with other states[3]. It should have a territory, which is an area of land and water where the given authority governing that the state has complete jurisdiction over it. The territory of this state should be defined in terms of borders. Other citizens as well as their states would not be allowed into this territory without express permission from the authorities.
The territory of a given state must be geographical so that boundaries can be defined. Encroachment of a given statesâ territory by another state is deemed a violation of the given statesâ sovereignty and its title to territory[4]. International provisions have been set out in the law on how states should approach the issue of territory. The provisions guide other states when they need to use their fellow statesâ territory. A statesâ territory includes geographically-defines elements such as land, air, and water. Secondly, according to Nurulla, a state should have a permanent population of people who reside in that place[5].
Governance applies to people. When a place has people, it fits the description of a state. The number of people making up a given state is not specific. A given state should have any population that makes up its citizenry. The population does not have to be specifically belonging to the given state though this population has to be a permanent population meaning that, at any one time, there has to be a population of people in that given territory for it to attain the status of a state.
The third characteristic that makes up a state is that it should have a government, which is the symbol of authority that ensures that there is law and order since it is the custodian of the given statesâ wealth and interests according to Crawford[6]. The government has a role in providing leadership to its people as well as being the face of the given state. A government should be the highest authority on land in any given place and should formulate laws that govern the given place. Therefore, for any state to receive statehood, it has to have a form of representative authority that will act on its behalf. The fourth condition for a state to attain statehood is that it should have the capacity to enter into relationships with other sovereign states.
Application of the Principle of Self-determination
The question of self-determination is quite critical in international law. Each state has been granted legal rights within the international arena. These rights apply horizontally to all states meaning that no state is viewed to be more equal than the other and that no state has powers to rule in another statesâ territory. During the formation of the international statutes, the international laws were meant to apply between states as recognizable entities. States are required to have certain powers, duties, rights, and immunities. According to Nurulla (2011), five general and legal characteristics of the state can be described as exclusive for the particular state[7].
Firstly, the given state should have the ability to engage on the international stage competently within certain standards of engagement including the ability to make treaties and enter forms of partnerships with other states. The second aspect of the legal status of the state is that it should have total control of its internal affairs without interference from other states. The state can only be subjected to an international process at its consent.
The fourth aspect of the legal status of states is that they are all equal in the application of international law regardless of their sizes, political, or economic might. This provision is meant to fend off any form of bullying that might occur between the powerful and the less powerful states. According to international law, each state is supposed to enjoy lotus presumptive, which defines the positions of the law about the status of a state.
Other theories go along with the above conditions. The cause of disagreement so far has been the criteria that should be used to uphold statesâ self-determination because the recognition of states has become vague so far. Burgis (2009) finds that recognition of statesâ citizens has deviated from following the legal path to following the political one that has brought about inconsistencies[8]. So far, two theories are in use on the international stage to give citizens their due rights of defining their potential in the international arena.
The Constitutive Theory
The constitutive theory as explained by Grant (1999) states that, for a government or a state to attain statehood, it has to be recognized by the international community, which will then be ready to treat it as an equal member of the community[1]. This type of recognition is based on political situations and interests of the already existing states and governments, which would support or oppose the move. The question that complicates this theory is when some states recognize the new state while others refuse to recognize it. This case, therefore, creates an ambiguous situation on how to deal with the new state especially when it comes to countries that do not have many interests in the new state.
The Declaratory Theory
The second theory of recognition is the declaratory theory, which is based on the assumption that a state achieves statehood as long as it has achieved the required international conditions that are set in the international laws according to Grant (1999)[2]. The theory is hinged on article 3 of the Montevideo Convention, which further states that a given statesâ political existence should not be hinged on recognition by other states. The theory can be described as the better of the two theories though its application has been limited in the international community. Most states seek their statehood through recognition by mostly members of the United Nations Assembly and by gaining a right to vote in the assembly.
However, this procedure can be described as a constitutive way of attaining statehood. The biggest challenge has been found in the application of international law concerning the legal background that qualifies a state to statehood. This case has posed a problem to the application of the law regarding statehood, title to territory, and self-determination. In many cases, as addressed by Grant (1999), the attainment of the above status has been varied from one place to the other based on the current aggression among states concerning territorial ownership and self-determination[3].
Application of the Element of Title to Territory
The attainment of statehood has become a subject of debate concerning the application of the international statutes on the element of title to territory, which therefore questions the adequacy of the statutes in addressing satisfactorily the issue of statehood. The discrepancy is in the accepting of some states to become states while denying others the same opportunity yet they have followed the same specific criteria (Cuba 1999)[4].
An example of this is the Palestine state. Although it is a state, it has not been fully accepted as one on the international stage. It had attained its statehood through the declaratory procedure though it has been so far reduced to self-governance. Palestine state cannot vote at the United Nations assembly because the United States of America, which has strong ties to Israel, which on the other hand perceives the Palestine state as an enemy, has vetoed its full membership (though accepted and supported by many other countries). Therefore, in this case, the political situation between Israel and the Arab countries has been the basis of admission with less regard being given to the law. The Palestinian cause is made complicated by its demand that its borders should take shape of the pre-1967 border before the Israeli invasion.
Although the Palestinianâs quest for statehood seems satisfactory in the naked eye, it seems premature because of the underlying problem. Grant (2012) reveals that the Montevideo convention of 1933 on rights and duties of states sets the basic legal requirements of a state attaining recognition[5]. One of the requirements is territory[6]. So far, the issue of territory has been a dispute between the two nations. International law seems to address the issue inadequately.
The Palestinians feel that part of their land is being occupied by the Israeli nation and that the land has to be returned to them. This situation shows how the current international laws on statehood and territory are inadequate because they tend to serve partisan interests. As Samson (2010) argues, the attainment of statehood has also been blocked by already existing countries depending on the existing political situation in the given region[7]. Regional member countries have taken over the mandate to determine whether states breaking off from one of their member states should receive recognition. In this case, international law seems to take a backseat and regional political interests take center stage.
After anarchy took center stage in Somalia that had no government for a long time, different regions within the country seceded to form independent states. One of those states included Somaliland, which formed a government with all structures that are required within the international law to become an independent state. With this regard, Somaliland failed to attain the status of statehood because the neighboring nations within the East African region refused to recognize the move. This case according to Crawford (2011) puts to question the effectiveness of international law about title to territory and statehood[8].
Failure by Law to Stop Territorial Law Abuse
The application of the international law and enforcement of the same has been inconsistent throughout the world in terms of territory. Wellman (2012) poses that one of the legal requirements that govern territories, as well as borders, is the respect for other nationsâ territories, which are marked by borders[9]. The statute on borders gives the given nation exclusive rights to admit citizens of other nations. Thus, it polices its borders against unauthorized intrusion. There are set out procedures for this agenda to be accomplished especially if it is the armed forces of another nation wishing to enter another nationâs territory.
The sovereignty of a nation gives the given nation the right to admit non-citizens. This role has been violated on many occasions especially by countries with superior military powers that would enter other countriesâ territories against the international law. An example of this is the military activities of the United States of America in different parts of the world. On several occasions, the American military has violated the territorial sovereignty of other nations with the most recent example being the killing of Osama Bin Laden who the American intelligence had traced to Pakistan. Ideally, such an incursion is illegal. The international community should take action.
However, due to its inadequacy, the application of the international law could not achieve so much. Therefore, depending on the economic as well as the military might of a nation, the international law on the issues being discussed in this paper can be easily violated without any consequences. The case therefore makes the international law remain just a guideline in the governing of how countries should relate (Beckham & Butte n.d)[10].
An opposite dimension of the international law and its inconsistencies can be found in the case of the United States of America when it invaded Iraq to oust Saddam Hussein and when it fought off Saddam Husseinâs army when it invaded Kuwait. When Iraq invaded Kuwait, it had a declaration that Kuwait was one of its provinces and that it had no right of declaring independence. The United States Army intervened by invoking the international law to fight off the invasion. At the same time, the international law was quoted when the European Union countries invaded Libya to oust Gaddafi. All these cases happened against the spirit of respect for sovereignty because the case of Libya was a domestic issue that did not warrant any outside legal intervention (Wellman 2012)[11].
An interesting bit of the international laws is that they are resolutions made at the United Nationsâ assembly. Therefore, many nations, which have the power to influence the United Nations, usually come up with new resolutions that would justify any acts that would be seen to be a violation of the international laws.
The Discrepancy in the attainment of statehood can be found in the way some nations have been granted that status. The case of Kosovo can be described as one, which has attained its statehood in a discriminatory manner compared to other states like Western Sahara. The creation of this state was without the consent of Serbia from whose territory the state of Kosovo was chopped. Although the reasons for the move by the international community are satisfactory, they are not consistent with the international law. Other countries that have yearned for the same status have been denied the chance based on political reasons thus negating the purpose for the international laws.
Failure to End Territorial Disputes
The international law on title to territory has failed largely to solve the issue of disputed territories. This case can be found in the example of the dispute between Argentina and Britain on the ownership of Falkland Islands as well as the case between China and Japan on the ownership of some Islands. This case has left many nations in long-running disputes that are always threatening to become full-blown wars. The territorial disputes between many nations can be attributed to the fact that the development of the international law came at a time when many nations were suffering from different forms of occupation.
These laws then granted the nations the ownership and recognition of the lands they had occupied in terms of colonialism, Therefore, when most countries got independence, they could not reclaim parts of their lands that had not been returned by their colonisers. The international law has therefore been found to be inadequate in its application due to the inconsistencies that come out when it is applied (Grant 2012)[12]. The law in its basic form is supposed to provide justice as a balance between two conflicting situations. Nevertheless, the international law is found to be lame when weighed against this principle.
Conclusion
The international law has been the backbone to many diplomatic engagements around the world because it has set the stage for countries around the world to engage with each other. The law itself makes it difficult for it to be enforced in some circumstances because it gives countries a lot of independence as well as protection against interference from outside forces. The application of statehood, self-determination, and title to territory has not been as per the set provisions.
This failure has bred dictatorships in some countries where the rule of law is abused. In many countries where dictatorship thrives, leaders in these countries have relied on the international law as their protection as long as they have not invaded another country. The application of the international law to grant statehood to some countries has also followed a mostly political path. Most of the countries gaining recognition as new member states have tended to do so due to them being strategic economically or geographically to the influential nations. This case therefore negates the international lawâs purpose as being the guide to statehood.
An example to this scenario is the case of South Sudan and Kosovo. South Sudanâs case can be attributed to its mineral resources, which is oil. Although the people of South Sudan have been fighting for many years for statehood, they have their way because of the oil, which comes along with oil investors who would lobby their countries on behalf of the South Sudanese people. Therefore, though the international law can be described as inadequate in terms of territories, self-determination, and statehood, it has so far set adequate grounds for countries to relate to each other concerning sovereignty and respect for borderlines.
References
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