The following article examines the interactions between the right of peoples to unilateral non-colonial (“UNC”) secession and the criteria for statehood in international law. In this respect a three-point thesis is developed. First, it is argued that the law of self-determination has resulted in a less strict application of the criteria for statehood based on effectiveness, particularly the effective government criterion. This means that a state created by UNC secession pursuant to the law of self-determination will not have its statehood called into question if lacks an effective government. Second, it is argued that the declaratory approach to recognition is more reflective of international practice than the constitutive, meaning that a state created by UNC secession can exist in international law without the recognition of other states provided that the criteria for statehood are satisfied. Third, in light of the preceding two points, it is argued that there are many examples of UNC secessionist “entities,” which have been denied statehood by the international community. This is explicable by the fact that compliance with peremptory norms is now an integral aspect of state creation. This means that a state created by UNC secession must not violate peremptory norms or else it will languish as a stateless entity, subject to a legal obligation of nonrecognition.
Unilateral Non-Colonial Secession and the Criteria for Statehood in International Law,
41 Brook. J. Int'l L.
Available at: https://brooklynworks.brooklaw.edu/bjil/vol41/iss1/1
Administrative Law Commons, Civil Law Commons, Comparative and Foreign Law Commons, European Law Commons, International Law Commons, Jurisdiction Commons, Law and Politics Commons, Legal History Commons, Legislation Commons, Other Law Commons, State and Local Government Law Commons