c






 
  

    


Public International law consists of rules and principles which regulate the relationship between
States, and international organizations. It is therefore necessary to consider the criteria an entity
must fulfil to obtain the identity of a State.

The 1933 Montevideo Convention on Rights and Duties of States provides the traditional criteria
necessary in order to claim statehood. According to the Convention a State should posses the
following:

(a) A permanent population;

(b) A defined territory;

(c) Government; and

(d) The capacity to enter into relations with other states.

The first prerequisite for statehood is the existence of a permanent population. Although it is
essential that there is a need for a certain population to establish the existence of a State there is
however no essential specification regarding the size of the populace.1

To satisfy the criteria for statehood, the next element under the Montevideo Convention refers to
territory. The International Court of Justice held in the North Sea Continental Shelf cases that it is
not necessary to' have defined or undisputed boundaries.2 It is sufficient that it͛s ͞territory has a
sufficient consistency͟.3

A State also requires a government that functions as a ͚stable political organisation͛ within the law of
the land.4 It is important to note that this requirement does not apply in times of civil war.

The capacity to enter into relations with other States is the final element under the convention. The
capacity to enter into relations refers to an independence from the authority of any other state.5
That is a States independence in governing its own external affairs and international relations.

The disappearance of one of these four elements outlined in the Montevideo Convention has been
suggested to have a legal consequence; the extinction of the sovereign state.6 However, a change to
these elements leaves a States identity intact and will not affect the identity of the state.7

Changes in government through death, election, or any changes brought about in conformity with
the constitution do not affect the legal identity of the state. There is also a strong presumption that
a State continues to exist with its rights and obligations despite revolutionary changes in

1
Harris
2
G
 
  


 
  


 
 
G
  , ICJ Reports 1969, p. 32, para. 46.
3
  
     
 (1929) 5A.D. 11 at 15.
4
°


 
  


 
    ·.N.O.J.,
Special Supp. No.3, p.3 (1920)
5
° 

    !
  1931 PCIJ
6
Kunz page 71
7
Kunz page 71
government, or despite a period where there may be either no or no effective government.8 The
identity of a State is also not affected by unconstitutional changes in government, whether brought
about by revolution or coup d͛état.9 Revolutionary changes do not affect the identity of the State, as
long a state does not become extinct.10 This notion is also illustrated by national and international
court decisions and by the ·ondon Protocol of February 19, 1831.11

Belligerent occupation does not affect the continuity of the State, even where there exists no
government claiming to represent the occupied state. Following the occupation of Iraq in 2003
Members of the Security Council, after adopting SC res 1511, called for the ͚rapid restoration of
Iraq͛s sovereignty͛, they did not imply that Iraq had ceased to exists as a State but that normal
governmental arrangements needed to be restored.

Therefore, in deciding whether a change of government affect the identity of a state. A change in
government, however accomplished, does not affect the identity of a state.12

An example of such are failed states. ͞A failed state is one which though retaining legal capacity, has
for all practical purposed lost the ability to exercise it͟.13 In the 1990s Somalia was a state that has
been characterised as a failed state. The Government was overthrown by guerrillas in 1991, as a
result Somalia lacked an effective central government. During this period, Somalia remained a UN
member and continued to be recognised as a state by the international community.14

Over the past 30 years many other States including Afghanistan, Cambodia, ·ebanon, ·iberia have all
been characterised as failed states but have continued to be recognised as states during their time
of turmoil.15

The Montevideo Convention on Rights and Duties of States has been accepted as reflecting the
requirements of statehood at customary international law.16 Although, it is important to note that
there is additional criteria which may be considered for statehood, including self-determination and
recognition.17 However, they are not regarded as necessary but as additional indications to prove
legal personality.

Under the principle of self-determination, a group with a common identity and link to a defined
territory is entitled to decide its political future in a democratic fashion.18 Recognition is an optional
and political act.19 Article 3 of the Montevideo Convention states that͞The political existence of the
state is independent of recognition by other states.͟ Therefore, the identity of a state depends
mainly on the four elements outline in the Convention.

8
The concept of statehood page 34
9
Kunz page 73
10
Kunz page 74
11
Kunz page 73
12
Shaw page 379
13
Thurer .. (1999) No.836 international Review of the red Cross 731
14
Harris page 101
15
Harris 102
16
Refer to page 99 of Harris
17
Harris page 99
18
Scharf, Ê
note 4, at 379. Michael P. Scharf, 
  
 Ê, 31
DENV. J. I NT͛· ·. & PO·͛Y 373, 379 (2003)
19 th
Ian brownlie, £


   
" 

#$, (7 edition Oxford university press, Oxforf 2008)88.
The traditional criteria for statehood have been described as abstract. Abstract in the sense that
they do not require possession of a particular territorial á , the maintenance of a particular
composition of population or a particular form of government.20 It is therefore commonly accepted
that the continuity of the state is not affected by changes in government.21

20
The problem of state succession and the identity of a stat under international law page 159
21
Protocol of ·ondon, 19 February 1831, G.FR. Martens, G 


 
  

 %


 

&vol. 10. at 197.