CREATION AND CESSATION OF STATES AND CONTEMPORARY INTERNATIONAL LAW

Author(s): HANNA BOKOR-SZEGŐ

Source: Társadalom és gazdaság Közép- és Kelet-Európában / Society and Economy in
Central and Eastern Europe , 1998, Vol. 20, No. 2, The End of a Millennium: The
Dynamics of External and Internal Politics in Central and Eastern Europe: Part II (1998),
pp. 268-283
Published by: Akadémiai Kiadó

Stable URL: https://www.jstor.org/stable/41468370

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CREATION AND CESSATION HANNA BOKOR-SZEGÖ
OF STATES AND
CONTEMPORARY
INTERNATIONAL LAW

1 . The Notion of the State1

The state is not created by international law; rather its creation is

brought forth by processes outside the law. At present, when there
are no 'non occupied' territories ( res nullius) new states can only
emerge with a change the status quo. international law has no rules
concerning the criteria on the basis of which any territorially
organised unit can act as a state namely; as a subject of international
law, in the field of international relations. Theoretical experts of
international law have long tried to determine the criteria of
statehood.2 These analyses are reflected in the first article of the
convention signed on 26th December 1933 at the Conference of
American States in Montevideo. The convention addressed the rights
and obligations of states in the official interstate relations in regional
frameworks. The state as a subject of international law must meet
the following requirements: I. permanent inhabitants; II. defined
territory; III. government; IV. ability to establish relations with other
states.3 Despite the fact that the convention was confirmed by only a
few states, the first three elements of this definition, as the criteria of
statehood, are regularly cited in international relations. Regarding the
fourth criterion, the establishment of relations of a state (e.g.:
conclude an international treaty) can only be realised if there is

1 For more details see: Hanna Szegö-Bokor (1997): Nemzetközi jog. Aula
Kiadó, (Hanna Szegô-Bokor: International law).

2 See e.g. Marek, К. (1954): Identity and continuity of States in public

international law. Geneva, pp. 161-190. Crawford, I. m. pp. 31-128.

3 Recueil des Traités CLXV. pp. 32-43.

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 acceptance by
the recognitio
establishment and existence of the state.

Within the framework of international organisations even in the time

of the League of Nations, there were - although without results -
inclinations to determine such objective conditions which during the
process of admission of new members would have eliminated the
subjective judgement of member states concerning the validity of
their statehood.

During the period of the United Nation's organisation, the

International Court of Justice adopted on 28th May, 1948 a
consultative opinion (Conditions of Admission of States to
membership in the United Nations Case) in which - setting out from
Article 4 of the Charter of the United Nations - it established five
means of admission of new members: a) admission can only be
requested by states, b) the state asking for admission is peace-
loving, c) it accepts the obligations contained in the Charter, d) it is
able and e.) willing, to carry out these obligations.

The international Court of Justice did not give any objective

definitions. The admission of a state fulfilling the afore-mentioned
five criteria to membership in the United Nations is effected by a
decision of the General Assembly upon the recommendation of the
Security Council (Charter, Article 4, paragraph 2). Thus on the
procedure of admission in the Security Council and the General
Assembly every state, motivated more by political than legal factors
takes its own position on the criteria of statehood.

As in the League of Nations, within the United Nations no such

objective criteria have been successfully established which,
independently from the subjective judgement of the members of the
international community, can state whether the applicant for
admission can be regarded as a state.

At this point, we can conclude that the existence of statehood

necessarily has three criteria:

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 270

territory
inhabitants, and
government.

International law has no rules concerning the size of the state

territory and the number of the state inhabitants. Both in bilateral and
multilateral relations - as well as in international organisations -
there are small and big states alike.

International law interprets the government of a state in a very broad

sense. Contrary to constitutional law, it considers the government
not only as the main organ of the state's executive authority, but also
as the politically and legally organized public power.

The government must exercise its power 'effectively'. 'Effectively'

means the ability to fulfil all of the state's tasks, including the
maintenance of public order and public security within the state
territory.

The state can only appear in international relations if its government

is able to carry out the international representation of the state and to
fulfil its international obligations.

Let us try to give a general definition of the state which fits all
different countries existing today: the state in international relations
is a unit (entity) which comprises a group of individuals living under
the authority of an effectively ruling government in a determined
territory.

2. Formation and Cessation of States

2.1 Characteristics of the Process of the Formation and

Cessation of States

The map of the world has been changing continuously since human
society began to live lived in state organisation. States ceased to
exist, new states came into being.

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 In the twentie
altered. The fi
twenty six Stat
conference, onl
represented at
members, among them six Asian and two African states;
subsequently five more Afro-Asian states were admitted into the
League. In 1945, the United Nations Organisation was established
by fifty-one states, among them, only four from Africa and nine from
Asia.4 The number of members of the organisation has increased by
more than three times in the past decades; for example by the first
half of 1996, the number of UN members increased to 185 (hundred-
eighteen-five). The newly independent states which emerged from
the disintegration of the colonial empires have now joined the
international community of states. At present, the number of states -
and thus, the number of UN members - has increased again. This
phenomenon is, above all, connected to the disintegration of the
earlier compound (federal) states belonging to the Eastern and
Central European region.

The processes of the formation of states - as well as the cases of

their birth - lie outside the sphere of the regulations of international
law. The state, as previously mentioned, comes into being as soon
as the state authority is firmly established over the inhabitants living
in a determined area. The cessation of states can be caused by
fundamental territorial changes happening in the international
community of states.

Before the territorial partition of the world was established, a state

was formed when that a state apparatus was set up in a territory
where, no such organisation had existed ( res nullius). However, as
time passed the territorial partition of the world ended, and thus the
possibility of occupation ceased to exist.

4 Hanna Bokor-Szegö (1970): New States and International Law. Akadémia

Kiadó, Budapest p. 52.

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272

This type of state

conceivable that an island could emerge from the open sea,
becomes populated and the inhabitants form a state apparatus. But
the possibility of this happening is minimal. Thus, the method of state
formation which was characterised by the fact that it did not affect the
status quo of the existing states can be left out of consideration
today.

In the past, the cessation of states most often occurred as the result
of violent actions of states; most commonly when a conquering state
occupied the whole territory of another state. (For example, Italy
annexed Abyssinia (Ethiopia) in 1936, and Germany annexed Austria
in 1938.) In several cases, the state which ceased to exist as a result
of a violent action recovered its independence subsequently. (This
happened in both these cases.)

Today the processes of formation and cessation of states in general

lie outside the sphere of the regulations of international law. These
processes can often be carried out in a way that evades the question
of their qualification from the point of view of international law. For
example, international law does not have any rules concerning the
judgement of that process when any state according to its own will,
unites with another state and the two states existing prior to the
union cease to exist. That is to say, the union becomes the subject of
international relations as a new state.

Our era's international law, however, has certain rules that have the
character of jus cogens which produce an effect on certain
processes of the formation and cessation of states.

One of the rules that have the character of jus cogens is the right of
self-determination of peoples and nations. As the consequence of
this right - and through the assistance of the states of the
international community - the new states born from the disintegration
of the colonial empire were created.5

5 See in detail: Hanna Bokor-Szegõ (1970): New States and International

Law. Chapter One. Akadémia Kiadó, Budapest.

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 In today's inter
jus cogens is th
violent disconti
law. Even if the
armed conflict
since 1945, not
force exercise
violation of the
effective imple

The prohibition
law's other signi
closely connect
change, as, for
state territory.

2.2 Modern Cases of the Formation and Cessation of

States

During the process of historical development there are inevitably

certain 'normal' changes in the components of the state which
obviously do not result in the cessation of the state, in short, they do
not affect its identity. As for the inhabitants of the state, the
generations change one another in the order of life; smaller
adjustment of the state territory (e.g. during the regulation of
riverways done together with a neighbouring country) evidently
cannot affect the identity of the state. The same logic should be
applied to the case when there is a change in the ruling power. For
example, in any state after parliamentary elections, government
changes, but the state itself remains intact in spite of these changes.

The only common criterion of the different states existing today in

international relations is the concept of territorial organisation.
Summarily stated, the fundamental changes which occur in a state's
territory can affect the state's identity and result in the formation or
cessation of states.

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274

The processes o
cases, are related
discuss the two
question of wh
extension of a
subsisting with
identity ) and al
subjects of inter

2.2.1 The State Attaining Independence from Colonial

Status

This type of state formation is the product of the disintegration of the

colonial empires. Most of the states in our age, were formed in this
manner. In the course of this process, the UN played an important
role in the formation of the rules of international law pertaining to this
type of state formation. The state attaining independence from
colonial status is a new subject of international law. The former
metropolitan state's international legal personality, namely its
identity, cannot be affected by its colony's secession.

In accordance with the identical texts of the first paragraph of the two
pacts concerning the protection of human rights: 'All peoples have
the right for self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic,
social and cultural development.'6 The Charter of the UN - as well as
the literature on international law and the interstate practice - is
concerned with the self-determination of 'peoples and nations'. After
World War II, the right of self-determination arose in connection with
territories being in a dependent status. In a number of cases, the
inhabitants of these territories were not in the possession of all the
criteria of a nation, especially those of language, a community of
cultural traditions, the consciousness of national belonging stemming

6 A Compilation of International instruments. United Nations. New York,

1988. p. 7., p. 18.

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 from a common
prerequisite for

The internal a
within the stat
rights arising
population.

The external aspect of the right affects international relations: it

prevails if a people or nation is not ruled over by a foreign nation, that
is to say, it does not live against its own will within the framework of
another state.

The process of the disintegration of the colonial empire undoubtedly

happened as the implementation of the external aspect of the right of
self-determination.

According to the Declaration on Principles of International Law

concerning Friendly Relations and Co-operation among States
(1970) the forms of the realisation of a people's self-determination
are the formation of a sovereign and independent state, the free
joining of or in union with an independent state or any other forms of
the establishment of political status decided freely by the people.
However, the Declaration clearly expresses the view that the right to
achieve independent state existence is the peoples' due merely in
the process of the disintegration of colonial systems. The
Declaration, on the one hand, emphasises that the colonial system
must be ended without delay, but on the other hand, it declares with
validity that the Declaration cannot be interpreted as an authorisation
aimed at the partitioning of sovereign and independent states.
According to the Declaration, all states are obliged to refrain from
such actions that are aimed at the violation of the territorial integrity
of any states or counties or at the partial or total disruption of the
national unity.

Thus, the Declaration unambiguously states that only colonial

peoples have an international legal claim to establish independent
states on the basis of the right of self-determination.

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 276

The movements of secession can undoubtedly jeopardise the

maintenance of pacific interstate relations in a given region. At
present, with respect to the events that took place in the East and
Central European region the question can be asked whether the
violent suppression of the external aspect of the right of self-
determination does or does not entail the same dangers anywhere in
the world.

The birth of the states emerging from the disintegration of the

colonial empires took place in the spirit of the right of self-
determination, which is one of the current rules of international law.
The states were then obliged to enhance the process of their
formation. A number of resolutions of UN organs dealt with certain
phases of these processes of independence. The states attaining
independence from colonial status after their formation within a short
period of time were subsequently admitted to membership to the UN.

In other respects, the rules of international law do not give any

orientations on the question if, on the one hand, the claim to
recognise a state's independence, which originates from the right of
self-determination, conflicts, on the other hand, with the obligation to
respect state sovereignty and the territorial integrity of a state, which
one has priority. What is unquestionable is that states with more
nationalities are obliged to ensure the rights of minorities living in the
territory of the respective country.

2.2.2 Union

If two or more states unite, the union theoretically

state, with the cessation of the states composing
happened for example in the case of Tanganyik
which united under the name of Tanzanian Republic and later
became a member state of the UN, without an admission procedure.

However, in practice, the situation is not always this clear, because

international law has no mies which can decide what effects the
creation of the union may have on the international legal personality
of the participating countries.

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 The viewpoint
re-unification i
According to
Germany - w
fundamental statute - the German Empire survived the 1945
downfall, the surrender and the four-power occupation. With the
emergence of the Federal Republic of Germany, no new state was
formed. Merely one part of Germany was re-organised. According to
this, the Federal Republic of Germany is not the successor state of
the German Empire, but with respect to its international legal
personality it is identical with it, even if its territorial extension did not
comprise the whole former territory of the German Empire. Thus, the
Federal Republic of Germany always considered the German
Democratic Republic as a provisionally seceded territory. It also
considered its independent state existence as a provisional state of
being. This viewpoint was not modified by the fact that from 1973
until the re-unification, besides the Federal Republic of Germany,
the German Democratic Republic was also an independent member
of the UN; naturally, after the re-unification, this state ceased to
exist. Thus, because of the unique situation, the German re-
unification cannot be considered as the precedent of union.

2.2.3 Dissolution and Secession

If any state breaks up into more parts ( dissolution )

cessation of the former state, new states can come in
special case of this type is when, with the obvious mai
any state, a part merely separates from the state ( secess
from this separated part a new state comes into existence

However, the situation in interstate practice is more c

International law does not contain rules whether and how far the
territorial loss of a state entails a change of the international legal
personality of the state exercising authority over a diminished
territory; that is to say how far it remains identical with the former
state with a larger territory. In practice, it is often difficult to ascertain
whether it is a real dissolution or it is the secession of a territory,

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278

since the state s

political motivati
prior to the ter
as secession. These problems are not solved by the rules of
international law: they are always decided on the basis of the
prevailing political necessities and power relations.

At that time a typical example is the dissolution of states forming a

union. This happened in 1961 with the United Arab Republic. The
concept of Syria was that after the dissolution, it was identical with
the Syrian state existing prior to the union. However, Egypt aspired
to consider the step by Syria as secession. Its viewpoint was that
Egypt, prior to the union and as international legal personality, was
identical with the United Arab Republic formed after the union, and
this fact was not modified by the secession of Syria. According to
this, it kept the United Arabic Republic as a name and changed it to
Egyptian Arab Republic only in 1971. The practice of the UN in this
case was merely restricted to the acknowledgement of the
viewpoints of the parties concerned. Egypt continued its UN
membership under the name of United Arab Republic; while Syria -
without any procedures of admission to membership - became a
member of the UN again. As for the judgement of the situation
concerning the formation and dissolution of the United Arab Republic
one must keep in mind that in this case the process of unification of
Egypt and Syria began, but stopped before it effectively came to an
end.

In the past, there were cases when it was obvious from the beginning
that secession took place: that is to say, there were no changes in
the international legal personality of the state subsisting with a
diminished territory, and from the seceding part a new state was
formed. Thus, in 1965, Singapore seceded from Malaysia, and in
1971, Bangladesh - after its secession from Pakistan - emerged as
a new state. Both states were admitted to the UN after a normal
procedure of admission to membership.7

7 For details see: Hanna Bokor-Szegö (1984): Államazonosság -

államutódlás. Akadémia Kiadó, Budapest, p.26-47. (Hanna Bokor-Szegö:
State Identity - State Succession).

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 Today, the pr
Central Europ
cessation of sta
Soviet Union pr

The Soviet Unio

of Independent
1991. In the sim
the Soviet Uni
geopolitical real

In Alma-Ata o
Commonwealth
Protocol to the Minsk Declaration.

The Commonwealth of Independent States itself cannot be

considered either a state or a federal state, it is a confederation.

The international legal status of the members of the Commonwealth

of Independent States require an independent analysis. From this
respect above ail, the practice of the UN can offer an orientation as
far as the viewpoint of the international community of states is
concerned.

The Russian Federation effectively took the seat of the former Soviet
Union in the UN and in other international organisations; in other

8 For details see: Hanna Bokor-Szegö (1993): A kelet-kôzépeurópai régió

egyes államaiban végbement szétesési folyamatok hatása a nemzetközi
szerzõdésekre. Állam-és Jogtudomány, XXXV/1-2. (Hanna Szegô-Bokor:
The Effect of Dissolution of States in Eastern and Central Europe on Treaty
Obligations.)
For details see: Hanna Szegö-Bokor (1995): Questions of State Identity
and State Succession in Eastern and Central Europe. BIGIS Papers 3. p.
103-115.

9 For details see Bothe, M. and Schmidt, CH.: Sur quelques questions de
succession posées par la dissolution de l'URSS et celle de la Yugoslavie.
RGDIP, 1992/4. p. 824.

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280

words, it did n
organisations as

Extra-legal fact
acknowledged t
membership of
membership in t
states were evid
with the continual maintenance of obligations concerning
international security, disarmament, and the use of nuclear energy.10
However, the states which were born as a result of the disintegration
of the Soviet Union are new subjects of international law; they are
new states.

We must deal separately on the one hand with the judgement of the
international legal status of Belarus and Ukraine, and on the other
hand with that of the Baltic states.

Belarus and Ukraine were formerly the republics of the Soviet Union.
In the disintegration process of the Soviet Union their international
legal status has undergone a peculiar evolution. With the creation of
the UN, as a result of a political compromise between the Soviet
Union and the other Great Powers, these two states were admitted to
the organisation as independent members and became independent
parties to a number of international treaties. Thus, already prior to
the dissolution of the Soviet Union, these two states had already
possessed a certain, and rather limited, international legal
personality which, with the dissolution of the Soviet Union, has
become complete.11

The Baltic States (Estonia, Latvia, Lithuania) regained their

independence in August 1991, also prior to the dissolution of the
Soviet Union. According to their viewpoints they considered
themselves legally identical with the three states annexed by the

10 See in this respect: Tichy, H. (1992): Two recent cases of State

succession. An Austrian perspective. Austrian Y. Pubi. Int. Law 44 p. 130.

11 See in this respect Bothe: op. cit. p. 823.

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Soviet Union in 1940: that is to say their international legal
personality was 'revitalised' after 51 years. It is unquestionable that
the international community of states in the 1940s did not act in
concert as far as the acknowledgement of the annexation of these
states by the Soviet Union was concerned.

The dissolution of Czechoslovakia took place on 1 January 1993,

when the circumstances allowed for an ordered separation. The
Czech Republic and the Slovak Republic came to the agreement that
Czechoslovakia would cease to exist at the afore-mentioned date.
As a result of the separation, two new states and two new subjects of
international law came into being.

The continuous dissolution of Yugoslavia from the end of 1990

provided the most serious conflict in the Eastern and Central
European region. The dissolution of the former state into five part
(Federal Republic of Yugoslavia (Serbia and Montenegro), Croatia
Slovenia, Bosnia-Herzegovina, Macedonia) has already become an
accomplished fact.

The Federal Republic of Yugoslavia aspired to be recognised as

identical with the former state, it wanted to make this viewpoint
acceptable to the international community of states, but this
aspiration met with resistance which was clearly expressed in
second international organisations. The Security Council of the UN
took a strong position and stated that the Federal Republic of
Yugoslavia could not continue automatically as the membership of
the former Yugoslavia in the UN. Just like the other states emerging
from the dissolution of the former state it has to apply for
membership to the UN as a new state.

If we compare this standpoint with the fact of the acceptance of the

Russian Federation's 'continuing' membership to the UN, it becomes
obvious that the members of the international community of states in
the question of state identity take sides not on the basis of legal
consideration, but political considerations, in the case of the Russian
Federation, there was a universal interest from the international
community of states to ensure that the Russian Federation, being
one of the great remaining Nuclear Powers, - continues to

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282

undertake the
international p
intention behin
Yugoslavia was
admission to th
Article 4 of the
policy and that
conditions in th

With the dissolu

from the process five new states and five new subjects of
international law came into being.

3. State Succession

State succession is the replacement of a state by another w

to the responsibility of the international relations of the
Essentially, the question is whether the rights and obligat
predecessor state pass to the successor state and if so,
conditions.

State succession is one of the most controversial issues of the theory

of international law and that of the practice of interstate relations. In
the past there were no generally accepted customary rules in
international law which would have attached clear legal
consequences to the territorial changes of a state, no rules
prescribing that the successor state would 'inherit' in all cases and
unconditionally - thus automatically - the rights and obligations of
the predecessor state.

In the case of state succession, different international legal problems

arise. The two most important questions are the future of the
international treaties concluded by the predecessor state and the
future of the properties, debts and archives of the predecessor state.
For the first time in the history of interstate relations, there were
attempts to regulate the problems of state succession in the form of
international treaties. The two treaties have not entered into force

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 until the end o
influence intern

4. Conclusion

The processes of state formation and state cessation are not judged
on the basis of the same principles by the participants in interstate
relations. It is not always possible - even in the cases of fundamental
territorial changes - to state unambiguously what kind of change
occurred in the composition of the international community of states.
In many cases, the decisions made by the actors of international
relations are determined by the political considerations of given
power relations. When states are uniting, it can become dubious
whether the union is a new state (that is to say those states from
which it was born ceased to exist) or whether the union continues the
international legal personality of one of the states existing prior to the
union; whether the states existing after separation are new states,
that is to say the former state from which they were born has ceased
to exist, or whether one of them continues the international legal
personality of the state existing prior to the separation. (This is the
case of secession.)

As we can see, it is very important to clarify whether a fundamental

territorial change entails the formation or cessation of states. If the
territorial change does not affect the international legal personality, or
the identity, of a state, then continual validity of the formerly
undertaken international rights and obligations cannot be questioned.
At the very most, the diminished territory of the state can affect the
extension of these rights and obligations. Otherwise, when the
territorial change affected the international legal personality of the
state, the formerly operative international rights and obligations do
not pass from the state formerly exercising authority over the territory
(predecessor state) to the state gaining authority over the territory
(successor state) in all cases and unconditionally. This is the case of
state succession.

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