Montevideo Convention

Article 1
The state as a person of international law should possess the following qualifications: a
permanent population; a defined territory; a government; and capacity to enter into relations with the
other states.

Article 4
States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The
rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the
simple fact of its existence as a person under international law.

Article 5
The fundamental rights of states are not susceptible of being affected in any manner
whatsoever.

Montevideo Convention, ELEMENTS OF STATE

into four elements:

People:
means a community of persons sufficient in number and capable of maintaining the permanent
existence of the community and held together by a common bond of law. It is of no legal consequence if
they possess diverse racial, cultural, or economic interests. Nor is a minimum population required.

Territory:
definite territory over which an entity exercises permanent sovereignty is another element of a
state. But as the Restatement (Third) on the Foreign Relations Law of the United States explains: “An
entity may satisfy the territorial requirement for statehood even if its boundaries have not been finally
settled, if one or more of its boundaries are disputed, or if some of its territory is claimed by another
state. An entity does not necessarily cease to be a state even if all its territory has been occupied by a
foreign power or if it has otherwise lost control of its territory temporarily.

Government: that institution or aggregate of institutions by which an independent society makes

and carries out those rules of action which are necessary to enable men to live in a social state, or

which are imposed upon the people forming that society by those who possess the power or authority
of prescribing them.”3 International law does not specify what form a government should have.
Moreover, for purposes of international law, it is the national government that has legal personality and
it is the national government that is internationally responsible for the actions of other agencies and
instrumentalities of the state. Finally, a temporary absence of government, for instance during an
occupation by a foreign power, does not terminate the existence of a state
Sovereignty: Sovereignty means independence from outside control. The Montevideo Convention
expresses this in positive terms as including “the capacity to enter into relations with other States.” This
latter element of sovereignty, however, is dependent on recognition. An entity may in fact possess all
the elements of a state but if one or more states do not extend recognition to it, the entity would not be
able to establish relations with those states.

uti possidetis rule- Pre-existing boundary and other territorial agreements continue to be binding
notwithstanding.

STATE RECOGNITION -the act of acknowledging the capacity of an entity to exercise rights
belonging to statehood.

a) declaratory theory -recognition is merely “declaratory” of the existence of the state and that its being
a state depends upon its possession of the required elements and not upon recognition. A recognizing
state merely accepts an already existing situation. The weight of authority favors the “declaratory view.”

b) Constitutive theory -recognition “constitutes” a state, that is, it is what makes a state a state and
confers legal personality on the entity. In effect, this merely emphasizes the point that states are under
no obligation to enter into bilateral relations. But then states may decide to recognize an entity as a
state even if it does not have all the elements of a state found in the Montevideo Convention

CONTINUITY -Succession or Continuity States do not last forever. The issue of state succession can
arise in different circumstances. Existing sovereignties can disappear under different circumstances. New
political sovereigns may arise as the result of decolonization, dismemberment of an existing state,
secession, annexation and merger. In each of these cases an existing sovereignty disappears either in
whole or in part and a new one arises thus giving rise to questions of succession to rights and
obligations.

SUCCESSION - The issues on succession can be succession to territory, to treaties, to property and
contracts. The rules may be summarized thus: When a state succeeds another state with respect to
particular territory, the capacities, rights and duties of the predecessor state with respect to that
territory terminate and are assumed by the successor state.

SELF DETERMINATION- Self-determination covers two important rights: the right “freely to
determine their political status and freely pursue their economic, social and cultural development” and
the right “for their own ends, [to] freely dispose of the natural wealth and resources without prejudice
to any obligations arising out of international cooperation, based upon the principle of mutual benefit,
and international law.”

All peoples have the right of self-determination. By virtue of the right they freely determine their
political status and freely pursue their economic, social and cultural development.
II. The Nationality Principle.
The nationality principle says that every state has jurisdiction over its nationals even when those
nationals are outside the state.

STATELESS PERSON
Stateless persons Stateless persons are those who do not have a nationality. They are either de jure or
de facto stateless. De jure stateless persons are those who have lost their nationality, if they had one,
and have not acquired a new one. De facto stateless persons are those who have a nationality but to
whom protection is denied by their state when out of the state. This is the situation of many refugees.

jurisdiction to prescribe norms of conduct (legislative jurisdiction)

jurisdiction to enforce the norms prescribed (executive jurisdiction)

jurisdiction to adjudicate (judicial jurisdiction)

The Protective Principle. This principle says that a state may exercise jurisdiction over conduct outside
its territory that threatens its security, as long as that conduct is generally recognized as criminal by
states in the international community. (Restatement 402[3]) This conditional clause excludes acts
committed in exercise of the liberty guaranteed an alien by the law of the place where the act was
committed.

The Universality Principle. The universality principle recognizes that certain activities, universally
dangerous to states and their subjects, require authority in all community members to punish such acts
wherever they may occur, even absent a link between the state and the parties or the acts in question.
This principle started with piracy. Piracy in international law means any illegal act of violence or
depredation committed for private ends on the high seas or outside the territorial control of any state.
Now the principle covers not just piracy but also genocide, crimes against humanity, war crimes, aircraft
piracy and terrorism. There is also a growing support for universal jurisdiction over crimes against
human rights.

The passive personality principle asserts that a state may apply law — particularly criminal law — to an
act committed outside its territory by a person not its national where the victim of the act was its
national. The principle has not been ordinarily accepted for ordinary torts or crimes, but it is increasingly
accepted as applied to terrorist and other organized attacks on a state’s nationals by reason of their
nationality, or to assassination of a state’s diplomatic representatives or other officials.”