State creation: the legitimacy of unilateral secession and recognition in international law

Mwaihomba, Agnes

State creation: the legitimacy of unilateral secession and recognition in international law

Master Thesis

2017

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

Since the twentieth century, the proliferation of new States has not declined in the twenty first century. Several small territories have declared themselves as sovereign States by claiming statehood in international law. These developments have a significant measure in many respects of international law notions of self-determination, secession, recognition and de-colonisation. A State remains a primary subject of international law. Despite the fundamental legal framework on the creation of States enshrined in the Montevideo Convention on the Rights and Duties of States 1933 (Montevideo Convention), the creation of States and unilateral secession remain part of the controversial and unsettled issues of international law. This is because of the legal and factual situation that evolves around the concept of State creation and unilateral secession. While the legal framework on State creation is in place, other new criteria continue to develop, alongside are the concepts of unilateral secession and self-determination. It therefore follows that in any given situation of contemporary international law, the concepts of State creation, secession and self-determination cannot be discussed in isolation. In this thesis, I will analyse the notions of statehood, secession and recognition. I will argue that in contemporary international law or post-colonial era, unilateral secession and satisfying the traditional criteria of statehood does not qualify the clamant entity to become a new State. Secondly, I will argue that although recognition is not a rule of customary international law, State practice on recognition and other suggested criteria play a significant role with regards to creation of States in international law. Thirdly, the Republic of Somaliland as a case study will be analysed against the criteria of statehood and the application thereof. The study will also provide a general analysis of a few specific cases of successful and unsuccessful attempts at secession.

Keywords

Public International Law

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