Does Fabota qualify for statehood under Montivedeo Convention Essay Example

prerequisite for states to achieve statehood.

Both India and Pakistan assert their ownership of Kashmir. In order for a state to be acknowledged as a member of the international community, it must possess a functional identity that is determined by its government's responsibility for its global rights and obligations. Fabota demonstrates that it has effective oversight over both its populace and territory, which is an essential attribute of any state and necessary for statehood.

The issue of Fabota's government's international representation and permanence is irrelevant to their effective control. To determine their claim to statehood, particularly regarding recognition by the UK, it depends on their ability to engage in legal relations. Although the specific requirements for this test are undefined, a state is generally recognized as such if it is under direct or indirect control of another state and has a certain degree of legal dependence. It does not necessarily mean that the state must exist independently but cannot be under lawful sovereignty of another state. However, Ethon may challenge this requirement by claiming that Fabota falls under their legal jurisdiction due to its unlawful occupation by rebels. Furthermore, principles of international law and convention terms imply characteristics like attainment capacity into legal relationships which are not explicitly outlined in Article 1 of the Convention. Even if Ethon is unable to regain control over Fabota, can they assert independence from them? Also, does the fact that they achieved independence through illegal means hinder them from claiming legal independence?

Although Fabota has a legitimate claim to self-determination, it is imperative that its citizens pursue this goal through lawful means. Nevertheless, the incursion of rebels evidences that such pursuits are

illegal and cannot be deemed justifiable.

International law prohibits the use of armed force, making it illegitimate. Even if a territory meets statehood criteria, violating this principle can prevent recognition as a state. The Turkish Republic of Northern Cyprus fulfills many requirements but was not recognized due to being formed through Turkey's illegal use of force in 1974. It is uncertain if there was an illegal use of force in Fabota, but their rebel behavior suggests potential involvement.

The recognition of statehood plays a crucial role in determining whether a claim to statehood is valid. The acknowledgement of statehood or sovereignty by other members of the international community can rectify any defects in an otherwise imperfect claim to statehood. For instance, being recognized by influential nations such as France, China and Italy, two of which are permanent members of the UN, may be adequate to identify Fabota as a state. However, three recognitions alone may not suffice to be considered as the international community at large. Nonetheless, it could urge other countries to acknowledge Fabota due to the importance of those states that already recognize it. This is evident from the admission of some former Yugoslavian states into the UN as a result of extensive recognition. Ultimately, recognition is the most conclusive factor in determining whether Fabota can legitimately claim statehood and whether the UK has an obligation under international law to recognize it.

France, China, and Italy seem to have recognized Fabota de facto despite its unlawful creation. These states argue that Fabota's effective existence demands it to be treated as an international person. The UK's de facto recognition of the Bolshevik government of the

USSR in 1921 serves as an example. However, it seems that the UK has no duty under international law to recognize Fabota, as recognition is a political act influenced by political, economical, and legal considerations. Nevertheless, we must consider the legal consequences of France, China, and Italy's recognition of Fabota and two theories may come into play. The Declarative Theory limits the general legal effects of recognition since it's only an acknowledgment of pre-existing legal capacity. Therefore, France, China, and Italy's recognition is not decisive for Fabota's claim to statehood as it can only be conferred by operation of international law.

According to this theory, the UK is not obligated to recognize a state as an international legal personality based on recognition by other states. Instead, it is conferred by rules of international law regardless of recognition. If international law principles acknowledge Fabota's claim to statehood, it is irrelevant whether the UK recognizes them. This theory is supported by the fact that many Arab states refused to recognize Israel, but still made claims against her. The UK's failure to recognize Fabota may only have consequences in national law, but does not negate their international personality as long as they satisfy the 5 tests of statehood. The UK may not have a duty to recognize in the sense of entering into treaties, but must acknowledge the state in international law.

The Constitutive theory holds a contrasting view that international personality is not obtained through international law, but instead, recognition is a prerequisite for statehood or government capacities. Therefore, Fabota's status as a state depends on its recognition by others. The theory acknowledges that states are not obligated to

engage in bilateral agreements with other entities. However, even under this theory, if the UK does not recognize Fabota as a state, it will not be considered a state in the UK and will not receive state protections, although this does not necessarily apply to international law.

Despite its inconsistencies with modern legal principles, the theory that legal personality should be based on an objective test rather than a subjective assessment by third parties, as stated in the Montevideo Convention, raises questions regarding the necessity of recognition for statehood. While some argue that recognition is necessary once a state has fulfilled international law criteria, it is evident that even if this were true, the UK is not obligated to recognize the Fabota as a state under the Montevideo Convention due to its failure to meet all necessary qualifications.

Opinion no. 10 of the Yugoslav Arbitration Committee in July 1992 provides clear answers about the UK's legal duty, emphasizing that the UK's recognition is discretionary and must follow specific criteria similar to those of the Montevideo Convention. However, it's recommended that the UK considers other circumstances in which it recognized other provinces' claim to statehood, despite not meeting the criteria. Economic and political factors are major considerations when deciding whether to recognize, but due to a lack of knowledge about the situation in Fabota, making a judgment is difficult. It's suggested that the UK considers whether Fabota fulfills fundamental requirements established by the Convention, other international players' recognition such as France and China, and the political and economic benefits of recognition while also evaluating the political situation within Fabota itself.

The criteria for the UK court to

recognize governments and states are similar. In the case of Somalia Republic v. Woodhouse Drake and Carey, Hobhouse J outlined factors that should be considered when recognizing a government, which may also be relevant in recognizing a state. These factors include the level, nature, and stability of administrative control over the state's territory, as well as the extent of international recognition.