By Anton Katz
On 31 May 1910 four separate countries (the Cape Colony, the Natal Colony, the Transvaal and the Orange River Colony) unified to form a ‘new’ country named the Union of South Africa; in 1960 the Union left the British Commonwealth and became a Republic.
In 1918 South Africa signed the Treaty of Versailles, the peace treaty that ended World War I, and was a founding member first of the League of Nations (1920) and thereafter the United Nations Organization (1945). The Republic of South Africa offered independent status as states to ten Bantustans or homelands.
Between 1976 and 1981 four of the ten accepted independence; viz, Transkei, Bophuthatswana, Venda and Ciskei. Only South Africa and the four ‘states’ recognised their independence. The rest of the world rejected the notion that they were independent sovereign states. In 1994 as apartheid ended the four ‘independent’ states were reintegrated into South Africa. At about the same time the independent state of Yugoslavia was breaking up in a horrific civil war. Today, there are six recognised independent states which had for most of the 20th century made up the country of Yugoslavia. At the establishment of the United Nations there were 51 member states; due to colonisation and other developments there are 193 member states of the UN today.
All over the world states of all kinds must deal with ethnic, religious, language and other groups who seek independence from the larger group or union. From Quebec in Canada, Biafra in Nigeria, Catalonia in Spain to the Western Togoland group in Ghana secession movements exist. Secession is the formal withdrawal or separation from a country. The withdrawal of the group from the parent State allows it to become its own sovereign State, and all the legal ramifications independence entails. In South Africa there are moves for independence for the Western Cape from South Africa by, for example, the Cape Party and the Ama Thembu in parts of the Eastern Cape historically known as Thembuland.
Statehood in the Israeli/Palestinian and Morocco/Western Sahara (Sahrawi Arab Democratic Republic) are major flashpoints in international politics generally. Morocco, which became independent in 1956, withdrew from the Organisation of African Unity in 1984 because the OAU accepted the Western Sahara as a member State. Morocco only rejoined the African Union in January 2017. Eighty five States recognised the independence of Sahrawi Arab Republic, although forty four have frozen or withdrawn that recognition of statehood. South Africa has recognised the Sahrawi Republic as an independent sovereign state and established formal diplomatic relations with the 2004. A Sahrawi Republic embassy is operative in Pretoria.
Disputes about statehood often lead to grave violence by way of civil war and also serious economic and diplomatic challenges.
In considering the question of what makes a country a country international law is an important starting place. International law is clear on the rights and duties, privileges and responsibilities of States. However, the birth and origins of States is somewhat less certain in international law. The death or demise of a State is not dealt with by international law. The acceptance of new states into the international community is effected mainly by means of recognition on the part of existing states. Tis process is obviously influenced by political considerations; but certain objective factual criteria for statehood have developed and been adopted to guide the decision to whether recognise a group claiming statehood. The traditional criteria for statehood are contained in the Montevideo Convention of 1933. It states: “The state of a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states.”
Now, recognition of a new emerging state can be either unilateral or collective. Most times recognition occurs unilaterally when one state recognises the existence of another new state. There are two schools of thought as to the purpose or consequence of recognition. The one is called the constitutive school and the other the declaratory school. The declaratory school is better from a legal point of view. It says that an entity becomes a state when it meets the factual requirements of statehood, and all that recognition does is acknowledge (declares) as a fact something that was hitherto uncertain.
On the other hand, according to the constitutive school recognition of the claimant state creates statehood. So, in the controversial Palestinian situation, about 138 states recognise Palestine as a State, but is not so recognised by some 50 other states. Is it a state only for those that recognise it, and not for others? That is a most undesirable situation. A preferable position would be for an independent non-political body made up of experts to determine claims of statehood on the basis of the objective factual criteria set out in the Montevideo Convention. Of course, the experts must not be compromised by perceptions of bias or other political issues.
Many interesting and tough legal questions arise in the context of secession of and the recognition of states. For example, how exactly are each of the four Montevideo criteria to be evaluated? So, on the issue of permanent population no minimum population size is required. More than 50 states have populations of less than one million. Tuvalu and Nauru, both independent sovereign states which enjoy a full vote in the UN General Assembly because they are member States, have less than 15 000 inhabitants each. Compare that to India which also has one vote, but has a population of 1.3 billion. Microstates are now accepted as full individual sovereign members of the international community.
The only thing that is certain is that just as the political map of the world has shifted radically and many times over the centuries, so it will change again and again in the future. Bearing in mind the increasingly interdependent world we humans inhabit the real question is what makes sense and is sustainable. Climate change, global pandemics (such as COVID-19), mass migration of humans, international terrorism and other criminality, space exploration and rapidly growing technology and interconnectedness require and demand that a globally integrated response and approach to governance of these issues.
The key challenge that will arise is how the nation state fits in to this global approach. And linked to that challenge is the tough issue of which groups claiming to be independent countries deserve recognition and statehood.
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