18/19, B. Haylamaz, ‘To Be or Not to Be – Recognition of Liberland as a State in Light of the Montevideo Convention’

Author: Burak Haylamaz

Burak Haylamaz is a third-year bachelor student in Maastricht University, the Netherlands. His interested areas are International Law, Criminal Procedure Law and Intellectual Property Law. He is the author of the respective articles; (i) Criticism of Constitutional Amendments in Turkey; (ii) Each Choice is a Renunciation; Does the Detention in Custody Before First Appearance in Turkey is in Accordance with the ECHR Derogation Criteria?; (iii) How Can Artificial Intelligence be Used in Arbitration Proceedings to Reduce the Backlog of the Courts in Commercial Disputes in Italy and England and Wales? (Co-author), (iv) The Royal Game and Neslihan Ekinci, (v) The Territorial Scope of the Right to be Forgotten Regarding the Google Search Engine (Co-author).

 

TABLE OF CONTENTS

1-INTRODUCTION……………………………………………………………………………………… 3

2- NECESSITY OF BEING STATE……………………………………………………………….. 4

2.1. A Defined Territory…………………………………………………………………………………. 4

2.2. Effective Government………………………………………………………………………………. 6

2.3. The Other Criteria……………………………………………………………………………………. 8

  1. CONCLUSION…………………………………………………………………………………………. 9
  2. BIBLIOGRAPHY……………………………………………………………………………………. 11

1. INTRODUCTION

Since the beginning of the 20th century the number of states has drastically increased on the surface of the Earth. There were 51 acknowledged United Nation member states in 1945 when World War II ended. By 2011, there were 193. The emergence of new states has increase due to several reasons such as political affairs and international relations, causing some political scientists to focus on how they come to existence. This existence also has notable importance in the domain of law, particularly the international law that the question is how is an entity being characterized as a state? This question is important because being a state brings about spill-over effects that involve significant legal consequences such as concluding treaties with other states or requesting respect for its own sovereignty.[1] Thus, after several attempts to determine the definition of a state, international authorities compromised on the Montevideo Convention on the Rights and Duties of States Treaty which was signed at Montevideo, Uruguay on December 26, 1933.[2] This has conferred to us our most generally acknowledged formulation of the criteria for being a recognized independent state in international law. According to this convention, the state should possess some qualifications to be recognized as a legal subject of international law: a permanent population, a defined territory, a government exercising effective power and accomplish to enter into relations with the other states.[3]

This description of state has been coming into question recently when Vít Jedlička, Czech politician and activist, proclaimed Liberland as a sovereign state on territory where between Croatia and Serbia by using border dispute of those states on 13 April 2015. This initiative called attention to internationally and it has been discussed that whether Liberland can be defined as a state or not. Apart from political conflicts, it is necessary to resort Montevideo Convention to make a law-based decision. Therefore, this paper aims at analysing and putting forward law-based viewpoint about whether Liberland can be considered a state or not in the light of the Montevideo Convention particularly in terms of a defined territory and a government exercising effective power. Hence, this paper examines allegation of Liberland first of which by mentioning whether it has defined territory and then, problematic issue of effective governance. Finally, it touches on whether Liberland satisfies the rest of the qualifications, a permanent population and ability to enter into relation with other states, of Montevideo criteria or not.

2. NECESSITY OF BEING STATE

2.1. A Defined Territory

According to Liberland’s claim, it is located in the approximately 7 km2 area between Croatia and Serbia on the west bank of the Danube River. Liberland would be the third smallest state after the Vatican and Monaco. Both countries neighbouring to Liberland have not claimed authority upon where Liberland sits because of their political border dispute. On the one hand, Croatia wants to revert to the border of Danube’s old course. Their wish is derived from the reality that after World War II, Yugoslavia drew the border between Croatia and Serbia corresponding to ethnic lines. As some of the lands on the right side of Danube had been inhabited by Croats for many years, these lands were entitled to Croatia. However, the Soviet Commission subsequently decided that the Danube River would be the border between those states regardless of ethnic population residence. Croatia insists on returning to the former border division; however if this were the case, the place where Liberland exists would fall into Serbian territory. Croatia wants to return to the original border; however in this way, it is possible to say that Liberland sits in the territory where Croatia has no claim. [4]

On the other side of the Danube River, Serbia is pleased about the recent circumstances because it obtained substantial parts of land on the right side of Danube River by means of new border determination. As such, Serbia has got no issue with the territory where Liberland asserts its entity.

These countries’ attitudes lead to questions about whether the territory of Liberland is terra nullius, or, ‘nobody’s land’. International Court of Justice reveals that occupation, which is a peaceful way to acquire sovereignty, is valid in territory that is terra nullius.[5] Thus, the territory of Liberland had been abandoned by both neighbour states until its discovery by Vít Jedlička. According to the modern international law, discovery is a sufficient element to create title of sovereignty.[6] Even if one of the neighbour states claims an absolute right to territory of Liberland in the future, it will not have enough to gain a title because according to the prior tempore principle of property law, Liberland’s older right has priority over newer rights.[7] As a result, neither Croatia nor Serbia has claimed their right to the territory. As such, Liberland, with its defined borders, deserves to satisfy Montevideo Convention’s ‘defined territory’ requirement.[8]

2.2. Effective Government

It is controversial that Liberland meets the criteria of having effective government because of the attitude of Croatia. Croatian authorities have prevented access to the territory of Liberland by deploying its police units. This is not only an obstacle for providing effective governance on the territory of Liberland but also an impediment for the citizens of Liberland to settle or inhabit comfortably. However, this behaviour of Croatian authorities does not mean that Liberland is incapable of governing effectively. Before mentioning about how Liberland fulfils the effective government requirement, it is necessary to underline the unlawful actions of the Croatian authorities.

The Croatian government neither recognizes Liberland nor allows the formation of it. However, this behaviour leads to a dilemma that even if Croatian authorities are not recognizing Liberland, they have to allow people who want to cross border from Croatia to Liberland. Those people are European Union citizens and unless Liberland has been recognized as a divergent state, territory of Liberland is considered to be part of Croatia which is internal border of European Union.[9] Hence, the right of those people moving freely is ensured in the Treaty on European Union which was signed by Croatia.[10] In addition, this kind of fundamental right of people has been secured by the Treaty on the Functioning of the European Union. It states that every citizen of Union has not only has the right to move freely but also to reside within any territories of the European Union. [11] Therefore, as long as Croatian authorities are not recognizing Liberland as an entity which is excluded from European Union, they have to let citizens of European Union move freely and reside within the territory of Liberland. As it can be seen clearly, the claim of the founders of Liberland to govern effectively over their own territory is hampered unlawfully by Croatia, who has no claim over the territory. Nevertheless, this obstacle has not disqualified Liberland from fulfilling the effective government requirement of the Montevideo Convention.

Even though the government cannot be located within their own borders, Liberland has drafted its constitution recently which established the organs of the state.[12] Moreover, their cabinet was elected via direct democracy and engaged in establishing a robust relationship with other states. Those initiatives reflect their ambitions to govern in their own territory, although it is still possible to argue that these initiatives are not sufficient for possessing effectively governance. Nevertheless, the principle of effective government of Montevideo Convention has always been somewhat flexible in reality. [13] After the breakup of Yugoslavia, Bosnia-Herzegovina was defined as a state by the international community even though it lacked governing ability over large parts of its own territory. Furthermore, it is possible for any states to face with trouble regarding the effective governance over their own territories. This is why the principle of effective government in the Montevideo Convention should not be considered too strictly. Otherwise, every state which loses its effective governance, even momentarily, cannot be defined as statehood.  Therefore, as a liberal democratic state, Liberland should not be considered as having a lack the ability to fulfil the component of effective governance of the Montevideo Convention in practice.

2.3. The Other Criteria

In order to provide decisive grounds for whether Liberland is considered as a state or not, it is necessary to prove each requirement of Montevideo Convention. This paper however, has focused on only two aspects of it. Therefore, this section aims to demonstrate briefly how Liberland satisfies the ‘permanent population’ and the ‘capacity to enter into relations with other states’ requirements of Montevideo Convention.

Liberland fulfils the requirement of the permanent population even though citizens of it have been prevented by Croatian government to access inside of the borders. A minimum number of people is not required for a permanent population.[14] Therefore the population of Liberland, which consists of 130 people, has been granted citizenship by the Liberland government. Further, nearly another 75.000 eligible applications for citizenship supports the claim of ‘permanent population’ sufficiently.

The final criterion of the Montevideo Convention is also fulfilled by Liberland government. Liberland has made diplomatic contacts with various states such as Russia, the United Kingdom and Germany. Even if Liberland has not been officially recognized by those states, the government exercises the capacity to enter into relations with the other states. Moreover, seven deputies of Polish Parliament proposed the recognition of Liberland recently due to the efforts of Liberland activists.[15] As a result, the ability of Liberland to enter into international relations provides evidence for having satisfied the last criteria of the Montevideo Convention.

3. CONCLUSION

To make a law-based decision about whether Liberland is considered to be a state or not, it is necessary to follow legal rules. Those legal rules are set out by the Montevideo Convention, which gives us the widely accepted conditions to reach a decision pertaining to statehood. It puts forward four requirements which define a state and with this examination, we have seen how Liberland fulfils these requirements. Particularly, Liberland has both ‘a defined territory’ and an ‘effective government’. However, the last part of this paper also reveals that the other requirements for statehood are met as well.

In the light of Montevideo Convention requirements, Liberland has a defined territory, highlighted by the border dispute between Croatia and Serbia. This dispute also provides Liberland the ability to make a claim as it belongs to no one. In addition, the settled government of Liberland is effective although it has been blocked from accessing its own territory by the Croatian government. However, this attitude of Croatian government should be defined as unlawful as it leads to restricting freedoms of people who want to access land that is part of the European Union. Furthermore, it does not block Liberland from satisfying the effective government requirement because this requirement should be not considered strictly in practise. Therefore, Liberland fulfils the ‘defined territory’ and ‘effective government’ criteria in the light of Montevideo Convention. Moreover, both ‘a permeant population’ and the ‘capacity to enter into relations with other states’ requirements are satisfied by Liberland as well. In conclusion, under certain conditions of the Montevideo Convention, Liberland fulfils each of the criteria and deserves to be defined as a state.

4. BIBLIOGRAPHY

Primary Sources

  • EU:

European Regulation:

Regulation (EU) 2016/399

Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code)

  • International Court of Justice:

Western Sahara (Advisory Opinion) I.C.J. Rep. 1975

  • Montevideo Convention

Montevideo Convention on Rights and Duties of States, 26.12.1933, 26.12.1994, OAS Law and Treaties No.37/A-40

  • TEU

Consolidated version of the Treaty on European Union of 30 March 2010, [2010] OJ C 83/01

  • TFEU

Consolidated version of the Treaty on the Functioning of the European Union of 26 October 2012, [2012] C 326/01

Secondary Sources/ Tertiary Sources

  • Brownlie 2008

Ian Brownlie; Principles of Public International Law. 7th edition, Oxford: Oxford University Press, 2008

  • Crawford 2006

James Crawford; The Creation of States in International Law. Oxford: Oxford University Press, 2006

 

 

  • Eggers 2007

Alison K. Eggers; ‘When is a State a State? The Case for Recognition of Somaliland’. Boston College International and Comparative Law Review30, 2007, p.211-222

  • Grant 2012

Thomas D. Grant; ‘Defining Statehood: The Montevideo Convention and its Discontents’. Columbia Journal of Transnational Law, 2012, p. 409-418

  • Kamminga 2014

Menno T. Kamminga, ‘International Law’, in: Jaap Hage & Bram Akkermans, (Ed(s).); Introduction to Law. Switzerland : Springer, 2014

  • Klemenčić & Schofield 2011

Mladen Klemenčić and Clive Schofield; ‘War and Peace on the Danube: The Evolution of the Croatia-Serbia Boundary’. Boundary & Territory Briefing 3/3, 2011, p.16-26

  • Marcus 24-07-2016

Michael Marcus; ‘Seven members of Polish Parliament proposed the recognition of Liberland’, in: Liberland Press, 24-07-2016. Retrieved via https://liberlandpress.com/2016/07/liberlands-independence-discussed-polish-parliament/, last visited on 27 October 2016

  • Nagan & Haddad

Winston P. Nagan & Aitza M. Haddad; ‘Sovereignty in Theory and Practice’. San Diego International Law Journal (2012), 429-459

  • Rossman 2016

Gabriel Rossman; ‘Extremely Loud and Incredibly Close (But Still So Far): Assessing Liberland’s Claim of Statehood’. Chicago Journal of International Law 17, 2016, p. 306-339

  • Shaw 2008

Malcolm N. Shaw; International Law.6th edition, New York: Cambridge University Press, 2008

  • Van Erp & Akkermans 2010

Sjef van Erp & Bram Akkermans, ‘Property Rights: a comparative view’, in: Boudewijn Bouckaert, (Eds.); Property Law and Economics. 2nd edition, Massachusetts: Edward Elgar Publishing, 2010

  • Zadeh 2012

Ali Zounuzy Zadeh; ‘International Law and the Criteria for Statehood: The Sustainability of the Declaratory and Constitutive Theories as the Method for Assessing the Creation and Continued Existence of States’. 2012. http://arno.uvt.nl/show.cgi?fid=121942, last visited on 27/10/2016

 

[1] Menno T. Kamminga, ‘International Law’ in Jaap Hage & Bram Akkermans, (eds), Introduction to Law. (Springer, 2014)

[2] Thomas D. Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’ [1999] p.418

[3] Montevideo Convention, Art 1.

[4] Mladen Klemenčić and Clive Schofield, ‘War and Peace on the Danube: The Evolution of the Croatia-Serbia Boundary’ [2011] Volume 3 BTB 17

[5] Western Sahara (Rio de Oro v Sakiet El Hamra) (Advisory Opinion), [1975] ICJ Rep12

[6] Ian Brownlie, Principles of Public International Law (7th ed, Oxford Press 2008) p.223

[7] Sjef van Erp & Bram Akkermans, ‘Property Rights: a comparative view’ in Boudewijn Bouckaert (eds), Property Law and Economics (2nd edition, Edward Elgar Publishing, 2010) p.32

[8] Gabriel Rossman,‘Extremely Loud and Incredibly Close (But Still So Far): Assessing Liberland’s Claim of Statehood’ [2016] CJIL 330

[9]  Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of the persons across borders (Schengen Borders Code) 2016 OJ L77/1

[10] Consolidated Version of the Treaty on European Union [2010] OJ C 83/01, art. 3

[11] Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ 1 326/01, art.21.

[12]  The Constitution of the Free Liberland, 2015 (FRL) Art 4 -6

[13]  Ali Zounuzy Zadeh , ‘International Law and the Criteria for Statehood: The Sustainability of the Declaratory and Constitutive Theories as the Method for Assessing the Creation and Continued Existence of States ’ (LL.M thesis, Tilburg University) p.25

[14] Malcolm N. Shaw, International Law (6th edn, Cambridge University Press 2008) p.199

[15]Michael Sols, ‘ Seven Members of Polish Parliament Proposed the Recognition of Liberland ’ [2016] < http://liberlandpress.com/2016/07/liberlands-independence-discussed-polish-parliament/  > accessed 22 October 2016

 

 

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s