LCP4801
INTERNATIONAL LAW
2026 FULL EXAMPACK
, LCP4801
OCTOBER 2015
MEMO
SECTION A: ANSWER ALL THE QUESTIONS
QUESTION 1
X is a wealthy province within the territory of an impoverished state A. The majority of
the population of X speak the Pidgen language, while the rest of the inhabitants of
state A speak English. The people of X follow an ancient religion in contrast to the
more mainstream religion beliefs of state A. The province of X is governed by a
provincial authority answerable to the government of state A, but is largely
independent with respect to its internal affairs. However, state A determines taxation
and allocates a budget. X contributes heavily towards the national revenue.
The population of X, tired of A’s power over their financial freedom and aware of the
cultural and linguistic differences, seeks to secede from state A. You have been
approached for a legal opinion on the merit or chances of success in light of recent
case law. In your opinion be sure to include an assessment of the impact of self-
determination in the creation of new states, and the role of self-determination in
secession in international law. [25]
• Note to markers:
• Requirements for ‘statehood’: max of 13 marks
• Nature and role of self-determination in the creation of new states: 10-17 marks (i.e.
marks scored on the discussion of self-determination may be used to compensate for
a lack of discussion on the issue of statehood generally, seeing that ‘self-
determination’ was the crux of the question. Thus, a student who has provided a solid
discussion of ‘self-determination’ can do well in that question on the strength of that
discussion alone. Please use your discretion.
• Application of law to facts - 2-3 marks: the final conclusion can vary from student to
student – please pay attention to the student’s reasoning in that regard.
Requirements for statehood (generally) i.e. what requirements should X have to meet
in case it secedes from A?
For an entity to qualify as a state, it must meet all the requirements for statehood. To this
end, the Montevideo Convention of 1933 provides the following: “The state as a person of
international law should possess the following qualifications (a) a permanent population; (b)
a defined territory; (c) government; (d) capacity to enter into relations with other states.”
Permanent population
The ‘permanent population’ requirement does not mean that there is a required minimum
number of people. Furthermore, the fact that a population is nomadic (for example the tribes
on the Kenya-Ethiopia border) does not affect statehood adversely, as was pointed out by
the court in the Western Sahara Case. What is important for the purpose of the ‘permanent
population’ requirement, is that the population lives in accordance with an organised,
recognisable social and political structure with a clear chain of command.
,Defined territory
This is a requirement, which flows from the fact that states are territorial units, in other
words, they have borders. It is important for a state’s territory to be defined. There is no
required minimum size. It also does not mean that the territory must have undisputed
borders (as in the present case). An example is reflected in the Israel - Palestine conflict:
despite continuing disagreement, Israel still satisfies the requirements for statehood.
Furthermore, the territory need not necessarily form one single unit. What is important is that
the state must be sufficiently homogenous to be able to perform its government functions
effectively. Article 4 of the UN Charter requires that states be able and willing to meet their
obligations in terms of the Charter. In other words, there must be a stable community within
an area over which its government has control. If the territories are so dispersed that such
control cannot be exercised in all of them, statehood will not be granted.
The case of Van Deventer v Hancke & Mossop may also be cited as an example of a case
where a community of people, which was subject to a specific government, qualified as a
state despite the fact that it had no territory.
Effective government
In order to satisfy the requirements of statehood, the entity must have a government which is
independent of any other authority, and it must have legislative and administrative
competencies.
Brownlie, suggests some guidelines which can be used to asses a government’s
effectiveness.
1. Does it have its own executive organs?
2. Does it conduct relations through these organs?
3. Does it have an independent legal system?
4. Does it have its own courts?
5. Does it have its own nationality?
Capacity to enter into relations with others states (foreign affairs capacity)
This requirement means that a state must be independent of any other authority in the
exercise of its foreign relations. In other words, the entity must be regarded as sovereign.
However, the fact that a state has relinquished certain aspects of its sovereignty, will not
necessarily deprive it of statehood (R v Christian). What is important for the establishment of
statehood and the accompanying international legal personality, is the presence of external
sovereignty.
Furthermore, it must be pointed out that this requirement is also closely linked to the issue of
recognition – if the other members of the international community refuse to recognise it and
enter into relations with it, the entity will for all practical purposes be deprived of its capacity
to enter into relations with other states.
Recognition
The “requirement” of ‘recognition’ is not specifically mentioned in the Montevideo
Convention. However in practice it is a crucial factor which underlies the ability of a state to
enter into relations with other states. If insufficient number of states were to recognise a
state, it will be doubtful it will be considered to have the ability to enter into international
, relations, and it will therefore be unable to satisfy the requirements of the Montevideo
Convention.
The dilemma as to whether or not recognition is one of the requirements of statehood, has
given rise to two theories: the declaratory theory and the constitutive theory.
Proponents of the constitutive theory maintain that the act of recognition is one of the
requirements for the creation of international legal personality. This theory, however, is not
without its shortcomings. First, it is not clear what the position of a state as an unrecognised
entity would be – could it behave as it chooses, without observance of the international legal
order? It is furthermore not clear what its position would be if it is recognised by some
states only.
The proponents of the declaratory theory therefore advocate that the act of recognition is not
a requirement for statehood, and that such an act merely acknowledges an existing state of
affairs. In other words, statehood and international legal personality arise the moment the
requirements of the Montevideo Convention have been fulfilled. This would also imply that
there is a legal duty on other states to recognise an entity which complies with the
Montevideo requirements.
The reality, of course, is that although states do take into account whether the other four
factual requirements have been met, the decision to recognise may be motivated by political
ideology. This may prompt a state to recognise an entity prematurely, or to deny it
recognition.
These two theories have been evaluated by a South African court in the case of S v Banda:
The accused were charged with high treason based on an attempted coup in
Bophuthatswana. The accused claimed that under international law Bophuthatswana was
not a state because its creation had been universally condemned by the international
community. If it was not a state, they couldn’t possibly owe allegiance to it and therefore
could not be guilty of treason against it.
The court examined both theories in order to determine whether Bophuthatswana was a
state or not.
Since the constitutive theory emphases the act of recognition itself, it adds recognition as a
fifth requirement for the creation of international legal personality. The court criticised this
theory for being positivistic, subjective and arbitrary.
In terms of the declaratory theory statehood exists objectively. An entity becomes a state
under international law the moment the four requirements of the Montevideo Convention
have been fulfilled. In terms of this theory the act of recognition does not bring into being a
state which does not already exist. In other words, recognition is no more than a formal
acknowledgement of an already existing circumstance.
The court therefore approved of the declaratory theory: The court observed that the
declaratory theory was objective, that it supported those requirements for statehood which
were based on well-established criteria of international law, and in addition it was politically
and ideologically neutral.
The court pointed out that the declaratory theory was supported by a larger number of
experts than the constitutive theory and that it was also supported by the Montevideo
Convention.
INTERNATIONAL LAW
2026 FULL EXAMPACK
, LCP4801
OCTOBER 2015
MEMO
SECTION A: ANSWER ALL THE QUESTIONS
QUESTION 1
X is a wealthy province within the territory of an impoverished state A. The majority of
the population of X speak the Pidgen language, while the rest of the inhabitants of
state A speak English. The people of X follow an ancient religion in contrast to the
more mainstream religion beliefs of state A. The province of X is governed by a
provincial authority answerable to the government of state A, but is largely
independent with respect to its internal affairs. However, state A determines taxation
and allocates a budget. X contributes heavily towards the national revenue.
The population of X, tired of A’s power over their financial freedom and aware of the
cultural and linguistic differences, seeks to secede from state A. You have been
approached for a legal opinion on the merit or chances of success in light of recent
case law. In your opinion be sure to include an assessment of the impact of self-
determination in the creation of new states, and the role of self-determination in
secession in international law. [25]
• Note to markers:
• Requirements for ‘statehood’: max of 13 marks
• Nature and role of self-determination in the creation of new states: 10-17 marks (i.e.
marks scored on the discussion of self-determination may be used to compensate for
a lack of discussion on the issue of statehood generally, seeing that ‘self-
determination’ was the crux of the question. Thus, a student who has provided a solid
discussion of ‘self-determination’ can do well in that question on the strength of that
discussion alone. Please use your discretion.
• Application of law to facts - 2-3 marks: the final conclusion can vary from student to
student – please pay attention to the student’s reasoning in that regard.
Requirements for statehood (generally) i.e. what requirements should X have to meet
in case it secedes from A?
For an entity to qualify as a state, it must meet all the requirements for statehood. To this
end, the Montevideo Convention of 1933 provides the following: “The state as a person of
international law should possess the following qualifications (a) a permanent population; (b)
a defined territory; (c) government; (d) capacity to enter into relations with other states.”
Permanent population
The ‘permanent population’ requirement does not mean that there is a required minimum
number of people. Furthermore, the fact that a population is nomadic (for example the tribes
on the Kenya-Ethiopia border) does not affect statehood adversely, as was pointed out by
the court in the Western Sahara Case. What is important for the purpose of the ‘permanent
population’ requirement, is that the population lives in accordance with an organised,
recognisable social and political structure with a clear chain of command.
,Defined territory
This is a requirement, which flows from the fact that states are territorial units, in other
words, they have borders. It is important for a state’s territory to be defined. There is no
required minimum size. It also does not mean that the territory must have undisputed
borders (as in the present case). An example is reflected in the Israel - Palestine conflict:
despite continuing disagreement, Israel still satisfies the requirements for statehood.
Furthermore, the territory need not necessarily form one single unit. What is important is that
the state must be sufficiently homogenous to be able to perform its government functions
effectively. Article 4 of the UN Charter requires that states be able and willing to meet their
obligations in terms of the Charter. In other words, there must be a stable community within
an area over which its government has control. If the territories are so dispersed that such
control cannot be exercised in all of them, statehood will not be granted.
The case of Van Deventer v Hancke & Mossop may also be cited as an example of a case
where a community of people, which was subject to a specific government, qualified as a
state despite the fact that it had no territory.
Effective government
In order to satisfy the requirements of statehood, the entity must have a government which is
independent of any other authority, and it must have legislative and administrative
competencies.
Brownlie, suggests some guidelines which can be used to asses a government’s
effectiveness.
1. Does it have its own executive organs?
2. Does it conduct relations through these organs?
3. Does it have an independent legal system?
4. Does it have its own courts?
5. Does it have its own nationality?
Capacity to enter into relations with others states (foreign affairs capacity)
This requirement means that a state must be independent of any other authority in the
exercise of its foreign relations. In other words, the entity must be regarded as sovereign.
However, the fact that a state has relinquished certain aspects of its sovereignty, will not
necessarily deprive it of statehood (R v Christian). What is important for the establishment of
statehood and the accompanying international legal personality, is the presence of external
sovereignty.
Furthermore, it must be pointed out that this requirement is also closely linked to the issue of
recognition – if the other members of the international community refuse to recognise it and
enter into relations with it, the entity will for all practical purposes be deprived of its capacity
to enter into relations with other states.
Recognition
The “requirement” of ‘recognition’ is not specifically mentioned in the Montevideo
Convention. However in practice it is a crucial factor which underlies the ability of a state to
enter into relations with other states. If insufficient number of states were to recognise a
state, it will be doubtful it will be considered to have the ability to enter into international
, relations, and it will therefore be unable to satisfy the requirements of the Montevideo
Convention.
The dilemma as to whether or not recognition is one of the requirements of statehood, has
given rise to two theories: the declaratory theory and the constitutive theory.
Proponents of the constitutive theory maintain that the act of recognition is one of the
requirements for the creation of international legal personality. This theory, however, is not
without its shortcomings. First, it is not clear what the position of a state as an unrecognised
entity would be – could it behave as it chooses, without observance of the international legal
order? It is furthermore not clear what its position would be if it is recognised by some
states only.
The proponents of the declaratory theory therefore advocate that the act of recognition is not
a requirement for statehood, and that such an act merely acknowledges an existing state of
affairs. In other words, statehood and international legal personality arise the moment the
requirements of the Montevideo Convention have been fulfilled. This would also imply that
there is a legal duty on other states to recognise an entity which complies with the
Montevideo requirements.
The reality, of course, is that although states do take into account whether the other four
factual requirements have been met, the decision to recognise may be motivated by political
ideology. This may prompt a state to recognise an entity prematurely, or to deny it
recognition.
These two theories have been evaluated by a South African court in the case of S v Banda:
The accused were charged with high treason based on an attempted coup in
Bophuthatswana. The accused claimed that under international law Bophuthatswana was
not a state because its creation had been universally condemned by the international
community. If it was not a state, they couldn’t possibly owe allegiance to it and therefore
could not be guilty of treason against it.
The court examined both theories in order to determine whether Bophuthatswana was a
state or not.
Since the constitutive theory emphases the act of recognition itself, it adds recognition as a
fifth requirement for the creation of international legal personality. The court criticised this
theory for being positivistic, subjective and arbitrary.
In terms of the declaratory theory statehood exists objectively. An entity becomes a state
under international law the moment the four requirements of the Montevideo Convention
have been fulfilled. In terms of this theory the act of recognition does not bring into being a
state which does not already exist. In other words, recognition is no more than a formal
acknowledgement of an already existing circumstance.
The court therefore approved of the declaratory theory: The court observed that the
declaratory theory was objective, that it supported those requirements for statehood which
were based on well-established criteria of international law, and in addition it was politically
and ideologically neutral.
The court pointed out that the declaratory theory was supported by a larger number of
experts than the constitutive theory and that it was also supported by the Montevideo
Convention.
