We Still Don’t Know When a State is a State

by Julian Ku

Are the two breakaway sections of Georgia (South Ossetia  & Abhkazia) states? If not, why is Kosovo a state?

The difficulty international lawyers have in answering these questions suggests that the most basic and fundamental questions of international law remain unresolved and deeply contested.  What are the requirements for statehood?  There are some generally accepted criteria, under international law, but they remain difficult. What is the importance of self-determination? When does uti possetidis apply?  How can we distinguish between state practice based on opinio juris and state practice based on political considerations?

The ICJ is currently mulling over the Kosovo question (uh, don’t expect a decision for a while), and the Independent Fact Finding Mission on the Conflict in Georgia has taken a crack at analyzing these questions for the breakaway Georgian regions.  Their analysis, according to this column in the Guardian, seems pretty fair.  But international law doesn’t help the Independent Mission much.  Our own Chris Borgen is also on the case, but even he can’t quite give us an answer.


2 Responses

  1. Kosovo is a state?

  2. interestingly enough, this was an issue in Yousuf at the 4th Circuit level–the plaintiffs argued that the FSIA could not apply because there was no “foreign state” due to the repeated failed attempts to form a government.

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