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three necessary elements (for example, a state annexed by an aggressor) is therefore
considered as a subject of international law in some cases.
The creation of a state
usually has the character of an historic and social process
where international law plays only a marginal role.
General international law has no
special standard which would regulate the creation of a new state.
States are created,
for example, by
unification, dissolution
(break-up) or
separation
(break-away). For
example, by the peaceful break-up of Czechoslovakia on 1 January 1993 the Czech
Republic and Slovak Republic were created. The break-away of Bangladesh from
Pakistan in 1971 can serve as an example of separation. Also the creation of Croatia
and Slovenia at the beginning of the 1990s are considered examples of separation.
In some exceptional cases the creation of a new state can only be the result of
negotiation of other states
(for example, the creation of the Cyprus state in 1950) or
the
resolution of an international organization
(e.g. the creation of the state of Israel by
resolution of the General Assembly of the United Nations in 1947).
A state is in fact created and becomes sovereign if it has the basic features of a
state (territory, population, and exercise of government authority). The newly created
state
becomes the subject of international law
in the very moment of its creation, and
international law grants this newly created sovereign state legal protection
.
By the
fact of its creation the state becomes a subject of international law concerning
its
basic rights and duties.
11
State territory is not
terra nullius
, i.e. territory which
belongs to nobody and that other states could acquire by occupation. International
law protects the sovereignty of state namely by the
prohibition of the use of force.
An
armed attack against the territory of a state or against its political independence
would be considered a forbidden act of aggression. Annexation is a forbidden means
of acquiring state territory.
Domestic sovereignty is protected by the
prohibition
of
intervention (interference)
in the domestic affairs of the state
. The new state has full territorial jurisdiction, and
the validity of acts of its state authority (law making, government and courts) on
its territory cannot be ignored by other states. On the other hand, the newly created
state is
obliged to respect the same standards
of international law in relation to all other
states without respect to whether these particular states recognize it or not.
A state becomes the subject of international law by the fact of its creation.
During its creation, however,
the principles of international law must be observed
to
provide for its statehood to be
fully effective
within the international community.
12
It
is, for example, forbidden to use armed forces or race discrimination, and the principle
of national self-determination is to be observed. According to Dixon, if the new
11
Among these rights belong the right to exist (self-preservation), right to be independent, equality, the
exercise of territorial sovereignty, international awards, self-defense.
12
DIXON, M.
Textbook on International Law
. Fourth edition. London: Blackstone Press Limited, 2000,
p. 111.