3/2009 Content

84 (2009) 3: State-Like Entities in Public International Law

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How Become State-Like Entities States?
Hans-Joachim Heintze

States are the main subjects of international law. Therefore it surprises that international law does not offer any legally binding definition of the state. Instead States apply the three elements theory of Georg Jellinek for political reasons, because they want to avoid the capability of state-like entities to enter into international relations with other States. One has to see this approach of the international community against the background of the non-acceptance of secessions. One of the consequences of this policy is the appearance of more and more sub-state entities like autonomous territories or federal States. It is an open question whether this approach is a successful one since in most of the cases the international community was ready to recognize de facto regimes.

An International Law Framework for Secessions: Kosovo as a Precedent?
Volker Röben

The unilateral declaration of independence of Kosovo raises the question whether an international law framework can be formulated for the secession of a minority group. The article proposes that such a framework will result if the dichotomy of the substantive principle of territorial integrity and selfdetermination is transformed into an internationalised negotiation process, which sees the forms of political group organisation as a continuum. It is argued that such a framework supports the practice of the international community in the case of Kosovo, which by this gain importance beyond the specific instance. Concluding observations relate to the potential of the principle of self-determination to become the normative core of political organisation also in multi-level governance contexts.

The Taiwan Question and the One-China Policy: Legal Challenges with Renewed Momentum
Pasha L. Hsieh

The question of Taiwan’s status has faced legal challenges from the one-China policy under both domestic law and international law. The article argues that the state status of the Republic of China (ROC) on Taiwan has never ceased to exist as a result of either the loss of diplomatic recognition or the United Nations Resolution 2758, which transferred the UN seat from the ROC to the People’s Republic of China (PRC). In the past decades, the ROC and the PRC possess separate statehoods and have co-existed under the “de jure roof of China.” The evolvement of state practice of Taiwan and China, as well as foreign states, indicate a more pragmatic approach to the divided state formula. Moreover, recent cross-strait economic agreements and Taiwan’s observership at the World Health Assembly show the significant improvement of Beijing-Taipei relations. Yet, the article cautions that the one-China policy will continue to pose renewed challenges to Taiwan’s bid to join other UN-affiliated agencies, which condition membership on states.

Further Article

The UN Mission in Kosovo 1999-2008: Standards of Public International Law for State-Building in the Framework of a United Nations Interim Administration
Cindy Daase

The mandate, issued by Security Council Resolution 1244, to install the United Nations Interim Administration Mission in Kosovo (UNMIK) demands nothing less than the establishment of state structures by this international civil administration. Against this background, the article attempts to identify standards of public international law for state-building by an international administration. Taking recourse to human rights treaties, the article identifies democracy, separation of powers and due process as leading standards. After analysing whether these standards are legally binding for UNMIK and its personnel, the focus lies on their implementation (1999-2008). The article also discusses whether UNMIK could derogate from those standards.