The creation and extinction of States are important aspects of Public International Law because they determine the emergence, continuation and termination of international legal personality. A State may come into existence through processes such as secession, dissolution, unification, merger or decolonisation, while an existing State may cease to exist through dissolution, merger or incorporation.
- Creation of States
- Methods of Creation of States
- Secession
- Dissolution
- Unification or Merger
- Separation
- Decolonisation
- Cession and Creation of States
- Recognition and Creation of States
- Extinction of States
- Methods of Extinction
- Extinction Through Dissolution
- Extinction Through Merger
- Extinction Through Incorporation or Absorption
- Extinction and the Prohibition on the Use of Force
- Occupation and Statehood
- Annexation
- State Extinction and State Succession
- Continuity of States
- Civil War and Statehood
- Failed States
- Statehood and Recognition During Creation
- United Nations Membership
- Important Cases
- Creation vs Extinction of States
- Secession vs Dissolution
- State Extinction vs Change of Government
- Common Confusions
- Topic at a Glance
- Quick Revision
- Conclusion
These questions are closely connected with Statehood, recognition, self-determination, sovereignty and State succession. The legal consequences depend upon the particular circumstances in which a State is created or ceases to exist.
Creation of States
Creation of a State refers to the emergence of a new entity possessing the characteristics required for Statehood under International Law.
The traditional requirements are:
- permanent population;
- defined territory;
- government;
- capacity to enter into relations with other States.
Once an entity qualifies as a State, it possesses international legal personality and can generally:
- conclude treaties;
- establish diplomatic relations;
- exercise jurisdiction;
- undertake international obligations;
- bring international claims;
- incur international responsibility.
Methods of Creation of States
A State may emerge through several processes:
- Secession
- Dissolution
- Unification or merger
- Separation
- Decolonisation
The legal consequences of each process are different.
Secession
Secession occurs when a part of an existing State separates and establishes itself as a new State while the original State continues to exist.
The basic structure is:
Existing State → Part separates → New State emerges → Original State continues
For example, if State A contains territories X and Y and territory X becomes an independent State while State A continues with territory Y, the process is generally described as secession.
Secession and Self-Determination
Self-determination can provide an important legal basis for independence in certain circumstances, particularly in cases involving:
- colonial domination;
- foreign occupation;
- denial of the right of self-determination.
However, International Law does not recognise an unlimited general right of every group to unilaterally secede from an existing State.
Dissolution
Dissolution occurs when an existing State ceases to exist and is replaced by two or more successor States.
The basic structure is:
Existing State → State disappears → Several successor States emerge
The principal distinction from secession is that the original State itself disappears.
Example
The dissolution of the Soviet Union resulted in the emergence of several independent States and raised questions concerning:
- State succession;
- treaties;
- property;
- debts;
- nationality;
- international organisations.
Unification or Merger
Two or more States may combine to form a single State.
The basic structure is:
State A + State B → Unified State
The original States may cease to exist as separate international legal persons.
The precise consequences depend upon the legal and constitutional arrangements through which the unification occurs.
Separation
Separation involves the emergence of a new State from part of an existing State while the original State continues.
In many discussions, separation and secession are used in similar contexts.
The important question is whether the original State continues to exist.
Original State continues → Secession/Separation
Original State disappears → Dissolution
Decolonisation
Decolonisation was one of the most important processes through which new States emerged during the twentieth century.
Colonial territories achieved independence and became sovereign States.
The principle of self-determination provided an important legal foundation for this process.
The United Nations played a major role in the decolonisation process.
Resolution 1514, 1960
The UN General Assembly’s Declaration on the Granting of Independence to Colonial Countries and Peoples recognised the right of colonial peoples to determine their political status and pursue their economic, social and cultural development.
Decolonisation therefore became a major pathway through which new States entered the international legal system.
Cession and Creation of States
Cession occurs when territory is transferred from one State to another, usually through an agreement.
Cession does not necessarily create a new State.
The basic structure is:
State A → Transfers territory → State B
The legal identity of the States may remain unchanged.
Therefore:
Cession of territory is not necessarily the creation of a new State.
Recognition and Creation of States
Recognition is closely connected with the emergence of new States but is distinct from the traditional criteria of Statehood.
Two major theories explain its significance.
Constitutive Theory
According to the constitutive theory, recognition by existing States plays a significant role in establishing the international legal personality of a new entity.
Declaratory Theory
According to the declaratory theory, Statehood depends upon the objective requirements of Statehood. Recognition merely acknowledges an existing legal fact.
The Montevideo criteria are closely associated with the declaratory approach.
Extinction of States
Extinction of a State means the termination of its existence as a State under International Law.
When a State becomes extinct, its separate international legal personality generally comes to an end.
However, its territory, population, property and international obligations may continue under successor States.
Methods of Extinction
A State may cease to exist through:
- dissolution;
- merger or unification;
- incorporation or absorption;
- other legally recognised processes resulting in the disappearance of its separate international personality.
Extinction Through Dissolution
A State becomes extinct through dissolution when it breaks apart and the original State disappears.
For example:
State A → State A disappears → States B + C + D emerge
The original State no longer possesses its separate international legal personality.
Extinction Through Merger
A State may cease to exist separately when it merges with another State to create a unified political entity.
For example:
State A + State B → State C
States A and B cease to exist as separate international legal persons.
Questions concerning treaties, property, debts and nationality may arise as matters of State succession.
Extinction Through Incorporation or Absorption
A State may lose its separate international identity when it is incorporated into another State.
The basic structure is:
State A → Incorporated into State B → State A ceases to exist
However, the legality of the process is important.
Unlawful acquisition of territory through force cannot simply be treated as a lawful method of extinguishing another State’s sovereignty.
Extinction and the Prohibition on the Use of Force
Modern International Law places significant restrictions on the acquisition of territory through force.
The prohibition on the use of force means that unlawful military action cannot automatically create lawful territorial title.
Therefore:
Unlawful force does not by itself create lawful extinction of Statehood.
Occupation and Statehood
Occupation does not automatically extinguish the sovereignty or international legal personality of the occupied State.
The occupying power does not simply acquire sovereignty over the territory merely because it exercises effective military control.
Therefore:
Occupation ≠ Automatic Extinction of Statehood
Annexation
Annexation involves the purported incorporation of territory into another State.
Modern International Law places strict limitations on annexation resulting from unlawful force.
An unlawful annexation cannot automatically produce lawful sovereignty over the territory.
State Extinction and State Succession
Extinction of a State commonly raises questions of State succession.
State succession concerns the legal consequences arising when one State replaces another in responsibility for the international relations of a territory.
Questions may arise concerning:
- treaties;
- State property;
- State debts;
- archives;
- nationality;
- membership of international organisations;
- diplomatic relations.
Continuity of States
State extinction must be distinguished from changes in government.
A State normally continues to exist despite:
- change of government;
- revolution;
- civil war;
- constitutional changes;
- change in political system.
Therefore:
Change of Government ≠ Extinction of State
The State’s international legal personality normally continues.
Civil War and Statehood
Civil war or political instability does not automatically terminate Statehood.
A State may experience:
- governmental collapse;
- internal armed conflict;
- temporary loss of territorial control;
- political instability.
These circumstances do not necessarily mean that the State has ceased to exist.
Failed States
The expression “failed State” is primarily descriptive rather than a separate legal category of State extinction.
A State may have extremely weak governmental institutions and still continue to possess international legal personality.
Thus:
Weak Government ≠ Automatic Extinction
Statehood and Recognition During Creation
Recognition may facilitate the participation of a newly created State in international relations.
It may assist with:
- diplomatic relations;
- treaty relations;
- membership of international organisations;
- international cooperation.
However, recognition by another State does not by itself settle every legal question concerning Statehood.
United Nations Membership
Admission to the United Nations may provide strong evidence of international acceptance of a State.
However:
UN membership and Statehood are conceptually distinct.
Statehood must still be considered according to the relevant principles of International Law.
Important Cases
Tinoco Arbitration, 1923
The Tinoco Arbitration concerned the legal consequences of acts of a government that was not recognised by certain States.
It is important for distinguishing:
- Statehood;
- recognition of governments;
- continuity of the State;
- validity of governmental acts.
Island of Palmas Arbitration, 1928
The case is important for territorial sovereignty and the effective exercise of authority over territory.
It is relevant to the territorial foundation of Statehood.
Western Sahara Advisory Opinion, 1975
The ICJ considered questions concerning Western Sahara, including the relationship between colonial status, territory and self-determination.
The opinion is important for understanding the creation of States through decolonisation.
Kosovo Advisory Opinion, 2010
The ICJ considered whether Kosovo’s declaration of independence was contrary to International Law.
The Court concluded that the declaration itself did not violate general International Law.
However, the opinion did not establish a general right of unilateral secession.
Reference re Secession of Quebec, 1998
The Supreme Court of Canada examined questions concerning Quebec’s possible secession.
The decision is relevant to the relationship between:
- self-determination;
- territorial integrity;
- unilateral secession.
Creation vs Extinction of States
| Creation | Extinction |
|---|---|
| New State comes into existence | Existing State ceases to exist |
| Creates new international legal personality | Terminates separate international legal personality |
| May occur through secession or decolonisation | May occur through dissolution or merger |
| Statehood becomes relevant | State succession becomes important |
| Recognition may follow | Successor States may assume relevant rights and obligations |
Secession vs Dissolution
| Secession | Dissolution |
|---|---|
| Part separates from an existing State | Entire State breaks apart |
| Original State continues | Original State ceases to exist |
| New State emerges | Several successor States may emerge |
| Continuity of original State is maintained | Original State loses its identity |
| State succession concerns the new State and relevant obligations | State succession concerns the disappearance of the predecessor State |
State Extinction vs Change of Government
| State Extinction | Change of Government |
|---|---|
| International legal personality ends | International legal personality continues |
| State identity disappears or is replaced | State identity remains |
| May involve State succession | Normally does not create State succession |
| Successor State may emerge | New government represents the same State |
Common Confusions
Does every declaration of independence create a new State?
No. The entity must satisfy the requirements of Statehood, and the circumstances surrounding the declaration are legally relevant.
Does recognition create Statehood?
The answer depends upon the theory of recognition. Under the declaratory theory, recognition acknowledges Statehood rather than creating it.
Does secession extinguish the original State?
No. In a typical case of secession, the original State continues to exist.
Does dissolution preserve the original State?
No. Dissolution means that the original State itself ceases to exist.
Does occupation extinguish Statehood?
No. Occupation does not automatically terminate the international legal personality of the occupied State.
Does a change of government create a new State?
Generally, no. The State normally continues despite a change of government.
Does civil war terminate Statehood?
No. Internal armed conflict does not automatically extinguish Statehood.
Is cession the same as creation of a State?
No. Cession primarily concerns the transfer of territory between existing States.
Does UN membership automatically create Statehood?
No. UN membership and Statehood are related but legally distinct concepts.
Topic at a Glance
| Point | Position |
|---|---|
| Subject | Creation and Extinction of States |
| Creation | Emergence of a new State |
| Extinction | Termination of a State’s international legal identity |
| Main creation methods | Secession, dissolution, merger, decolonisation |
| Main extinction methods | Dissolution, merger, incorporation |
| Recognition | Related but distinct |
| Self-determination | Important in decolonisation and certain independence claims |
| State succession | Major consequence of State creation and extinction |
| Occupation | Does not automatically extinguish Statehood |
| Use of force | Cannot lawfully create territorial title |
| Important cases | Tinoco, Island of Palmas, Western Sahara, Kosovo |
| Key distinction | Secession ≠ Dissolution |
Quick Revision
- Creation of a State means the emergence of a new entity possessing Statehood and international legal personality.
- The traditional requirements of Statehood are:
- permanent population;
- defined territory;
- government;
- capacity to enter international relations.
- States may emerge through:
- secession;
- dissolution;
- unification or merger;
- decolonisation.
- Secession occurs when part of an existing State separates while the original State continues.
- Dissolution occurs when the original State disappears and successor States emerge.
- Merger or unification occurs when two or more States combine into one State.
- Decolonisation was one of the most significant processes of State creation in the twentieth century.
- Cession primarily involves the transfer of territory and does not necessarily create a new State.
- Extinction may occur through:
- dissolution;
- merger;
- incorporation or absorption.
- Unlawful force cannot create lawful territorial title.
- Occupation does not automatically extinguish the occupied State.
- A change of government does not normally extinguish Statehood.
- Civil war and governmental instability do not automatically terminate international legal personality.
- Extinction of a State may create questions of State succession.
- Recognition is related to State creation but is distinct from the objective criteria of Statehood.
- Tinoco Arbitration is important for government and recognition.
- Island of Palmas is important for territorial sovereignty.
- Western Sahara is important for decolonisation and self-determination.
- Kosovo Advisory Opinion is important for declarations of independence.
- The essential distinction is:
Secession creates a new State while the original State continues; dissolution causes the original State itself to cease to exist.
Conclusion
The creation and extinction of States determine the emergence, continuity and termination of international legal personality. New States may emerge through secession, dissolution, unification, merger or decolonisation, while existing States may cease to exist through dissolution, merger or incorporation. Recognition, self-determination and State succession are closely connected with these processes but must be distinguished from Statehood itself. A change of government, civil war or occupation does not automatically extinguish the international legal personality of a State. Modern International Law also prohibits the acquisition of lawful territorial title through unlawful force. The distinction between secession and dissolution is particularly important: in secession, the original State continues, whereas in dissolution, the original State itself disappears.
