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📚 Module 7 – State Formation and the Sources of International Law

This report provides a comprehensive analysis of state formation and the sources of international law, supplemented by a detailed examination of specific international law concepts such as state succession, secession, state extinction, annexation, occupation, prescription, micronations, stateless territories, the high seas, special territories, and extraterritorial areas.

The study illuminates the fundamental criteria of statehood, the theories of its recognition, and the hierarchical structure of the sources of international law according to Article 38 of the ICJ Statute. It demonstrates how international law responds to dynamic challenges, such as the effects of sea-level rise on statehood or the complex regulations for international spaces. The report clarifies the constant tension between state sovereignty and the need for a rule-based international order, shaped by international treaties, customary law, and general principles of law.

1. Fundamentals of International Law and Statehood

This section lays out the fundamental concepts essential for understanding state formation and the legal order within which states operate. It defines statehood, examines the theories of its recognition, and details the authoritative sources of international law.

1.1. The Concept of Statehood in International Law

Statehood is a central concept in international law that defines the prerequisites for the existence of an entity as a subject of international law. Without statehood, an entity cannot exercise the full rights and obligations of a state at the international level.

1.1.1. Criteria of Statehood (Montevideo Convention)

The Montevideo Convention on the Rights and Duties of States of 1933 is widely regarded as a codification of the customary international law concept of a state.

According to Articles 1 and 2 of this convention, a state, in the sense of international law, must possess the following qualifications to be considered a subject of international law:

a) A defined territory: This refers to a stable portion of the earth's surface over which the state exercises sovereignty. It is not strictly necessary for the borders of this territory to be completely and undisputed, but a recognizable territory must exist.

b) A permanent population: This refers to a stable community of people residing in the state's territory. A specific minimum number is not prescribed, but the population must be permanent.

c) An effective government: This implies a stable political organization capable of maintaining public order and security within its territory and conducting international relations. The effectiveness of the government is a crucial factual criterion.

d) The capacity to enter into international relations: This criterion relates to the independence of the state and its ability to formulate its own foreign policy and conclude international treaties. It is often understood as a consequence of the first three elements, as an entity that fulfills them is generally also capable of maintaining international relations.

The so-called "three-element doctrine" in German-language legal scholarship, which includes state territory, state population, and state power, largely aligns with the criteria of the Montevideo Convention, with the capacity for international relations being considered an inherent aspect of sovereignty.

The application of these criteria in practice shows remarkable flexibility. Although the Montevideo Convention sets clear legal requirements for statehood, sources emphasize that the actual circumstances are decisive in assessing these criteria. The observation that the criterion of effective government has not always been strictly applied, particularly in the context of decolonization, underscores that international legal practice has a pragmatic dimension.

This means that factual control and functionality as a state often take precedence over a rigid interpretation of formal requirements. A prominent example of the adaptability of international law to new global challenges is the discussion about the effects of sea-level rise on statehood. Reports from the International Law Commission (ILC) suggest that states should retain their statehood even if their land physically disappears. This development points to a progressive interpretation of statehood that prioritizes political continuity and the avoidance of statelessness over strict adherence to physical territorial integrity. This illustrates that international law is not a static set of rules but adapts to changing realities to ensure the stability of the international community.

1.1.2. Theories of State Recognition: Declaratory vs. Constitutive

The recognition of a new state or government is a significant act in international relations, the legal effect of which is explained by two main theories:

Declaratory Theory: This theory, widely accepted in international law scholarship and expressed in instruments like the Montevideo Convention (Art. 1), posits that a state exists eo ipso (by the act of its creation itself) as soon as it factually meets the traditional criteria of statehood (population, territory, effective government, capacity for international relations). Recognition by other states has merely a declaratory effect; it confirms a pre-existing legal state rather than creating it.

Constitutive Theory: In contrast, this theory argues that recognition is a status-conferring act. For a new state to acquire international legal personality and the full rights and duties of a state, it must be recognized by existing states. Without this recognition, it cannot effectively participate in international relations.

Although the declaratory theory prevails in legal doctrine, state practice often shows constitutive elements. There are cases where a government entity was recognized even though it demonstrably lacked effective governmental authority at the time of recognition (e.g., Bosnia and Herzegovina in 1992). Conversely, a new state that met all traditional requirements for statehood has been permanently denied recognition (e.g., Somaliland since 1991).

These situations cannot be convincingly explained by the declaratory theory alone. The case of Kosovo, recognized by many states but not a UN member due to non-recognition by key Security Council members, illustrates this practical constitutive effect.

International law also imposes a duty of non-recognition on states when entities have been created in violation of peremptory norms (jus cogens) of international law, such as the prohibition of the use of force or the right of self-determination of peoples. This doctrine, which dates back to the Stimson Doctrine (1932), is intended to prevent the legitimization of unlawful territorial acquisitions. Premature recognition of a seceding entity before it has established effective control can be considered an unlawful interference in the internal affairs of the parent state.

The ongoing debate and practical divergence between the declaratory and constitutive theories of state recognition reveal a fundamental tension between the purely legal assessment of statehood and the political realities of international relations. While the declaratory theory provides objective legal criteria for the existence of a state, the "free discretion" of states in the recognition decision and the examples of selective recognition or non-recognition show that political interests, strategic alliances, and compliance with broader international norms (such as human rights or UN Charter principles) significantly influence these decisions.

The "duty of non-recognition" further complicates this by making recognition not just a discretionary act, but sometimes a legal obligation or prohibition, based on the legitimacy of the state's formation, which goes beyond mere factual existence. This suggests that while the declaratory theory describes the legal conditions for the emergence of a state, the constitutive theory more accurately reflects how a state gains full acceptance and functionality within the international legal order, which often requires political confirmation of its legal status.

1.2. Sources of International Law (Art. 38 ICJ Statute)

Article 38(1) of the Statute of the International Court of Justice (ICJ Statute) is widely regarded as the authoritative statement on the sources of international law that guides the Court in its decisions. It distinguishes between primary sources and subsidiary means for the determination of rules of law.

1.2.1. International Treaties

International treaties, also known as conventions or agreements, are agreements between states and other subjects of international law that regulate relations at the international level. They are a primary and persuasive source of international law and are often referred to as "hard law."

Function and Scope: Treaties can play the role of contracts between two or more parties (e.g., extradition treaties or defense pacts). They can also serve as legislation to regulate a particular aspect of international relations or form the constitutions of international organizations.

Binding Effect: While all treaties create obligations for their parties, for a treaty-based rule to be a source of general international law, it must be capable of influencing non-parties or having broader consequences for parties than those specifically imposed by the treaty.

Relationship to Customary Law: Some treaties codify existing customary law (e.g., the Geneva Conventions of 1949), while others contribute to the crystallization of developing customary rules or promote the adoption of their provisions as customary law.

Hierarchy: Obligations under the Charter of the United Nations, according to Article 103 of the UN Charter, take precedence over the provisions of any other treaty.

Domestic Application: In states like Germany, international treaties acquire domestic validity and direct applicability through specific domestic legal acts, such as the consent of parliament in the form of a federal law according to Article 59(2) of the Basic Law (GG).

Treaties are not just instruments of obligation for their parties; they also play a crucial, dynamic role in the codification and development of international law. By formalizing existing customary norms or being widely ratified, they can crystallize developing rules and thus contribute to the broader body of customary international law that can also bind non-parties. This illustrates a continuous interaction between written agreements and unwritten practice, with treaties serving as a powerful instrument for legal certainty and the progressive development of international norms. The need for domestic implementation also underscores the complex interplay between international legal obligations and national sovereignty.

1.2.2. Customary International Law (State Practice & Opinio Juris)

Customary international law is defined as evidence of a general practice accepted as law. Its formation requires two essential elements:

a) State Practice (Consuetudo): This refers to the consistent and widespread conduct of states. It includes the examination of all activities of state organs and officials, including their actions, statements, and diplomatic exchanges. While universality is not required, the practice must be sufficiently widespread, representative (especially among states whose interests are most affected), and consistent, without significant contradiction.

b) Opinio Juris Sive Necessitatis (or Opinio Juris): This is the subjective belief of states that the consistent practice is obligatory due to an existing legal norm. It distinguishes customary law from mere acts of courtesy or political expediency. Opinio juris cannot simply be inferred from state practice alone; states ideally make their belief in the legal obligation clear through official statements.

Jus Cogens (Peremptory Norms): A special category of customary international law are jus cogens norms, from which no derogation is permitted. These norms are recognized by the international community as a whole and can only be modified by a subsequent norm of the same character (Art. 53 VCLT). Examples include the prohibition of aggressive war, genocide, war crimes, crimes against humanity, slavery, and torture. Jus cogens rules have a universal character and apply to all states, regardless of their individual consent.

Persistent Objector Rule: A state can prevent a customary law rule from applying to it if it consistently objects to that rule from the outset. However, this is difficult to maintain and does not apply to jus cogens norms.

The dual requirement of state practice and opinio juris for customary international law introduces a significant subjective element, as determining the "sense of legal obligation" can be challenging. The debate over the relative weight of state "statements" versus "actions" in establishing practice further complicates its identification. This illustrates that customary law is not just a reflection of observable behavior but also of the underlying legal beliefs of states. While the "persistent objector" rule theoretically preserves state sovereignty, the existence of jus cogens norms reveals a hierarchy in which certain fundamental norms are universally binding, regardless of a state's individual consent. This points to a progressive development in international law, away from a purely consensual, state-centric model towards one that recognizes overarching community values and peremptory norms, reflecting a more mature and ethically grounded international legal order.

1.2.3. General Principles of Law

General principles of law are principles recognized by "civilized nations" (Art. 38(1)(c) ICJ Statute). The term "civilized nations" is understood today to refer to states that have reached a certain level of development and in which the fundamental values of the modern community of states are reflected.

Function: General principles of law serve to supplement treaty and customary law and to fill gaps (non liquet) where other sources may not provide a clear rule.

Derivation: They are primarily derived from legal principles common to many national legal systems, often by means of a comparative law method. Examples include pacta sunt servanda (treaties must be observed), estoppel, equity, good faith, and the prohibition of the abuse of rights.

General principles of law function as a crucial bridge between diverse national legal systems and the international legal order. By drawing on common legal principles found in many national laws, they create a universal, fundamental layer for international law, especially in areas not yet comprehensively covered by treaties or customary law. This demonstrates the practical necessity for international courts to have a comprehensive legal toolkit to ensure that no dispute remains without applicable law (non liquet). The evolution of the interpretation of the term "civilized nations" from a potentially Eurocentric view to one that emphasizes common fundamental values across diverse legal traditions underscores the inclusive and adaptive nature of international law.

1.2.4. Subsidiary Means: Judicial Decisions and Teachings of Publicists

Article 38(1)(d) of the ICJ Statute refers to judicial decisions and the teachings of the most highly qualified publicists as "subsidiary means for the determination of rules of law."

They are not independent sources of law but serve to identify and interpret existing law.

Judicial Decisions:

Include decisions of international courts (like the ICJ) and, to a lesser extent, national courts.
There is no strict rule of stare decisis (binding precedent) in international law, meaning that a decision of the ICJ is only binding between the parties to the specific case (Art. 59 ICJ Statute). However, the ICJ frequently refers to its previous jurisprudence and advisory opinions to support its reasoning and ensure consistency.
Judicial decisions can also serve as evidence of customary international law.

Teachings of Publicists (Juristic Writings):

Refer to the scholarly works and teachings of prominent international law experts from various nations.
They are not sources of international law but are essential for the development and interpretation of rules enshrined in treaties, customary law, and general principles of law.

The role of judicial decisions and teachings in international law is primarily interpretive and developmental. Although not considered independent sources of law in the sense of Article 38(1) of the ICJ Statute, they are indispensable tools for clarifying, systematizing, and advancing international law. Judicial decisions contribute to the consistency and predictability of legal application by applying existing norms to concrete cases, often clarifying their meaning in the process. The teachings of publicists, in turn, offer a critical reflection on state practice and jurisprudence, identify gaps, and formulate proposals for the progressive development of international law. Their importance lies in their ability to shape legal argumentation and promote the acceptance of new or evolving norms in the international community, thereby indirectly contributing to the dynamism and adaptability of international law.

Table 1: Sources of International Law according to Art. 38 ICJ Statute

Source	Type of Source	Description	Examples/Features
International Treaties	Primary	"Written agreements between states or subjects of international law that regulate legal relationships."	"Hard law"; can codify or develop customary law; UN Charter has precedence
Customary International Law	Primary	"General, consistent state practice supported by the conviction of a legal obligation (opinio juris)."	Requires Consuetudo (state practice) and Opinio Juris; Jus Cogens as peremptory norms
General Principles of Law	Primary	"Principles recognized in most national legal systems that fill gaps in international law."	"Derived from national legal orders; examples: pacta sunt servanda, estoppel, good faith"
Judicial Decisions	Subsidiary Means	"Judgments of international and national courts; no binding precedent (stare decisis), but guidance."	Serve to determine and interpret rules of law; ICJ decisions are only binding for the specific case
Teachings of Publicists (Juristic Writings)	Subsidiary Means	Scholarly works and teachings of recognized international law experts.	Serve to determine and interpret rules of law; shape legal development and discussion

2. Dynamics of Statehood and Territory

This section deals with the processes that affect the existence, boundaries, and status of states in international law. It examines the legal frameworks for changes in statehood and territory.

2.1. State Succession

State succession occurs when territorial sovereignty over a specific area changes, and one state replaces another as the holder of full territorial sovereignty.

This concerns the question of which international treaties the successor state should be bound by and which property rights it can assume. There are various forms of state succession, each with different effects on the international legal identity of the states involved:

Dismemberment (Dissolution): The previous state ceases to exist, and two or more new states emerge from its former territory. Examples include the dissolution of the Soviet Union into various states (1991) or the division of Czechoslovakia into the Czech Republic and Slovakia (1992/1993). The successor states of Yugoslavia are controversially discussed as to whether it was a case of dismemberment or secession from Serbia.
Secession (Separation): A part of a territory breaks away from an existing state, often against its will, with the original state continuing to exist with reduced territory. Examples include the secession of Finland from Russia (1918) or Bangladesh from Pakistan (1971).
Separation (Consensual Secession): Similar to secession, but the detachment of parts of the territory occurs with the consent of the parent state.
Fusion (Merger/Unification): Two or more states give up their previous statehood and jointly form a new state. This generally happens between equal partners. An example is the unification of Tanganyika and Zanzibar to form Tanzania (1964) or the Arab Republic of Yemen and the People's Democratic Republic of Yemen to form the Republic of Yemen (1990).
Incorporation/Accession (Absorption): One state joins another, and the acceding state ceases to exist, while the absorbing state retains its identity. A prominent example is the accession of the German Democratic Republic (GDR) to the Federal Republic of Germany (FRG).
Cession (Territorial Transfer): The voluntary transfer of a part of a territory from one state to another.

The legal consequences of state succession are complex and particularly affect international treaties, state property, state archives, and state debts.

The Vienna Convention on Succession of States in Respect of Treaties of 1978 and the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts of 1983 attempt to regulate this matter.

Treaties: The principle that treaties are automatically assumed by the successor state seems to be increasingly accepted in recent practice but remains controversial. An important exception is the "clean slate" position (Tabula Rasa), which has prevailed for former colonies, allowing them to "pick and choose" treaties at their discretion. Radical, i.e., territory-related treaties (e.g., border treaties), are undisputedly assumed, while highly personal treaties (e.g., alliance treaties) are not. The Vienna Convention on Succession of States in Respect of Treaties of 1978 has entered into force but has been ratified by only a small number of states (23 states by 2023), reflecting its low acceptance and relevance in customary international law.
State Property, Archives, and Debts: For state property, a proportional division has become established. For state debts, the principle of "dettes odieuses" (odious debts) applies, according to which debts incurred to prevent independence or not for the benefit of the population are not assumed by the successor state (e.g., from the colonial era). However, the 1983 Vienna Convention on this subject has not yet entered into force.

State succession is an area of law that represents a mix of codified law, customary practice, and political negotiations. The relatively low ratification rate of the Vienna Conventions on State Succession reflects the reluctance of the international community to be fully bound by rigid rules in this complex matter. Instead, a case-by-case, pragmatic approach is often preferred, where the involved states make individual arrangements. This illustrates that the legal consequences of state succession cannot always be clearly determined by general rules but are often the result of negotiations and political reality. International responsibility is also considered highly personal and is not automatically transferred to successor states.

2.2. Secession

Secession refers to the detachment of a part of a territory from an existing state, often against the will of the parent state, to form a new, independent state.

The right of self-determination of peoples, enshrined in Article 1 of the UN Human Rights Covenants of 1966 and Article 1(2) of the UN Charter, allows a people to freely determine its political status and development. Whether this right ultimately includes a right to secession is controversial in international law. The prevailing opinion in legal scholarship rejects such an "offensive" right of secession outside the context of decolonization, referring to the integrity interest of existing state associations, i.e., the defensive right of self-determination.

The international community of states is extremely reserved about a right of secession outside of decolonization. An exception is the controversial theory of "Remedial Secession". This theory states that a people may have a right to secede under extreme circumstances if it is subjected to systematic, gross, and massive human rights violations that threaten its existence as a national minority or people, or if a policy of genocide, apartheid, or ethnic cleansing is pursued. Large-scale war crimes, forced assimilation, or the forced erasure of national identity can also justify such a secession, especially if internal self-determination attempts have been thwarted.

A state created through Remedial Secession should be founded exclusively on the basis of jus cogens norms of international law.

Examples of Remedial Secession:

Kosovo: The genocide and repeated human rights violations by Serbia were seen as a basis for the recognition of Kosovo's independence. However, the ICJ avoided explicitly affirming a positive right of secession.
Bangladesh: The discrimination, denial of internal self-determination, and severe group violations (mass displacement, killings) in East Pakistan (now Bangladesh) are cited as a model case for Remedial Secession.
Ukraine: The policy of forced assimilation and the forced erasure of national identity are mentioned as examples where Remedial Secession could be justified.

The relationship between the right of self-determination of peoples and the principle of territorial integrity of states is a central area of tension in international law. While the right of self-determination can legitimize the pursuit of independence, international law generally protects the territorial integrity of existing states. The hurdles for secession are therefore very high, especially outside the decolonization context. International law views secession as an extreme measure, permissible only in exceptional cases and as a last resort for the realization of the right of self-determination, when all attempts at internal self-determination have failed and serious human rights violations are present. This reflects an attempt to preserve the stability of the international order while simultaneously protecting the fundamental rights of peoples.

2.3. Extinction of States

The extinction of a state occurs when the state territory or the state population is permanently and completely lost. This places high demands on international law to ensure the greatest possible stability at the international level. Territorial changes alone generally have no influence on the existence of a state (cf. principle of movable treaty boundaries, Art. 29 VCLT).

Changes in the form of government internally also do not affect the existence or identity of a state. Mechanisms that can lead to the extinction of states are closely linked to the forms of state succession:

Dismemberment: As already mentioned, the dissolution of a state leads to the creation of several new states, with the original state ceasing to exist. Examples are the Soviet Union or Czechoslovakia.
Fusion: The merger of two or more states, which thereby give up their previous statehood to form a new, common state. The original states cease to exist.
Incorporation/Absorption: A state is completely integrated into another state, thereby losing its own statehood, while the absorbing state retains its identity. The best-known example is the accession of the GDR to the FRG.

The recognition of the extinction of a state has a declaratory character; it merely confirms the factual disappearance of the entity.

State recognition is particularly important in international law practice when the existence of a state is legally doubtful, for example, in connection with the secession or extinction of an existing state.

International law sets a high threshold for the extinction of a state, which reflects the preference for the continuity of statehood. This serves stability and predictability in international relations. The mechanisms of state extinction are closely linked to the concept of state succession, as the disappearance of a state inevitably raises questions about the transfer of rights and obligations to the successor entities. The fact that international law sets a high hurdle for the extinction of a state underscores the importance of state continuity as a cornerstone of the international legal order.

2.4. Annexation

Annexation is the forcible acquisition of a territory that previously belonged to another state. Historically, annexation was a component of applicable customary international law and regularly led to a valid title of territorial acquisition.

It was not until the 20th century that annexation was expressly prohibited.

The comprehensive prohibition of annexation in current international law now has a customary law basis and arises from the fundamental prohibition of the threat or use of force against the territorial integrity or political independence of a state, as enshrined in the UN Charter.

This means that annexations, including "counter-annexations" (forcible territorial acquisition against an aggressor), are contrary to international law.

Examples of unlawful annexations:

Crimea (Ukraine) by Russia (2014): Russia conducted a "sham referendum" and declared the territory Russian, which was not internationally recognized and led to sanctions.
Golan Heights (Syria) by Israel (1981): Israel occupied the Golan Heights in 1967 during the Six-Day War and annexed them in 1981.
Further Russian annexations in Ukraine (2022): Russia unlawfully proclaimed the annexation of the Donetsk, Luhansk, Zaporizhzhia, and Kherson regions after sham referendums.

The term "annexation" is now predominantly negatively connotated in the German-speaking world. Proponents often speak instead of "unification," "return," or "liberation."

In the case of long-lasting occupation, one also speaks of "de facto annexation."

The absolute prohibition of annexation in modern international law represents a fundamental change from historical practice, where forcible territorial acquisition was considered a legitimate title. This development is a direct consequence of the prohibition of the use of force in the UN Charter, which protects the territorial integrity of states as a cornerstone of the international order. However, the continued practice of unlawful annexations, as in the case of Crimea and other Ukrainian territories, shows that the enforcement of this prohibition remains a challenge. The international community responds to such violations with non-recognition and sanctions to reaffirm the universal validity of the prohibition of annexation and to undermine the legitimacy of facts created by force. This underscores the tension between the ideal of a rule-based international order and the realities of power-political interests.

2.5. Occupation

Occupation in the sense of international law refers to the taking possession or occupation of a territory. A distinction is made between peaceful (occupatio pacifica) and belligerent (occupatio bellica) occupation.

Peaceful Occupation (Occupatio Pacifica): This form of occupation played a central role during colonization and European expansion. It presupposes that the territory was undiscovered (terra nullius) or abandoned by its former sovereign (dereliction). At least since the second half of the 19th century, this ground for acquisition no longer applies to territories with an indigenous population or pre-existing sovereignty.
Belligerent Occupation (Occupatio Bellica): This is the military occupation of a foreign state's territory in the context of an armed conflict. Belligerent occupation is strictly regulated by humanitarian international law, particularly by the Hague Regulations (HLKO) and the Geneva Conventions.

Legal Implications and Duties of the Occupying Power:

Hague Regulations (1907): The HLKO contains specific rules for the conduct of an occupying power in occupied enemy territory. According to Article 43, the occupying power is obliged to restore and maintain public order and public life. The population may not be forced to participate in military operations against their own country (Art. 44 HLKO 1907). The confiscation of private property and plunder are prohibited (Art. 46, 47 HLKO). Collective punishments against the population for the acts of individuals are also forbidden (Art. 50 HLKO).
Geneva Conventions (1949): After World War II, the Fourth Geneva Convention of 1949 ("relative to the Protection of Civilian Persons in Time of War") created a separate framework for the treatment of civilians by an occupying power, which significantly expands the provisions of the HLKO. Geneva Conventions III and IV supplement the corresponding sections of the Hague Regulations.
Customary Law Status: The principles of the Hague Regulations have been considered customary international law for decades and are therefore binding on states and non-state conflict parties that have not expressly acceded to the agreement. This was confirmed in 1946 by a decision of the International Military Tribunal at Nuremberg.
War Crimes: Violations of important provisions of the Hague Regulations and the Geneva Conventions can be prosecuted as war crimes under Article 8 of the Rome Statute of the International Criminal Court (ICC).

Examples of military occupations: West Bank (Israel), Golan Heights (Israel), Northern Cyprus (Turkey), Western Sahara (Morocco), Abkhazia and South Ossetia (Russia in Georgia), Northern Syria (Turkey), parts of Ukraine (Russia).

Belligerent occupation is a temporary state that does not lead to territorial acquisition and is subject to strict rules of humanitarian international law. The comprehensive regulation of belligerent occupation by the Hague Regulations and the Geneva Conventions underscores the central importance of protecting the civilian population and limiting violence in armed conflicts. These norms emphasize that even in an armed conflict, there is no completely lawless space.

The duties of the occupying power are limited to restoring and maintaining public order and must not be used to bring about permanent territorial changes or to undermine the sovereignty of the occupied state. The development from classic international law, which considered belligerent occupation as standard practice, to a detailed set of rules of humanitarian international law shows an increasing emphasis on human values and protection from the effects of conflicts.

2.6. Prescription

Prescription, or acquisitive prescription, is a form of acquiring territorial sovereignty in international law. It is an original acquisition of ownership, in which the previous owner loses their rights to the thing, and the acquirer obtains them without the need for an agreement between the previous owner and the acquirer.

The elements of territorial prescription in international law, as discussed by legal scholars, include:

Effective and peaceful exercise of sovereignty (Effectivités): A state must exercise acts of sovereignty over a territory claimed by another state for a prolonged period. These acts must be continuous and undisturbed.
Lapse of time: A certain period must pass during these acts of sovereignty. The exact duration is often not specified and depends on the circumstances, with the goal being to create a general belief that the current state corresponds to the international order.
Absence of protest/Acquiescence: The potentially affected state does not react to these acts or reacts in a way that implies consent. This silence or inaction is interpreted as consent. It is important that the silent state had knowledge of the actions and an obligation to react.

Prescription is closely related to other concepts of international law:

Occupation: While occupation concerns the acquisition of terra nullius (unowned territory), prescription refers to territories that were already under the sovereignty of another state.
Immemorial Possession: Similar to prescription, but applied to situations where the original possession of a territory can no longer be determined.
Estoppel and Preclusion: These principles prevent a state from denying a previously made statement or action if another state has relied on it.
Uti Possidetis: This principle states that former colonial borders become international borders upon independence. In decolonization, it prioritizes legal title over effective control and thus limits the application of prescription in such specific scenarios.

International courts, such as the ICJ, have rarely used the term "prescription" explicitly as a direct basis for a decision, but the underlying principles – particularly the long-term, peaceful, and effective exercise of state authority combined with the absence of protest or the acquiescence of other states – are central aspects in the settlement of territorial disputes and the development of territorial titles.

Examples of relevant cases:

Island of Palmas Case (1928): Emphasized the importance of the "continuous and peaceful display of territorial sovereignty."
Eastern Greenland Case (1933): Dealt with the role of effective occupation in establishing sovereignty over terra nullius.
Temple of Preah Vihear (1962): The ICJ applied the principle of acquiescence.

The development of the principles of territorial acquisition in international law shows a shift away from traditional methods, which were often based on factual control, towards a stronger emphasis on consensus and the rule of law. While prescription played a role historically, its application in modern international law is complex and often linked with other principles such as acquiescence and estoppel. This illustrates that the legitimacy of a territorial acquisition today is not based solely on the factual exercise of sovereignty, but also on the acceptance or absence of protest by other states. The jurisprudence of international courts has further refined these concepts, emphasizing that the stability of international borders and the avoidance of conflicts must be ensured by clear legal principles.

2.7. Micronations

Micronations are entities that claim sovereign status as independent nations but are not recognized by established states. The term "micronation" has no basis in international law.

Micronations generally lack the characteristics that a state must possess according to international law, particularly the criteria of the Montevideo Convention (permanent population, defined territory, effective government, capacity for international relations).

Therefore, micronations do not enjoy international legal recognition and are generally not taken seriously by other states.

Attempts at legitimization: Some micronations try to justify their claims to sovereignty by invoking loopholes in local laws or through the declaratory theory of statehood according to the Montevideo Convention. Projects like Liberland, for example, claim territories that they consider terra nullius (unowned land) due to technical details in border disputes.

Attitude of established states: The activities of micronations are usually trivial enough to be ignored rather than challenged by the established nations whose territory they claim. Many micronations themselves admit to having no intention of actually being internationally recognized as sovereign.

The limited legal status of micronations in international law reflects the need to maintain clear and consistent criteria for statehood to ensure the stability of the international order. Micronations are generally unable to meet the factual and legal requirements of the Montevideo Convention, and their claims are therefore not recognized as legally relevant by the international community. Their existence is more symbolic or experimental in nature and has no impact on the established principles of international law.

2.8. Stateless Territories

The term "stateless" in international law is primarily applied to persons, not territories.

A stateless person is a person whom no state considers as a national by operation of its law (Art. 1(1) of the 1954 Convention relating to the Status of Stateless Persons).

Implications of statelessness for persons:

Lack of rights and protection: Stateless persons cannot claim state protection and are not eligible to vote. They often lack access to travel documents and identity papers, which complicates naturalization and everyday activities.
Vulnerability: Statelessness is internationally considered undesirable and should be avoided or reduced. Stateless persons are particularly vulnerable as they have no state representation.
Psychological consequences: The situation can lead to feelings of exclusion and non-belonging, as well as constant fear of jeopardizing their residency status through incorrect behavior.
Administrative challenges: The determination of statelessness is legally and procedurally complex, and established procedures are lacking, leading to uncertainty for both affected individuals and authorities.
International obligations: The international community has enacted legal regulations to define the legal status of stateless persons and to avoid or reduce statelessness. States like Germany, as signatories to the Statelessness Convention, are obliged to identify stateless persons on their territory and grant them access to national and international rights.

Although the term "stateless territories" is rarely used in the strict sense of international law, it could refer to territories that were historically considered terra nullius or disputed territories without clear sovereignty. However, the available information focuses primarily on the definition and implications of statelessness for individuals. The problem of statelessness for persons is a significant humanitarian challenge. The international community recognizes the need to mitigate this vulnerability through international conventions and national measures. The fact that international law provides a clear definition for stateless persons and obliges states to grant rights underscores the humanitarian dimension and the efforts to ensure fundamental rights for all individuals, regardless of their nationality.

2.9. High Seas

The high seas refer to the areas of the seas that do not belong to the exclusive economic zone, the territorial sea, or the internal waters of a state. Their legal regime is primarily established in the United Nations Convention on the Law of the Sea (UNCLOS) of 1982, which entered into force in 1994 and has been ratified by 168 states.

Freedoms of the high seas: According to Article 87 of UNCLOS, the high seas are open to all states, whether coastal or land-locked. The freedom of the high seas includes, among others:

Freedom of navigation.
Freedom of overflight.
Freedom to lay submarine cables and pipelines.
Freedom to construct artificial islands and other installations permitted under international law.
Freedom of fishing, subject to certain conditions.
Freedom of scientific research.

Not a lawless space: Despite these freedoms, the high seas are by no means a lawless space. The freedoms are not unlimited. With the entry into force of UNCLOS in 1994, all uses of the seas and oceans are subject to the general obligation of states to protect and preserve the marine environment. This obligation is further detailed in Part XII of UNCLOS and in a multitude of other legal instruments.

"Constitution for the Oceans": The importance of UNCLOS as a "constitution for the oceans" is particularly evident as it provides a comprehensive legal framework for the use and protection of the oceans.

The freedom of the high seas is one of the oldest and most fundamental principles of international law, which, however, is balanced in modern law of the sea by comprehensive protection duties and cooperation requirements of states. UNCLOS ensures that the high seas are not misused as a lawless space but are used as a global common good for the benefit of all states, in compliance with strict environmental regulations and mutual consideration. This illustrates the development from a primarily use-oriented approach to a holistic management that prioritizes ecological sustainability and the protection of the marine environment.

2.10. Special Territories

The term "special territories" can have various meanings in international law that go beyond mere customs and tax regulations. In the context of international law, special territories often refer to territories that are subject to a special legal regime due to their geographical location, historical development, or special functions.

International Straits:
International straits are natural passages used for international navigation between two parts of the high seas or an exclusive economic zone (EEZ).
UNCLOS regulates the right of transit passage (Art. 38 UNCLOS), which grants all ships and aircraft the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit through the strait. This right is more comprehensive than the right of "innocent passage" and applies regardless of the flag or status of the ship.
International Canals:
Artificial maritime canals like the Corinth Canal are generally subject to national law and are not covered by UNCLOS.
However, there are three globally important exceptions that are subject to a special international legal regime due to earlier treaties:
Kiel Canal: It is accessible to merchant ships of all nations without discrimination, while foreign warships require prior permission.
Panama Canal: Through the Panama Canal Treaty of 1977 and the Neutrality Treaty, control over the canal was transferred to Panama, ensuring its neutrality and the free transit of ships of all nations.
Suez Canal: According to the Convention of Constantinople (1888), the canal may be used "in time of war as in time of peace, by every vessel of commerce or of war, without distinction of flag." It is operated and maintained by the state-owned Suez Canal Authority (SCA) of Egypt.
Polar Regions (Arctic and Antarctic):
Antarctica: Is primarily governed by the Antarctic Treaty System (ATS), which prescribes peaceful use and scientific research, prohibits military use, and suspends territorial claims. The Protocol on Environmental Protection to the Antarctic Treaty (1994) is the most important instrument for environmental protection in the region.
Arctic: Is subject to UNCLOS and regional agreements. The Arctic Council is the leading intergovernmental forum for the region, dealing with sustainable development and environmental protection. There are specific agreements on the protection of the marine environment, search and rescue, and fisheries regulation.
Outer Space Law:
Outer space law regulates activities in outer space and is mainly based on the Outer Space Treaty of 1967.
Important principles are the freedom of outer space, the non-appropriation principle (no claims of sovereignty), peaceful use, the duty to assist in emergencies, and state liability for damage caused by space objects.
Additional agreements like the Rescue Agreement (1968) and the Liability Convention (1972) specify these principles. Current challenges are space debris and space mining.
International Rivers:
International rivers are subject to the principle of "equitable and reasonable utilization" by all riparian states.
International agreements and river commissions promote cooperation and conflict resolution in shared river basins.

The diversity of special territories in international law illustrates that international law has developed tailor-made frameworks for specific geographical spaces or functional areas. These differentiated legal regimes take into account the special nature and challenges of these areas, be it the need for free passage in straits and canals, the protection of fragile ecosystems in the polar regions, or ensuring the peaceful use of outer space. The development of these specific regulatory frameworks shows the adaptability of international law to new technologies, environmental threats, and geopolitical interests in order to promote a stable and cooperative international order.

2.11. Extraterritorial Areas (Status of Forces & Diplomatic Premises)

The term "extraterritorial areas" is misleading in modern international law and is no longer recognized in its traditional sense. Foreign military bases and diplomatic premises are not extraterritorial; they are located on the territory of the receiving state. However, they enjoy certain privileges, exemptions, and immunities that functionally limit the territorial sovereignty of the host state.

Diplomatic and Consular Premises:
Status: The premises of a foreign mission are an integral part of the state territory on which they are located. They are not treated as being outside the host state or as enclaves of another state. Crimes committed there are considered to have been committed on the territory of the host state.
Inviolability and Immunities: The Vienna Convention on Diplomatic Relations (VCDR, 1961) and the Vienna Convention on Consular Relations (VCCR, 1963) regulate the status of these premises and their personnel. The premises of the mission are inviolable and may not be entered by representatives of the receiving state without the consent of the head of the mission. Diplomats enjoy personal inviolability and immunity from criminal prosecution.
Privileges and Duties: Diplomatic missions enjoy certain privileges (e.g., tax exemptions). In return, diplomatic agents have a duty to respect the laws and regulations of the receiving state and not to interfere in its internal affairs.
Exceptions to Inviolability: There are limited exceptions to the absolute prohibition of entry, which may arise from the international right to protection and the host state's right of self-defense (e.g., in case of fire with danger to life or threat of spreading to neighboring buildings). The question of access in cases of serious human rights violations in the embassy is controversial.
Status of Forces (Foreign Military Bases):
Status: Military premises of foreign armed forces are also part of the territory in which they are located and are not extraterritorial.
Legal Basis: Their presence and the extent of the sovereign rights that the foreign force may exercise there are based on international treaties, such as the NATO Status of Forces Agreement and its supplementary agreements in Germany. These treaties often grant the stationed forces a contractually guaranteed exclusive right of use and immunities.
Exceptions: Some historical cases, such as the British military bases Akrotiri and Dhekelia in Cyprus, which by agreement actually became part of the territory of the United Kingdom, are rare exceptions but are still not considered "extraterritorial" in relation to Cyprus.

The immunities and privileges granted to diplomatic and military facilities are functional in nature. They do not serve to remove these areas from the sovereignty of the host state, but rather to enable the efficient performance of diplomatic missions and military cooperation. This means that the restrictions on the host state's territorial sovereignty are not based on territorial exclusion, but on a contractually agreed limitation on the exercise of sovereign powers. This functional perspective is crucial for understanding the complexity of these international legal regulations and the balance between the interests of the sending state and the receiving state.

3. Conclusions

This in-depth analysis of state formation and the sources of international law reveals the complexity and dynamic character of international law.

Statehood, as the foundation of the international order, is defined by the criteria of the Montevideo Convention, the application of which, however, shows remarkable flexibility with regard to factual circumstances.

The discussion on the effects of sea-level rise on statehood is a poignant example of how international law adapts to new realities to ensure the continuity and stability of the community of states.

The theories of state recognition, declaratory and constitutive, illustrate the ongoing tension between purely legal assessment and political realities. While the declaratory theory emphasizes the objective criteria of statehood, state practice shows that recognition is often a politically motivated act that significantly influences the full integration of a new state into the international community.

The duty of non-recognition of entities created in violation of international law also underscores the moral and legal dimension of recognition. The sources of international law, as codified in Article 38 of the ICJ Statute, form the framework of the international legal order. Treaties and customary law are the primary sources of law, supplemented by general principles of law.

The analysis shows that treaties not only create obligations but also play a crucial role in the codification and development of customary law.

Customary law itself, based on state practice and opinio juris, is a living, evolving field that experiences a hierarchy and universal binding force through jus cogens norms. General principles of law serve as a bridge between national and international legal systems and ensure the completeness of the legal order. Judicial decisions and the teachings of publicists, while not independent sources, are indispensable subsidiary means for the clarification and development of the law.

The dynamics of statehood, such as state succession, secession, and state extinction, are complex processes that require a mix of codified law, customary practice, and political negotiation.

The low ratification rate of the Vienna Conventions on State Succession illustrates the preference for pragmatic, case-by-case solutions. The concept of "Remedial Secession" shows that international law can recognize a right to secession under extreme circumstances when fundamental human rights are massively violated, although the territorial integrity of the parent state continues to be protected as a high value.

The strict prohibition of annexation in modern international law, as a direct consequence of the prohibition of the use of force in the UN Charter, marks a decisive advance over previous eras.

Nevertheless, ongoing unlawful annexations pose a challenge to the enforcement of this norm. Occupation, especially belligerent occupation, is strictly regulated by humanitarian international law to ensure the protection of the civilian population and to emphasize the temporary nature of the occupation.

Prescription as a title of territorial acquisition has lost its importance in favor of principles such as acquiescence and estoppel, which aim at consensus and the protection of legitimate expectations. Micronations have no legal relevance due to the lack of international legal criteria for statehood. Statelessness for persons, on the other hand, is a recognized humanitarian problem that triggers international protection obligations.

The high seas are not a lawless space but are subject to a comprehensive regime under UNCLOS that combines freedoms with duties to protect the marine environment. Finally, the diverse special territories – from international straits and canals to polar regions and outer space – demonstrate the ability of international law to develop tailor-made regulatory frameworks for specific, often technologically or ecologically sensitive areas.

The supposedly "extraterritorial" areas such as diplomatic missions and military bases are not territorial enclaves but enjoy functional immunities that enable their tasks in the host state.

In summary, it can be stated that international law is a living and adaptable system that constantly strives to find a balance between state sovereignty, the need for a stable international order, and the response to new global challenges. The continuous development and interpretation of its sources and principles are crucial for the maintenance of peace and justice in the international community.