CYIL vol. 8 (2017)

VERONIKA BÍLKOVÁ CYIL 8 ȍ2017Ȏ accepted that the population has to be large enough to be able to reproduce itself. International law does not inspect whether the population lives on the territory of the State by free choice or by coercion. It is also indifferent to the changes in concrete numbers of inhabitants living on the territory of a State. The IS has, over the past years, exercised effective control over several millions of people. Some of them, i.e. foreign fighters who have come to join the IS forces from outside the region, might be disqualified as non-permanent. Yet, that still leaves the IS in control of quite a large number of individuals constituting a permanent population. It is thus possible to conclude that the IS meets the first Montevideo criterion. A State is a territorial unit, it therefore has to have “a consistent band of territory which is undeniably controlled by the government of the alleged state”. 8 Although the Montevideo Convention speaks about a defined territory, disputes over borders or over some parts of the territory are not considered as an impediment to statehood. Likewise, no minimal extent of the territory is required, though the State should be large enough to be able to function as an autonomous entity. In addition, the territory does not need to be contiguous – it can thus have several parts separated from each other by land or sea. The IS exercises effective control over territory. Although the extent of this territory changes substantially over time, depending on the military advances or retreats of its forces, the IS remains in control of large swaths of land in Iraq and Syria. The second Montevideo criterion is therefore met by the IS as well. The third Montevideo criterion is the existence of an effective government. Whereas the concrete form and political orientation of the government is irrelevant, its effectiveness is not. The government has to exercise authority, fulfilling the usual governmental tasks (maintaining order, regulating the judicial system, collecting taxes, etc.). It, moreover, has to do so over a certain period of time, though no minimal period has been set. 9 Since its rise to power in Syria and Iraq and, especially, since the establishment of the caliphate in 2014, the IS has indeed exercised governmental authority. It has established government structures – with the Caliph Abu Bakr Al Baghdadi and his two deputies at the top and civil governors administrating various regions under the IS control. The IS has introduced a legal system based on the shari’a laws and has enforced, albeit often by questionable means, the respect of these laws. It disposes of an organized army, collects taxes, issues passports, etc. 10 Yet, the IS government has been in place for a rather short period and it remains to be seen whether it will keep its effectiveness over a longer period. The third Montevideo criterion is therefore only partly met by the IS. The last Montevideo criterion, the capacity to enter into relations with the other states, has to be distinguished from the requirement of recognition which existed in traditional international law. Recognition of a State is a unilateral act by which another State publicly acknowledges that a certain entity meets the criteria of statehood. Under the constitutive theory of recognition, which was prevailing in the past, recognition by the other States was a necessary condition for the creation of a new State: “Through recognition only and exclusively 8 SHAW, Malcolm, International Law, 7th Edition, Cambridge University Press, 2014, p. 145. 9 As the American Law Institute notes, “ /e/ ven when an entity appears to satisfy the requirements /of statehood/ , other states may refuse to treat it as a state when circumstances warrant doubt that it will continue to satisfy the requirements of statehood”. Cit. in Crawford, James, op. cit., p. 482. 10 See also LAURENT, Samuel, L’Etat islamique , Editions du Seuil, 2014; and WEISS, Michael, HASSAN, Hassan, Islámský stát. Uvnitř armády teroru , Albatros Media, Brno, 2015.

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