Análisis Microbiológico:

Territory is the most tangible aspect of statehood; it is what one sovereign state possesses to the exclusion of another sovereign state. It is also one of the fundamental criteria for deter-

182 _{Cassese, supra note 3, at 192-193.} 183_{Id. at 193.}

184 _{This is particularly significant in view of the growing importance of the democratic governance con-} cept in international affairs generally. Cf. B. Roth, Governmental Illegitimacy in International Law 250 (1999): “For a political community to be self-governing, it must, at minimum, be governed in the name of the whole.”

185 _{Here the discussion returns to the definition of a state from the Montevideo Convention. Therein lies} the requirement for the “defined territory” and “permanent population” to be under the control of its own government. Yet some states—termed ‘failed states’ by scholars and practitioners—continue to exist (ei- ther de facto or de jure) in spite of their ‘failed’ status. These are states for which their government does not exercise effective control (e.g. the eastern part of the Democratic Republic of Congo, or perhaps, as is the case of Somalia, there is no government at all). See e.g. G.P.H. Kreijen, Somalia and Withdrawal of Recognition, in Kreijen (ed.), State, Sovereignty and International Governance 45 (2002). The operative point that remains is that, in new state creation, the insistence of the employment of the uti possidetis stan- dard, in situations which would tend to preclude the effective control of the territory of the state by the government, and therefore preclude the territorial integrity of the state, would be an impediment to the oft-mentioned presumption in favour of the continuity of the state.

186 _{Certainly, however, diplomatic practitioners and international lawyers will have differing opinions} (even if they are not expressed per se) as to the desirability of using political processes versus juridical doctrine, in taking decisions of recognition of new states.

mining statehood, and the sovereignty associated with the state, in international law.187 _Further,

it has been indicated that the ‘question of statehood’ arises particularly in the following situa- tions:

(a) Break-up of an existing state into a number of states; (b) secession or attempted seces- sion by part of a territory of an existing state; (c) cases in which foreign control is exercised over the affairs of a state, whether by treaty, unilateral imposition or delegation of authority; (d) cases in which states have merged or formed a union; (e) claims by constituent units of a union or federation to the attributes of statehood; (f) territorial or non-territorial communi- ties which have a special international status by virtue of treaty or customary law and which claim statehood for certain purposes.188

Therefore, it can be observed that the limit of the sovereignty of a state corresponds to the sovereignty the state possesses over its territory, and so it follows that the territorial integrity of the state is the chief guarantor of the sovereignty of a state. Given that the chief function of states is to guarantee their own preservation, it seems clear that territories should be explicitly com- posed and particularly defined, so as to raise and determine “issues ranging from the nationality of inhabitants to the application of particular legal norms. [Territorial delineation] is the essen- tial framework within which the vital interests of expressed and with regard to which they inter-

act and collide”.189 _{Yet territories are formed in cubic units, while boundaries are merely linear}

entities. As Marcelo Kohen writes, “Une frontière n’est que la fin d’un territoire soumis à une sou- veraineté et le commencement d’un autre soumis à une autre souveraineté”.190

Still, despite disputes by states over territories and their boundaries, the overall reality is

that both ‘states’ (as a concept of societal organisation) and their ‘borders’191 _{(the boundaries}

within which the territories of states are to be found), have been accepted as reality, particularly in a contemporary context. As Hill comments,

The need for defined borders really only arose as States developed in the post-Westphalian world and populations expanded into border areas and cross-boundary communication thereby increased significantly. Exact boundaries, however, could only really develop when map-making and geographic techniques were sufficiently advanced to facilitate such delimita- tion and demarcation.192

It may therefore be generally presumed that uti possidetis-defined borders have provided a contextual framework, albeit one with definitional imprecision, for the emergence of new ter- ritories as sovereign states. Shaw demonstrates that a certain measure of overall territorial stabil- ity has emerged through the development of this system. He asserts that “once created in accordance with international law, a boundary is protected and assumes finality and perma- nence. What is established on the bases of the consent of the States concerned can only be un-

187_{Cf. Int’l law, supra note 52, at 309: “There is obviously no question as to which states have acquired} sovereignty over the great bulk of the earth’s habitable territory, and some of the issues presented in con- nection with acquisition of sovereignty of territory are of more historical than contemporary signifi- cance. Nonetheless scores of controversies as to sovereignty over territory remain, including issues as to what state should be regarded as exercising sovereignty over certain islands, land areas subject to bound- ary disputes, and polar regions.”

188_{Id. at 243.}

189 _{Shaw, Heritage, supra note 140, at 75.}

190 _{Kohen, Possession, supra note 132, at 427. Author’s translation: “A border is only the end of a territory} subjected to a sovereignty and the beginning of another subjected to another sovereignty.”

191 _{In the context of this discussion, the terms ‘boundary’, ‘border’ and ‘frontier’ can be assumed to have the} same generalised meaning.

done or modified by the exercise of such consent”.193 _{Borders constructed in this manner will,}

according to Shaw, incorporate the principles of: (a) consent of the affected parties to create binding obligations on the parties; (b) the ‘objectivisation’ of boundary treaties creating objec- tive realities over time which will survive the demise of the treaties themselves; (c) the presump- tive interpretation of boundary treaties in favour of the principle of stability; (d) the equation of equity with stability; and (e) the principle of stability as a balancing norm.194 _{It is this last point to}

which attention is drawn in the course of this discussion.