22 1 Alexander and SIMON The Nation in International Law It is an established principle of international law that a state must have control over habitable territory.7 It has explicitly been recognised, at least since the Peace of Westphalia, that territory is a foundational element of the modern international legal conception of statehood.8 The majority of legal scholars are of this opinion.9 The principle that a state must have sovereign control over habitable territory is also enshrined in the 1933 Montevideo Convention on the Rights and Duties of States.10 Although this Convention is not universally ratified and many legal scholars have lamented its vagueness,11 it is widely regarded as codifying principles of international customary law.12 7 8 9 10 11 12 For a more complete treatment of this issue, see Heather Alexander, ‘Vanishing States: Statelessness, Climate Change and the Maldives’ Unpublished submission to the UNHCR Protection Learning Program, Bangkok, Thailand (2009) (available upon request). For a discussion of non-habitable territory and statehood, such as territorial waters, see David Freestone and John Pethick, ‘Sea Level Rise and Maritime Boundaries, International Implications of Impacts and Responses’ in Gerald Blake (ed.) Maritime Boundaries (World Boundaries vol. 5, Routledge 1994). Thomas Baldwin, ‘The Territorial State’ in Hyman Gross and Ross Harrison (eds.) Jurisprudence: Cambridge Essays (Clarendon Press 1992) 210. See also Max Weber, ‘Politics as a Vocation’ in H. H. Gerth and C. W. Mills (eds), From Max Weber (Routledge and Kegan Paul, 1970), 78. Control of territory, however, should be distinguished from control over a particular piece of territory. Krystyna Marek, Identity and Continuity of States in Public International Law (Librairie Droz 1968) 21. James Crawford, The Creation of States in International Law (2nd edn., Oxford University Press, 2006), 37. See also US Ambassador to the UN Philip C. Jessup, ‘Remarks at UNSCOR, 383d mtg. at 9-11, Supp. No. 128’, (2 December 1948) UN. Doc. S/P.V. 383; Ruth Donner, The Regulation of Nationality in International Law (2nd Edn.,Transnational Publishers, Inc., 1994), 5; Ian Brownlie, Principles of Public International Law (6th edn., Oxford University Press, 2003) 57; Malcolm Shaw, International Law (5th edn., Cambridge University Press, 2003) 48-64, 171; Vaughan Lowe, International Law (Oxford University Press, 2007) 207. To the limited extent this problem has been before municipal courts, they have found that territory is a necessary condition for statehood. See for example the history of Sealand in James Grimmelmann, ‘Sealand, Havenco, and the Rule of Law’ (2012) 2 University of Illinois Law Review 405, 427, 468-473. For a different view, see Jane McAdam, ‘Disappearing States, Statelessness and the Boundaries of International Law’ in Jane McAdam (ed.) Climate Change and Displacement: Multidisciplinary Perspectives (Oxford, 2010), Sec. VIII. Montevideo Convention on the Rights and Duties of States (adopted 26 December 1933, entered into force 26 December 1934) 165 LNTS 19 (Montevideo Convention) art. 1. See for example Mojmir Mrak, Succession of States (Martinus Nijhuff, 1999) xv. Crawford (n. 9) 37; Brownlie (n. 9) 57; Shaw (n. 9) 48-64; Donner (n. 9) 5. tilburg law review 19 (2014) 20-25