STATES
What? Arguments? Notes
Legal personality In any legal order, in order to States have legal personality if:
have a full community and -(1) Can bring international
relations among it, to subjects claims to other’s breaches of
will be assured rights and duties international law (Reparation
under international law. This case, Advisory opinion);
status of having rights and (2) Legal personality is relative
duties enforceable by law gives (reparation case, Advisory
subjects legal personality. opinion);
(3) In order to determine the
specific catalogue of rights and
duties that each state have, it
will be needed close regard to
the rules of International Law.
What are the subject by which States are the primary subjects Like the ICJ stated in Unilateral
apply international law, that is, of International Law, and Declaration of Independence in
that have legal personality? because of that, are the respect of Kosovo, Advisory
principal subjects that have opinion, 2010, that the creation
legal personality. In post 1945, legal obligations (duties for
it occurred the appearance of other states) must be analysed
other subjects, like International on a case by case basis.
Organizations.
State as a legal subject The states are the most Is discussed in the doctrine if
important subjects of the creation of a new state in
international law since it is the international community is
created by them (states as active a matter of fact or a matter of
subjects, that create the law) law.
and for them, since
international law has the ratio
of regulating the relations
between themselves.
Creation of states (statehood Creation of a state is usually -Montevideo convention (the
criteria) defined as the fulfilling of a most important document in
certain criteria: population, this aspect)
territory and political power -Arbitration commission of the
(+self determination and European Conference on
independence). Yugoslavia in Opinion no. 1
It is clear that the criteria of the This indicates that ‘Statehood’ Another problem is who is
Montevideo Convention have is a rather more complex legal competent to decide whether an
been accepted as the indicia of relationship than the entity has achieved the
Statehood and have now passed Montevideo Convention conditions laid down in the
into customary international suggests. Montevideo Convention and
law. However, the question any additional Statehood
remains whether these criteria criteria. In this regard,
are sufficient for Statehood, as membership of an international
well as being necessary. organisation may be strong
Crawford goes on to consider evidence, as seen in the extract
other possible conditions such concerning Palestine. But not
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as ‘permanence’, ‘willingness necessarily this is true (Norway
and ability to observe only entered UN in 2002).
international law’, ‘a certain
degree of civilisation’,
‘recognition’, the existence of a
‘legal order’ within the State,
and ‘legality’.
Meaning of population To create a state, there’s a need
of someone to live in the
territory.
-size (Tuvalu and Nauru or
Liechtenstein)
- permanently still? -» nomads?
(Western Sahara, Advisory
Opinion).
Defined territory State have a piece of land. State may be recognised as a
Does not matter: legal person even though it is
-size involved in a dispute with its
-delineation (not sure borders) neighbours as to the precise
-political uncertainties demarcation of its frontiers, so
Just need to have undisputed long as there is a consistent
control over some territory. band of territory which is
undeniably controlled by the
As terra nullius is no more na government of the alleged
option The creation of new state- e.g. Palestine
states in the future, once the What matters is the presence of
decolonisation process is at an a stable community within a
end, can only be accomplished certain area, even though its
as a result of the diminution or frontiers may be uncertain or
disappearance of existing the territory is separated.
states
Government There’s a need that someone Aalands Islands case
exercises control over the -A relevant factor here might be
portion of land and people. the extent to which the area not
There’s only a need of effective under the control of the
exercise of power. government is claimed by
another state as a matter of
international law as distinct
from de facto control
-In certain situations, lack of
effective central control might
be balanced by significant
international recognition e.g.
Kosovo
-the collapse of governance
within a state (sometimes
referred to as a ‘failed state’)
has no necessary effect upon
the status of that state as a state
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Capacity to enter into relations Legal independence over all Island of Palmas case
with other states states Be capable, alone, of
entering into relations with
other states without the
interference of other. This is
what international law is about
– rule the relations of these
states.
Principle of self-determination The principle that states that the Rhodesia case. The unilateral
(can be viewed as an additional peoples have the capacity to declaration of independence
requirement of state hood) determinate their own land and was denied the validity by the
politic power. UN and it was established a
legal obligation not to
recognize.
Recognition -Is a method of accepting -Recognition can be viewed in a
certain factual situations and declaratory view or a
endowing them with legal constitutive one. The more
significance, is a statement by sparse international recognition
an international legal person as is, the more attention will be
to the status in international law focused upon proof of actual
of another real or alleged adherence to the criteria
international legal person or of concerned.
the validity of a particular - United States refused for
factual situation. many years to recognise either
-BUT Recognition is not the People’s Republic of China
merely applying the relevant or North Korea, not because it
legal consequences to a factual did not accept the obvious fact
situation, for sometimes a state that these authorities exercised
will not want such effective control over their
consequences to follow, either respective territories, but rather
internationally or domestically, because it did not wish the legal
and because of that, effects of recognition to come
recognition, most of the times, into operation. In that sense,
is a political act. recognition is a political act.
- Once recognition has
occurred, the new situation is
deemed opposable to the
recognising state, that is the
pertinent legal consequences
will flow once the political act
was made.
Constitutive theory -Recognition is itself a Highly problematic. (1)
(Lauterpatch) requirement for the creation of relativity (there’s no state in
a state, that is, the international absolute, because is the product
community must recognize the of other’s recognition. (2)
new state in order to the latter quantity (how many states
become one. should recognize? One is
-only when there’s a enough? - partial recognition if
recognition, meaning that the only some of the states
recognition constitutes one of recognizes it?
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the statehood requirement - Is there more important
- Of course, if an entity, while states?)
meeting the conditions of -no rights or obligations to the
international law as to unrecognized state if there’s no
statehood, went totally recognition? For the
unrecognised, this would constitutive theorist, the heart
undoubtedly hamper the of the matter is that
exercise of its rights and duties, fundamentally an
especially in view of the unrecognised ‘state’ can have
absence of diplomatic relations, no rights or obligations in
international law.
However, (1) in many In this sense, recognition can be A constitutive argument
instances, the new entity or constitutive. In the sense that dependent on a duty to
government will be insecure recognition can complement recognize in order to reconcile
and it is in this context that what state misses and constitute theoretical inconsistency
recognition plays a vital role. it. Evidence of the “value” of becomes the declaratory theory
(compensation) the state. viewed from a different
(2) recognition is the practice in Constitutive of rights in perspective.
many states whereby an domestic courts of one
unrecognised state or another’s state has a Recognition, as a public act of
government cannot claim the constitutive effect. state, is an optional and
rights available to a recognised political act and there is no
state or government before the legal duty in this regard!
municipal courts.
This theoretical controversy is It points to the essential The (1) declaratory theory veers
of value in that it reveals the character of international law, towards the former (state) and
functions of recognition and poised as it is between the (1) the (2) constitutive doctrine
emphasises the impact of states state and the (2) international towards the latter (international
upon the development of community. community)
international law.
Declaratory theory Predetermined requirements Contemporary approach, article
established by international law 3 of Montevideo convention.
that once fulfilled there’s a
creation of a statehood. Above all, recognition is a
The legal effects of recognition political act and is to be treated
are limited: recognition is a as such. Indeed, non-
declaration or recognition (in the sense of a
acknowledgement of an refusal to have formal relations)
existing state of law and fact, may carry with it the implicit
legal personality having been assumption of recognition (in
conferred previously by the sense of an
operation of law. acknowledgement of existence),
but, because of the state’s
Effectiveness (requirement, policy, does not recognize.
fulfilled, state). Acceptance by
states of an already existing
situation.
-A new state will acquire
capacity in international law
not by virtue of the consent of
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others but by virtue of a
particular factual situation
This leads to a consideration
of the practicalities of
recognition: the existence of a
state is of little worth unless it
is accepted as such into the
community of nations. It is of
little value to assert that Taiwan
or Somaliland is a state if
nobody will engage with it on
such a basis?
Actual practice of recognition? The act of recognition by one
Middle position between these state of another indicates that Practice over the last century or
two perceptions. the former regards the latter as so is not unambiguous but does
having conformed with the point to the declaratory
basic requirements of approach as the better of the
international law as to the two theories
creation of a state.
How many alien types of (1) premature recognition; (1) Premature recognition: It
recognition? (2) Implied recognition; is therefore a process founded
(3) Conditional recognition; upon a perception of fact. It is a
(4) Collective recognition; recognition from the state that
recognizes a new state that
misunderstood the factual
situation and requirements of a
state’s elements.
ALSO (on contrary):
Recognition may also be
overdue, in the sense that it
occurs long after it is clear as a
matter of fact that the criteria of
statehood have been satisfied,
but in such cases, different
considerations apply since
recognition is not compulsory
and remains a political
decision by states
(2) Implied recognition: BUT, It is possible that the (Collective recognition) it
Recognition itself need not be conclusion of a bilateral treaty rapidly became clear that
express, that is in the form of an between the recognising and member states reserved the
open, unambiguous and formal unrecognised state, as distinct right to extend recognition to
communication, but may be from a temporary agreement, their own executive authorities
implied in certain might imply recognition, but and did not wish to delegate it
circumstances. the matter is open to doubt to any international institution.
since there are a number of The most that could be said is
Accordingly, there are such agreements between that membership of the United
conditions in which it might be parties not recognising each Nations constitutes powerful
possible to declare that in acting other (it would have to be evidence of statehood. But that,
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in a certain manner, one state analysed the particular of course, is not binding upon
has by implication recognised situations of the situation, the other member states who are
another state or government. intention of the state). free to refuse to recognise any
other member state or
Like, a message of government of the UN.
congratulations to a new state Apart from all, States prefer
upon attaining sovereignty will recognition to be, in general, a
imply recognition of that state, formal act accorded after due
as will the formal establishment thought.
of diplomatic relations.
Types on “negative” (1) Withdrawal of recognition;
recognition? (2) non-recognition;
(Withdrawal of recognition) The usual method of expressing
Recognition once given may in disapproval with the actions of
certain circumstances be a particular government is to
withdrawn. break diplomatic relations,
This is more easily achieved but one must not confuse the
with respect to de facto ending of diplomatic relations
recognition, as that is by its with a withdrawal of
nature a cautious and temporary recognition.
assessment of a particular
situation. Since recognition is ultimately
De jure recognition, on the a political issue, no matter how
other hand, is intended to be circumscribed or conditioned
more of a definitive step and is by the law, it logically follows
more difficult to withdraw. that, should a state perceive any
particular situation as justifying
a withdrawal of recognition, it
will take such action as it
regards as according with its
political interests.
Ex injuria jus non oritur – legal Other states cannot recognize a *Recognition is a political act
rights (as the creation of a state) state when that “state” created and power that was, for several
cannot arise from a wrongful itself through illegal an in times, used as that, by the US
conduct. violation of international law and EU for incentive of
But, court not consistent (e.g. (most of the time, in violation emerging states.
Bangladesh). -» political of jus cogens international law
reasons* rules). The obligation not to
recognize.
An argument can also be about
the principle of self-
determination
-There have been some tries to -When a state have all the This situation is both
improve and adapt the requirements fulfilled, the declaratory and constitutive.
constitutive theory. community state have to The former in requirements, the
(Lauterpacht doctrine) recognize, since there’s no latter in influence of states.
-Nevertheless, state practice central authority in However, in doing so it ignores
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reveals that Lauterpacht’s International Law, states have the political aspects and
theory has not been adopted. to recognize a legal functions of recognition
personality when the objective (sometimes states do not want
requirements are fulfilled. to recognize other’s)
-The fact is that few states - Opinion No. 10 of the
accept that they are obliged in Yugoslav Arbitration
every instance to accord Commission in July 1992
recognition. In most cases they (discretionary act) – failed
will grant recognition, but that Lauterpacht theory
does not mean that they have to
-While recognition may cure -Recognition is an active For example, the rules as to
difficulties in complying with process and should be diplomatic and sovereign
the criteria of statehood, a distinguished from cognition: immunities should apply as far
situation where the international the mere possession of as the envoys of the entity to be
community is divided upon knowledge, that the entity recognised are concerned, since
recognition will, especially in involved complies with the the act of recognition is
the absence of UN membership, basic international legal discretionary.
ensure the continuation of stipulations as to statehood.
uncertainty. The job of -Recognition implies both (1)
clarifying that recognition cognition of the necessary
might would have, it will not. facts and an (2) intention that,
so far as the acting state is
concerned, it is willing that the
legal consequences attendant
upon recognition should operate
Recognition of governments? -Recognition will only really There can be de facto
be relevant where the change recognition and de jure
The state does not cease to be in government is recognition.
an international legal person unconstitutional. -De facto recognition involves
because its government is -Recognition may be of a de a hesitant assessment of the
overthrown, recognition of a facto government or situation, an attitude of wait and
government affects the status administration or of a see, to be succeeded by de jure
of the administrative government or administration in recognition when the doubts
authority, not the state. effective control of only part of are sufficiently overcome to
the territory of the state in extend formal acceptance.
question.
- Recognition de facto implies
-Recognition constitutes that there is some doubt as to
acceptance of a particular the long-term viability of the
situation by the recognising government in question.
state both in terms of the - Recognition de jure usually
relevant factual criteria and in follows where the recognising
terms of the consequential state accepts that the effective
legal repercussions. Political control displayed by the
considerations have usually government is permanent and
played a large role in the firmly rooted and that there are
decision whether or not to grant no legal reasons detracting from
recognition. this, such as constitutional
subservience to a foreign
power.
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Factual situation? The effective control of a new Recognition has been refused
government over the territory because of the illegitimacy or
of the state is thus an important irregularity of origin of the
guideline to the problem of government in question, rather
whether to extend recognition than because of the lack of
or not, providing such control effectiveness of its control in
appears well established and the country, such non-
likely to continue. recognition loses some of its
evidential weight.
So, (1) where the degree of
authority asserted by the new
administration is uncertain,
recognition by other states will
be a vital factor. But (2) where
the new government is firmly
established (doctrine of
effective control), non-
recognition will not affect the
legal character of the new
government.
The legal effects of Internationally Internally
recognition?
Non-recognition, with itsBecause recognition is
consequent absence of fundamentally a political act, it
diplomatic relations, may affect is reserved to the executive
the unrecognised state in branch of government.
asserting its rights or other The courts can only accept and
states in asserting its duties enforce the legal consequences
under international law, but willwhich flow from the
not affect the existence of such executive’s political decision.
rights and duties. To this extent, recognition is
constitutive, because the act
In general, the political of recognition itself creates
existence of a state is legal results within the
independent of recognition by domestic jurisdiction.
other states, and thus an
unrecognised state must be
deemed subject to the rules of
international law. It cannot
consider itself free from
restraints as to aggressive
behaviour, nor can its territory
be regarded as terra nullius.
Extinction of a state a consequence of merger, Caution with the international
absorption or, historically, acceptance of this because,
annexation. It may also occur as since extinction of a state is a
a result of the dismemberment matter of fact, it will have legal
of an existing state consequences.
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Use of force can’t happen as a
cause of a state disappearance
