• Cultural orgs.

• Religious groups.

Individuals

• Individuals – persons: real / natural persons (gerçek kişiler), private legal

entities (özel hukuk tüzel kişileri).

– traditionally, not a subjects of international law.

– developments in international human rights law and international

criminal law have changed the status quo ante.

• example: violation of human rights – committing of international

crimes.

• more recent developments: corporations.

• Thus, individuals have become increasingly recognized as participants

and subjects of international law.

• International criminal law, also, imposes criminal responsibility for

serious violations of international criminal provisions, to include

humanitarian law governing armed conflicts.

• Individuals have

– certain (inherent) rights under international law (i.e. human rights )

and

– certain duties (e.g. not to commit international crimes: war crimes,

crimes against humanity and the crime of genocide).

• They have no international law-making powers (but can definitively lobby

governments and IOs to do so).

Legal Status of Individuals

• The individual has no individual rights in this respect under customary

international law and is dependent on the political discretion of the home

state as to whether to present the claim.

• In other words, the international legal system is still primarily geared

towards the international community of states, represented by

governments.

Recognition of States and Governments

Introduction

• Recognition is one of most difficult topics in international law.

• It is a confusing mixture of politics, international law and municipal law.

• The legal and political elements cannot be separated;

– when granting or withholding recognition, states are influenced more

by political than by legal considerations,

– but their acts / hesitance do have legal consequences.

• Another reason why recognition is a difficult subject is because it deals

with a wide variety of factual situations.

• In addition to recognition of states and governments,

– there can also be recognition of territorial claims,

– recognition of belligerency or of insurgents,

– recognition of national liberation movements, such as the Palestine

Liberation Organization, or

– recognition of foreign legislative and administrative acts

• For purposes of simplicity, we concentrate on recognition of states and

Governments.

Recognition

• Recognition is a political act by which one or more States acknowledge

– the existence on a definite territory of a human society

– politically organized,

– independent of any other existing State, and

– capable of observing the obligations of international law,

– and by which they manifest therefore their intention to consider it a

member of the international Community.

• To put it simply, recognition is a formal acknowledgment by another

state that an entity possesses the qualifications for statehood.

• It is one state’s willingness to establish or maintain official relations with

another State or its government.

Constitutive & Declaratory Views

• Constitutive view accepts recognition as a condition for an entity to be a

subject of international law, as a state.

• The prevailing view today is that recognition is declaratory and does not

create a state.

• This was already laid down in the Montevideo Convention of 1933 on the

Rights and Duties of States.

• Thus:

– the political existence of a State is independent of recognition by other States.

– even before being recognized, a State has the right to defend its integrity and independence.

The Significance of Recognition for a State

• To obtain equal status with other members of the international community.

• To engage in international relations.

• To acquire capacity to enjoy international rights and capacity to conclude

international agreements, assume international obligations.

Types of Recognition

• Recognition of state– recognition of government.

• De facto recognition – de jure recognition.

• Premature (vaktinden önce) recognition.

• Direct recognition – implied recognition.

• Conditional recognition.

• Collective recognition.

Direct (Explicit) Recognition

• Diplomatic letters / notes, statements, telegrams.

– Example: The statement of the French President to recognize the

independence of Algeria on 3 July 1963.

• International treaty.

– Example: Japan recognized Korea via article 12 of Peace Treaty on 8

September 1951.

Implicit (Implied) Recognition

• Appointing a diplomatic agent.

• Making an agreement with the new state.

• Having a meeting with an official or a head of state; so long as...

• Example: Prime Minister of Israel, Shimon Perez, visited Morocco on 21

July 1986 and had a talk with King Hassan II to seek solutions for Middle

East problem.

Collective Recognition

• Multilateral treaty / multilateral conference.

– Example: On April 18, 1975, five ASEAN (Association of Southeast

Asian Nations) countries recognized Cambodia.

Premature Recognition

• Recognition is given to an entity that does not yet possess complete

constitutive components of being a state.

– Example: no constitution, no recognized territorial borders, or, no

definitely effective - independent government.

• Discuss:

– Palestine,

– Kurdish Regional Government of Kurdistan in Iraq.

Pending Situations

• Taiwan.

• The Turkish Republic of Northern Cyprus.

• Palestine (Palestine Authority).

• Western Sahara (The Saharan Arab Democratic Republic).

Case Study: Taiwan (January 26, 2022)

• Taiwan: The self-ruled island that China views as part of its territory has

other offices in Europe and the United States but they use the name of
the city Taipei, avoiding reference to the island itself.

• The row erupted after the Baltic state allowed the opening of the

Taiwanese Representation office in Vilnius.

• China has downgraded its diplomatic relationship with Lithuania and

pressed multinationals to sever ties with the country or face exclusion

from its market.

• Modifying the Chinese version of the representation name to refer to

“Taiwanese people” rather than to Taiwan, was last week proposed by

Lithuanian Foreign Minister Gabrielius Landsbergis to President Gitanas

Nauseda as a way to reduce the tensions with China.

• Resting its Statehood claim on democratic elections as effective self

determination under its assumed Chinese constitutional order, Taiwan

not only falls short of achieving independence de jure but also finds itself

trapped in a legal and political dilemma.

(Non)Statehood of Taiwan (November 3, 2022)

• Continuing to operate under its current constitutional order, Taiwan

under the name ROC (Taiwan) opens itself to

the Chinese legal claim that ‘Taiwan is an inalienable part of China’s territory’.

• To establish itself as Taiwan’s title-holding State vis-à-vis the Chinese

State de jure, the ROC (Taiwan) is effectively seeking secession from

China, to which the PRC can be expected to respond without reservation

in the name of protecting territorial integrity under international law.

• Whether to replace its assumed Chinese constitutional order with a new

Taiwanese Constitution or otherwise in Taiwan’s cautious quest for

Statehood in international law is undoubtedly a political choice for

Taiwanese citizens —what such a choice would mean to the world and

Taiwan is another matter.

Turkish Republic of Northern Cyprus

• 1960 Republic of Cyprus.

• 1963-1974- Constitutional order, political equality of communities

materially abolished.

• 1974-Greek attempt to annex the island and Turkey’s military

intervention (“self-help”).

• 1983: Present day “Republic of Cyprus” and “TRNC”.

• Future & options?

• Compare: independence of Bangladesh and Kosovo.

Recognition of Governments

• In the beginning, when a state is first established, its recognition as a

state also implies de jure recognition of its government.

• Follow up: in a recognized State, when a government is established in

compliance with the Constitution, no further action needed.

• The question arises,

– when government of a State not established in accordance with the relevant Constitution,

• Coup d’Etat (hükümet darbesi),

• Insurgency (ayaklanma).

• Revolution (devrim– ihtilal).

– and yet, it has effective control over the entire territory and

population.

• Examples:

– Iranian revolution of 1979 - Shah Reza Pahlevi stepped down.

– In Turkey, 12 September 1980 Coup d’Etat (“Hükümet Darbesi”).

• Legal challenges similar to recognition of a state.

Nuance between a “State” and a “Government”

• Compare:

– state > government > political party.

– democracy - autocracy.

• Tree analogy:

– The tree is the state.

– The leaves and / or flowers are various governments.

– While governments may come and go, the state remains.

Difference Between Recognition of a State and a Government

• Once the recognition is given to a state, the recognition may not be

withdrawn.

• Recognition of a government may be lawfully suspended, withheld or

withdrawn.

De Jure & De Facto Recognition

• ‘De jure recognition’ really means recognition of a de jure government.

• The words, “de jure” or “de facto” describe the status of the new

government, not the act of recognition.

• The terminology implies that a de facto government does not–yet- have

the same legal basis as a de jure government.

• But it is difficult to find any body of legal rules by which this legal basis

can be clearly determined.

• The distinction between de jure and de facto recognition usually arises in

the case of governments.

– It is sometimes said that a state can be recognized only de jure.

– but there are a few examples of states being recognized de facto.

– example:

• Indonesia was recognized de facto by several states while it was

fighting for its independence against the Dutch between 1945

1949.

• Indonesia obtained its de jure recognition after recovering its

sovereignty.

• Similarly there are a few examples of territorial claims being given only

de facto recognition.

– Example: The United Kingdom, granted only de facto recognition to

the Soviet annexation of Estonia, Latvia and Lithuania in 1940.

• De facto recognition of states and territorial claims is governed by

roughly the same rules, and gives rise to roughly the same problems, as

de facto recognition of governments.

Soviet tanks are surrounded by anti-coup demonstrators, in Moscow, Russia (1991)

A crowd greet a jubilant tank officer with the Russian national flag in the

street of Moscow amid reports that the coup had failed (August 21, 1991)

Boris Yeltsin, president of the RF, makes a speech from atop a tank in front

of the Russian parliament building in Moscow (August 19, 1991)

Boris Yeltsin clenches his fist in solidarity with Muscovites paying their

respects to the victims of the failed Kremlin coup (August 24, 1991)

Discuss

• Saudi Arabia and the United Arab Emirates withdrew their recognition to

Afghanistan Taliban government when it refused to surrender Osama bin

Laden in the aftermath of the events of September 11, 2001.

• Questions:

– Is it permissible for the two state to withdraw their recognition to

Taliban government?

– Can they also withdraw their recognition to the state of Afghanistan?

Armed Conflict Situations - Pending Statuses

• Under customary

international law:

– Insurgency (ayaklanma- girişim).

– Belligerency (savaşan taraf olma– iç savaş).–

Mass levies (levée en masse – total conscription of certain parts of

population)

– Resistance (direniş).

• Under treaty law:

– International armed conflicts (includes also, national liberation

movements). Additional Protocol I of 1977 to Geneva Conventions of

1949 (G.P. I):

– Non-international armed conflicts (NIAC)

• Lower intensity: Common Art. 3, Geneva Conventions I-IV of 1949

(G.I-IV, 3).

• Higher intensity: Additional Protocol II of 1977 to Geneva Conventions of 1949 (G.P. II).

• All are ad hoc and pending statuses with limited international personality (cease-fire, humanitarian activities…).

Recognition of National Liberation Movements

• Liberation conflict-definition:

– In the exercise of their right to self determination,

– a people’s armed struggle against a

• colonial domination (sömürge yönetimi),

• foreign occupation (yabancı işgali), or

• a racist regime (ırkçı rejim– düzen).

• A similar status to the belligerency.

• If recognised, considered as an international armed conflict.

– Example: the recognition of PLO through UN resolution No.3237

dated 22 November 1974.

– The UN recognition renders PLO a right to have an observer status

within the context of the UN activities.

• Nuance: Settlement of the dispute per se a separate issue. Subject to a

peace agreement.

Recognition of Belligerency

• An organized armed group seizes power within parts or whole of the

national territory and is recognized as such.

– Example: France and Mexico de facto recognized a leftist guerilla

movement (FARC-EP) that had fought several years against the

Colombian Government.

– In the application of the customary law of armed conflict (“LOAC”),

this recognition will provide the rebels an interim – temporary status

with limited personality & powers.

Territorial Sovereignty

Introduction

• Territory: The scope & extend of a state’s sovereignty includes

– land mass,

– internal waters,

– territorial waters and

– the air space above these areas (“national airspace”).

• ‘Acquisition of territory’ is an abbreviated way of describing acquisition of

sovereignty over territory.

• Sovereignty over territory means ‘the right to exercise therein, to the

exclusion of any other state, the functions of a state’.

• But it is not necessarily unlimited. Other states may, by treaty or local

custom, acquire minor rights over the territory, such as a right of way

across it.

• Jurisdiction: States have

– the title and

– sovereign right to own & control the territory within their international

boundaries.

• Even the right of a state to transfer its territory to another state, which is

often regarded as the acid test of sovereignty over territory, may be

limited by treaty.

– For instance, by the 1955 State Treaty for the Re-Establishment of an

Independent and Democratic Austria, Austria agreed not to enter

political or economic union with Germany.

– Again, under the 1713 Treaty of Utrecht, Great Britain agreed to offer

Gibraltar to Spain before attempting to transfer sovereignty over Gibraltar to any other state.

Territorial Sovereignty

• Territorial sovereignty involves the exclusive right to display the activities

of a State.

• Therefore, this right has a duty: the obligation to protect within the

territory the rights of other States, in particular their right to integrity and

inviolability in peace and war, together with the rights which each State

may claim for its nationals in foreign territory.

• Without manifesting its territorial sovereignty in a manner corresponding

to circumstances, the State cannot fulfill this duty.

• Territorial sovereignty cannot limit itself to its negative side.

– Example: excluding the activities of other States.

• Because it serves to divide between the nations the space upon which

human activities are employed, to assure them at all points the minimum

of protection of which international law is the guardian.

Compare: Legal Statuses of Territory - Property

• Nuance:

– State – territory relations (public international law).

– Individual-person – property relations (private law, human rights law).

• Public law context: Status of territory.

• Private law context: Status of property.

• Example: Status of an island / land.

– as a territory.

– as a private property.

• Property law: transfer of title does not include –also- transfer of

sovereignty.
“Boundary”

• Definition: A line which marks the limits of an area; a dividing line.

• To describe the limits of territory,

– these three terms: boundary, border or frontier are used,

– but boundary is used more often,

– and the term “boundary” is also more suitable for describing maritime

limits (delimitation).

Delimitation (Sınırın Belirlenmesi)

• Delimitation: The process of determining the land or maritime boundaries

of a State, including that of any continental shelf or exclusive economic

zone, and is generally done by means of geographical coordinates of

latitude and longitude.

• The resulting lines are then usually drawn on a map or chart.

• The process is naturally done for adjacent States, although unilateral

delimitation may be necessary for the maritime limits of an isolated

territory.

• The determination of a boundary may be embodied

– in a treaty or

– in the judgment of an international court or tribunal.

Demarcation (Sınırın İşaretlenmesi)

• Demarcation: the action of fixing the boundary or limits of something.

• Demarcation is the further and separate procedure of marking a line of

delimitation (usually only on land) with physical objects, such as

concrete posts, stone cairns, etc.

• In practice, demarcation often involves some degree of delimitation,

since a line on a map may look rather different on the ground, and so reasonable adjustments may need to be made.

Categories of Territory

• Territory capable of being owned but not yet under sovereign control

(terra nullius).

• Territory owned by a sovereign state (sovereign territory).

• Territory not owned by any state because of its special status (trust

territory).

• Territory that cannot be owned by any nation; common heritage of

humankind (terra communis).

Terra Nullius (Sahipsiz Topraklar)

• Areas that are deemed belonging to no state yet. Subject to acquisition.

• In the event of a territorial sovereignty dispute, a state that has first

occupied, effectively controlled or administered such areas usually will

have a legitimate claim, if it can show that the disputed territory was

initially terra nullius.

• Discuss: Were Australia / America, prior to the arrival of Europeans,

“terra nullius” spaces?

Condominium

• Thejoint control of a state's affairs by other states.

• Astate so governed.

• Example: Sudan was from 1899 an Anglo-Egyptian condominium.

Trust (Vesayet) Territory

• Legal basis: UN Charter, Chapter XII-XIII, Art. 75-91, “International

Trusteeship System”.

• A territory which is not subject to the sovereignty of any state because of

its special legal status.

• Due to the special conditions and requirements at the time (such as, lack

of local political capacity & infrastructure), this category of a territory was

under a temporary disability to govern - control its territory.

Article 75, the UN Charter: The United Nations shall establish under its

authority an international trusteeship system for the administration and

supervision of such territories as may be placed thereunder by subsequent

individual agreements. These territories are hereinafter referred to as trust

territories.

Discuss: failed state cases of today?

• Article 76, the UN Charter: The basic objectives of the trusteeship

system, in accordance with the Purposes of the United Nations laid

down in Article 1 of the present Charter, shall be:

– to further international peace and security;

– to promote the political, economic, social, and educational

advancement of the inhabitants of the trust territories, and their

progressive development towards self-government or independence

as may be appropriate to the particular circumstances of each

territory and its peoples and the freely expressed wishes of the

peoples concerned, and as may be provided by the terms of each