Introduction

Background to the Study

The term recognition implies a process whereby a person or an entity admits to the

existence or the being of another person, entity or state of affairs. State recognition is one of

the oldest practice in international relations, and one of the most vexed concepts in

international law since the middle ages, political communities have interacted with each other

as sovereign, territorial states under an accepted system of rules. Determining which entity is

to be recognized as state subject to these rules has hence been a basic component of

international relations. As such, it is one of the most common discussed topics in the

international law literatures.

Recognition of statehood grants an entity international legal personality and binds it to

comfort it according to the rules established by international law in its relations with other

states and peoples. At the same time, it makes the entity eligible to enter into treaties and

alliances with other states as well as to participate in the development and enforcement of

sinternational law. Most importantly recognition is an affirmation of an entity‘s right to

territorial sovereignty and integrity and its right to exercise coercive jurisdiction within this

territory.

The right and powers attached to statehood make it desirable for a political entities to

attain such a status, at the same time the expectation that each new state will abide by the rule

of international law makes it desirable to include as many qualified political entities as

possible in so far as this will further the goals of peace and stability.

1
 The recognition of a state under international law according to present day practice is a

declaration of intent by one state to acknowledge another power as a state within the meaning

of international law but with the preconditions that it exhibits the characteristics of a state

under International law as detailed under the Monte Video Convention of 1933 which is:

1 A permanent population

2 A defined territory

3 A Government and

4 Capacity to enter into relations with other states voluntarily

1. A permanent population

The population or people of a country is a group of people who permanently or

permanently inhabit or settle in an area which is also certainly wide. An important

requirement for this element is that this community must be well organized. Because it is

hard to imagine, a country with a well-organized government can live side by side with a

disorganized society1. There is no obligation to have the language of unity or similarity in

cultural, ethnic or religious backgrounds. There is also no requirement for the population;

therefore in the world today there are countries with very large populations such as China,

India, the United States and others. Conversely there are also thousands of people. Such

countries are called "micro states" or "mini states" such as Nauru, Fiji or Tuvalu and others.2

2. A defined territory

There must be an area where the population or the people are settled. In order for the

region to be said to be permanent or certain, of course, the boundaries must be clear, covering

3 (three) dimensions (land, sea and air). As with the number of residents about the territory of

the country, there are no restrictions in international law. In addition, the territory of a
1
R.C. Hingorani; Modern International Law; India, Oceana Publications Inc, 1984
2
I. Wayan Parthiana; Introduction to International Law; (Introduction to International Law); Mandar Maju,
Bandung 1990

2
country can be separated from one another, such as the territory of Malaysia, Turkey, the

United States and others. So it does not need the territory of the country to be a single entity,

because in certain circumstances, a country is still recognized as the subject of international

law, even though the country does not have a territory that is fixed or "not" has a certain area.

3. A Government

The people or residents who occupy the area live by organizing themselves. Of course

there are those who are led and some are leading; namely someone or several people who

represent the people, and govern according to the law of his country. This leading group has

the authority to regulate, manage and act both inside and outside. In an organization called

the state, this leading group is called the Government 3. According to Lauterpacht, that the

existence of government elements is the main requirement for the existence of a State. If the

government turns out then legally or in fact to be a puppet state or satellite state from another

country, then that country cannot be classified as a state.4

4. Capacity to enter into relations with other States voluntary

This element is a non-physical element, is the last determinant of the existence of a

country. This means that whether the fulfillment of the other elements can be called a country

or not depends on the existence of this element. By international law experts it is often

interpreted as the realization of independence (independence) and is the element that most

determines whether a country has an international identity or not.

According to J.G. Starke, the requirement for the ability to establish relations with other

countries, is the most important in terms of international law. The ability to establish relations

with other countries distinguishes the country from smaller units such as members of a

federation or pro-directorate who do not handle their own foreign affairs themselves and are
3
ibid
4
Lauterpacht; Recognition in International Law 1948.

3
not recognized as fully independent members of the international community 5. The ability to

interact with other countries independently, is related to independence and sovereignty. With

independence means a free country to conduct international relations with any country,

without having to consult with other countries. The existence of sovereignty means that the

state is free in carrying out its internal and external activities

When these requirements are met, any entity aspiring to be a state will automatically

become one under international law. However, and unfortunately the present practice of

recognition is not in conformity with the above criteria. According to the present recognition

an entity is considered a state to the extent that other state recognized it as such, since new

state cannot exercise right and obligation against state that do not recognize it. For example

taking into consideration the case of Palestine, applying the Montevideo criteria for

statehood, it becomes clear that Palestine should be considered a state and also be recognized,

as it has a permanent population, concentrated in a defined territory, a functional

representative authority, and has already entered into various agreements with other

sovereign entities. However, its statehood bid is bound to be frustrated unless Israel and USA

choose to alter their policy of non-recognition. Regardless of whether or not the U.S and

Israel are right in denying recognition it is clear that recognition in this case is a matter of

policy discretion from part of the states on both sides of the controversy. As this example

shows recognition is often an opportunity for powerful states to express their approval or

disapproval of a political entity, and hence recognition end up bringing a high selective and

strategic policy decision.

Moreover, recognition does not tend to a single form as there is need to establish a

generally acceptable form of recognition. Blix stated that “Recognition being an institute that

has existed for a long time, it may not be unreasonable to assume that it has some political

5
J.G. Starke; Introduction To International Law; London, Butterworths, 1984

4
function in international relations or several that is not merely an empty fetish. This function

should also tell sometimes about the way the institutions operate.”6

Finally this study seeks to discuss the procedures of implementation of the criteria for

state recognition in international law to identify reasons for the lack of exhaustiveness of

Monte Video Convention criteria, and irregular practices within the international community

which may eventually escalate conflict among states.

Statement of the Research Problem

As stated above, state recognition is one of the oldest practice in international

relations, and one of the most vexed concepts in international law since the middle ages,

hence the states practices in relation to the concept is marred with some problems. Some of

those problems are stated as follows:

1. One of the problems is that recognition is given in a number of cases for purely

political reasons. For example, the US and Israel deliberately refused to recognized

Palestine, China refused to recognized Taiwan etc. Unjustified political reason and

preferences can affect the decision of a state to or not recognize a state. Moreover,

unilateral recognition is incompatible with international law since the implementation

of the UN charter. To decide alone who should be a state the crucial principle of

sovereign equality of state will be shunned. The limit and impact of political

recognition of statehood also posed a problem for state recognition under international

legal parlance.

2. There is lack of exhaustiveness of the Monte Video Convention legal criteria for state

recognition under international law as the criteria stated does not cover or is not

6
Blix. H.M. (1970) Recognition Particular Problems, Definition Theories.

5
 thorough on the requirements of statehood thereby leaving too many holes and

questions on the topic.

Research Questions

1. Why is it that some principal legal instruments for state recognition under

international law are at variance with one another?

2. Why political requirement on state recognition in modern time have more impact

than legal instruments in the international community?

3. Why is Monte Video Convention legal criteria not exhaustive by state actors in state

recognition under international law?

4. The Legal duty of recognition and the rights of existing states to determine statehood.

Aims and Objectives of the research

The heart of this research is a rigid examination of recognition of state under the

international law. However, bar this, this research also aims to;

1. To determine the concept and nature of state recognition.

2. Critically examines state recognition under municipal and international law and the criteria

for the recognition of a state under the Montevideo Convention 1933 and its lack of usage in

present times

3. To examine the failure or refusal of a state recognizing another state and the view of

various World political leaders and provisions of international statue, charter and convention

regarding the issue state e.g Palestine, Taiwan, Kosovo, South Sudan etc.

4. To examine the role International recognition plays in the political, legal, security,

economic and the socio-cultural development of states

6
5. To identify the role of International relations and treaties in the recognition and non-

recognition of states.

Significance of the Research

The key aim of this research is to add to existing body of literature on the subject of

state recognition specifically as it relates to the role of International law in recognition of

statehood and its impact on the legal aspects and World Politics of law. The significance of

this work is to educate its readers such as judges, ju members of the bar have knowledge of

the current trend and also contribute on the existing research on state recognition under

international law. The work brings out the reforms brought through the modern practice of

state recognition and provide a platform for future research to be conducted.

Scope/ Limitation of the research

This study focuses mainly on the legal framework on state recognition under

international law and according to the provisions of International and territorial legal

instruments. Essentially, it examines and explores the various legal implications and

regulations which govern recognition It further covers issues constituting challenges to the

effective practice of the concept of state recognition in international community. This study is

therefore limited to the legal examination of state recognition and the applicability of state

recognition in International parlance.

Research Methodology

This research is based on primary and secondary sources. For primary sources, legal

instruments such as Conventions and Declarations were consulted, as it relates to secondary

sources, texts, journals and various academic publication were used. Whilst secondary

materials were largely consulted and formed a bulk of the materials considered, primary

7
sources were of indispensable relevance in the analysis and establishment of the legal

foundation of the principle and practices analyzed in this essay.

Definition of Key Terms

State: The State is the organization of a group of people who have live in a specific area or in

other words, the State bond is peoples who live in a specific area which is equipped with the

power to govern.7 It comprises of people permanently occupying a fixed territory bound

together by common habits and custom into one body politic exercising, through the medium

of an organized government, independent sovereignty and control over all persons and things

within its boundaries and capable of entering into international relations with other states. 8

Although the Montevideo Criteria were agreed between American states, and not by the

entire international community, this definition of statehood was only formally recognised as

it was already observed prior to the 1933 Convention. Similar criteria were used by the

Badinter Committee (the Arbitration Commission of the Conference on Yugoslavia) in 1991

when it concluded: "that the state is commonly defined as a community which consists of a

territory and a population subject to an organized political authority; that such a state is

characterized by sovereignty”.9

Government: A state can be distinguished from a government as the government is the

particular group of people, the administrative bureaucracy that controls the state apparatus at

a given time.10 That is, governments are the means through which state power is employed.

The successive government is composed of a specialized and privileged body of individuals,

who monopolize political decision-making for the populace as a whole. Therefore, according
7
Georg jelinek, Allgemeinestaatslehre, (3d ed. 1914).
8
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
9
for an analysis of these opinions, see Alain Pellet, The Opinions of the Badinter Arbitration Committee: A
Second Breath for the Self-Determination of Peoples, in “The European Journal of International Law”, Vol. 3
(1992)
10
Bealey, Frank, ed. (1999). "government", The Blackwell dictionary of political science: a user's guide to its
terms. Wiley-Blackwell. p. 147. ; Sartwell, 2008: p. 25 ; Flint & Taylor, 2007: p. 137

8
to this explanation the states are nonphysical persons of international law, governments are

organizations of people

Sovereignty: Sovereignty is understood in jurisprudence as the full right and power of a

governing body to govern itself without any interference from outside sources or bodies. In

political theory, sovereignty is a substantive term designating supreme authority over some

polity.11 The concept of sovereignty describes the supreme political authority that wields

power inside and upon a given territory and the population that inhabits it, while also being

able to enter into relations with other sovereign and independent states, independently of any

exterior influence.12 For this reason, the latter two conditions imposed by the Montevideo

Criteria which are, a government and capacity to enter into relations with other states, are in

fact, two sides of the same coin, which are correspondingly internal and external sovereignty.

Thus, a state has to establish and maintain the legal (rule of law) and political order

(democracy) on an internal level, while in the international community it can exercise rights

and fulfil duties, as any other international legal person and in accordance with international

treaty provisions.

States may be classified as sovereign if they are not dependent on, or subject to any other

power or state. Other states are subject to external sovereignty or hegemony where ultimate

sovereignty lies in another state.13 An important factor of sovereignty is its degree of

absoluteness. A sovereign power has absolute sovereignty when it is not restricted by a

constitution, by the laws of its predecessors, or by custom, and no areas of law or policy are

reserved as being outside its control. International law; policies and actions of neighboring

11
Bateman, C.G. (15 February 2011). "Nicaea and Sovereignty: Constantine's Council of Nicaea as an Important
Crossroad in the Development of European State Sovereignty". University of British Columbia. pp. 54–91.
12
For a thorough analysis of this concept, see A. Murphy, A. Stoica, Sovereignty: Constitutional and Historical
Aspects (2015)
13
The New Oxford American Dictionary (2nd ed.) (Oxford: Oxford University Press), 2005

9
states; cooperation and respect of the populace; means of enforcement; and resources to enact

policy are factors that might limit sovereignty

Recognition: The confirmation or Acknowledgment of the existence of an act performed, of

an event that transpired, or of a person who is authorized by another to act in a particular

manner.14 It is said that recognition is an important and fundamental institution in

international relations between states, because, before a new states can establish complete and

perfect relations in various fields with other states, it must first go through the door of

"recognition"15.

Recognition of a new State is a statement or attitude of a State to recognize the existence

of a new political entity as a new State. A country that has not been recognized can give an

impression to other countries that the country is "incapable" or does not have the capacity to

carry out its international relations16 . Recognition is a necessity, because no country will be

able to live in isolation and distance itself from other countries as members of the

international community by relying solely on its capabilities .

De Visher said that international recognition institutions fulfill two social needs in life

between countries. First; not to alienate a human group from international relations by

preventing the existence of an adverse legal vacuum, both for individual interests and for

relations between countries17 . On the other hand, if it is said that the institution of recognition

is a fundamental problem in international law, because there is no obligation to demand

recognition based on the provisions of international law. Giving or holding back recognition

of a country or a new government is a matter of policy from the country that will give such

recognition.
14
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
15
S. Tasrif; International Law About Recognition in Theory and Practice; Abardin, Bandung; 1987.
16
Article 1 letter D Montevideo Convention 1933, affirms "a capacity to enter into relations with other State".
In this case, the ability to conduct international relations is a strategic determinant of the existence of a new
country to be accepted as a member of the international community.
17
S. Tasrif supra.

10
International Law: International Law is a description of an entire legal system which is the

international legal system. It is an international legal system by which legal rules are created

in order to structure and organize societies and relations. It acknowledges the influence of

political, economic, social and cultural processes upon the development of legal rules. It is

the body of laws governing relations between nations.18

International law is the body of rules which are legally binding on states in their

intercourse with each other. These rules are primarily those which govern the relations of

states, but states are not the only subjects of international law. International organisations

and, to some extent, also individuals may be subjects of rights conferred and duties imposed

by international law. International law in the meaning of the term as used in modern times

began gradually to grow from the second half of the Middle Ages. As a systematised body of

rules it owes much to the Dutch jurist Hugo Grotius, whose work, “De Jure Belli ac Pacis,

Libri iii”, appeared in 1625, and became a foundation of later development.

It is the term commonly used for referring to the system of implicit and explicit

agreements that bind together nation-states in adherence to recognized values and standards,

differing from other legal systems in that it concerns nations rather than private citizens that

is, complex network of principles, treaties, judicial decisions, customs, practices, and writings

of experts that are binding on States in their mutual relations.

Structure of the Research

This research Study is divided into five chapters. The first chapter is the background of the

research which consists of the general introduction, statement of the problem, aim and

objectives of the study, scope and limitations of the research. Chapter two gives the

Historical, Theoretical and Conceptual Foundation of State Recognition. Chapter three

18
Shaw, M.N. (2008), International Law, 6th ed., Cambridge University Press, Cambridge, p. 2

11
focuses on State Recognition and the Position of the Law. Chapter four examines the State

Recognition through the Cases involving countries while Chapter five discusses research

findings, conclusions and recommendations.

Literature Review.

In this section, the literature would be reviewed under some identified themes that are most

relevant to the subject matter of study. The literature is reviewed critically to find out the

extent to which other scholars have studied, their presentations and arguments identify and

contribution to the missing areas of development. In this regard, the following themes were

reviewed:

a. The concept of State recognition under international law

b. The Two competing theories of state recognition

a. The concept of state recognition under international law:

To recognize a community as a state is to declare that it fulfils the conditions of

statehood as required by international law. If these conditions are present, existing states are

under duty to grant recognition. In absence of an international organ competent and to

ascertain and authoritatively declare the presence of the requirements of full international

personality, states that are already established fulfil that function in their capacity as organs

of international law.

Thus, according to OPPENHEIM (1937) 19 the rule of law signifies that in granting or

withholding recognition, states neither claim nor are entitled to serve exclusively the interests

of their national policy and convenience regardless of the principles of international law in

19
These principles underlie the author's exposition of the doctrine of recognition in 1 OPPENHEIM,
INTERNATIONAL LAW (5th ed. 1937) and in his lectures delivered at the Hague Academy of International Law
in 1937.

12
the [Link] of their national policy and convenience regardless of the principles of

international law on the matter.

These principles are believed to have been accepted by the dominant practice of states to

represent rules of conduct most consistent with the fundamental requirements of international

law conceived as a system of law. However, while regularly practiced with some regularity,

they cannot be regarded as having been uniformly acted upon or clearly perceived by

governments. Neither have they secured the assent of the majority of writers on the subject.

The Two competing theories of state recognition:

According to William20 (2010), International law is dominated by two competing theories

of state recognition; The Declaratory view and The Constitutive view

State recognition has been initially founded on the Constitutive Theory of Statehood, of

which its essence could be traced back as early as 1815, at the Peace Congress of Vienna; the

final act of this congress recognised only 39 sovereign states in Europe, and it also

established that any future state could be recognised as such only through the acceptance of

prior existing states.21 The reason for such a distinction between the already established

states and any future claim of statehood was argued to reside in the “historical longevity” of

the former.

According to this theory, a state is considered to be a legal international person only if it

is recognised as sovereign by other states. In this respect, L.F.L. Oppenheim considered that

“International Law does not say that a State is not in existence as long as it isn't recognised,

but it takes no notice of it before its recognition. Through recognition only and exclusively a

State becomes an International Person and a subject of International Law”22

20
William, W. (2010), Sovereignty: two Competing Theories of State Recognition, University of The Hague,
Netherlands
21
Kalevi Jaakko Holsti, Taming the Sovereigns: Institutional Change in International Politics, Cambridge
University Press, 2004
22
L. Oppenheim, International Law. A Treatise, vol. I – Peace (Clark: The Lawbook Exchange, 2005)

13
 Such constitutive views were also found in the works of Hegel, which claimed that every

state “is sovereign and autonomous against its neighbours, being entitled in the first place

and without qualification to be sovereign from their point of view, i.e. to be recognized by

them as sovereign”, while also admitting that “recognition is conditional on the neighbouring

state’s judgement and will”.23

On the other hand, this discretionary prerogative should have its limitations. Kelsen was

of the opinion that "a state violates international law and thus infringes upon the rights of

other states if it recognizes as a state a community which does not fulfill the requirements of

international law"24. However, the opposite of this could also be possible: a state refusing to

recognise another even if it does fulfill the criterion for statehood. For this reason,

Lauterpacht proposed that states have a legal duty to recognise one another when the

conditions of statehood exists,25 although Kelsen denied the notion of any such duty. 26 The

weaknesses of this theory include the case in which recognition of a particular state is not

unanimous. In this instance, a rigid application of the constitutive principle would mean that

the respective state would not be a subject of International Law, which in turn would hold

back its capacity to assume rights and obligations in the resemblance of other states that are

recognised. However, Lauterpacht considered that the constitutive theory “deduces the legal

existence of new States from the will of those already established.”27

In the absence of a body responsible for observing and subsequently declaring that a

certain state meets the conditions for statehood, Lauterpacht believed that the already

established states are ought to “administer the law of nations”, without being „entitled to

serve exclusively” their national interests.28

23
G.W.F. Hegel, Elements of the Philosophy of Right, Oxford University Press, 2000,
James Crawford, “Recognition in International Law: An Introduction to the Paperback Edition
24
Hans Kelsen, Principles of International Law, Rinehart, 1952
25
Hersch Lauterpacht, Recognition in International Law, Cambridge University Press, 1947
26
Hans Kelsen, Recognition in International Law, in American Journal of International Law , 1941
27
Hersch Lauterpacht supra at 18
28
ibid

14
 The constitutive theory states that recognition of an entity as a state is not automatic. A

state is only a state when it is cognized as such and other states have a considerable

discretion to recognize or not. Moreover, only upon recognition by those other states does the

new state exist, at least in a legal sense.

While the constitutive theory gained ground and dominated international law since 1815,

it only lasted until the shift in geopolitical dynamics that marked the beginning of the 20th

century. At the end of the previous century, a great number of European nations became

independent – Germany, Italy, Romania and the First World War (1914-1918) led to the

further emergence of sovereign states in Europe – Poland, Yugoslavia, Czechoslovakia with

the establishment of British or French mandates in some areas after the partition of

multinational empires such as Austria-Hungary or the Ottoman Empire. However, the speech

delivered by US President Woodrow Wilson on his Fourteen Points propagated the concept

of self-determination, with direct consequences for the international order.

In Wilson’s conception, the lack of self-determination has been at the centre of Europe’s

turbulent history. The Great Powers, such as Britain and Austria, have previously resisted

any attempt to partition the Ottoman Empire, fearing that the resulting independent states

would be small and too fragile, potentially easy targets for annexation and could, thus,

undermine the longestablished international order based on the balance of power. 29 The

Wilson doctrine has arguably marked the end of Pax Britannica and paved the way for

greater US influence on the world stage. In response to these changes, the constitutive theory

lost its pre-eminence in favour of a new conception – the declarative theory of statehood.

While the constitutive theorists claimed that recognition is a requirement for statehood,

the declarative conception established by the 1933 Convention of Montevideo challenged

such an idea; according to article 3 of this treaty, statehood does not depend on recognition

by other states. The declaratory model argues that a state does not obtain international legal
29
Henry Kissinger, Diplomaţia, All Publishing House, Bucharest, 2010

15
personality through the consent of others, so therefore the recognition of a state signifies

nothing more than the admission of a factual situation. 30 While the common practice among

states was argued to be somewhere in the middle of these two theories, the declarative

conception is much closer to the current model followed by the international community as it

is also enshrined in the rules contained in the Montevideo Convention and reiterated by the

Badinter Commission.

The declaratory theory looks to the purported state‘s assertion of its sovereignty within

the territory it exclusively controls to determine if it can access the international plane. It is

the opposite of the constitutive theory as it holds that recognition is almost irrelevant because

states have little to no discretion in determining whether an entity constitutes a state. The

status of statehood is based on fact, not on individual state discretion and majority of

contemporary scholars and commentators favor this theory.

There is considerable support for the argument that recognition is irrelevant for whether

a state exists as such or not. The Montevideo Convention of 1933 states: The political

existence of the state is independent of recognition by the other states. This opinion on the

declaratory theory was also supported by the Arbitration Commission of the European

Communities Conference on Yugoslavia, chaired by Robert Badinter, discussing the

independence and status of states of the successor to the S.F.R. Yugoslavia and many

national courts recognize this theory. Furthermore, many national courts have recognized

international rights in states that accrued before international recognition of the entity as a

new state, suggesting a rejection of the notion that the state did not exist before recognition.

On the other hand, there are alternate views that state only exist on recognition with

support to this perspective. The Badinter Commission initially adopted declaratory language

but seems to have applied a constitutive approach to balance major tensions between the

various European states The Permanent Court of International Justice, the predecessor to the
30
Malcolm Nathan Shaw, International Law, 5th edition, Cambridge University Press, 2003,

16
International Court of Justice, appeared to endorse the constitutive theory. Also the

International Criminal Tribunal for the former Yugoslavia, the International Court of

Justice‘s neighbor in The Hague is also supportive of the constitutive theory.

In addition to these decisions of international tribunals or commissions, the act of

recognition seems to increasingly be attributed with constitutive effect within the

international legal system. States such as Croatia, Eritrea, and Central and Eastern European

states arising from Woodrow Wilson‘s dismemberment of the Habsburg and Ottoman

Empires, have survived extinction or been revived from extinction by the international

community.

Bosnia-Herzegovina and Croatia arguably did not fully satisfy the criteria for declaratory

recognition, so the recognition of those entities as new states may have had constitutive

effect despite the supposed intended application of the declaratory theory. For some

microstates, their relatively recent admission to the U.N., as well as recognition by other

states, may have clarified their position in international law, crystallized their rights, and

assisted in their constitution, regardless of the intended effect of their recognition.

We can also see situations where the existence of emerging states was blocked by other,

more powerful states, which would only be possible if statehood was in the control of

existing states. Also, we can see situations where states, that had lost all factual qualification

as such, were maintained as essentially legal fictions by the international community. This

suggests that recognition both constitutes and maintains the legal personality of other states

whose reality would suggest that they no longer existed, or existed in a fictitious state.

Although the declaratory view is currently in prominence but is beginning to decline in

favor of the constitutive view which is gaining ground and its slow partial re-emergence is

forcing us to rethink the nature of state in international law.

17
 31
L. Oppenheim one of the leading contemporary International Law Jurist who also

wrote many books on the topic examined and elaborated on the recognition of state but his

works ended in 60s. This means that events and happening in the 1970 upward were not

covered by his work. For example many states and desire currently conferred with statehood

did not emerge as such the need and desire of recognition of state is not desperate aspiration

like the current situation now.

Starke32 writing on state and government recognition elaborately discussed on the

principle of recognition, theories, types, his work was a commendable one but his works also

ended in 1960s which means various happening and development after the 1960s were not

covered by his works for example the status of new state with emerging out from another

state to not being recognized by the colonial state like the situation between China and

Taiwan.

Gardiner 33 wrote on the recognition but the author gave much emphasis on statehood and

its requirement without touching much on the recognition, his work on recognition.

Umozurike34 wrote though anchored on recognition is not helpful in understanding fully

what recognition entail because it touches only the elementary aspects of recognition like

legal effect, types and the doctrine but the work did not discuss most of the important aspect

of recognition, it is nothing other than hint on the topic.

Shaw35 wrote on recognition, but what the author did was more like a case study of

Europe and UK because he gave much emphasis on U.K. in his work not minding other

jurisdiction and he only touches some aspect of recognition in his discussion which one of

them is the one this research is focusing on.

31
Oppenheim, L. (1967) International Law a Treatise Vol. 18th edition (edit) Lauterpacht Longmens
32
Starke, J.G. (1967) Introduction to International Law, Butterworth , London.
33
Gardner, R.K. (2003) International Law, Henry Ling Limited, London.
34
Umozurike, U.O. (1993) Introduction to International Law, Spectrum Law Publication, Ibadan.
35
Shaw, M.N. (2005) International Law, 5th edition, Cambridge University Press, United Kingdom.

18
 Hingorani’s36 contribution adequately covered major aspects of the topic recognition, the

author clearly examined recognition and identified the theories and argument of other

scholars on the topic but the problem of his work is that he could not address the challenges

as identified by his work.

James Crawford37 another international law jurist whose contribution is very adequate

and his work is very voluminous but the problem of his work is more like compare and

contrast and much emphasis was given on the requirement of statehood and comparing it

with recognition, more also the most of his work hinge on criteria of statehood and less on

recognition.

From this review it is clear that scholars have written a lot of literature in this field which

will serve as a foundation for the present effort. However, most of those books are good in

the considering of the standard criteria of the principles laid down by constitutive

international and regional instruments but they are not recent to reflect the current change in

the pattern of practice of state recognition within the international community. This research

work may hopefully contribute toward addressing new and emerging issues as it relates to

recognition of a state.

Chapter Two: On the Historical, Theoretical and Conceptual Foundation of State

Recognition

2.1. The Meaning and Nature of State recognition.

State recognition is an important institution in international relations between countries,

as well as a fundamental problem in international law. Recognition is still a unilateral

diplomatic act from one or more countries. It is said that recognition is an important and

36
Hingorani, R.C. (1993) Modern International, Law, 3rd Edition, Oxford Publication Ltd., U.K.
37
Crawford, J. The Criteria for Statehood in International Law.

19
fundamental institution in international relations between states because, before a new states

can establish complete and perfect relations in various fields with other states, it must first go

through the door of "recognition"38 .

Recognition of a new State is a statement or attitude of a State to recognize the existence

of a new political entity as a new State. A country that has not been recognized can give an

impression to other countries that the country is "incapable" or does not have the capacity to

carry out its international relations39. Recognition is a necessity, because no country will be

able to live in isolation and distance itself from other countries as members of the

international community by relying solely on its capabilities.

International recognition institutions fulfill two social needs in life between countries

;First, not to alienate a human group from international relations by preventing the existence

of an adverse legal vacuum, both for individual interests and for relations between countries .

On the other hand, if it is said that the institution of recognition is a fundamental problem in

international law, because there is no obligation to demand recognition based on the

provisions of international law. Giving or holding back recognition of a country or a new

government is a matter of policy from the country that will give such recognition.

Recognition will further guarantee the position of a new country as the subject of

international law, because the function of recognition is;"To ensure a new country can

occupy a reasonable place for independent and sovereign political organisms in the midst of

the families of nations so that perfect can establish relations with other countries, without

worrying that his position as a political entity will be disrupted by existing countries ". Thus

the role of recognition institutions is very important for the existence of a country as a new

member of the international community. Without obtaining recognition, the new country will

38
S. Tasrif; International Law About Recognition in Theory and Practice; Abardin, Bandung; 1987
39
Article 1 letter D Montevideo Convention 1933

20
experience difficulties in establishing relationships with other countries. The widely accepted

view that there is no obligation for the state to give recognition to a new country.

In explaining the meaning and nature of state recognition, the State is the organization of

a group of people who have live in a specific area equipped with the power to govern. It

comprises of people permanently occupying a fixed territory bound together by common

habits and custom into one body politic exercising, through the medium of an organized

government, independent sovereignty and control over all persons and things within its

boundaries. It is capable of entering into international relations with other states and only

States can become members of the United Nations and other international organizations.

According to Montevideo Convention, Article 1 of 1933, State as a subject of

international law should possess the following qualifications:

a)Permanent Population: The population or people of a country is a group of people who

permanently inhabit or settle in an area.

b)Defined Territory: There must be an area where the population or the people are settled

and in order for the region to be permanent or certain, of course, the boundaries must be

clear, covering 3 (three) dimensions (land, sea and air).

c) Government: The third requirement for statehood is the existence of a government

capable of exercising independent and effective authority over the population and the

territory.

D) Capacity to enter into relations with other States: It can be said that the capacity to enter

into full range of international relations can be a valuable measure, but capacity or

competence in this sense depends in part on the power of the government, without which a

State cannot carry out its international obligations. The ability to interact with other countries

independently, is related to independence and sovereignty. With independence means a free

country to conduct international relations with any country, without having to consult with

21
other countries and the existence of sovereignty means that the state is free in carrying out its

internal and external activities.

Recognition of state is the formal acknowledgement or acceptance of a new state as an

international personality by existing states of the International community. The recognition

of state or a government implies readiness to treat that entity as a state within the meaning of

state under international law. The grant of recognition is an act on the international plane,

affecting the mutual rights and obligations of states, and their status or legal capacity in

general. Recognition also has consequences at the national level, as where the application of

rules of municipal law is affected by a decision to recognise a new state or government.

Forms of recognition is are also present in recognition of a state which include:

a) Express and Implied Recognition: Recognition may be express or implied. It is essential

that the act constituting recognition must give a clear indication of the intention either to

deal with the new State as such, or to accept the new government as the effective

government of the State and to maintain relation with it, or to recognize in case of insurgents

that they are entitled to hostile rights

Express recognition indicates the acknowledgment of the recognized State by a formal

declaration. In the practice of States, this formal declaration may happen by either a formal

announcement of recognition, a personal message from the head of a State or the minister of

foreign affairs, a diplomatic note, or a treaty of recognition. It is the formal declaration

where a state announces its intention of recognition, thereby confirming its statehood.

Implied recognition is an indirect mode of recognition. It is by the conduct of the state

through actions other than official declarations like contract, agreement or treaty, intended to

grant recognition. The required actions for implied recognition must be indisputable, leaving

no doubt of the intention of the State performing them to recognize the State or government

and to deal with it as such.

22
 There are circumstances in which it may be possible to declare that in acting in a certain

manner, one State does by implication recognize another State or government. However,

because of this possibility, States may make an express declaration to the effect that a

particular action involving another State is by no means to be regarded as inferring any

recognition.

b) De facto Recognition: De facto recognition is when an existing State considers that the

new State has not acquired sufficient stability, it may grant recognition to the latter

temporarily. It is a provisional recognition of statehood based on a temporary and factual

situation. The reason for granting de facto recognition is that it is doubted that the state

recognized may be stable or it may be able and willing to fulfil its obligations under

International Law. The de facto recognition of a State or government takes place when

the said State is free state and enjoys control over a certain fixed land but she is not

enjoying the stability at a deserved level and lacking the competence to bear the

responsibility of International Law40. The de facto recognition is conditional and

provisional. If the state to which De Facto recognition is being given is not able to fulfil

all conditions of recognition then that recognition is withdrawn.

c) De jure Recognition: De jure recognition is granted when in the opinion of recognizing

State, the recognized State or its government possesses all the essential requirements of

statehood and it is capable of being a member of the International Community. It is a

legal recognition and is through a process contemplated by law. De jure recognition

results from an expressed declaration or from a positive act indicating clearly the

intention to grant this recognition such as the establishment of diplomatic relations. De

40
Prof L .Oppreheim, Oppreheim’s international law

23
 jure recognition is final and once given cannot be withdrawn, said intention should be

declared expressly and the willingness is expressed to establish political relations.41

d) Premature Recognition: Since it is a political decision of States, in some circumstances,

the recognition occurs before the criteria of statehood have been fulfilled by the new state

which is contrary to international law and legally ineffective. In such cases, the problem

is to determine the premature recognition is an intervention in the internal affairs of

another state or is an admissible recognition of a new state that has emerged or is

emerging as a result of secession. Recognitions of Bosnia-Herzegovina and Croatia were

the well-known examples of premature recognition in the near past as both states had not

an effective control on their whole parts of territories at the time being recognized.

e) Conditional Recognition: Conditional recognition means that to recognize an entity as a

State only when it fulfills some conditions. It was first seen in the Treaty of Berlin where

Austria-Hungary, Great Britain, France, Russia, Italy and Germany marked the

recognition of Bulgaria, Serbia, Romania and Montenegro with the condition that these

countries would not impose any religious disabilities on any of their subjects 42. It may

cause some political problems but the non-observance of the condition would not

invalidate the recognition, since the law does not attach value to any condition unless it

depends upon agreements made by the particular parties.

f) Collective Recognition: Collective recognition is an act of recognition through the

international decision. Membership in the united nations is one of the criteria for gaining

recognition in a collective form. It means that States act collectively during the process of

receiving information of the situation, evaluating that information and reaching a decision,

and communicating that decision43. This may be seen as a result of increased corporation

between the States. The idea of act collectively has been a subject of a debate since the
41
Philip Marshall Brown: The American Journal of International Law, oct 1950
42
Congress of Berlin (13th june – 13th july 1878)
43
International Law Commission 1971

24
foundation of the League of Nations and the establishment of the United Nations. However,

the States preferred to keep the control of recognition in their authorized bodies.

[Link] Origin of State Recognition

State recognition is an institutionalized practice of the modern society of states and its

[Link] historically to address a practical need as any system of law requires designated

procedures and organs to identify legal statuses within that system. The international legal

system without a central authority and new claimants of statehood that procedure came to be

‘recognition of states,’ carried out by the governments of existing states forming that legal

system in nearly all instances through their executive branch44.

The modern era began with the emergence of multiple self-constituted and self-

governing European territorial entities claiming and maintaining sovereign rule independent

of external authorities and in the course of the 17th and 18th centuries, these de facto entities

came to acknowledge each other as sovereign, independent ‘states’ and to conduct their

relations on a basis of shared, international law i.e, natural law and it regulated mutual

relations not only within Europe but also between European states and numerous non-

European de facto independently governed territorial communities, which were, with these

attributes, deemed natural ‘states’ entitled to equal rights and duties45.

With the decline of natural law and the ascent of positive law in the late 18th century,

non-European, non-Christian territorial political communities that failed to meet the new

positive standard of civilization were excluded from the full state rights and privileges by

unequal international legal treatment. Also, existing European-based states began to face

multiplying new claims of statehood and so needed to ascertain whether the claimants

qualified as ‘states’ for the purposes of international relations and law and their responses to

44
H. Lauterpacht; Recognition in International Law 1947
45
C. H. Alexandrowicz; The History of Law of Nations 1969

25
this developed into the distinct and recurrent activity of ‘recognition of states.’ By

‘recognition,’ existing states would certify jointly and if followed by other existing states,

cumulatively that a new claimant was a state, would extend statehood from the mere internal

assertion to externally accepted state.

Recognition by great and major regional powers has normally preceded, and carried far

more weight than, recognition by other states. Indeed, the latter would usually look to the

former for direction; where they did not, their decisions alone would have little impact on the

international status of an entity. In general, where the key great and regional powers would

agree on the acknowledgment of a particular state or group of states, smaller countries would

follow with their recognition in a ‘snowball effect’ or a ‘cascade’46 .

As the criteria of legitimate statehood have evolved with developments in international

morality and law, so has the practice of recognition. This is not to deny that recognition

decisions have been commonly influenced by political discretionary factors such as national

interests, shared interstate interests and lobbying from domestic interest groups. They have

repeatedly been timed or employed strategically for instance, as part of larger external efforts

to achieve resolution of conflicts arising out of competing claims. They have also been

sometimes conditioned by demands that prospective states commit to vital international

standards or objectives, historically ranging from ending the slave trade and protecting

minority rights to undertaking nuclear disarmament. However, none of this negates the fact

that existing states have generally understood recognition of a new state to be an activity

informed by criteria that are independent from these factors, strategies and conditions.

State recognition was also practice in Early International Law. Prior to the 19th

century recognition of new states arose only infrequently in international relations. While the

mid-17th century saw the acknowledgment of Swiss, Dutch and Portuguese independence,

46
[Link] and Mayall. J. ; Recognition, Self – determination and Secession in post-cold War International
Society 1996

26
the United States of America was the sole new generally recognized state in the 18th century.

Unable to rely on an established practice or recent precedents for guidance, the

overwhelming majority of existing states, most of which were hereditary absolutist

monarchies, applied to the unilateral secession of the British colonies the positivist criterion

of dynastic rights. According to this criterion, the dominion of a legitimate monarchy was

absolute. The only valid method of change of title to sovereignty or territory, and hence the

only way a new state could be recognized, was through the consent of the affected monarch

eg, with the sole exception of France, the existing states refused to acknowledge the US as an

independent state until the British Crown indicated it would do so in peace talks with the US

negotiators47.

Dynastic legitimism as a recognition standard received a fatal blow in the Western

Hemisphere as Spanish American territories, starting with Venezuela, followed in the

footsteps of the British colonies and unilaterally seperated from the Spanish Crown, the

major powers espousing it insisted on non recognition and some even threatened military

intervention to help restore Spanish rule. These conventional powers, collectively assembled

in the Holy Alliance, were, however, strongly opposed by Britain and the United States, the

former having since undergone a series of monarchy-weakening, liberal constitutional

reforms and the latter having established itself as a regional power.

British and American statespersons maintained that each people has a natural moral right

to determine their political destiny, including a right to renounce the sovereignty under

which they live, and contended that, unless directly harmed, third parties have an obligation

not to interfere in this process. They construed this right as the right of a people to become

free by their own efforts if they can, and non-intervention was the principle guaranteeing that

47
M. Fabry (2010); Recognizing States. International Society and the Establishment of New States since 1976

27
their success will not be impeded or their failure prevented by the intrusion of an alien

power48.

The US acknowledgment of the first wave of new Spanish American states, without

Spain’s prior consent, was justified by Secretary of State John Quincy Adams in 1822 the

outraged parent government with two principles regarding the independence of a nation

which is - one of Right, and the other of Fact. The former exclusively depending upon the

determination of the nation itself, and the latter resulting from the successful execution of

that determination49.

In the absence of international agreement as to what constitutes a valid method of

verifying popular will, any foreign assessment thereof was necessarily presumptive It was

this presumption of popular consent and its moral eclipsing of the idea of dynastic consent

that in American and British eyes converted the fact of new independent states into the right

to independent statehood and external recognition.

The criteria of de facto or effective statehood was judged to be independent of all

external authorities, to have an effective government internally in control of the claimed

territory and population, and externally, willing and able to fulfill international obligations of

a state which was gradually incorporated into recognition policies of other powers in the

course of the 19th century50.

Having also the practical advantage of investing new authorities with international

responsibility for externally harmful acts emanating from their territories and territorial

waters, the criteria became the undisputed standard of recognition in the Americas, and with

the decline of the Holy Alliance and the rise of constitutionalvernments across Europe they

displaced the criterion of dynastic rights.

48
Michael Walzer; Just and Unjust Wars 2015
49
William. R. Manning 1925; Diplomatic Correspondence Of the United States concerning the Independence of
Latin-American Nations
50
M. Fabry supra 47

28
 The criteria of de facto statehood were invoked not only in response to unilateral

secessions but also to other types of internally effected changes to existing statehood, such as

the merger of several states. Moreover, the criteria were applied in a wide range of contexts,

including those involving ethnically defined peoples without prior juridical status or

boundaries and foreign military interventions in defense of third party rights.

Finally, the infringement of the criteria served as a basis for non recognition where new

entities were declared not as the outcome of internal self-determination but external

proclamation.

State recognition practice In Modern International Law. As a number of studies51 make

clear with post 1945 decolonization international society essentially abandoned the criteria of

de facto statehood as the basis for recognizing indigenously founded new states. This does

not mean that the countries recognized since then necessarily lacked effectiveness, only that

it was not a prerequisite of their recognition.

Under the modern law of statehood and its relation with recognition, the effect of

positivist doctrine was to place all the emphasis, in matters of statehood, on the question of

recognition. Courts of many States still refuse to determine for themselves any questions of

statehood, even where the matter is between private parties, and even where the results are

unfortunate, where due to absent recognition, courts do not recognize an entity as a state and

treated for jurisdictional purposes, on the ground that status is necessarily determined by

executive recognition.. 52 They will sometimes be able to avoid the harmful effects on private

rights of the political act of recognition by means of construction where the executive may

leave the matter for the courts to decide, but as a matter of the common law, at least, where

51
Myers 1961; O’Brien and Goebel 1965; Jackson and Rosberg 1982; Jackson 1990; Kreijen 2004; Fabry 2010
52
Matimak Trading Co v Khalily ( 1997): Second Circuit of the US Court of Appeals held that, absent
recognition, notified to the court by the executive branch, Hong Kong could not be treated as a State for
jurisdictional purposes, and a corporation organized under the laws of Hong Kong stateless‘, was unable to
maintain an action in US federal court , JP Morgan Chase Bank v Traffic Stream (BVI) Infrastructure Ltd
(2002) : The Supreme Court resolved the matter in favour of federal jurisdiction

29
the international status of any entity is squarely in issue executive certification is binding.

This has led courts to seek to distinguish between the external and internal consequences of

non-recognition.

The executive is concerned with the external consequences of recognition in regards to

other states, and the Courts are concerned with the internal consequences of it in regards to

private individuals. There are many who hold that the courts are entitled to look at the state

of affairs actually existing in a territory to see the law that is effective and enforced in that

territory and to give effect to it in its impact on individuals as justice and common sense

require, provided always that there are no considerations of public policy against it 53.

It is expressed also between Private international law and the law or practice of foreign

relations where private international law is designed to find the most appropriate law and it is

not concerned with adjusting the mutual relationship of sovereigns. Therefore, foreign law

applied under private international law principles should not be limited to the law only of a

recognized State or Government; effectiveness of foreign law should not depend on

recognition54.

However desirable it may be that the courts of a State should speak on matters of

statehood with the same voice as the government of that State in the international sphere the

intimate connection established by nineteenth-century doctrine between recognition and

statehood has done much harm, thereby creating a tension between the conviction that

recognition is at some level a legal act in the international sphere, and the assumption of

political leaders that they are, or should be, free to recognize or not to recognize on grounds

of their own choosing. If this is the case, the international status and rights of whole peoples

and territories will seem to depend on random decisions and political contingencies.

53
Lord Denning: Hesperides Hotels Ltd. And Another V Aegean Turkish Holidays Ltd. And Another (1977)
54
District Court of Kyoto, Judgment of 7 July 1956

30
 Therefore, in more recent international practice, several additional criteria have been

identified as prerequisites for statehood. The recognition policy of many states and the

positions taken by contemporary jurists conditioned recognition not only on the satisfaction

of the traditional criteria for statehood, but on the fulfillment of a long list of other

requirements. So it is accepted to investigate several other features of a presumed state

before considering its eligibility for recognition.

The additional contemporary criteria for statehood require that an entity seeking

recognition demonstrate that it has not been established as the result of illegality and is

willing and able to abide by international law, that it constitutes a viable entity, and that its

claim to statehood is compatible with the right to self-determination.

Origins of the Montevideo Criteria

The text of the Montevideo Convention standing alone does not explain the origins of the

criteria it enunciates. Since its formulation, however, the Montevideo Convention on the

Rights and Duties of States has been a primary point of reference in efforts to define

statehood. Crawford correctly calls Article 1 of the Convention the "best known formulation

of the basic criteria for statehood."55 The 1930s and 1940s, immediately following the

signing of the Convention by the United States and the other Pan-American nations, 56

witnessed ample citation to the Convention. The four-point enumeration of the elements of

statehood offered by the Convention has perhaps been even more frequently cited in recent

years; citation to the Convention in contemporary discussions of statehood is nearly a

reflex.57 Some important sources, without attributing their definition of statehood to the

55
James Crawford, Creation of States, 36.
56
The signatories were Honduras, the United States of America, El Salvador,
the Dominican Republic, Haiti, Argentina, Venezuela, Uruguay, Mexico, Panama,
Bolivia, Guatemala, Brazil, Ecuador, Nicaragua, Colombia, Chile, Peru, and Cuba.
28 AJIL (Supp.) at 52.
57
See, e.g., David A. Ijalaye, "Was 'Biafra' at any Time a State in International Law?" 65 AJIL 551 (1971);
Michael C. Small, "Enforcing International Human Rights Law in Federal Courts: The Alien Tort Statute and the

31
Convention, repeat the Montevideo criteria nearly verbatim. The United States Department

of State, for example, wrote in 1976, "In [judging whether to recognize an entity as a state],

the United States has traditionally looked to the establishment of certain facts. These facts

include effective control over a clearly defined territory and population; an organized

governmental administration of that territory; and a capacity to act effectively to conduct

foreign relations and to fulfill international obligations." 58 Though the Montevideo criteria

have become the touchstone for defining 'state,' little if any examination is to be found of

their origin. References to the Convention in the academic literature of the 1930s and 1940s

offer no insight into why the drafters chose the adopted phrasing.59 Nor, when publicists have

mentioned the Montevideo criteria in the last half century, has much light been shed on the

matter. That the framing of the Montevideo Convention has gone largely unexamined may

reflect the fact that its content was a restatement of ideas prevalent at the time of the framing.

So apparent were the Montevideo criteria to contemporary observers that few thought to

inquire as to their basis or origin. At the crux of the Montevideo criteria lay the concepts of

effectiveness and territoriality. These concepts may, in the 1930s, have seemed a

longestablished feature of international law. They indeed were widely assumed to be a

mainstay of statehood. Reflecting their prevalence, effectiveness and territoriality were

enumerated as a basis for statehood (or of sovereignty) by many leading publicists of the half
Separation of Powers," 74 Georgetown Law Journal (Georgetown L. J.) 163, 196 n. 240 (1985); P.K. Menon,
"Some Aspects of Recognition: Recognition of States," 67(3); Rosalyn Higgins, Problems and Process:
International Law and How We Use It (Oxford: Clarendon Press, 1994), 39; Frederic L. Kirgis, Jr., "Admission of
'Palestine' as a Member of a Specialized Agency and Withholding the Payment of Assessments in Response,"
84 AJIL 218, 219 (1990); Ian Brownlie, Principles of Public International Law. 3rd ed. (Oxford: Clarendon Press,
1979), 72-73; Anne-Marie Burley, "Law Among Liberal States: Liberal Internationalism and the Act of State
Doctrine," 92 Columbia Law Review (Colum. L. Rev.) 1907, 1926 n. 45 (1992); Marc Weller, "The International
Response to the Dissolution of the Socialist Federal Republic of Yugoslavia," 86 AJIL 569, 588 n. 122 (1992);
58
November 1, 1976 United States Department of State Press Relations Office
Notice. Quoted in Eleanor C. McDowell, "Contemporary Practice of the United
States Relating to International Law," 71 AJIL 337 (1977)
59
See, e.g., Robert R. Wilson, "International Law in Treaties of the United
States," 31 AJIL 271,283-84 (1937) (inquiring whether the Montevideo Convention
is merely declaratory of existing international law or legislative); James W. Garner,
"The United States 'Neutrality' Law of 1937," 19 BYIL 44, 62 (1938) (suggesting
that the Montevideo Convention invalidates or conflicts with the Neutrality Act of
1937

32
century leading up to the Montevideo Convention. Wheaton wrote, "The habitual obedience

of the members of any political society to a superior authority must have once existed in

order to constitute a sovereign State." 60 Wheaton added this to a definition of statehood

which he attributed to classical scholars. Cicero, Wheaton explained, had defined 'state' as "a

body political, or society of men, united together for the purpose of promoting their mutual

safety and advantage by their combined strength." 61 Power played a central role in Wheaton's

definition of statehood. Lorimer also suggested that the effectiveness of a putative state was

critical to its claim: In order to be entitled to recognition, a State must presumably possess;

(a) The will to reciprocate the recognition which it demands.

(b) The power to reciprocate the recognition which it demands.62

Lorimer, who proposed this formula in 1883, would be followed by many others. Llannis

Tayler wrote at the turn of the century that both Rome and its successor to organized power

in the Mediterranean that is, the Christian Church embraced universalist notions of the state.

This view contemplated only a single state, encompassing the width and breadth of the

known world, and it denied full legal status to entities falling outside the imperium. Roman

universalism gave way, however, to a belief that territorial sovereignty lay at the root of

statehood.63

The medieval and classical West conceived of the state as a singular instance of human

organization, deriving its validity from principle. The early modern thinkers, by contrast,

began to admit that there could be a multitude of states, and that it was their effectiveness in

controlling a land and a population that lent these legal status. It would be this view which

took center stage by the early twentieth century.

60
Henry Wheaton, Elements of International Law. Richard Henry Dana, Jr. ed. (as originally published in 1866).
James Brown Scott ed., 1936 ed. (Oxford: Clarendon Press, 1936), 29
61
Dana Wheaton; Elements of International Law
62
James Lorimer; The Institutes of the Law of Nations (Edinburgh: William
Blackwoodand Sons, 1883), 109
63
Hannis Taylor, International Public Law (London: Sweet &c Maxwell, 1902), 75.

33
 Scelle, writing in 1932, would describe the state as "une collectivite,—fixee sur un

territoire delimite,—juridiquement organisee."64 Hall, the publicist perhaps most closely

approximating the Montevideo criteria before their codification, wrote, "The marks of an

independent State are, that the community constituting it is permanently established for a

political end, that it possesses a defined territory, and that it is independent of external

control."65

Hall further emphasized the territorial aspect of statehood by emphasizing in particular

permanence of territorial control. According to Hall, a fugacious people could not qualify as

a state: "From the invariable association of land with sovereignty, or in other words with

exclusive control over the members of a specific society, to the necessary association of such

control with the possession of land, is a step which could readily be made, and which became

inevitable when no instances were present of civilised communities without fixed seats."

The ideas behind the Montevideo criteria were well-rooted by the time of the Convention

so much so that the arbitrators in Deutsche Continental Gas-Gesellschaft (1929) could posit

with little explanation that a "State does not exist unless it fulfils the conditions of possessing

a territory, a people inhabiting that territory, and a public power which is exercised over the

people and the territory."66

Consensus on territoriality and effectiveness by the eve of Montevideo probably explains

the dearth of examination surrounding the elements of the Convention. However, consensus

obscured that these concepts were not absolute. Though the Montevideo criteria were very

much a part of the international legal milieu by 1933, territorial power and effectiveness had

not monopolized state theory for very long. Well into the nineteenth century, statehood was

thought to be bound to a set of political criteria as much or more than to the fact of territorial

power. Legitimism was at times the prevailing concept in theory and practice concerning
64
Georges Scelle, Precis de Droit des Gens: Principes et Systematique (Paris: Recueil Sirey, 1932).
65
William.E. Hall; A Treatise on International Law 1895
66
Arbitrators Lachenal, Bruns, and Namitkiewicz, in Deutsche Continental GasGese

34
statehood. Though legitimism would eventually fade, its onetime prevalence recommends

more careful examination of the assumption that the Montevideo criteria are conclusive as to

the nature of statehood.

[Link] Foundation of State recognition in International law.

International law is dominated by two competing theories of state recognition, with the

declaratory view currently in prominence but possibly just beginning its decline in favor of

the Constitutive theory. The Constitutive theory was the standard nineteenth century and the

declaratory theory was developed in the twentieth century to address the shortcomings of the

constitutive theory.

The Constitutive Theory: According to this theory, it is the act of recognition alone which

creates statehood exclusively via recognition by other states. Anzilloti, Oppenheim and other

scholars who many are positivists are the chief exponents of constitutive theory. According

to Openheim a state is, and becomes, an international person, through, recognition only and

exclusively.

The Constitutive theory defines a state as a person of international law if, and only if, it is

recognized as sovereign by other states. This theory of recognition was developed in the19th

[Link] 1815 at the Congress of Vienna the Final Act recognized only 39 sovereign states

in the European diplomatic system, and as a result it was firmly established that in future

new states would have to be recognized by other states, and that meant in practice

recognition by one or more of the great [Link] 1912, Oppenheim said;

35
 “International Law does not say that a State is not in existence as long as it is not

recognized, but it takes no notice of it before its recognition. Through recognition only and

exclusively a State becomes an International Person and a subject of International Law.”

One of the major criticisms of this law is the confusion caused when some states

recognize a new entity, but other states do not. A state may use any criteria when judging if

they should give recognition and they have no obligation to use such criteria. Many states

may only recognize another state if it is to their advantage.

A second difficulty with the constitutive position is its relativism. As Kelsen points out,

it follows from constitutivist theory that the legal existence of a state has a relative character.

A state exists legally only in its relations to other states. There is no such thing as absolute

existence.67

The Declaratory Theory: According to this theory, statehood or the authority of a new

government exists prior to and independently of recognition. The act of recognition is merely

a formal acknowledgment of an established situation of fact. The chief exponents of this

theory are Brierly, fisher etc. Brierly has remarked;

“The granting or recognition to a new State is not a 'Constitutive' but a 'Declaratory'

act. A state may exist without being recognized and if it exists in fact, then whether or not, it

has been formally recognized by other States it has a right to be treated by them as a State.”

According to declarative theory, an entity's statehood is independent of its recognition by

other states. The declarative model was most famously expressed in the 1933 Montevideo

Convention and article 3 of the Convention declares that statehood is independent of

recognition by other states.68 According to this theory, the statehood or the authority of new

Government is not dependent on the consent of the existing state but is based on some prior

or existing fact.
67
Pauly, in: Diner and Stolleis (eds), Hans Kelsen and Carl Schmitt
68
Recognition of States and Governments in International Law' ([Link])

36
 In declaratory theory, recognition of a new State is a political act, which means it is

independent of the existence of the new State as a subject of international law. According the

followers of this theory, the recognition by the existing states is merely a formal

acknowledgement of the statehood and not the [Link] theory has been subject to

criticism as recognition is only declaratory of an existing fact isnot completely correct. In

fact when a state is recognized, there ensure some legal effects of recognition which may be

said to be constitutive in nature.

2.4. Legal Process and Effect of State Recognition.

A decision to recognize a new State generally includes the recognition of government,

69
but generally, recognition of a government is different from recognition of a State.

There are two modes of recognition: De facto Recognition and De jure Recognition. De

facto Recognition is subject to fulfillment of all the attributes of statehood of recognition to a

new state which has acquired sufficient territory and control over the same, but the

recognizing states considers it not stable. Withdrawal of de facto recognition is possible

under international law only on the ground that if the recognized state has been failed to

fulfill the pre requisite condition for statehood. In such a case the recognizing state may

withdraw from the recognition by communicating a declaration to the authorities of

recognized stated or by a public statement. De jure Recognition is the grant of recognition to

a new born state by an existing state, when it considers that such new born state has attained

all the attributes of statehood with stability and permanency. According to the strict letters of

international law and by the virtue of some conventions in this behalf, it is evident that the

withdrawal of de jure recognition is not valid in any case. Only those de jure recognitions

may be withdrawn where a state subsequently loses any essential of statehood. In such a case

69
C Warbick; States and Recognition in International Law 2003

37
the state withdrawing from recognition shall send his express intention to the concerned

authority issue a public statement to that extent.

Sometimes it is possible to withdraw a granted recognition. Especially, it is easier for the

de facto recognition since the position is different with the de facto recognition which

includes an ambiguity for the future of the entity. If the government of the entity loses the

effective control on its territory there will be no ground for recognition and it may be taken

back. On the other hand de jure recognition is more difficult to withdraw because as

mentioned above it is stronger than de facto recognition. De jure recognition may be the case

only if the State is annexed or conquered by another State.

Non-recognition can also be present which states that recognition will not be grated to a

state or government which does not meet the requirements of “Recognition”. Even where

those requirements are satisfied, states may nevertheless not grant recognition. For example,

when the non-recognising state regards the grant of recognition as entirely a matter of policy

or where to grant it will be inconsistent with particular international obligations binding on

the non-recognising state. It can be also withheld where a new situation originates in an act

contrary to general international law.70

The doctrine of non- recognition, also known as the Stimson Doctrine of non-

recognition, means to not grant recognition to the new entities or the some factual positions

which are the result of any illegal actions such as using force. 71 It supported the principle that

legal rights cannot obtain from an illegal situation.-“ex injuria jus non oritur”. The principle

“ex injuria jus non oritur” illegality of an act and any consequential invalidity of its results

may be wholly or partially cured by an individual or collective act of other states who, by an

express act of recognition, may henceforth treat as valid the new situation, notwithstanding

the initial illegality of the act on which it is based.

70
On the doctrine of non-recognition see Hill, Recent Policies of Non-recognition Conciliation Pamphlet, 1933)
71
Verma, S. K. ― An Introduction to Public International Law, PHI Learning 2004

38
Legal Effects Of Recognition

Recognition is essentially a political act, it is one that entails important legal consequences.

Recognition involves legal effects both in the international level and in the domestic level. If

an entity is recognized as a State, it will be entitled to rights and subjected to duties that

would not be relevant otherwise, and it will enjoy privileges and immunities of a foreign

State before the national courts of other States, which would not be allowed to other entities.

International effects of recognition:

Apart of all the theoretical arguments involving the constitutive and declaratory theories,

it is accepted that recognition of a State or government is a legal acknowledgement of factual

situations. Recognition entails the recognized State the enjoyment of rights and the

subjecting to duties prescribed in International Law for States. Recognition of a State by

another State does not lead to any obligation to establish diplomatic relations or any other

specific links between them, nor does the termination of diplomatic relations automatically

lead to withdrawal of recognition as they remain a matter of political discretion.

It should not be assumed that non-recognition of a State or government would deprive

that entity rights and duties under International law. It is well established in International

Law that the political existence of a State is independent of recognition by other States, and

thus an unrecognized State must be deemed subject to the rules of International Law.

Unrecognized State is entitled to enjoy certain rights and be subject to many duties: It has

the rights to defend its integrity and independence, to provide for its conservation and

39
prosperity and consequently to organize itself as it sees fit. The exercise of these rights by

unrecognized State has no other limitation than the exercise of the rights of other States

according to International Law.

Moreover, unrecognized State is subject to most of the rules of International Law, such

as those related to the law of wars, and is bound by its agreements. Non-recognition, with its

consequent absence of diplomatic relations, may affect the unrecognized State in asserting its

rights against unrecognizing States, or before their national courts. However, non-

recognition will not affect the existence of such rights, nor its duties, under International

Law.

Internal Effects of Recognition:

Recognition entails the recognized State the rights to enjoy privileges and immunities of a

foreign State before the national courts, which would not be allowed to other entities.

However, because recognition is essentially a political act reserved to the executive branch

of government, the judiciary branch must accept the discretion of the executive branch and

give effect to its decisions.

The national courts can only;

1. Accept and enforce the legal consequences that flow from the act of recognition.

2. They can accept the rights of a foreign government to sue, to be granted immunities

or to claim other rights of a governmental nature.

3. They can give effect to the legislative and executive acts of the recognized State.

In the case of non-recognition, national courts will not accept such rights. In this

context, recognition is constitutive, because the act of recognition itself creates the legal

effects within the domestic jurisdiction of a State.

40
 CHAPTER THREE

STATE RECOGNITION AND POSIION OF LAW

3.1. State Recognition and Treaties: Examining and Exploring the Legal

Foundations

The question of what constitutes an act of recognition is a matter of great practical

importance in determining whether, in a given situation, recognition has been accorded. Hall

thinks that any act which clearly indicates intention may be regarded as recognition . Since it

is generally agreed that recognition may be implied as well as expressed 72, such a test is

insufficient because it is precisely the question of knowing whether in a particular case a

certain act is or is not indicative of the intention. In order that an act may be a sufficient

72
Montevideo Convention, 1933, Article 7. Oppenheim, vol. 1.

41
indication of the intention to recognise, there must be something inherent in the act itself

which warrants such an inference. When it can be established that certain acts are of this

character, the mere fact that any such act has been done would justify the conclusion that

recognition has been intended. It would not be necessary to inquire whether in so acting the

intention was actually present in the mind of the actor, or whether he expected or desired

such an inference to be drawn.

The contrary argument is possible only if it be maintained that no act can be deemed to

be an act of recognition which is not expressed in words. No writer has insisted upon such a

narrow interpretation. Professor Lauterpacht, who is opposed to implied recognition,

nevertheless regards as exceptions such acts as the conclusion of a general bilateral treaty, the

formal establishment of diplomatic relations and the issuance of consular exequaturs (and, in

the case of belligerency, a proclamation of neutrality or some such unequivocal act). 73 These

acts have been sanctioned by long practice as reliable indications of recognition.

A State not wishing to recognise another is free to refrain from doing any of these acts;

but it would be self-contradictory, while doing the act, to deny that recognition is intended.

As we have pointed out, the notion of implied recognition is based upon the assumption that

there are certain characteristics in certain classes of acts which impel the implication of

recognition.

But what are these characteristics? It is the purpose of this chapter to discover these

characteristics, and, in the light of the finding, to determine whether various acts imply

recognition. The notion of implied recognition creates some logical difficulties for the

constitutive theory. If recognition may be achieved by an act not intended by the recognising

State, it would mean that the latter may find itself burdened with international obligations

without its consent. Moreover, certain acts imply recognition because they presuppose the
73

42
existence of the body recognised. It would be strange logic to argue that that existence can be

created by an act which presupposes it

To declaratory writers, the notion of implied recognition gives rise to no special difficulty.

To them, recognition is the intimation of a State's readiness to enter into full and formal

political relations with another, and, at the same time, serves as evidence of the latter's

existence. As a State is free to enter into various degrees of relations with other States, it may

consider any such relations short of full political relations as not amounting to recognition,

although it need not deny the existence of the other party as a State or government.

This explains why it is possible for States to argue that, in spite of having entered into

relations with a new entity strongly evidential of the latter's existence, no recognition has

thereby been accorded. There is no contradiction on the part of a State to conduct itself upon

the assumption of the existence of another, while denying it recognition. The invitation to

enter into formal political relations is naturally subject to and dependent upon the intention of

the recognising State, but such an intention may be presumed in cases where the recognising

State enters forthwith into the relation contemplated, such as the exchange of diplomatic

representatives or the conclusion of bipartite treaties. The act in question has done what an

express act of recognition would have intended to do.

There are kinds of acts may be regarded as modes of recognition, the test being whether

the intention to enter into political relations is inherent in the acts themselves. They are:

Express declaration; entering into bilateral treaties; accrediting and receiving of diplomatic

representatives; request and issuance of consular exequaturs; participation in international

conferences, multilateral treaties, and international organisations..

Express Declarations:

43
 An express announcement of recognition is definitive and conclusive, and removes all

doubts as to the relation in which the recognising State stands towards the recognised power.

Express recognition may be accomplished by direct communication to the recognised

power,74 or by public announcement by the recognising State,75 or a notification to a third

State by the recognising State,76 or by agreement between two or more recognising States.

The express form of recognition makes for clarity, and brings the fact within the knowledge

of the general public.

Express recognition is often preferred by the recognised power as being more reassuring.

Canning, however, thought that implied recognition is ' better calculated for the advantage

and dignity of the State to be recognised10 The true reason for this preference is probably

that it is less conspicuous, and therefore less likely to offend the susceptibilities of the parent

or other States.

Bilateral Treaties

It is generally agreed that the conclusion of bilateral treaties constitutes recognition. 77 Sir

William Scott held in The Helena (1801) that the Bey of Algiers must be regarded as a

sovereign on account of his treaty relations with Great Britain.. In 1822, the United States

contended that Spain had accorded recognition to her American Colonies by concluding with

them 'treaties equivalent to an acknowledgement of independence'.

The International Association of the Congo was recognised by the majority of Powers by

the conclusion of conventions. The Turkish Republican Government was recognised by the

74
See identic notes of the British, French and German representatives to the Roumanian Government,
February 20, 1880; British note to Poland, February 26, 1919; Soviet Union's communique to the Republic of
Tuva (Taracouzio, The Soviet Union and International Law, 1935) United States recognition of Albania, 1922,
Bulgaria, 1909, Egypt, 1922, Finland and Poland, 1919.
75
The United States recognised the International Association of the Congo by the declaration of April 22, 1884
(Moore, Digest, vol. I)
76
Recognition of Iceland by Denmark, 1918 (Hackworth, vol. I)
77
Hershey, Essentials of International Law and Organisation, 1927

44
United States by the signing of the treaties of August 6, 1923. The recognition of the Soviet

Government by many States was also achieved by means of bilateral conventions 78. There

have been numerous cases in which States, although they have entered into agreements with

new entities, have, nevertheless, insisted that no recognition had been accorded. The

difficulty of a constitutivist explanation is obvious, and has been frankly admitted by

Professor Lauterpacht. His defence is that, in the absence of general recognition, a new entity

may be per- mitted to enjoy rights ' to the extent to which they are conceded by other States .

Therefore, he maintains, the existing State or States, by entering into agreements with the

new entity, admit its treaty-making capacity while refusing recognition for any other purpose.

This would mean that there can be an intermediate situation between the total absence of

personality because of non recognition and the total enjoyment of capacity in consequence of

recognition. It is not clear how such an argument can be brought into harmony with the

constitutive theory. The declaratory theory is fortunately spared this dilemma. Inasmuch as

recognition is regarded as an invitation to enter into political relations, there is no

inconsistency in. denying recognition, while entering into treaty engagements with the new

entity.79 The conclusion of treaties would imply recognition only when it implies, or

necessitates, or is actually implemented by the estab- lishment of political relations. In other

words, very much depends upon the character of the treaty in question and the circumstances

under which it is concluded.

As the term ' treaty ' is here used in its generic sense, it includes all forms of international

contractual relations. The more formal the agreement, the greater the presumption of

recognition to which it would give rise. In 1865 Bismarck discreetly tried to avoid the

78
Great Britain, Trade Agreement, March- 16, 1921; Persia, Treaty of February 26, 1921; Germany, Treaty of
April 16, 1922; Turkey, Treaty of March 16, 1921); Italy, Treaty of February 7, 1924.
79
See Hudson, Recognition and Multilateral Treaties, 23, A.J.I.L., 1929.

45
consequence of recognising Italy by insisting upon signing a protocol instead of a treaty with

her.

Exchange of Diplomatic Representatives:

That the exchange of diplomatic representatives constitutes recognition is in principle open

to less dispute than any other form of implied recognition. As evidence of the existence of

the power recognised, it is irrefutable. There cannot be an exchange of diplomatic

representatives with a foreign State without presuming its existence. As an expression of the

intention to nter into political relations, the presumption is obviously similarly absolute.

There seemed to be some confusion on the part of the United States regarding its position

with respect to Afghanistan in 1921. On July 26, 1921, an Afghan Mission was received by

the President of the United States who, however, intimated that the creation of a diplomatic

mission must be delayed. In these circumstances the State Department was uncertain whether

recognition had taken [Link] confusion probably arose from the mistaken view that the

recognition had been nullified by the subsequent failure to send a diplomatic mission.

Perhaps the view that the exchange of diplomatic representatives is an absolute indication of

recognition does not entirely apply in the case of India. India entered into international

relations with other powers after the signing of the Versailles Treaty.

Consuls and Exequaturs :

The office of a consul being local and non-political, 80the appointment of a consul by a

State to reside in a territory under the control of an unrecognised regime, or the acquiescence

by a State of an agent of an unrecognised regime to perform consular functions within the

territories of that State does not necessarily involve recognition..This applies equally to

situations where the unrecognised regime is still an insurgent [Link] American law

80
Stuart, American Diplomatic and Consular Practice, 1936.

46
expressly provides for the performance of consular functions by agents of ' Government,

factions or body of insurgents within a country with which the United States is at peace,

which Government, faction or body of insurgents may or may not have been recognised by

the United States as a Government '.

There is, however, a divergence of view as to the question whether the request of consular

exequaturs from an unrecognised regime or the grant of consular exequaturs to appointees of

such a regime constitutes recognition. Moore thinks that the act of soliciting for or receiving

from the government of a certain country an exequatur for a consular officer at a particular

place ' is not a conclusive recognition of such country's sovereignty over the place in question

'. On the other hand, the request by one government to another to treat its officials in a

manner prescribed by international law, or the assurance given to treat them in such a

manner, inevitably involves an undertaking to deal with each other in a friendly way. A

consular officer operating without exequatur, operates only by the sufferance of the territorial

authority, and not strictly according to legal right. 49 It is only after the granting of an

exequatur that a State becomes legally bound by any inter- national duties with respect to

consuls.

International Conferences, Multilateral Treaties, and International Organisations.

The participation of States in international conferences, multilateral treaties and

international organisations may be regarded as three successive stages in the integration of

international society. The bonds between participating States become stronger as they

advance from the first stage to the third. This degree of intimacy bears direct relationship

with the presumption of recognition.

International Conferences:

47
 Participation in an international conference is to a multilateral treaty what negotiation is to

a bilateral treaty. If the mere entering into negotiations for a bilateral treaty does not

constitute recognition, for the same reason, participation in international conferences may not

be considered as constituting recognition. A different view seems to be held by some writers.

Fauchille, for instance, maintains that the independence of the Congo was recognised by ' son

admission a la discussion et au vote de I'acte general de la conference de Berlin, fevrier 1885.

Temperley adopts the date of participation in the Peace Conference as the date of the

recognition of Poland, the Serb-Croat-Slovene State and Czechoslovakia. 81 But neither of

these writers is very firm in his view. Fauchille does not seem to consider the admission into

discussion as alone sufficient to indicate recognition. The participation by the Congo in the

General Act really amounted to the signing of a multilateral treaty which may be regarded as

constituting recognition. Temperley, too, is not definite. He is not at all indisposed to accept

other dates, such as the dates of individual acts of States or the date of the signing of the

Treaty of June 28, 1919, as possible alternatives.

As a matter of theory, there is no reason why co-participation in an international

conference should imply recognitionIt may raise some difficulty, perhaps, from the

constitutivist point of view, since to admit the representative capacity of the agent is hardly

compatible with the denial of the existence of the principal. Even so, this consideration need

not have arisen in the case of conferences of a technical or economic nature, in which

participants need not be sovereign States in the strict sense of the word. From the point of

view of the declaratory theory, participation in an international conference is at most a

preliminary step in exploring the possibilities of closer relations. It cannot itself be conclusive

as an invitation to enter into such relations. Therefore no recognition can be implied in the

81
Temperley, History of the Peace Conference of Paris, 1920, vol. 5.

48
mere participation by unrecognised powers in international conferences. The fear of the

implication would needlessly impair the usefulness of the conferences.

While reservations by non-recognising States participating in international conferences

may often seem tautologous, it would be justifiable, however, for them to prevent

unrecognised bodies from being included in a conference or to abstain from participating in it

themselves, if that unrecognised body had objectively no existence as a State, or if it proved

exceedingly distasteful.82 The object is not so much to prevent the implication of recognition,

as to protest against being ranged with non-sovereign bodies or to show undisguised

displeasure towards the unrecognised body.

Multilateral Treaties:

Participation in multilateral treaties may assume either of the two forms: signature or

adherence. It is believed that the simultaneous signing of a treaty gives rise to a stronger

presumption of recognition than the subsequent adherence to it .ln the question of adherence,

a distinction must be drawn between open and closed conventions. Adherence to open

conventions is entirely beyond the control of other participating States. It is unfair to assume

that recognition can be effected by an unrecognised body through its own unilateral action

A depository State is bound to receive impartially the adherence of actual States

unrecognised by it. But it would probably be within its rights to reject the adherence of a

body with no semblance of statehood. This interpretation must be placed upon the

recommendations of the Advisory Committee of the League of Nations on June 3, 1933, in

which it was suggested that the depository States for open conventions should consult the

contracting parties whether to accept the adherence of ' Manchukuo ', and that the Secretary-

82
Goodrich and Hambro, Charter of the United Nations, 1949; Kelsen, Law of the United Nations, 1950.

49
General of the League could not accept any accession from ' Manchukuo ' to conventions

concluded under the auspices of the League.

How far, then, does simultaneous signing of a multilateral treaty imply recognition? To

answer this question distinctions must be drawn between political and non-political treaties,

between treaties requiring and those not requiring positive governmental cooperation, and

between treaties signed with and without reservations^ In modern times numerous

multilateral treaties dealing with cultural, economic and technical matters have been

concluded in which the sovereign aspect of the signatories is insignificant. Parties to such a

treaty need not be States, and States not recognising each other need feel no embarrassment

in signing the same document.83

International Organisations:

International organisations are, in general, the outcome of international treaties that is,

treaties of a special kind which create, not contractual, but corporate relations among

signatories. They are usually closed conventions, adherence being only by the consent of

existing signatories. Like multilateral treaties, inter- national organisations may be non-

political, in which case, political independence may not be a requisite qualification for

membership.

Whether admission to the League amounted to recognition is a controversy which cannot

be terminated by the extinction of the organisation. It promises to revive whenever a new

inter- national organisation is to be set up. From a strictly formal point of view, this question

need not have arisen at all under the Covenant. By a literal interpretation of Article 1 (2) of

the Covenant, a community might have been admitted to the League which did not possess

83
Colombia signed with Panama, whom she did not recognise, the Convention on Literary and Artistic
Copyright, August 11, 1910 (Treaties, vol. 3), the Convention on Inventions, Patents, Designs and Industrial
Models, August 20, 1910, and the Convention on Protection of Trade Marks, August 20, 1910

50
political sovereignty, so long as it answered to the description of ' fully self-governing State,

dominion or colony '.

Collective Recognition :

As the decision to establish political relations with a new regime is primarily a matter of

individual choice, recognition, in the sense of expressing the intention to enter into such

relations, would not, in principle, require collectivity of action. Yet, in view of the fact that

States often accord treatment to new entities, not by the criterion of actual existence, but by

that of recognition, and in order that the fact of existence may be fairly judged, unprejudiced

by selfish considerations of policy, it is highly desirable that recognition be effected through

collective action." Collective recognition may take the form of an express declaration by the

recognising States, an express stipulation in a treaty between recognising States,or the

admission of the new body to participate in international treaties. Recognition after

consultation among recognising States may be considered as collective in substance, if not in

form.

International Instruments for State Recognition

The Montevideo Convention on the Right and Duties of States is a treaty signed at

Montevideo, Uruguay on December 26, 1933 during the Seventh International Conference of

American States. This Convention codifies the Declarative theory of Statehood as accepted as

part of customary international law. It has been the basic instrument which clearly provides

criteria upon which other states may use to recognize a new state and it requires a new state

to have the following characteristics before it can qualify to be recognized by other states: a

permanent population, a defined Territory, a government and the capacity to enter into

relations with other states

51
 The constitutive theory, as commonly propounded, culminates in two assertions: the first

is that, prior to recognition, the community in question possesses neither the rights nor the

obligations which international law associates with full statehood; the second is that

recognition is a matter of absolute political discretion as distinguished from a legal duty owed

to the community concerned.

Some legal commentators suggest that a combination of both of these parameters can

result in an entity becoming a state. This makes sense, considering that a Montevideo only

approach would delegitimize many present-day states.

According to J.G. Starke, the requirement for the ability to establish relations with other

countries, is the most important in terms of international law. The ability to establish relations

with other countries distinguishes the country from smaller units such as members of a

federation or pro-directorate who do not handle their own foreign affairs themselves and are

not recognized as fully independent members of the international community 84. The ability to

interact with other countries independently, is related to independence and sovereignty. With

independence means a free country to conduct international relations with any country,

without having to consult with other countries. The existence of sovereignty means that the

state is free in carrying out its internal and external activities. In essence the ability to

establish relations with other countries is a manifestation of sovereignty85.

The 1933 Montevideo Convention did not explicitly formulate this element with the term

"sovereignty", intended to emphasize the external side of that sovereignty. This is important

because international law views and emphasizes the existence of a state only in terms of its

external nature, without interfering with problems in the country (internal side of

84
J.G. Starke; Introduction To International Law; London, Butterworths, 1984.
85
Sefriani, Role of International Law in Temporary International Relations 2016.

52
sovereignty). International law does not regulate the internal affairs of countries, but

acknowledges the right of every country to regulate it86.

Thus the formula put forward by Hans Kelsen does not conflict with the formulation of the

1933 Montevideo Convention relating to the element of the ability to establish relations with

other countries. According to Hans Kelsen, the government that is capable of establishing

relations with other countries “must not be legally under the influence of the government of

another state”. Because if the government is legally under the supervision or influence of

another country, then the government does not have freedom of freedom to make relations

with other countries.

One important problem that arises in practice relating to the requirements for the ability to

relate to other countries is the parameter to be able to say, and who has the right to give an

assessment of whether an entity is capable or not. This problem in its development is often

interpreted as "confession". The state needs recognition to be said to be capable of

international relations87. Therefore, recognition is often referred to as the condition for the

existence of a State. This requirement raises problems both in international law and in

national law. "Recognition" is not a determining factor that the country exists and fulfills the

requirements demanded by international law, but is an important issue in international law 88.

Thus recognition is not a factor that helped establish the state, but only explained the

existence of a country in the international community.

For example, according to the highly significant development for the recognition of

Palestine as a state that the accession of the state of Palestine to the Geneva Conventions and

Protocols was formally accepted by Switzerland on 10 April 2014. To date, Palestine has
86
This is the application of the Principles of Non Intervention in International Law, which requires States not to
interfere in internal affairs of other countries.
87
Sefriani; An Introduction to International Law; Raja Grafindo Persada, Jakarta 2010
88
Recognition is not a determining factor for the existence of a country in International Law, but it is evidence
of the realization of the ability of the state to carry out international relations when becoming a member of
the international community, as desired by Article 1 of the Montevideo Convention 1933

53
been recognized as a state by more than 130 countries, and as mentioned above, in November

2012 was given non-member observer state status by the UN General Assembly. It also

fulfils at least three of the Montevideo criteria: it has a permanent population, a government

and the capacity to enter into relations with other states. While Palestine‘s government is not

in full effective control over the entirety of its territory, this is not a specific requirement of

the Montevideo criteria. Furthermore, other states such as the Democratic Republic of Congo

have fulfilled the criteria in spite of not having effective control over their territory at the time

of recognition, on the basis that they possess the right to self-determination.

By applying the accepted constitutive and declarative approaches to statehood recognition,

it appears uncontroversial to conclude that Palestine has the requisite features and widespread

support to be legitimately recognized as a state. The International Court of Justice has held in

the Genocide Convention case that it adheres to the declaratory view, in the sense that the

failure to maintain effective control over territory does not extinguish the legal entity in the

eyes of the United Nations.

Therefore, in more recent international practice, several additional criteria have been

identified as prerequisites for statehood. The recognition policy of many states and the

positions taken by contemporary jurists indicate that the traditional criteria for statehood are

being extended to include additional elements. Thus, for example, the recognition policy of

the European Community (now the European Union) with respect to the former republics of

Yugoslavia and the Soviet Union conditioned recognition not only on the satisfaction of the

traditional criteria for statehood, but on the fulfillment of a long list of other requirements.

Indeed, it has become accepted to investigate several other features of a putative state before

considering its eligibility for recognition.

54
 The additional contemporary criteria for statehood require that an entity seeking

recognition demonstrate that it has not been established as the result of illegality, that it is

willing and able to abide by international law, that it constitutes a viable entity, and that its

claim to statehood is compatible with the right to self-determination.

The position of the state as the main subject of international law requires the formulation

or regulation of basic and fundamental rights and obligations of countries. The formulation or

regulation regarding the basic rights and obligations of the state has become the material of

thought which always arises at international conferences conducted by international

organizations. Some of them were the formulations of the 1916 American Institute of

International Law which succeeded in deciding the Declaration of Rights and Duties of

Nations, which later became the material content of the 1933 Montevideo Convention on

State Rights and Obligations and the Draft Declaration on State Rights and Obligations

compiled by the United Nations International Law Commission in 1949. The draft final

declaration is still a design that the governments of the countries are still studying and have

not been generally accepted.

In general in carrying out international relations, the basic rights of the state as stated in

the Draft Declaration concerning State Rights and Obligations The State of 1949 was

accepted89. This Declaration states that every state has the right to independence and to

exercise freely without dictation by any other state, all its legal powers including its own

form of government. In this case the state adheres to and implements relations with one

another in the international community.

Regional instruments on State Recognition

89
S. Tasrif; International Law About Recognition in Theory and Practice; Abardin, Bandung; 1987

55
 A governmental structure that was exercising effective control of a state, irrespective of

the means it used to seize power, would enjoy legal standing in international fora. Likewise,

the democratic legitimacy of the government was not a prerequisite for the recognition of a

state, nor was it a condition for participation in an international organization, whether of

universal (UN) or regional character (European Community, Organization of African Unity).

The European Union, in the principal statement of its Badinter Committee, follows the

Montevideo Convention in its definition of a state: by having a territory, a population, and a

political authority. The committee also found that the existence of states was a question of

fact, while the recognition by other states was purely declaratory and not a determinative

factor of statehood. Switzerland, although not a member of the European Union, adheres to

the same principle, stating that "neither a political unit needs to be recognized to become a

state, nor does a state have the obligation to recognize another one. At the same time, neither

recognition is enough to create a state, nor does its absence abolish it."90

The Pact of the League of Arab States went even further by imposing an obligation to

recognize a state and hence its government, whether or not it was legitimate. According to

that 91instrument: ―every member state of the League shall respect the form of government

obtaining in the other states of the League, and shall recognize the form of government

obtaining as one of the rights of those states, and shall pledge itself not to take action tending

to change that form.‖

This approach has also been upheld by the International Court of Justice (ICJ) in the

Western

90
Switzerland's Ministry of Foreign Affairs, DFA, Directorate of International Law: "Recognition of States and
Governments," 2005
91
Article 8 of the Pact of the League of Arab States

56
Sahara Advisory Opinion of 1975, as well as in the 1986 case, Nicaragua v. United States.

In

Western Sahara, the ICJ emphasized that: no rule of international law, in the view of the

Court, requires the structure of a state to follow any particular pattern, as is evident from the

diversity of the forms of state found in the world today‖. UN Secretary-General Boutros

Boutros-Ghali stressed that democratic legitimacy of a regime and respect for democratic

principles are a prerequisite for active participation in the organs of an international

organization 92

Domestic Instruments on State Recognition

The 1999 Constitution, as domestic instrument also provides for recognition and

enforcement of international treaties to which Nigeria is a party 93. This signifies that Nigeria

as a state recognizes the existence of states that are members to United Nations,

Commonwealths of Nations and such other countries with which it enters any multilateral or

by-lateral agreements.

3.2. The Position and Pronouncements of State Recognition under Municipal Law

Municipal law is a national, domestic or internal law of a sovereign state. It is confined to

the internal matters of the state. Municipal law includes many levels of law not only national

law but also state, provincial, territorial, regional or local law.

92
UN Doc. A/51/761 (1996) ;see also, Art. 7 Treaty on the European Union; Art. 25 African Charter on
Democracy, Elections and Governance; Art. 45 ECOWAS Protocol on Democracy and Good Governance.
93
Section 12 of the 1999 Constitution of the Federal Republic of Nigeria, 2011 as amended.

57
 The foregoing considerations explain also why no improvement of the present position

can be expected from transferring the function of recognition to municipal courts as

distinguished from the executive organs of the State. Moreover, the possibility must be

envisioned of different tribunals of the same State reaching different conclusions as to the

existence of the requirements of statehood in any given case. In addition, the chance would

still remain of the courts of various countries arriving at different views on the matter.

It is appropriate to consider the criticism which has been levelled against two principles

one of a procedural, and the other of a substantive nature obtaining in Great Britain and in the

United States, as well as in other States in the matter of recognition.

The procedural rule of unchallenged authority is that in the matter of recognition as on

other questions relating to foreign affairs, the position taken up by the executive department

of government is of decisive weight. The question whether a foreign community exists as a

State in the contemplation of international law is answered by the courts in strict reliance

upon the statement of the Executive informing the court whether and to what extent

recognition has been granted. The practical justification of that procedural principle is that it

would be inconvenient for the State and its neighbors if its various organs were to assume

different positions in the matter of its external relations 94. It is proper that courts should act on

the information of the Executive for the reason that the latter in reaching a decision on the

question of recognition does not act arbitrarily. In granting recognition of statehood the

Executive is supposed to act on the applicable principles of international law. This is one of

the frequent cases in which the executive organs are entrusted with quasi-judicial functions of

administering law. The fact that the Executive is presumed to proceed in accordance with

international law on this matter of recognition ought to free the decisions of courts of any

94
For a clear statement of both practice and principle as applied by British courts, see McNair, Judicial
Recognition of State and Governments, and the Immunity of Public Ships (1921) BRiTisH YEAR BOOK OF
INTERNATIONAL LAw

58
reproach of artificiality or opportunism. It is a sound and convenient principle that in some

matters pertaining to relations with foreign States the rules of international law should be

applied by the Executive and not by the courts. Recognition is one of them. This being so, it

is difficult to assent to the view that the existing rule is open to objection95.

The fact that as a rule the decision of the executive department is and is presumed to be in

accordance with international law explains the second, substantive, principle which governs

the attitude of courts in the matter of recognition. That principle is that in the absence of

recognition the community in question and the acts of its authorities are legally nonexistent.

It is a principle the soundness of which is self-evident so long as the decision as to

recognition is a decision in conformity with international law, that is, one which does not

arbitrarily ignore the legally relevant facts of the situation. It would be improper and

unreasonable if courts were to treat as States communities which are not States and the fact

that they are not States being evidenced by the circumstance that recognition has been refused

to them by an organ which does not act arbitrarily, but which conscientiously takes into

consideration the relevant facts in conformity with international law. The rule on which

courts act in this matter would be open to criticism if the governments in granting or refusing

recognition claimed or were entitled to act without reference to legal principle. Since legal

principle does control, however, it is proper and inevitable that what the executive authority

has declared to be nonexistent should be so treated by courts.

Adherents of the declaratory view of recognition have occasionally attempted to show that

courts admit the validity of the acts of State authorities prior to recognition. Actually, the

courts of practically all countries refuse to recognize the validity of the acts of unrecognized

95
In Duff Development Co. v. The Government of Kelantan, [1924 )A. C. 797, 826, Lord Sumner described the
principle that in these matters "the Courts of the King should act in unison with the Government of the King"
as being "rather a maxim of policy than a rule."

59
States in the same way as they have refused to recognize the judicial and legislative measures

of unrecognized governments.

The uniform practice of courts in this matter has been subject to two exceptions only, both

of them more apparent than real. In the first instance, courts have on occasion given effect to

the judicial or legislative acts of an unrecognized State or of an unrecognized government

when considerations of equity, convenience, and fair dealing required that account should be

taken of the acts in question. It appears clearly from the pronouncements of courts that in

these cases there was no question of acknowledging the validity of the legal acts of a foreign

authority in the same way as effect is given to foreign legislation in conformity with the rules

of private international law. Rather was it a question of treating such legislation merely as a

fact the disregard of which in relation to private parties would be contrary to equity and

common sense.

3.3. The Telos of State Recognition under International Law

60
 Recognition is a complex process in which countries can carry out their policies in various

ways. Generally it is recognized that recognition is one of the most confusing problems in

international law. According to [Link]; "Recognition of the intention to enter into

diplomatic and commercial relations"96.

J.G. Starke defines recognition "free action by one or more countries to recognize the

existence of a certain region inhabited by a human society that is politically organized, not

bound to a state that already exists and is able to carry out obligations under international

law, and with this action (countries which acknowledging) expressing the desire to view the

region as a member of the international community " 97 Recognition is a political act in which

the state that acknowledges shows its willingness to recognize a situation of fact and accept

the legal consequences of that recognition98.

Taking from these definitions, a number of main points can be stated as follows: (a) the act

of giving or refusing to recognize is essentially a political action and each country determines

according to its assessment of the existence of the state to be recognized; (b) the element

which gives an important role in giving or refusing to give recognition is the conditions for

the establishment of a country in accordance with the Montevideo Convention 1933; (c) with

the recognition of countries is a sign of the entry of a country as a member of the

international community; (d) with the recognition of a new chapter in trade diplomatic

relations and others between the new state and the state that acknowledged it began.

Recognition is important, because it relates to the status of the new State related to the ability

to conduct international relations99.

96
B.R. Agrawala; International Law And The Status of Unrecognized States; American Journal of International
Law 1979.
97
J.G. Starke, Supra, note 1
98
Boer Mauna; International Law, Definition, Role and Function in the Global Dynamics Era ; Alumni, Bandung
2003.
99
Rebecca M.M. Wallace; International Law; Sweet and Maxwell, London 1992.

61
 The purpose in international law is to ensure a new country can occupy a reasonable

place as an independent and sovereign political organism in the midst of the nation's family.

The recognition of new countries will be able to safely and perfectly establish relations with

other countries, without worrying that their position as a political entity will be disrupted by

existing countries. Recognition of a new state is an acknowledgment that a unit born, is

recognized after fulfilling the requirements set by international law as a state, so that it is

recognized as a legal person in the international community with all rights and obligations

determined by international law100

Legal Consequences of Recognition

Recognition is a unilateral act of a State and one that has international legal consequences,

for instance where State grant recognition to an entity, it accepts that they will have relations

subject to international law on basis of State. In practice, like claimed by declaratory theory,

the political existence of a State is not bound to the recognition of other States, therefore an

unrecognized State has to act comply with the international law rules. It means that, when the

States sign an international agreement which is signed by a State they have not recognized,

they will have the right to ask from that state to fulfill the responsibilities grow out of the

agreement.

After recognition, the recognizing States would respect to the rights of the new State

which indicated in the International Law Commission Draft Declaration on Rights and Duties

of States, 1949, such as: right to independence and hence to exercise freely, right to exercise

jurisdiction over its territory and over all persons, right to equality in law with every other

State, right of individual or collective self-defense against armed attack. The participation in

the international process is not the only result of recognition, at the same time the recognized

100
Ibid 14

62
State will be able to enjoy usual legal consequences of recognition such as privileges and

immunities within the domestic legal order.

3.4. Issues and Challenges of State recognition under International law

Issues were raised such as whether before anew state can be recognized it has to fulfill the

set criteria as contained in the Montevideo convention, rules of customary international law

or states practice. Other issues of recognition of States has been identified with the

controversy between the rival doctrines of the declaratory and the constitutive character of

recognition. The opposition of these two doctrines has for a long time dominated discussion

on the subject. Both theories have denied that recognition is a matter of legal duty in relation

to the community which claims it.

The constitutive theory, as commonly propounded, culminates in two assertions. The first

is that prior to recognition the community in question possesses neither the rights nor the

obligations which international law associates with full statehood; the second is that

recognition is a matter of absolute political discretion as distinguished from a legal duty owed

to the community concerned. These two assertions, it will be shown, are not inconsistent. The

theory of the declaratory nature of recognition fully accepts the view of its rival that there

does not exist in any circumstances a legal duty to grant recognition. At the same time, with

an obvious lack of consistency, it maintains that prior to recognition the nascent community

exists as a State and is entitled to many of the most important attributes of statehood. This

means, upon analysis, that the newcomer is entitled as a matter of legal right to claim what

are usually regarded as the normal legal consequences of recognition, but that it is not entitled

to claim recognition as such.

63
 The apparent logical difficulty has been thought to be met by dint of the assertion which is

contrary to the practice of governments and of courts that the only meaning of recognition is

a political declaration of willingness to enter into normal diplomatic relations. This

questionable solution has been regarded as preferable to accepting the main tenet of the

constitutive doctrine according to which a purely discretionary political act of recognition is

creative of substantive rights indeed, of the very existence of statehood. The denial of the

legal nature of recognition, that is, the denial of the existence of a duty to recognize and of a

right to recognition, notwithstanding the presence of requisite factual conditions, is grounded

in the same attitude which has brought into being the orthodox constitutive doctrine. It is the

attitude congenial to the type of positivism current in the literature of international law.

If, in conformity with positivist teaching, the will of the State is the sole source of its

obligations, then it is impossible to concede that the existing States can have new duties

thrust upon them as the result of the emergence of a politically organized community which

they are henceforth bound to recognize as a State. It would have been natural for those

adhering to the declaratory doctrine to feel no hesitation in accepting the view of recognition

as a juridical act performed in the fulfillment of a legal duty. For there is but one step which

is certainly not a revolutionary one-between maintaining that an act is merely declaratory of a

fact of primary importance in the life of a nation and treating that act as one of legal duty.

However, such is the lure of respectability, which has attached to the positivist creed, that

most of those holding the declaratory view have felt it incumbent upon them to join the

opposing doctrine in denying the legal nature of the act of recognition and in finding in such

denial the hallmark of positivist orthodoxy.

CHAPTER FOUR

STATE RECOGNITION THROUGH CASES

64
 4.1. Palestine - Isreal conflict.

Israel is a recognized state and has UN membership, but at present Palestine officially

remains an occupied, stateless nation. It is however in a unique position within the UN.

While not a member state, it has permanent observer status, but unlike other observers it has

been allowed six places for delegates at the General Assembly (usually observers have only

two). In addition, despite membership to UNESCO usually being reserved for member states

only, Palestine has had its application for membership in principle to UNESCO approved.

And, as of December 2011, 128 of the 193 UN member states have formally recognized the

state of Palestine‘. In September 2011 Palestine made an application to become a member

state of the UN, but membership requires a two thirds majority with no veto from any of the

permanent five members.

The Israel-Palestine conflict is one of the longest in the world. The dispute is between two

distinct movements: Jewish Zionism and Palestinian nationalism, both parties claiming the

same territory. The roots of the hostility run deep, manifesting beyond national

considerations, ideology and religion, as an Israeli-Arab conflict as well as a Jewish-Islam

clash101. In conclusion, the Israeli ‘beacon of democracy’102 is darkening.

Jewish persecution in Europe during the early 20th century caused the United Nations (UN)

to create a Jewish national homeland in 1948 by partitioning Palestine to create a Jewish and

Arab state; The State of Israel led by Ben-Gurion in the Arab-Israeli war, precipitated by the

Balfour Declaration (1917) and de-colonilisation within the British Empire (1947), Muslim

Arabs were displaced by Jewish returnees as the new country was established on their

101
Inbari, P 2018, On the roots of the Israeli-Palestinian conflict, Jewish Political Studies Review, Vol 28j
102
Clark Lombardi 2005 in Islam in Egypt’s new constitution

65
homeland. Unsurprisingly, several wars were provoked within the territory creating the

current border lines; outcomes of two wars that were waged in 1948 and 1967103.

Of particular import is the Six Day War of 1967. In May 1967, President Nasser of

Egypt pronounced the closure of the Straits of Tiran, a strategic seaway for Israeli access to
104
the Suez Canal , and proceeded to assemble forces along the Egypt/Israel border. In 1957

Israeli Foreign Minister, Golda Meir, had declared that any closure to Israeli shipping along

the Straits of Tiran would be a declaration of war. On 5 th June 1967, Israel attacked

Egyptian airfields, the subsequent conflict decimated Egyptian forces. Precipitated by the

Israeli/Egyptian Suez crisis conflict of 1957, Israel took control of the West Bank, Sinai

Peninsula and Gaza, each having large Palestinian populations.

Sources of conflict have been numerous with many discussions and disputes between the

Arab World, the United Nations (UN) and America ensuing. The Rabat conference in 1967

swore support for the Palestinians, along with the 1978 Camp David Accord; Menachem

Begin and Anwar Sadat agreeing on Israeli withdrawal from the Sinai Peninsula in return for

negotiations regarding the West Bank and Gaza.

In 1987, however, due to no solutions from Camp David being implemented and the

Palestinian Liberation Organisation (PLO) having accomplished nothing for the Palestinians,

the spontaneous First Intifada (uprising) commenced with Palestinian violence aimed at

Israel. The uprising re-shaped relations between Palestine and Israel, changed internal

Palestinian politics, and fundamentally revised the international perception of the

Palestinian-Israeli conflict. During the 1987 intifada, however, Hamas was established as an

alternative to the PLO and began its assault on Israel in 1989, with attacks on civilians and

military throughout the 1990s. It important to understand that frustration at the inertia of

Camp David laid the ground for the intifada. Consequently, the aim of the Madrid peace

103
Zack Beauchamp on “What are the two state solution and one state solution”2018
104
President Gamal Nasser decision making in 1967

66
conference in 1991 was to revive the Israel-Palestine peace process. Harms and Ferry

suggest that the symbolism of Madrid was more significant than its accomplishments,

although the bilateral negotiations between Palestine and Israel would lead to the Oslo

Accords105. The challenges up to this point are that international interventions, and third-

party support do little but pave the way for further talks while Palestinian frustration grows.

Although Camp David had set workable frameworks, nothing was implemented.

In August 1993 in Washington D.C., PLO chairman Yasser Arafat acknowledged

the State of Israel; likewise, Israeli prime minister, Yitzhak Rabin recognised the PLO as the

representative of the Palestinian people, a seemingly successful outcome of the first Oslo

Accord. Israel, however, was unenthusiastic about accepting full statehood for Palestinians

and a potential resolution, the two-state solution, was not discussed. The significant aspect

of the second Oslo Accord was the recognition of the Palestinian Council which provided

authority, and a degree of autonomy, for Palestine.

However, Rabin’s Knessett speech ratifying the Oslo peace accords, indicated that

Palestine would be “less than a state”, and will “independently run the lives of the

Palestinians under its authority”106, Rabin clearly indicated that the two-state solution was

not an option; Oslo promised a positive resolution, but the culmination fell short.

In July 2000, a Camp David summit was arranged by US President Bill Clinton, in an

attempt to build upon the Oslo Accords. The summit concluded with no agreement as the

interim process put in place had not satisfied the hopes of either Israel or Palestine. In late

September, the dissatisfaction of no outcome at Camp David, and the visit of Israeli

opposition leader Ariel Sharon to the Temple Mount, caused frustration to erupt into the

Second Intifada, which continued until February 2005 when Sharon and Palestinian

105
Gregory Harms and Todd M. Ferry in The Palestine-Israel conflict: A basic Introduction
106
Speech by Prime Minister Yitzhak Rabin to the Knesset

67
Authority President Mahmoud Abbas agreed to stop all acts of violence. This period began

the current stalemate that exists between the two factions.

Israel’s main concern was that giving up territory would result in more violence, while

Palestinians believed that Oslo simply brought more Israeli settlements and more occupation.

In September 2005, however, Sharon withdrew troops and uprooted Jewish settlements from

Gaza, closing the border and relieving the occupation. With the lack of a peace deal and

Israeli retention of border control, it could be considered that there was no negotiation,

simple unilateral action by Israel, which is in contradiction to peace talks.

With no agreement, there was no obligation that Abbas could enact. This was particularly

problematic with Hamas. It could be considered that Sharon had been more interested in

developing his relationship with President Bush than discussing terms with the Palestinians

and the 2005 withdrawal of troops took place with no commitment from the Palestinians. It

could also be argued that Sharon was expecting a violent continuation of the conflict after

the withdrawal should Hamas gain power in Gaza, and so set up the Palestinian cause to fail.

Hamas indeed won the election and proceeded to attack Israel with rockets. Clearly, any

trust was now eroded in any peace process as the concession of land did not bring a peaceful

outcome.

Currently, the West Bank is under Palestinian authority, but experiences Israeli

occupation with troops imposing restrictions on Palestinian activities 107. Continued

expansion of Jewish communities in the West Bank curtails Palestinian land ownership,

while Gaza is under the control of the Islamic fundamentalist group Hamas and subject to an

Israeli blockade, but not occupation.

There are two main suggestions to resolve the conflict in Israel. The first is the ‘two-

state’ solution which creates an independent state for Palestine in Gaza and the West Bank,

the frontiers to be the 1967, pre-Six Day War borders. The remaining territory would belong
107
Omar Shakir : Legitimate advocacy for human rights is being silenced 2019

68
to Israel While this is a rational and practical solution in principle, there is division between

the two sides as to how the administration would work in practice . The second proposal is

the ‘one-state’ solution, whereby the territory becomes either Israeli or Palestinian; Israeli

Jews and Palestinians would have equal rights with no national or religious identity. Given

the volatility of the relationship it is likely that this arrangement would create more conflict.

Demographic growth must be given consideration. The population of the region is

currently 60% Israeli to 40% Palestinian, but the Palestinian birth rate is growing at a faster
108
rate . Clearly this will create challenges within the population. The one-state solution,

however, is gaining ascendancy.

The Palestinians have splintered since 2006. Conflict still exists between the two major

parties: Fatah, traditionally the dominant party; and Hamas whose militaristic arm frequently

shows prominence. The differences now apparent between Hamas and Fatah make them

more hostile to each other than to Israel. The stalemate that exists re-enforces the lack of

confidence in a two-state solution. Despite many peace talks and brokered arrangements, the

gap between Palestine and Israel is as vast as ever. It seems neither Israel’s Benjamin

Netanyahu, nor Palestine’s Abbas believe either faction are serious about resolving their

differences, neither are they under pressure from their electorate to make a peace that the

people reject. Netanyahu’s conviction is that Jews should not compromise. Each side is

more uncertain of each other than in 1967.

Solutions to the conflict, would seem to be a two-state solution; two administrations over

the existing territory; a one state solution, a single territory which becomes either Israel or

Palestine, each with equal rights and no national or religious identity; or another possibility,

a bi-national state with each group retaining their national identity. The objections are clear.

The Palestinian position denies the existence of Israel and so a two-state position is

untenable. A one state solution with Palestinian and Jewish equality, the state being both
108
Horovitz D 2020; Two state solution: The worst and only way to solve Israel-Palestine conflict

69
Jewish and democratic (the hub of Israel’s aspiration), is not realistic. To reduce Palestinians

to second class citizens who do not hold full rights challenges Israel’s rhetoric that it is a

beacon of democracy in the Middle East. In contrast, acceptance that the State of Israel will

no longer be a Jewish state, denies the history which led to its creation. Hamas is willing to

accept a Palestinian state within the 1967 boundaries, but is still committed to the liberation

of all Palestine, meaning the end of Israel.

In summary, disappointment and disagreement have dogged peace talks for decades,

from Camp David to Oslo. Whether a two-state, one-state or bi-national solution has been

proffered, failed peace talks and the return of violence confirm the attitude that ‘the other

side’ are continually seeking confrontation. The ‘beacon of democracy’ in the Middle East is

dimming. Indeed, the suggestion of Israel being a ‘beacon of democracy’ as suggested by

Australian Prime Minister, Scott Morrison, is shown by Enterline and Greig to be a dubious

conjecture in that democracy is an aspect of regional prosperity, not chaos.

4.2. Kosovo case.

History Of Kosovo

Kosovo is the territory bearing overwhelming symbolic importance to the Serb nation and,

at the same time, it has certain historical significance for the Albanians. For the Serb people,

Kosovo is an inherent part of its identity because there are important Serb Orthodox

sanctuaries in the area of Kosovo and symbols of Serb nationhood. At the same time, the

70
Battle of the Kosovo Field (Kosovo Polje) in 1389, in which the Serbs were defeated by the

Turks, is still “the most celebrated battle in Serb history”. With regard to the significance of

the territory in question for the Albanians, it can be stated that Kosovo is the place where the

League of Prizren was established in 1878 which is considered to be a major contributing

factor to the revival of Albanian national consciousness.

The ethnic composition of Kosovo changed drastically after the migration of the Serbian

population in 1690 and 1739, as a consequence of unsuccessful rebellions against the Turks

in the aftermath of the wars fought109. But, despite the substantial increase of the Albanian

population in Kosovo, this territory did not become part of the Kingdom of Albania

established in 1913.549 Thus, after the Balkan Wars of 1912-13 Kosovo was annexed to

Serbia.550 It has to be noted that, during the Second World War, Kosovo became part of the

Albanian puppet state under Italian occupation. By the end of the World War II, the

communists under the leadership of Josip Broz Tito assumed power in Kosovo and the latter

was subjected to the military administration of Yugoslavia, the federal state based on the

principle of nationalities and founded in accordance with concepts elaborated at the second

meeting of the “Anti-fascist Council for Liberation of Yugoslavia” in Jajce, in 1943.

As a result of these developments, at the second conference of the National Liberation

Committee in 1945 in Prizren, Tito brought about the decision, according to which, Kosovo

became part of Serbia.

It was the Constitution of the Socialist Federal Republic of Yugoslavia of 21 February

1974, which boosted Kosovo’s status and equipped the territory with meaningful guarantees

in respect of its standing within the federal state. Kosovo was part of the Socialist Republic of

Serbia: “Article 1. The Socialist Federal Republic of Yugoslavia is a federal state having the

form of a state community of voluntarily united nations and their Socialist Republics, and of
109
H Brunborg 2002;On the report on the size and ethnic composition of population of Kosovo.

71
the Socialist Autonomous Provinces of Vojvodina and Kosovo, which are constituent parts of

the Socialist Republic of Serbia, It has to be noted that under the constitution of 1974,

Kosovo enjoyed a substantial degree of autonomy. This assertion concerning prerogatives

enjoyed by Kosovo under the 1974 constitution has been confirmed by Malešević: “From

1974 onwards Yugoslavia was a de facto confederal state. Serbia’s two provinces, Vojvodina

and Kosovo, were also given semi-state status.” 110

It has to be noted at this point that the Serbs were uneasy about the future of the territory

in question, as the privileges enjoyed by Kosovo and the latter creature, as such, represented

rather a headache for them. After some sporadic manifestations of violence which occurred in

Kosovo in 1981 as a result of a riot of ethnic Albanians, it was the year 1986 which marked

an extreme turn in the context of relations between the Serbs and the Kosovo Albanians.

Kosovo declared independence from Serbia on 17 February 2008. As David Miliband

noted in his Written Ministerial Statement of 19 February 2008, the declaration proclaims

Kosovo as a democratic, secular and multi-ethnic republic and states that its leaders will

promote the rights and participation of all communities in Kosovo. The Declaration also

contains a unilateral undertaking to implement in full the obligations contained in the

Comprehensive Proposal for the Kosovo Status Settlement (the Ahtisaari Plan) made by

Martti Ahtisaari, UN Special Envoy for Kosovo, in February 2007, including its extensive

minority safeguards. In the declaration Kosovo invited and welcomed an international

civilian presence to supervise implementation of the Comprehensive Proposal, an EU rule of

law and police mission and a continuation of NATO’s Kosovo Force. The declaration was

adopted unanimously by the members of the Kosovo Assembly that were present. Thirty-nine

States have now recognised Kosovo as a State. The United Kingdom, United States, Turkey

and France recognised Kosovo on 18 February 2008, the day after its declaration of

110
A Roberts 1978 in; Yugoslavia: The constitution and the succession

72
independence. Since then many States have followed suit. As at the date of the meeting two-

thirds of the members of the European Union had recognised Kosovo i.e. eighteen member

States.

In addition, Kosovo has been recognised by all the G7 states, seven Security Council

members and more than half of the Council of Europe and OSCE States. Some significant

States have, however, not recognised Kosovo. From amongst the members of the European

Union Cyprus, Spain, Romania, Slovakia and Greece have not recognised Kosovo and appear

unlikely to do so in the near future. About eighteen States, for a variety of reasons, have said

definitively that they will not recognise Kosovo. These include Serbia, Russia, Argentina,

Cuba, Vietnam, North Korea and Libya. Most notably, Serbia has adopted legislation that

purports to set aside the declaration of independence.

Finally, Serbia maintains that Kosovo is still part of Serbia. In the Security Council debate

on 18 February 2008 it stated that “Serbia will never recognize the independence of

Kosovo… For the citizens of Serbia and its institutions, Kosovo will forever remain a part of

Serbia”. The meeting focused on the legal arguments for and against the recognition of

Kosovo and discussed the practical and legal implications of recognition.

4.3. Turkish Republic of Northern Cyprus case.

HISTORICAL BACKGROUND

The island of Cyprus, because of its location and size, 111 is still of considerable strategic

importance for the Mediterranean powers. Thus, at various times it has drawn the attention of
111
Cyprus is the third largest island in the Mediterranean Sea and lies 40 miles south of Turkey, 650 miles
south-east of Greece. According to these documents, the basic articles of the Cypriot constitution were
unamendable and the Constitution itself, as well as the independence, security and territorial integrity of the
island were guaranteed by Greece, Turkey and the UK. Britain was allowed to retain sovereignty over two
military bases and Greece and Turkey were each allowed to station limited numbers of troops on the island.
Partition and union with any other state were prohibited. For the documents see
[Link] last visited: 04 December 2009.

73
many nations, including the Egyptians, Persians, Romans, and Greeks. Cyprus was under

Turkish sovereignty between the years 1571-1914, and under the English sovereignty

between the years 1914-1960. In this regard, the attempt to annex the island by Greece,

despite the opposition of Cypriot Turks and Turkey, created the struggle and disputes called

the “Cyprus Conflict” between Turks and Greeks on the island and between Turkey and

Greek outside the island. After a long period of conflicts between these two communities on

the island, Cyprus became an independent republic on 1960; however, it did not receive its

independence by a unilateral act but rather its independence was the result of a series of

negotiations between Greece, Turkey and the UK. 112 In this period, three interdependent

documents: the Treaty of Guarantee, the Treaty of Alliance and the Basic Structure of the

Republic of Cyprus (BSRC), which are also known as the London/ Zurich Accords, were

signed by the Republic of Cyprus (ROC), Turkey, Greece and UK.113

The principles set forth in the London/Zurich accords were embodied in the 1960

Constitution of the Republic of Cyprus; each community, Greek and Turkish Cypriots, was

co-founder and co-partner of the Republic on the grounds that both would hold political and

legal equality despite disproportionate population rates.114

The solution generated by these treaties envisaged the establishment of an independent

federal republic based on the participation of the two communities with the collaboration of

Turkey and Greece.115The BSRC set forth the principal articles of the 1960 Constitution of
112
Scott PEGG, International Society and the De facto State, Ashgate Publishing, 1998 pp. 100-101
113
According to these documents, the basic articles of the Cypriot constitution were unamendable and the
Constitution itself, as well as the independence, security and territorial integrity of the island were guaranteed
by Greece, Turkey and the UK. Britain was allowed to retain sovereignty over two military bases and Greece
and Turkey were each allowed to station limited numbers of troops on the island. Partition and union with any
other state were prohibited. For the documents see [Link] last
visited: 04 December 2009.
114
According to the census of 1960, population of Cyp rus was 573.566, out of which 70 percent were Greek
and about 30 percent were Turks. See Zaim M. NECATİGİ[Link] PEGG, supra, p. 101. 10 Majid KHADDURI,
Major Middle Eastern Problems in International Law, American Enterprise Institute for Public Policy Research,
Washington DC
115
Sevin TOLUNER, “Kıbrıs Türk Federe Devleti’nin Milletlerarası Hukukî Statüsü”, Milletlerarası Hukuk
Açısından Türkiye’nin Bazı Dış Politika Sorunları, İstanbul 2000

74
Cyprus. The Constitution would accept the rights of both communities to set the general will

and maintain national composition in accordance with the numerical data of existed

population. It would provide for a presidential regime, the President being a Greek Cypriot

and the Vice- President being Turkish Cypriot, both of whom would have veto power over

certain issues concerning foreign affairs, defense and security. It would also provide for the

participation of the two communities in the central government.

Thus, the legal arrangement of the 1960 treaties would solidify the presence of two

separate and equal communities in Cyprus. By these treaties, a state which had to be

administered by the collaboration of two communities in Cyprus had been founded, and by

the Constitution, the national integrity, independency and security of this state were

guaranteed in the international arena. Later on, uneasy years followed because the Greek side

argued that this Constitution was imposed upon Cyprus from outside and that its provisions

were inherently unworkable. They also believed that it was undemocratic since it provided

for veto by a minority government. On the contrary, for the Turkish Cypriots, the

Constitution was an innovative document which could have worked if there had been

sufficient cooperation between the two communities.116

In reality, many of the terms of the 1960 Constitution were never implemented and it was

not simply a numerical question of 70:30 ratio; Greek and Turkish Cypriots had strong

differences of opinions over things like the composition of the civil service and the armed

forces and the proper structuring of municipal government. The tension became stronger in

1963, when Greek President Makarios declared that since the Constitution conferred rights on

the Turkish Cypriots in addition to what was intended only to protect them, “he was forced to

disregard or seek revision of existing provisions of the Constitution” and later on, he

proposed 13 amendments for the 1960 constitution which would have repealed the vice
116
Scott PEGG, supra, p. 101. 10 Majid KHADDURI, Major Middle Eastern Problems in International Law,
American Enterprise Institute for Public Policy Research, Washington DC

75
president’s veto power, abolished the requirement for separate majorities for the passage of

certain laws and called for the removal of separate municipalities and the Turkish public

service quotas. The Turkish Cypriots refused to go along with these proposed constitutional

changes and violence between the two communities broke out further on. Consequently, the

events turned into an inter-communal fight between the armed radicals of the two

communities.117

Twice in 1964, the Turkish military threatened to invade Cyprus on the basis of Article 4

of the Treaty of Guarantee118 unless all attacks against the Turkish Cypriot community

stopped. In March 1964, the UN Security Council unanimously passed Resolution 186

authorizing the deployment of the UN Peacekeeping Force in Cyprus (UNFICYRP) but this

force could not stop the violence. Contrarily, by 1965 the Turkish Cypriots found themselves

excluded from the mechanisms of the state. In 1965, a special representative of the Secretary-

General of the UN was informed that the “Cyprus Government” no longer recognized the

leader of the Turkish Community as vice president and that the Turkish Cypriot members no

longer had legal standing in the House of Representatives.

Similarly, Resolution 186 referred to the Cyprus Government in such a way as to recognize

the exclusively Greek Cypriot administration as constituting the legitimate government of the

Republic.16 Thus, as a result of these ongoing violent acts on the island despite various

attempts to stop them, the Turkish Cypriots proclaimed the establishment of the “Temporary

Turkish Administration” in 1967. In 1974, the Greek Cypriot armed forces, backed by the

Greek junta, deposed the government of President Makarios with the aim of Enosis, i.e.

unification of Cyprus with Greece. Thereupon, Turkey, citing the 1960 Treaty of Guarantee

117
Ahmet C. GAZIOĞLU, Perceptions, Journal of International Affairs, 2001
[Link] last visited: 04 December
2009.
118
Ahmet C. GAZIOĞLU, supra, p. 1. 24 Because the Greek Cypriot, which since 1963 had attempted to
overthrow the 1960 Constitution, pretended to be the “Government of Cyprus

76
as a legal basis for its actions, sent troops to Cyprus for the first time to protect Turkish

Cypriots from the Greek Cypriot armed forces, which were backed up by the military junta of

Greece. In the following days, the UN called for all parties to cease fire. However, things did

not end at this point. The sides could not establish peace and in August 1974, the second

invasion of one third of Cyprus was [Link] by the Turkish Army - again on the basis of

Article 4 of the Guarantee Treaty - which expanded the amount of territory under Turkish

control and led to the partition of Cyprus that still exists today.

Although the first intervention was met with general approval from the international

community, the second one created a negative impact on world opinion in opposition to

Turkey, which still exists. The position of UN on the issue before and afterwards the invasion

gains importance in this respect.

UN Position In Cyprus Problem and the Loizidou Case

The UN, with its peacekeeping forces and political power, has been and still is closely

concerned with inter-communal tensions and conflicts in Cyprus since the collapse of the

Republic in 1964. According to most Turkish authors, Resolution 186 of the UN, that was

adopted in 1964, “has been ever since a cornerstone of the Cyprus problem and a turning

point, the dimensions of which created an obstacle to a final and just settlement.”22

Notwithstanding that this Resolution called upon members to refrain from action or threats

likely to worsen the situation, it also recommended the creation of a UN peacekeeping force

in Cyprus, but with the consent of the 'Government of Cyprus,' which as a term refers only to

the Greek Cypriots.

77
 From the view of the Turkish Cypriots, and Turkey, the Republic of Cyprus ceased to

exist after this Resolution where – according to the Turkish opinion– the UN accepted the

Greek Cypriots, who took exclusive control in Cyprus as the only legal representative of both

communities. Subsequently, upon the appearance of Turkish army flights over Cyprus skies,

the Security Council asked for “the stop of bombardment and military power exertion” in its

Resolution 193, and thus implicated that any “external” intervention in Cyprus would not be

approved. Similarly, both in Resolution 353, which the Security Council passed just before

the Turkish intervention in 1974, and in Resolution 360, that was passed in response to the

Turkish intervention, it requested “the withdrawal without delay from the Republic of Cyprus

of foreign military personnel present” and emphasized “its formal disapproval of the

unilateral military actions undertaken against the Republic of Cyprus.” Therefore, it can be

generally said that the Security Council resolutions in the period 1964-1974 deplored the

change in the status, which had been established by the 1960 Constitution, by the use of force

and military intervention. They mainly emphasized that the new state should be

“demilitarized.”

Besides these military issues, the UN Security Council has also discountenanced Turkish

and the Turkish Cypriot attempts at political and diplomatic actions. Right after the

declaration of the establishment of the Turkish Federated State of Cyprus (TFSC) on 1975,

the Security Council passed its Resolution 367, where it regretted this unilateral decision and

requested that the two communities and other parties refrain from any attempt to partition the

island or its unification with any other country. Although the language was not as strong as in

Resolution 541, it caused the TFSC to be dead from the beginning. The Security Council

adopted the same approach when the TFSC Assembly unanimously approved the declaration

of independence and establishment of the TRNC in 1983.29 The Security Council responded

by passing the well-known Resolution 54130 which considered the declaration of the TRNC

78
to be legally invalid, thus calling for its withdrawal, and called upon all states not to

recognize any Cypriot state other than the Republic of Cyprus on the grounds that the new

formation was in contrary to the Treaty of Guarantee. This Resolution also stated that the

BSRC and the TRNC were established by the unlawful use of force of Turkey. Therefore, the

TRNC has not been recognized internationally, except by Turkey. Here, it can be deduced

that the overall policy of the UN as discussed above also constitutes the main reason for the

non-recognition of the TRNC by the international community. In this sense, as Joseph S.

Joseph, an Associate Professor at the University of Cyprus indicated, “the lack of

international support for the Turkish attempts at the legalization of the partition of Cyprus is

largely due to the successive condemnations of the General Assembly and the Security

Council. Apparently, no country has been willing to take political and moral risks involved in

the recognition.”119 Non-recognition of the TRNC was also dealt with in the Loizidou

judgment of the ECHR.120 The subject of the case was to apply the European Convention on

Human Rights, the aim of which is to secure the public order in Europe based on human

rights, individual civil rights and the rule of law, to the Cyprus problem and in this way to

decide on the legal status of the TRNC.

In this sense, the Court took note of the abovementioned Security Council Resolution

541, declaring the proclamation of the establishment of the TRNC to be legally invalid and

calling upon all States not to recognize any Cypriot State other than the Republic of Cyprus.

Thus, the ECHR reiterated that only the Cypriot Government was recognized internationally

as the Government of the Republic of Cyprus in the context of diplomatic and treaty relations

and the work of international organizations. In this respect, “it was evident from international

practice and the various strongly worded resolutions referred to above that the international

119
. 31 Although he is partial in his opinions instead of looking from a disinterested point of law, his statement
deserves some consideration .
120
ECHR, Loizidou v. Turke

79
community did not regard the TRNC as a State under international law and against this

background, the Court could not attribute legal validity, for purposes of the Convention, to

such provisions as Article 159 of the TRNC Constitution, and Mrs. Loizidou, the applicant,

who had been prevented from gaining access to her properties in Northern Cyprus as a result

of the presence of Turkish forces in Cyprus, could not be deemed to have lost title to her

property.”

With this judgment, besides countenancing the non-recognition of the TRNC and the UN

Resolutions, the Court refused to take into consideration at all the status of the TRNC as a

stabilized de facto regime. Thus, it disregarded the effectual and autonomous nature of the

legal order and administration in the northern part of Cyprus. If this would not be the case,

the Court would have found that the people of North Cyprus have been governing themselves

in an orderly manner in accordance with democratic standards, in particular, as laid down in

Article 3 of the First Protocol to the Convention, and that there existed in fact an

administration (executive) and a judiciary, as well as, a legislature capable of making laws.

Therefore, although not accepted by the ECHR in the Loizidou case, since 1983, two

autonomous administrations: one de facto and one de jure have existed on the island.

Basically, by freezing a particular status quo, i.e. by preserving cease-fires on the island for

such a long time, UN peacekeeping forces, as an unintended consequence, gave rise to the

creation or maintenance of Turkish Cyprus as a de facto state.

4.4. China (Taiwan) case

According to the Montevideo Convention of 1933, the most cited source for the definition of

statehood, a state must possess a permanent population, a defined territory, a government,

80
and the capacity to enter into relations with other states. The ROC meets all these criteria as

it possesses a government exercising effective jurisdiction over well-defined territories with

over 23 million permanent residents and a full fledged foreign ministry.

The position of the Republic of China had been that it was a de jure sovereign state

"Republic of China," according to the ROC government's definition, extended to both

mainland China (Including Hong Kong and Macau) and the island of Taiwan.121 Because of

anticommunist sentiment at the start of the Cold War, the Republic of China was initially

recognized as the sole legitimate government of China by the United Nations and most

Western nations.

The United States of America is one of the main allies of Taiwan and, since the Taiwan

Relations Act passed in 1979, the United States has sold arms and provided military training

to the Republic of China Armed Forces.122 This situation continues to be a point of

contention for China, which considers US involvement disruptive to the stability of the

region. In January 2010, the Obama administration announced its intention to sell $6.4

billion worth of military hardware to Taiwan.

As a consequence, China threatened the United States with economic sanctions and

warned that their cooperation on international and regional issues could suffer. 123 The official

position of the United States is that China is expected to "use no force or threaten to use

force against Taiwan" and that Taiwan is to "exercise prudence in managing all aspects of

Cross-Strait relations." Both are to refrain from performing actions or espousing statements

121
"The Official Position of the Republic of China (Taiwan) on China's Passing of the Anti-secession (AntiSeparation) Law"
(Press release). Mainland Affairs Council, ROC Executive Yuan. 29 March 2005.
122
Stephen J. (16 April 1999), "The Taiwan Relations Act After 20 Years: Keys to Past and Future Success", The Heritage
Foundation, Retrieved 19 July 2009.
123
"Fact Sheet". Canadian Trade Office in Taipei. Retrieved 6 October 2014.

81
"that would unilaterally alter Taiwan's status."124 The United States maintains the American

Institute in Taiwan.

The United States, Canada, the United Kingdom, Republic of India, Pakistan and Japan

have formally adopted the One China policy, under which the People's Republic of China is

theoretically the sole legitimate government of China. However, the United States and Japan

acknowledge rather than recognize the PRC position that Taiwan is part of China. In the case

of Canada125 and the UK, bilateral written agreements state that the two respective parties

take note of Beijing's position but do not use the word support. The UK government position

that "the future of Taiwan be decided peacefully by the peoples of both sides of the Strait"

has been stated several times. Despite the PRC claim that the United States opposes

Taiwanese independence, the United States takes advantage of the subtle difference between

"oppose" and "does not support".

In fact, a substantial majority of the statements Washington has made says that it "does

not support Taiwan independence" instead of saying that it "opposes" independence. Thus,

the US currently does not take a position on the political outcome, except for one explicit

condition that there is a peaceful resolution to the differences between the two sides of the

Taiwan Strait.126 The United States bi-partisan position is that it doesn't recognize the PRC‘s

claim over Taiwan, and considers Taiwan‘s status as unsettled. 127 All of this ambiguity has

resulted in the United States constantly walking on a diplomatic tightrope with regard to cross

strait relations.

The ROC maintains formal diplomatic relations with 21 UN member states, mostly in

124
Shirley A. K. and Wayne M. M. (4 January 2013). "U.S.-Taiwan Relationship: Overview of Policy Issues" (PDF).
Congressional Research Service. p. 4.
125
Spencer, R. (16 May 2005). "Vatican ready to sacrifice Taiwan for China". London: Daily Telegraph.
126
Shirley A. K. and Wayne M. M.
127
"The Vatican's Cold Shoulder". Wall Street Journal. 20 December 2007. Retrieved 14 January 2008.

82
Central America and Africa. Additionally, the Holy See also recognizes the ROC, a largely

nonChristian/Catholic state, due partly to the Catholic Church's traditional opposition to

communism, and also to protest what it sees as the PRC's suppression of the Catholic faith in

mainland China. However, Vatican diplomats were engaged in talks with PRC politicians at

the time of Pope John Paul II's death, with a view towards improving relations between the

two countries. When asked, one Vatican diplomat suggested that relations with Taiwan might

prove "expendable" should PRC be willing to engage in positive diplomatic relations with the

Holy See.128 Under Pope Benedict XVI the Vatican and PRC have shown greater interest in

establishing ties, including the appointment of pro-Vatican bishops and the Pope canceling a

planned visit from the Dalai Lama.129

In March 2004, Dominica switched recognition to the PRC in exchange for a large aid

package.130 However, in late 2004, Vanuatu briefly switched recognition from Beijing to

Taipei,131 followed by a return to its recognition of Beijing. 132 On 20 January 2005, Grenada

switched its recognition from Taipei to Beijing, in return for millions in aid (US$1,500 for

every Grenadian).133

On 26 October 2005, Senegal broke off relations with the Republic of China and

established diplomatic contacts with Beijing. 134 The following year, on 5 August 2006, Taipei

ended relations with Chad when Chad established relations with Beijing. 135 On 7 June 2007,

Costa Rica broke off diplomatic ties with the Republic of China in favour of the People's

128
Painter, J. (30 March 2004). "Taiwan's 'Caribbean headache'". BBC.
129
Vurobaravu, F. (24 November 2004). "Parliament debates Vanuatu-Taiwan deal". Vanuatu Daily Post.
130
"Vanuatu gov. reshuffled after Taiwan controversy". China Radio International. 11 December 2004.
131
"Grenada picks China over Taiwan". BBC. 21 January 2005.
132
Su, J. (15 May 2005). "Nauru Switches its Allegiance Back to Taiwan from China". Taipei Times.
133
"Senegal picks China over Taiwan". BBC. 26 October 2005.
134
"Taiwan re-establishes diplomatic relations with St. Lucia". International Herald Tribune. 30 August 2007.
135
"Taiwan loses Costa Rica's support". BBC News. 7 June 2007. Retrieved 7 June 2007.

83
Republic of China.136 In January 2008 Malawi's foreign minister reported Malawi decided to

cut diplomatic recognition of the Republic of China and recognize the People's Republic of

China.137

The latest country to break off formal diplomatic relations with Taiwan was Gambia. On

4 November 2013, the Government of Gambia announced its break up with Taiwan, but the

Foreign Affairs Ministry of China denied any ties with this political movement, adding that

they weren't considering on building a relation with this African nation. 138 Many political

leaders who have maintained some form of One-China Policy have committed slips of the

tongue in referring to Taiwan as a country or as the Republic of China.

United States presidents Ronald Reagan and George W. Bush have been known to have

referred to Taiwan as a country during their terms of office. Although near the end of his term

as U.S. Secretary of State, Colin Powell said that Taiwan is not a state, he referred to Taiwan

as the Republic of China twice during a testimony to the U.S. Senate Foreign Relations

Committee on 9 March 2001.139 In the People's Republic of China Premier Zhu Rongji's

farewell speech to the National People's Congress, Zhu accidentally referred to Mainland

China and Taiwan as two countries.140

There are also those from the PRC who informally refer to Taiwan as a country. 141 South

Africa delegates once referred to Taiwan as the "Republic of Taiwan" during Lee Teng-hui's

term as President of the ROC. 142 In 2002, Michael Bloomberg, the mayor of New York City,

136
"Gambia breaks relations with surprised Taiwan; China says it wasn't in contact with government". Washington Post. 14
November 2013.
137
Klapper, B. (23 May 2006). "Taiwan fails in 10th bid for WHO observer status". Associated Press.
138
Yeh, L. (12 July 2002). "Taiwan's Lions Club gets another temporary name". Taipei Times.

139
"US scrambles as Powell learns the art of 'diplospeak'". Agence France-Presse. 15 March 2001.
140
"China and Taiwan 'two countries': Zhu". Taipei Times. 6 March 2003. p. 3.
141
Gluck, C. (17 August 2005). "Taiwan struggles with Chinese dissidents". BBC.
142
Su Tseng-chang (3 June 1994). DPP, Archived from the original on 23 February 2006. Retrieved 16 July 2006.

84
referred to Taiwan as a country.143 The former US Secretary of Defense Donald Rumsfeld

stated in a local Chinese newspaper in California in July 2005 that Taiwan is "a sovereign

nation".

The People's Republic of China discovered the statement about three months after it was

made. In a controversial speech on 4 February 2006, Japanese Foreign Minister Taro Aso

called Taiwan a country with very high education levels because of previous Japanese

colonial rule over the island.144 One month later, he told a Japanese parliamentary committee

that Taiwan's democracy is considerably matured and liberal economics is deeply ingrained,

so it is a law-abiding country.

In various ways, it is a country that shares a sense of values with Japan." At the same

time, he admitted that "I know there will be a problem with calling [Taiwan] a

country".145Later, the Japanese Foreign Ministry tried to downplay or reinterpret his remarks.

In February 2007, the Royal Grenada Police Band played the National Anthem of the

Republic of China in an inauguration of the reconstructed St George's Queen's Park Stadium

funded by the PRC. Grenada had broken off diplomatic relations with Taiwan just two years

prior in favor of the PRC.146

When the Kuomintang visited Mainland China in 2005, the government-controlled PRC

media called this event a "visit," and called the KMT one of "Taiwan's political parties" even

though the Kuomintang's full name remains the "Chinese Nationalist Party."

Interestingly in Mainland China, there is a legal party called the Revolutionary Committee

of the Kuomintang that is officially one of the nine "consultative parties," according to the

PRC's Chinese People's Political Consultative Conference. On the Foreign Missions page of
143
"NY mayor stands up for Taiwan". Taipei Times. 2 May 2002.
144
"Good schools due to Japan: Aso". Taipei Times. 6 February 2006. p. 2.
145
"Japan's Aso calls Taiwan a 'country'". Taipei Times. 10 March 2006.
146
"Grenada investigates anthem gaffe". BBC News. 4 February 2007.

85
the Saudi Arabian Ministry of Foreign Affairs for China, the embassy of the People's

Republic of China was referred to as the 'Republic of China'.147

On 24 October 2006, Dr. Roger C. S. Lin led a group of Taiwanese residents, including

members of the Taiwan Nation Party, to file a Complaint for Declaratory Relief in the United

States District Court for the District of Columbia. According to their lawyer, Mr. Charles

Camp, "the Complaint asks the Court to declare whether the Taiwanese plaintiffs, including

members of the Taiwan Nation Party, have certain rights under the United States

Constitution and other

US laws".148 Their central argument is that, following Japanese renunciation of all rights and

claims to Taiwan, Taiwan came under U.S. jurisdiction based on it being the principal

occupying power as designated in the Treaty of Peace with Japan and remains so to this day.

This case was opposed by the United States government. The District Court agreed with

United States government on 18 March 2008 and ruled that the case presents a political

question; as such, the court concluded that it had no jurisdiction to hear the matter and

dismissed the complaint.149 This decision has been appealed by plaintiffs150 and the appeals

court unanimously upheld the district court ruling.151 The PRC and Taiwan have agreed to

increase cooperation in the area of law enforcement. Mainland police will begin staffing a

liaison office in Taipei in

2010.152

147
"China". [Link]. Retrieved 6 December 2011.
148
"Law Offices of Charles H_ Camp News". Retrieved 28 January 2007.
149
"Civil Action No. 2006-1825 LIN et al. v. UNITED STATES OF AMERICA". Retrieved 16 April 2008.
150
"USCA Court case Statement of Facts". Retrieved 1 January 2009.
151
"USCA Court case Statement of Facts". Retrieved 1 January 2009.
152
"Roger Lin v. United States of America". Retrieved 5 April 2014.

86
 4.5. Case of Somalia and Somaliland

Somalia is arguably the best-known example of a so-called failed State.‟ The notion of the

failed State is sometimes also referred to as a 'collapsed State' or an „etat sans gouvernement‟

- has no legal standing in international law. Neither does a clear (non-) legal universal

definition of a failed State exist. In general, it may be defined as a way to describe a

sovereign State that has failed at some of its fundamental responsibilities. In so far as relevant

to this thesis, this fundamental responsibility will relate to the absence of an effective

governmental authority, which is a necessary condition for statehood. In this regard, the case

of Somalia and Somaliland is of particular interest, due to its combination of legal and factual

circumstances.

Somalia‟s last functioning government was swept away during the outbreak of the Somali

civil war in 1991. Since then, there has been no central government to control most of

Somalia's territory. Large portions of Somalia, particularly in the south, remain under the

influence of various clans opposing each other in their claim for authority. Somalia's official

internationally recognized government, the Transitional Federal Government, which is

backed by the United Nations, the United States and the African Union, has yet to establish

effective governance on the ground, as it controls only the capital, Mogadishu, and some

territory in the center of Somalia. Somalia has not only been unable to discharge its basic and

primary functions, but it has de facto ceased to exist. It was ranked the most failed Stated by

The Failed State Index for a third consecutive year, scoring 114.3 points out of a total of 120

points.

The Economist, has described Somalia as „the world‟s most utterly failed State. However,

despite the collapse of Somalia as a unitary State, it continues to be formally recognized as a

87
sovereign State by the international community of States: it continues to exist „de jure‟ as it

were. Within Somalia exist several de facto independent territories, with the most notable

being the self-declared, but unrecognized, Republic of Somaliland‟ (Somaliland), located in

the the north-western part of Somalia. In contrast to Somalia, which remains embroiled in

destructive internal conflicts, Somaliland appears to function on the basis of an effective and

working constitution (National Charter).

In accordance with the National Charter, Somaliland‟s government consists of a

parliament, an executive branch, and a legislative branch. Security in Somaliland has been

continuously improving and is generally regarded as high. Political opposition to the

government is displayed through peaceful methods. This is demonstrated, among other

things, by the large amount of international NGOs operating in Somaliland, and the return of

many Somali refugees after years in exile.

Somaliland has also demobilized the different clan forces and formed a national armed

force, as well as a regular police force. Revenues are collected by the Somaliland authorities

through exports taxes, fees for certain services and imports. In addition, Somaliland

maintains foreign relations with several States and organizations. Based on the factual criteria

for statehood, Somaliland may be regarded as a (sovereign) State: there exists a territory, a

permanent population and an authority capable of exerting effective control over the territory.

Somaliland's (lack of) recognition by other States is according to the (predominant)

declaratory theory irrelevant. An entity's statehood is independent of its recognition by other

States. A State, in this case Somaliland, must first exist, before other States may enter into

relations with it.

There is however no obligation for States under international law, to recognize an entity as a

State once it fulfils the factual criteria for statehood. Consequently, without any recognition

88
by the international community, Somaliland's existence may be described as „de facto‟: it

meets all the necessary criteria for statehood, but remains unrecognized as a State by the

international community. This apparent difference raises several important question about the

status of Somaliland in international law, and by extension the theories of statehood in

general. Ideally a State exists as both de jure and de facto: once a territorial entity possesses

all the necessary factual requirements for statehood it becomes a State and subsequently it is

without compulsion recognized as such by the existing States. But the case of Somalia and

Somaliland seems to indicate that it is possible for a State to exist, at some point, as either

one, or the other.

CHAPTER FIVE

5.1. Summary

This thesis deals with an analysis of the concept of state recognition in International Law.

It was examined in the like manner and was aimed at making an analysis on the basis, nature

and scope of state recognition in International Law. It deals with recognition of states in

89
International law and the law guiding the recognition. It deals with the steps to take in order

to be recognized in the international community as legible to be a state and be recognized

accordingly.

It deals with the impact of state recognition in the olden and modern times and the part

it also plays in politics between states. It states the impact it has in the recognition of states in

early times and the criterias governing it. It provides the nature of state recognition and how

it impacts states in recognition and non-recognition.

The research work deals with the history of the early theories, as well as, the modern

approach of state recognition. It was aimed at showing the advantages, disadvantages and to

some extent, the defects of the olden rules and theories of state recognition in International

Law, or for the purpose of shaping the effective structure of the law, which is the primary

objective of every research work.

Therefore, the first chapter gives the general overview of the work by supplying the aim

and objectives of the research as well as the scope and limits of the work. Some of the

resounding literatures that were used are also reviewed therein for their profound importance

and contribution to the research work. It introduced us to the different views by different

writers and what it entails to the field of International law.

The second chapter tackles the definition of key terms and clarification of concepts. It

deals with the concept of state recognition in International Law and its historical origin. It

also explains the theoretical foundation of state recognition in International law and the

science behind it. It also analyzes the legal processes and effects of state recognition. The

legal process entails the Internal and International effects of state recognition, that is, the

processes taken in courts between states and the duties required of states internationally to

recognize the other states and the requirements also required of states in order to be

recognizes and the process it takes in order to be recognized.

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 The third chapter highlights thee treaties that covers state recognition under International

Law. In that course, writing of international and domestic authors of international law that

expresses their views and opinions on the concept of state recognition has been

acknowledged and cases, both foreign and domestic were considered. Criticisms, advantages

as well as disadvantages of these theories were also brought to light. It also explains the

pronouncement and position of state recognition under municipal law and how cases under

state recognition are processed in court. It also states the issues and challenges surrounding

state recognition and ways to reduce its effect in the present day that will not destroy the

foundation its built on. It deals with the modern principles and theories of state recognition in

International Law. This aimed at bringing out the reforms that were attempted to cure the

defects caused by the olden principles theories. Under this segment, issues and challenges of

modern process of state recognition in International Law has been discussed. Some entities

and states that were currently recognized by other states were brought into light to illustrate

the working and application of the modern process of state recognition in International law.

The fourth chapter explains the conflicts between state under State recognition regarding

the lack of recognition from other states and how it affects them as a state and how it affects

how states that fails to recognize them despite their having the qualities under the Monte

video criteria guiding the recognition of a state. And also which state has been accepted or

not and which state does not recognize a state even with the full qualities surrounding state

recognition and the reasons for doing so.

Finally, the last chapter is a general conclusion under which major aspects of the study

were re-appraised. Findings and recommendations for reforming, enhancing and

developing, as well as shaping the image of the laws of state recognition were made.

This dissertation makes the following findings:

91
i. It has been found that in more recent international practice, several additional

criteria have been identified as prerequisites for statehood. The recognition policy

of many states and the positions taken by contemporary jurists indicate that the

traditional criteria for statehood are being extended to include additional

elements. Thus, for example, the recognition policy of the European Community

(now the European Union) with respect to the former republics of Yugoslavia and

the Soviet Union conditioned recognition not only on the satisfaction of the

traditional criteria for statehood, but on the fulfillment of a long list of other

requirements. Indeed, it has become accepted to investigate several other features

of a putative state before considering its eligibility for recognition.

ii. The modern the theories on recognition have not only failed to improve the

quality of thought but have deflected lawyers from the application of ordinary

methods of legal analysis. The modern character of recognition has done nothing

but confuse the issues, that it is mistaken to categorize recognition as either

declaratory or constitutive in accordance with some general theory.

iii. Under the International Law, there is no specific procedure for the constitution of

a new state; its recognition is a political liberty act, oriented mainly by the

country‘s own political goals. The fact that some countries deny to recognize the

newborn state means only that such countries do not want to maintain relations

with the new state i.e. it is an internal policy issue.

5.2. Recommendations

92
Based on the findings, the following recommendations were made:

i. It has been recommended that although the early principle of state recognition

under international law is restrictive compared with the modern process which is

more of political than legal both in its character and application, the early

principle should not be discarded entirely but it should be applied with some

modifications, as the modern process ended up in confusing the modes and

mechanisms of state recognition that enhancing it. For instance, apart from

conditions to be fulfilled under the early principle, i.e. population, defined

territory, government and maintaining international relations with other states,

issues encompassed by the current practice should be included.

ii. It has also been recommended that states should come together and agree on a

standard law to govern states recognition in order to avoid conflicts or unfair lack

of recognition by some states even though the laid down criteria is followed by

the state. There should be an agreed permanent laid down criteria to be followed

by all states in order to avoid separate forms of recognition by all states. As in the

case of the Palestines where they have still not gotten recognition by states even

though the laid down criteria has been fulfilled and till now remain stateless. So

in order to reduce the unfairness created by states due to unrecognition of other

states, it is advised to create an environment and law between states to protect

states from unrecognition.

iii. It has further been recommended that for the international legal order to be

respected, in order to avoid unnecessary and unfair unrecognition by the other

states and it also puts down a standard law to be followed by the states in order to

protect and promote the recognition of states the recognition of a newborn state

93
 should only occur with the consent of its territorial state, as it happened in East

Timor and South Sudan cases; the international law must not support separatist

movements against a legitimately established Government; and the modern

theory of state recognition under international law should clearly distinguish

between declaratory and constitutive recognition.

iv. International actors would be wise to remember the warning in the preamble

of the UDHR that people will turn to rebellion against tyranny and oppression

unless they are protected by the rule of law. They should therefore, make every

effort to promote the full respect of the right of peoples to self-determination by

national governments. In order to avoid the emergence of legitimate secessionist

claims, states must recognize legitimate grievances by their national minorities,

and address them appropriately, including by providing some form of political

autonomy, if appropriate, but certainly by ensuring political participation, as well

as social, economic and cultural protections.

5.3. Conclusion

Based on the discussions made in the proceeding chapters, we were able to come to the

conclusion that the concept of state recognition under International Law has proved

conceptually one of the most difficult and problematic area of International Law. We also

have realized that much of the modern academic discussions and most of the case laws from

different counties do not hold the same view in respect of state recognition.

94
 There is no standard law controlling the recognition of states as different states use their

own preferred method to recognize states and as of today, some states are not recognized and

some remain stateless even after following the laid down criteria.

Though the Constitutive theory is catching up fast with the declaratory theory today as

many scholars in support of the former are moving to the latter because according to them,

the constitutive theory aligns with the modern day recognition and is more suitable and

sensible to use as more states are applying it.

In this regard, lawyers and judges were to some extent always confused whenever it

comes to the issue state recognition under International Law, which leads to most of the

judges declining jurisdiction whenever it comes to the issue state recognition under

International Law. This calls for a review of the concept and its applicability which is more

of political than legal in most of its perspectives.

95
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