Faculteit Rechtsgeleerdheid
Universiteit Gent
Academiejaar 2015-2016
RECOGNITION OF STATES AND GOVERNMENTS IN
INTERNATIONAL LAW
ATTEMPT AT ILLUMINATING A LEGAL FRAMEWORK IN TWILIGHT
Masterproef van de opleiding
‘Master in de Rechten’
Ingediend door
Jasmine Rayée
(studentennr. 01103961)
Promotor: Prof. dr. TOM RUYS
Commissaris: Ms ANEMOON SOETE
ii
PREFACE
“Sovereignty, in its meaning of an absolute, uncontrolled state will, ultimately free to
resort to the final arbitrament of war, is the quicksand upon which the foundations of
traditional international law are built. Until the world achieves some form of
international government in which a collective will takes precedence over the individual
will of sovereign states, the ultimate function of law, which is the elimination of force
for the solution of human conflicts, will not be fulfilled.”
– PHILIP C. JESSUP, A Modern Law of Nations (1968) p. 2
This quote by PHILIP C. JESSUP struck me for several reasons. Ever since the start of my studies
in Ghent, I have been passionate about public international law. On the one hand, I am
fascinated by the – at times almost indiscernible – influence that such abstract rules and customs
can have on state relations. On the other hand, I have developed a profound faith in the ability
of international law as a tool to restore peace and resolve international disputes – and this
despite having studied it more in depth, some might say. The choice for the subject of this
master thesis is testament to both these elements: the intricate interplay between law and politics
is nowhere as delicate as in the law of recognition. In fact, the balance states make in that regard
is so fragile that they increasingly resort to collective measures in order to restore some kind of
standard – perhaps evidence of what JESSUP calls a need for “international government”. The
choice to discuss the role of recognition also stems from its pivotal function in various branches
of public and private international law. While writing this thesis, I found the variety of classes
I took over the course of my studies of value: from basics of public international law, to
international economic and investment law, to the law of international organisations and even
the law of armed conflict. It was a great experience to be able to synthesise my acquired
knowledge in one final work.
Additionally, it is particularly important to me to acknowledge JESSUP in the countdown to the
completion of my studies in Ghent, as my participation in the Jessup Moot Court represents my
ultimate experience in public international law. It strengthened my appreciation of the law and
shaped my research capabilities. I would therefore like to thank my promotor, prof. dr. Tom
Ruys, for his understanding and support as I combined both moot court and master thesis this
year, and for his useful guidance and patience along the way. I received the same enthusiasm
from Ms Anemoon Soete, whom I would also like to thank in this way.
For their unconditional encouragement, advice and love (and their willingness to endure the
past five years of studying struggles), I would like to thank my brothers, Thomas and Robin,
and my parents, Véronique Van Bilsen and Guy Rayée. When the workload was tough and the
nights long, it is the great feeling of being believed in that made me come through. My
memorable time as a student would also not have been the same without the great support of
all my friends, who greatly inspired and motivated me, and I am especially thankful to Sophie
Schiettekatte for keeping me sane.
On a final note, I would like to dedicate this thesis to my grandparents Jef Van Bilsen and Mimi
Claessens, whom I know would be so very proud of me – and whose legacy I am honoured to
carry on.
- Ghent, 15 June 2016
iii
iv
ABSTRACT
Deze masterproef waagt zich aan een problematiek die zich tussen het politieke en juridische
situeert. Erkenning is een eenzijdige rechtshandeling waarbij de soevereiniteit van een nieuwe
staat, respectievelijk de legitimiteit van een nieuwe regering, wordt aanvaard door een andere
soevereine staat. Het ‘erkenningsrecht’ heeft een belangrijke rol gespeeld doorheen de
geschiedenis. Het ontstaan van staten en de daarmee samengaande uiting van aanvaarding door
de internationale gemeenschap is immers van alle tijden. Van dekolonisatie tot desintegratie na
de Koude Oorlog, erkenning blijkt een van de meest controversiële onderwerpen in het
internationaal publiekrecht. De problematiek van erkenning staat regelmatig in het middelpunt
van de belangstelling – staten en soevereiniteit vormen immers ook nog steeds de spil van het
internationaal recht. Zo komen o.a. de al langer omstreden entiteiten Kosovo of Somaliland aan
bod, maar ook recenter bleek erkenning als nieuwe staat problematisch voor de Republiek van
de Krim; en de vraag kan gesteld worden of en hoe nieuwe regeringen het licht zagen dankzij
erkenning in Libië en Syrië.
Het onderzoek in deze masterproef is opgesplitst in drie delen. Ten eerste worden de wijzen,
voorwaarden, toepassingen en het juridisch belang van de erkenningshandeling voor het
ontstaan van staten geanalyseerd. Van de tweestrijd tussen constitutieve en declaratoire
doctrine kan een meer genuanceerde ‘derde theorie’ weerhouden worden, die ook beter aansluit
bij de statenpraktijk. Enerzijds is erkenning ondanks de discretionaire aard – er is nooit een
plicht tot erkenning – wel juridisch betekenisvol. Bepaalde rechten kunnen immers enkel door
volwaardige, erkende staten ingeroepen worden. Nochtans argumenteert dit werk dat de facto
staten, ondanks hun apart statuut, wel kunnen aanzien worden als rechtssubjecten in het
internationaal recht. Zo geniet Palestina geen universele erkenning en slaagt de entiteit er toch
in om ‘statelijke’ handelingen te stellen. Daarnaast zien we bij Kosovo ook een ‘graduele groei’
naar volwaardige statelijkheid.
Anderzijds bestaat er geen recht op erkenning als staat. Nochtans hebben entiteiten in bepaalde
omstandigheden wel een legitieme aanspraak op erkenning. Het recht op zelf-determinatie
speelt hierin een erg grote rol. Ook de ontstaansvorm van een nieuwe staat bepaalt mee de
gevolgen die een erkenningshandeling heeft. Bij consensus heeft een erkenning eerder een
declaratoire aard, in tegenstelling tot situaties waarbij geen toestemming van de ‘moederstaat’
is bekomen – dan is erkenning wel constitutief en essentieel. Uiteraard wordt veel belang
gehecht aan wat door de internationale gemeenschap onder ‘staat’ wordt verstaan. Hiervoor
gelden traditioneel vier basisvereisten (‘Montevideo criteria’) die echter niet langer het
geldende recht weergeven. Zo moet effectiviteit steeds meer inboeten ten opzichte van ‘morele’
criteria zoals respect voor mensenrechten en democratische legitimiteit. Dit vertaalt zich soms
in een ware verplichting tot niet-erkenning. Onderzoek naar de statenpraktijk betreffende zulke
verplichtingen leert ons dat de in het verleden ondernomen collectieve acties (middels de VN
Veiligheidsraad) echter de status van internationaal gewoonterecht nog niet hebben bereikt.
Het tweede onderdeel van deze masterproef onderzoekt de erkenning van regeringen. Vaak zal
de erkenning van een staat ook de erkenning van diens regering inhouden. Vele staten verklaren
vandaag enkel nog staten en geen regeringen te erkennen. Toch is er een groeiende praktijk om
zich te verzetten tegen ondemocratische regeringen – een principe dat echter nog geen
internationaal gewoonterecht is geworden. Ook hanteert de internationale gemeenschap
erkenning van oppositiegroepen als legitieme vertegenwoordigers van een volk als middel om
de legitimiteit van de zittende regering in twijfel te trekken. Het is slechts een dunne grens
v
tussen erkenning en verboden interventie, en bij erkenning van regeringen ligt dit nog
gevoeliger.
Het derde deel van dit werk onderzoekt kort de gevolgen van niet-erkenning op nationaal en
regionaal niveau. Het is immers duidelijk geponeerd door het Internationaal Gerechtshof dat
niet-erkenning de rechten en welvaart van de burgers niet mag aantasten. Uit het onderzoek
voor dit laatste deel blijkt dat dit dan ook de leidraad vormt bij het al dan niet toekennen van
rechten of in acht nemen van wetten van de facto staten.
(artikel 3.2.3. van het Reglement Masterproef 2015-2016: “Bij anderstalige eindwerken wordt
een Nederlandse samenvatting gevoegd”).
vi
TABLE OF CONTENTS
PREFACE -------------------------------------------------------------------------------------------------------- III
ABSTRACT------------------------------------------------------------------------------------------------------- V
TABLE OF CONTENTS ------------------------------------------------------------------------------------- VII
I.
INTRODUCTION ------------------------------------------------------------------------------------------- 1
II. THEORETICAL AND CONCEPTUAL FRAMEWORK ------------------------------------------ 5
1. RECOGNITION: A POLITICAL OR LEGAL MATTER? -------------------------------------------------------- 5
2. TYPES OF RECOGNITION --------------------------------------------------------------------------------------- 6
2.1. De facto or de jure recognition --------------------------------------------------------------------- 6
2.2. Express or implied recognition --------------------------------------------------------------------- 7
2.3. Collective recognition ------------------------------------------------------------------------------- 8
2.4. Withdrawal of recognition -------------------------------------------------------------------------- 9
2.5. Conditional recognition ----------------------------------------------------------------------------- 9
2.1. Premature recognition ----------------------------------------------------------------------------- 10
III. RECOGNITION OF STATES ------------------------------------------------------------------------ 12
1. THE TRADITIONAL THEORIES OF RECOGNITION OF STATES -------------------------------------------- 12
1.1. Constitutive theory --------------------------------------------------------------------------------- 12
1.2. Declaratory theory --------------------------------------------------------------------------------- 14
1.3. Towards a more practical definition: the third approach? ----------------------------------- 16
2. THE TRADITIONAL CRITERIA OF STATEHOOD: DOES FULFILMENT WARRANT RECOGNITION? -- 17
2.1. Back to the roots: the Montevideo Convention ------------------------------------------------- 18
(i) The straightforward criteria: a defined territory and a permanent population ----------------------------------------- 19
(ii) The concept of ‘effective government’ ------------------------------------------------------------------------------------ 19
(iii) The capacity to enter into relation with existing states ------------------------------------------------------------------ 20
2.2. The relevance of the Montevideo criteria today ------------------------------------------------ 21
3. THE ‘NEW LAW’ ON STATE RECOGNITION ----------------------------------------------------------------- 22
3.1. The disintegration of Yugoslavia as turning point: from clarity to obscurity in the law of
recognition-------------------------------------------------------------------------------------------------- 23
3.2. The politics of recognition and non-recognition and the variety of forms through which
states emerge ----------------------------------------------------------------------------------------------- 24
(i) The legal effects of recognition ---------------------------------------------------------------------------------------------- 24
(ii) The significance of the principle of self-determination ------------------------------------------------------------------ 27
4.
THE LEGALITY OF RECOGNITION ---------------------------------------------------------------------------- 28
4.1. A duty of recognition or freedom of states to recognise?-------------------------------------- 28
(i) The theory of unlimited discretion ------------------------------------------------------------------------------------------ 29
(ii) The theory of limited discretion --------------------------------------------------------------------------------------------- 30
4.2.
Limits to states’ discretionary power: legal obligation of non-recognition? --------------- 31
(i) Premature recognition --------------------------------------------------------------------------------------------------------- 32
(ii) Non-recognition and external legality: compliance with international law ------------------------------------------- 33
(iii) The relevance of the principle of self-determination for the obligation of non-recognition ----------------------- 36
(iv) Non-recognition and internal legality: democratic legitimacy --------------------------------------------------------- 37
5.
CONTESTED STATES AND THEIR STATUS UNDER INTERNATIONAL LAW----------------------------- 38
vii
5.1.
5.2.
The legal status of contested states in general ------------------------------------------------- 38
Contested states: a gradual road to statehood? ------------------------------------------------ 40
(i) Bilateral relations of contested states: the power to conclude international agreements ---------------------------- 41
(ii) Multilateral relations, including admission to international organisations ------------------------------------------- 41
(iii) Rights and duties of contested states -------------------------------------------------------------------------------------- 43
(iv) Rights of individuals in contested states and the question of ‘state’ responsibility --------------------------------- 45
5.3. The ultimate contested state: Palestine---------------------------------------------------------- 46
6. CONCLUSION ---------------------------------------------------------------------------------------------------- 49
IV. RECOGNITION OF GOVERNMENTS ------------------------------------------------------------ 51
1. THE NATURE OF RECOGNITION OF GOVERNMENTS ------------------------------------------------------ 51
2. THE LEGAL CHARACTERISATION OF GOVERNMENTAL STATUS --------------------------------------- 52
2.1. The traditional approach to recognition of governments ------------------------------------- 53
2.2. The concept of legitimacy ------------------------------------------------------------------------- 56
(i) Different doctrines of legitimism ------------------------------------------------------------------------------------------- 56
(i) Democratic legitimacy and the ‘democratic entitlement’ ---------------------------------------------------------------- 57
3.
4.
RECOGNITION OF GOVERNMENTS AND THE PRINCIPLE OF NON-INTERVENTION ------------------- 59
THE OBJECT OF RECOGNITION: NOT PER SE A GOVERNMENT ------------------------------------------ 61
4.1. The “defining formulae” -------------------------------------------------------------------------- 62
4.2. The distinction between political and legal recognition -------------------------------------- 64
5. CONCLUSION ---------------------------------------------------------------------------------------------------- 65
V. THE CONSEQUENCES OF NON-RECOGNITION AT THE DOMESTIC AND
REGIONAL LEVEL ------------------------------------------------------------------------------------------ 68
1. LOCUS STANDI -------------------------------------------------------------------------------------------------- 69
2. PRIVILEGES AND IMMUNITIES ------------------------------------------------------------------------------- 70
3. JUDICIAL COGNIZANCE OF FOREIGN LEGAL ACTS ------------------------------------------------------- 72
VI. GENERAL CONCLUSION --------------------------------------------------------------------------- 75
VII. BIBLIOGRAPHY -------------------------------------------------------------------------------------- 77
1. INTERNATIONAL TEXTS --------------------------------------------------------------------------------------- 77
1.1. Conventions----------------------------------------------------------------------------------------- 77
1.2. Resolutions------------------------------------------------------------------------------------------ 77
(i) Resolutions of the United Nations Security Council --------------------------------------------------------------------- 77
(ii) Resolutions of the United Nations General Assembly ------------------------------------------------------------------ 78
(iii) Other--------------------------------------------------------------------------------------------------------------------------- 78
2.
JURISPRUDENCE ------------------------------------------------------------------------------------------------ 80
2.1. International and regional jurisprudence ------------------------------------------------------- 80
(i) Permanent Court of International Justice and International Court of Justice------------------------------------------ 80
(ii) European Court of Human Rights ------------------------------------------------------------------------------------------ 81
(iii) Other--------------------------------------------------------------------------------------------------------------------------- 81
2.2. National jurisprudence ---------------------------------------------------------------------------- 81
3. DOCTRINE ------------------------------------------------------------------------------------------------------- 82
3.1. Textbooks ------------------------------------------------------------------------------------------- 82
3.2. Articles ---------------------------------------------------------------------------------------------- 83
3.3. Blog posts ------------------------------------------------------------------------------------------- 86
viii
4.
OTHERS ---------------------------------------------------------------------------------------------------------- 87
4.1. News ------------------------------------------------------------------------------------------------- 87
4.2. Statements and Press Releases ------------------------------------------------------------------- 87
4.3. Miscellaneous--------------------------------------------------------------------------------------- 89
ix
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I.
INTRODUCTION
“The sheer bulk of scholarly matter on the nature of recognition defied rapid
assimilation. It in fact demanded a subsidiary research project in its own right.”1.
Recognition, put simply, is the “acknowledgement of the existence of an entity or situation
indicating that the full legal consequences of that existence will be respected”.2 In other words,
it is a unilateral act whereby a sovereign state accepts the legal existence of another state (or
any government as the representative of such state), and welcomes it as a member of the
international community, acknowledging its statehood (or its capacity as a government) and
establishing the beginning of formal and bilateral diplomatic relations – often with the intention
of being legally bound by the act.3 Recognition has – contrary to what one might expect from
the simplicity of such definition – been the subject of extensive legal doctrine. As many scholars
have indicated, “the concept of recognition in international law is notoriously murky”4.
Since the first dissertations on recognition by classical authors such as LAUTERPACHT5 and later
BROWNLIE 6 , the scope and extent of international relations in the world and the (political)
context have changed. Important changes in the landscape of the international community – in
Central and Eastern Europe, the former Soviet Union, the Horn of Africa, and South and SouthEast Asia – have marked the last decades. Some entities grew into full-fledged states after
universal recognition (such as Croatia, Eritrea, East-Timor), others are not deemed to be
sovereign states by the international community after only partial recognition (Kosovo and
Somaliland). Accordingly, recognition continues to play an important role in the formation of
states. The law of recognition has been both praised as the “foundation stone of the edifice of
international law”7, since states are the principal actors of the international legal system, and
criticised as “one of the weakest links in international law”8. The prevalent purpose of this
thesis is to adapt the classic notion of recognition of states and governments to the current
context. The research is relevant both as a clarification of the international legal status of
existing contested states – Kosovo, Somaliland, and others – and hypothetical future cases of
secession (Catalonia and Scotland come to mind).
In order to achieve a coherent overview of the existing international legal rules governing the
process of recognition, it is important to distinguish between the recognition of states on the
1
T.D. GRANT, The recognition of states: law and practice in debate and evolution (Westport (Conn.) Greenwood
Press 1999), p. vii.
2
M. J. PETERSON, Recognition of Governments: Legal Doctrine and State Practice, 1815-1995 (Macmillan Press
1997), p. 1.
3
The International Law Commission, while acknowledging the difficulty in producing a definition of recognition,
described it as follows: “A unilateral expression of will formulated by one or more States, individually or
collectively, acknowledging the existence of a de facto or de jure situation or the legality of a legal claim, with the
intention of producing specific legal effects, and in particular accepting its opposability as from that time or from
the time indicated in the declaration itself.” in ILC, Sixth Report on Unilateral Acts by States (30 May 2003) UN
Doc A/CN.4/534 (2003), §67; see also A. SCHUIT, “Recognition of Governments in International Law and the
Recent Conflict in Libya” (2012) 14 International Community Law Review 381, 383.
4
R. SLOANE, “The Changing Face of Recognition in International Law: A Case Study of Tibet” (2002) 16 Emory
International Law Review 107, 112.
5
H. LAUTERPACHT, Recognition in International Law (Cheltenham, Elgar 2012) 442 p.
6
I. BROWNLIE, “Recognition in theory and practice”, in R.ST.J. MACDONALD & D. JOHNSTON (eds), The structure
and process of international law: essays in legal philosophy, doctrine, and theory (Dordrecht, Martinus Nijhoff
Publishers 1983), p. 627-641.
7
J. DUGARD, Recognition and the United Nations (Cambridge, Grotius Publ. 1987), p. 1.
8
LAUTERPACHT, Recognition in International Law (n 5) 3: the author is nevertheless a strong proponent of
substantive clarification on the issue of recognition, a notion of “obvious significance”.
1
one hand (CHAPTER III), and governments on the other hand (CHAPTER IV).9 While BROWNLIE
points out the correspondence between both10, others stress that statehood is a normative reality,
which is not always coincidental with a functioning and stable government.11 Criteria for both
acts of recognition, and the existing – sometimes contested – applicable legal rules, will
therefore be discussed separately, while acknowledging their inter-connectedness. These
chapters will be preceded by a short theoretical outline of the relevant concepts and terms
(CHAPTER I), which will be referred to throughout this work.
In CHAPTER III, the issue of state recognition is addressed, which is of course particularly
intertwined with the issue of statehood. There exists no consensus among scholars as to the
precise constituents of statehood, even more, as to its exact nature – whether statehood confers
a collection of rights (and obligations), and hence is a normative entity, or whether it is to be
conceived as a factual reality. Recognition, nevertheless, is understood as an act of
ascertainment of the fulfillment of these legal or factual elements. Its influence on statehood
itself is governed by either of two traditional doctrines: the constitutive or declarative theory.
However, neither of these theories convincingly capture the state of the law on the matter and
actually inherently contradict each other. It is difficult to distil a uniform state practice and
opinio iuris evidencing customary international law from recent recognitions. For instance,
some states emerging from the dissolution of the Socialist Federal Republic of Yugoslavia
(SFRY) did so without great controversy, such as the Republic of Montenegro. It was
expeditiously admitted as a member of the United Nations by the General Assembly in 200612
and of the Council of Europe in 200713. In contrast, Kosovo has not been granted universal
recognition.14 While the entity admittedly differs from the Republic of Montenegro in some
ways, it has been argued to objectively fulfill the traditional criteria for statehood.15 There are
diverse explanations possible why Kosovo fails to obtain full de jure statehood. This thesis thus
attempts to provide insight on the different bases for non-recognition (and whether such nonrecognition is mandated by international law in any way) and its interplay with statehood.
Special attention is given to the legal effect of recognition and the evolution in the law of
recognition since the disintegration of Yugoslavia. Acknowledging that this subject of
international law is for a great part driven by politics and to a certain extent left to the discretion
of states, it will be revealed that recognition nevertheless clearly exists within a legal
framework. Finally, this section includes an analysis of the legal status of contested states,
which will be brought in relation to the different recognition theories.
9
It should be noted that recognition of belligerency and insurgency, which predominantly occur in the realm of
international humanitarian law, do not form the subject of this thesis.
10
I. BROWNLIE, Principles of Public International Law (7th edn, OUP 2008), p. 90: “The existence of an effective
and independent government is the essence of statehood, and, significantly, recognition of states may take the form
of recognition of a government.”
11
B. ROTH, Governmental Illegitimacy in International Law (Oxford, Clarendon Press 1999), p. 130. Somalia and
Afghanistan are often cited as example.
12
UNGA, Admission of the Republic of Montenegro to membership in the United Nations, Res 60/264 (28 June
2006) UN Doc A/RES/60/264.
13
Council of Europe, ‘The Republic of Montenegro Becomes 47th Council of Europe Member State’ (Strasbourg,
10
May
2007)
https://wcd.coe.int/ViewDoc.jsp?p=&id=1130883&BackColorInternet=DBDCF2&BackColorIntranet=FDC864
&BackColorLogged=FDC864&ShowBanner=no&Target=_self&direct=true accessed 14 June 2016.
14
For a recent overview of states recognising Kosovo, see www.kosovothanksyou.com/.
15
J. VIDMAR, “Explaining the legal effects of recognition” (2012) 61 International & Comparative Law Quarterly
361, 378-381.
2
Next, a similar overview of the evolution of the concept of recognition of governments is given
in CHAPTER IV. The practice of recognition of governments has alternatively been deemed
necessary – in order to acknowledge the legitimacy of new governing entities and promote
constitutional changes of government – and spurned as an overly political act, which infringes
on a state’s autonomous decision power. Different doctrines have emerged concerning the
legitimacy of government recognition, most notably the ‘Estrada doctrine’, which affirms the
view that recognition is an unauthorized interference in internal affairs. Nevertheless, in the
event explicit recognition is accorded, states have regard for the origin, constitutionality and
effective control of the recognized entity over the territory of the state in question. BROWNLIE
contends that recognition of governments certainly remains necessary at times when the official
governmental status of an entity is contested by the presence of competing entities, or in times
of attempted secession – such circumstances surely do not warrant recognition as a fait
accompli.16 This chapter therefore scrutinises the legal characterisation of a government: what
criteria are necessary for recognition, if any at all? Interestingly, the characterisation of the
capacity or status of recognised entities has evolved and what could be called a ‘light version’
of recognition has emerged recently: a tendency to grant an entity that claims to be the sole
legitimate representative of a state a certain status – albeit not yet governmental status. Indeed,
over the last few years, in the context of the so-called Arab Spring, opposition groups have been
recognised by states as the ‘legal representatives of a people’. An important element of
recognition is therefore what the exact object of recognition is, as the competence of newly
recognised entities as actors within the international community or as representatives of a state
greatly depends on the precise capacity it was recognised as.
Furthermore, it has been suggested that principles of legitimacy, democratic governance and
international human rights law have potentially gained influence on state practice of recognition
to the detriment of the traditional legal criteria. 17 Consequently, while it is important to
understand the legal framework delineating the practice of recognition, the strong influence of
politics and international diplomacy on state practice must certainly be taken into account when
conceptualizing recognition of states and governments. As it is within a state’s sovereign
discretionary power to engage in bilateral relations with another entity, recognition is today
often made conditional on, for example, the respect of minority rights. Throughout this thesis,
the importance of these concepts for recognition in current state practice will be addressed.
CHAPTER V gives a brief overview of the possible impact of international non-recognition at
the domestic and regional level. These include the legal standing of contested states and their
entitlement to jurisdictional and enforcement immunity. Particular attention is given to the
rights of individuals affected by acts of an entity with contested status, focusing on whether or
when judicial cognizance is accorded to legal acts emanating from a contested state or
government.
Finally, CHAPTER VI offers a succinct, general conclusion that supplements the respective
conclusions of CHAPTER III and IV, attempting to draw a line between all aspects of recognition.
Recognition has been the subject of an extensive number of treatises, articles and debates since
the beginning of the 19th century. A new dissertation on the subject requires reference to the
classical authors on the matter. However, history teaches us that recognition is an ever16
BROWNLIE, Principles of Public International Law (n 10) 91.
SLOANE (n 4) 114. Noting nevertheless: “[…] legal and moral criteria will only shape and perhaps circumscribe
practices of recognition; it will rarely, if ever, dictate them.”
17
3
developing concept. As international relations and society evolve, so have the modalities and
legal effects of acts of recognition in the international legal order. It is therefore indispensable
to include an overview of state practice throughout this thesis and consider the relevant sources
of law (as enumerated in article 38 of the Statute of the International Court of Justice (ICJ) –
international conventions, international customary law, general principles of law and relevant
national jurisprudence and doctrine) in regard to recognition. As no over-encompassing rules
exist, an examination of opinio iuris will reveal possible rules of customary international law.
An attempt at deriving such expressions of state will is made by reference to authoritative
declarations and parliamentary debates that relate to recognition, and finding the legal reasons
that form the basis for these decisions. The choice of which jurisdictions or cases are discussed
in greater detail is always in a sense arbitrary. Doing otherwise would exceed the scope of this
thesis. In addition, whenever relevant, certain sections are supplemented by a suggestion for
further reading in footnote, when an in-depth discussion would again exceeds the purpose of
this work.
4
II.
THEORETICAL AND CONCEPTUAL FRAMEWORK
1. RECOGNITION: A POLITICAL OR LEGAL MATTER?
“There are only very few branches of international law which are of greater, or more
persistent, interest and significance for the law of nations than the question of Recognition
of States, of Governments […]. Yet there is probably no other subject in the field of
international relations in which law and politics appear to be more closely interwoven.”18
Recognition, or “the law of recognition”, has been spurned by some for lacking value as a term
of art.19 Does the discretionary character of acts of recognition deny it of any legal significance?
It is true that international law does not provide a definite answer to the question of the existence
of a legal obligation of recognition, nor of the right to recognition. The obligation of nonrecognition in certain circumstances is also highly disputed. A recent example of the impact of
such questions is the discussion concerning the legal status of Crimea. The issue of recognition
reached the front-page news when Russia declared in 2014 it formally recognised the Republic
of Crimea as an independent state 20 , yet the international community almost unanimously
condemned the act. The United Nations General Assembly even adopted a resolution calling
on states not to acknowledge any changes in status of the Crimea region.21 Russia’s declaration
was seen as a ‘premature recognition’, an act that is determined invalid in some literature22,
even more, as a breach of international law. Does this entail there does exist some kind of legal
obligation to abstain from recognition under certain conditions? Can legal consequences be
accorded to the recognising state or the recognised entity when this obligation is violated?23 As
one scholar noted, “[t]he state is neither truly free to recognise another entity nor entirely
bound”.24
Recognition, while governed by legal rules, is used mostly as a political instrument. 25 The
flexibility states desire in their political choices influence the lack of fixed legal rules in this
regard. Nevertheless, while the legal nature of the act of recognition is a point of heavy debate,
it is clear these notions all exist within a legal framework. The content of the rules might be
contested; there is still an understanding within the international community that the conditions
and consequences of recognition are regulated by international law. An investigation into state
practice teaches us that general principles applicable to both recognition of states and
governments can be withheld, which this thesis purports to clarify.
18
LAUTERPACHT, Recognition in international law (n 5) v.
BROWNLIE, “Recognition in Theory and Practice” (n 6) 627.
20
The Ministry of Foreign Affairs of the Russian Federation, ‘Statement by the Russian Ministry of Foreign
Affairs regarding the adoption of the Declaration of Independence of the Autonomous Republic of Crimea and
Sevastopol’(Moskou,
11
March
2014)
<http://archive.mid.ru/bdomp/brp_4.nsf/e78a48070f128a7b43256999005bcbb3/4751d80fe6f93d0344257c99006
2a08a!OpenDocument> accessed 31 May 2016.
21
UNGA, Territorial Integrity of Ukraine, Res 68/262 (27 March 2014) UN Doc A/RES/68/262, adopted with
100 votes in favour, 11 against and 58 abstentions.
22
LAUTERPACHT Recognition in International Law (n 5) 9: LAUTERPACHT speaks of premature recognition as a
“wrong”, which would probably be found to be invalid if evaluated by an international tribunal.
23
See infra III.4.2.
24
W.T. WORSTER, “Law, Politics, and the Conception of the State in State Recognition Theory” (2009) 27 Boston
University International Law Journal 115, 116.
25
M. N. SHAW, International Law (6th edn, Cambridge, CUP 2008), p. 455.
19
5
2. TYPES OF RECOGNITION
The following section provides an overview of the most relevant types of recognition. While
the granting of recognition to a state or government does not occur uniformly and not all acts
of recognition have the same legal effects, the different types of recognition can be more or less
categorised as follows.
2.1. De facto or de jure recognition
The concepts of de facto and de jure recognition usually relate to the recognition of
governments, but can also be applied in the context of state recognition.26 De jure recognition
implies that the situation that is being recognised is permanent. It is, in principle, irrevocable:
only when the state discontinues to fulfill one of the essential criteria for recognition27, can it
be revoked. The notion of de facto recognition (quite different from de facto statehood,
addressed infra28) thus refers to situations where the conditions for full de jure recognition are
not fulfilled – in other words, in unstable or non-permanent situations.29 A de facto recognition
is provisional and temporary, and can be withdrawn. 30 With reference in particular to
governments, de facto recognition indicates a tentative position by the recognising state as to
the stability of the recognised government. De jure recognition usually ensues when there is no
longer doubt about the permanence of the effective control exercised by the government in
question. De facto recognition is a way to include reservations into recognition, in the sense
that full de jure recognition will only take place when the illegality or instability of the entity
has been resolved. For example, de facto recognition was granted to the Soviet government by
the United Kingdom in 1921 and only later de jure in 1924.31
The concepts are not used frequently.32 It is often difficult to assert what type of recognition is
accorded. However, the distinction could be of importance with regard to their respective legal
effects. A de jure recognised state or government is the appropriate representative of the state
for purposes of defending a claim of its nationals for injury by the recognising state in breach
of international law; and its representatives will in principle be able to claim full diplomatic
immunities and privileges, in contrast to a de facto recognised entity. The legal consequences
of non- or partial recognition will be dealt with more substantively infra.33
26
LAUTERPACHT Recognition in International Law (n 5) 1.
Traditionally, the Montevideo criteria are seen as the core features of statehood. These are a permanent
population, a defined territory, an effective government, and the capacity to enter into relations with other states.
These will be further developed infra, in the subsequent section III.2.1.
28
See infra III.5.
29
J. KER-LINDSAY, The Foreign Policy of Counter Secession: Preventing the Recognition of Contested States
(Oxford, OUP 2012) p. 8.
30
M. J. PETERSON, Recognition of Governments: Legal Doctrine and State Practice, 1815-1995 (Macmillan Press
1997), p. 17.
31
SHAW (n 25) 460.
32
J. KER-LINDSAY (n 29) 8.
33
See infra III.5.
27
6
2.2. Express or implied recognition
Recognition can be either express or tacit.34 The intention of the recognising state prevails over
the mode used.35 It is therefore crucial that the act of recognition, in whatever form, clearly
expresses a willingness to either accept a new state as a member of the international community,
or to engage in relations with the effective government of a state. Express recognition occurs
by formal means, for instance by way of an official declaration. The competent authority within
a state – whether it is the executive or legislative depends on the constitutional structure of the
state36 – can engage in bilateral recognition. This role is usually taken on by the Minister of
Foreign Affairs37 or the head of state38. The publication of such decision makes it official. Most
recognitions by formal means, such as by press release or via any other official announcement,
leave no room for doubt about the intention of the recognising state. A clear example is the
most recent recognition by a EU member state of Palestine, in 2014. Sweden considered “that
the international law criteria for recognition of Palestine have been satisfied”.39
When no formal announcement or official actions are made to the effect of recognising another
state or government, but the intention to recognise can be implied from the circumstances, there
is tacit recognition. Some implied recognitions are unambiguous, such as supportive statements
regarding newly declared independence or the establishment of diplomatic relations. Implied
recognition has however been criticised as it more often than not creates confusion in important
subject matters.40 For instance, membership in international organisations does not necessarily
indicate recognition by all other member states. Neither does the sustainment of unofficial
relations or negotiations or the making of claims against an unrecognised state. 41 States
therefore often make public declarations to the opposite, ascertaining that certain actions are
not to be interpreted as acts of recognition. The conclusion of a bilateral treaty is also not always
equivocal evidence of recognition, only indicating recognition when it is of a political nature.
LAUTERPACHT notes that there is “no absolutely compelling reason to assume that a contractual
relation is tantamount to recognition […] There are intermediate stages between full recognition
and the total absence of contractual relations”.42 Indeed, the start of a business relationship does
not necessary reveal the acknowledgement of statehood. 43 LAUTERPACHT deems that “the
34
Montevideo Convention on Rights and Duties of States (signed 26 December 1933, entered into force 26
December 1934), 165 LNTS 19, article 7 (hereinafter Montevideo Convention).
35
BROWNLIE, Principles of public international law (n 10) 93; I. BROWNLIE, “Recognition in theory and practice”
(n 6) 628: The author cites diplomatic correspondence, statements in international organisations, official views
expressed in national assemblies as examples of evidence of the intention of the recognising government.
36
GRANT, The recognition of states: law and practice in debate and evolution (n 1) 25: in the United States for
example, it is in principle the executive who exercises control over the decision of recognition. GRANT notes that
Congress has however attempted to influence the decision-making process.
37
See for example the official letter by Norway directed at the president of South Sudan: Letter of Royal Ministry
of Foreign Affairs Norway, ‘Recognition of the Republic of South Sudan’ (Oslo, 9 July 2011)
https://www.regjeringen.no/globalassets/upload/ud/vedlegg/brev/soersudan_anerkjennelsesbrev.pdf accessed 14
June 2016.
38
Statement of United States President Barack Obama, ‘Recognition of the Republic of South Sudan’
(Washington, DC, 9 July 2011) <https://www.whitehouse.gov/the-press-office/2011/07/09/statement-presidentbarack-obama-recognition-republic-south-sudan> accessed 14 June 2016.
39
Government Offices of Sweden, ‘Sweden recognizes Palestine and increases aid’, (30 October 2014, updated
17 May 2015) http://www.government.se/press-releases/2014/10/sweden-recognises-palestine-and-increases-aid/
accessed 30 May 2016.
40
KER-LINDSAY (n 29) 8.
41
BROWNLIE (n 10) 93.
42
LAUTERPACHT Recognition in International Law (n 5) 375.
43
T. CHEN, The International Law of Recognition (London, Stevens and Sons, 1951) p.194-195.
7
doctrine of implied recognition has been more conspicuous in the writings of authors than the
practice of States”.44
2.3. Collective recognition
Collective recognition presupposes states acting together and coordinating or cooperating in a
recognition process. An example is the European Union collective approval of South Sudan’s
independence declaration in July 2011.45 It would seem that such a joint statement makes the
need for individual or unilateral declarations of recognition superfluous. 46 Indeed, in the case
of the European Union, the European Council can engage in collective recognition of a new
state.47 This necessitates a unanimous agreement by all member states, and therefore implies
their individual recognition. However, the treaties constituting the European Union do not
include an express provision to that effect and state practice does not consistently confirm this
approach. For instance, despite the Council’s positive conclusion regarding the independence
of Montenegro to “develop further their relations with the Republic of Montenegro as a
sovereign, independent State […]” 48 , Member States still issued separate recognition
declarations.49
Collective recognition can also occur by other means, for instance by way of multilateral
treaties and conferences.50 However, in the same way as with bilateral treaties, it is unusual that
express recognition is included in a treaty and the mere conclusion of a multilateral treaty is not
an indicator of collective recognition by all state parties.51 Another possible form of collective
recognition is its admission to an international or regional organisation. Since membership is
usually only open to states, it will be strong evidence of a collective acknowledgment of the
acquirement of statehood. However, the admission of Palestine to UNESCO was not equivocal
to a collective recognition. It was strongly condemned by several United Nations (UN) member
states, prominently the United States and Israel. Furthermore, it must be noted that the
admission to an international organisation does not always require consensus. As such, Israel
is a member of the UN despite strong opposition to its statehood by Arab states.52
Even after collective recognition in the form of admission to an international organisation, a
case-by-case approach to statehood issues is still warranted. Indeed, it can hardly be argued that
the voting procedure of an international organisation would overrule a state’s decision-making
44
LAUTERPACHT, Recognition in International Law (n 5) 370.
European Union, ‘Declaration by the EU and its Member States on the Republic of South Sudan’s independence’
(Brussels,
9
July
2011,
12679/1/11
REV
1,
PRESSE
232),
<http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/123591.pdf> accessed 14 June
2016.
46
KER-LINDSAY (n 29) 10.
47
And did so recently after Russia’s annexation of Crimea, delimitating a common policy of non-recognition:
European Council, Conclusions 20/21 March 2014 (Brussels, 21 March 2014, EUCO 7/1/14 REV 1)
<https://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/ec/141749.pdf> accessed 14 June 2016.
48
EU Council Conclusions on Montenegro: 2737 External Relations Council meeting (12 June 2006), <http://euun.europa.eu/eu-council-conclusions-on-montenegro-2737-external-relations-council-meeting/> accessed 6 May
2016.
49
This is possibly due to their respective internal division of powers. Subsequent to the EU Council meeting, the
United Kingdom, Germany, Denmark, Ireland and Belgium recognised Montenegro separately.
50
KER-LINDSAY (n 29) 11-12.
51
BROWNLIE (n. 6) 93.
52
D. I. EFEVWERHAN, “Kosvo’s Chances of UN Membership: a Prognosis”, (2012) 4 Goettingen Journal of
International Law 93, 93.
45
8
power in regard to recognition. For instance, the UN, which is “open to all peace-loving
states”,53 only requires a two-thirds majority to accord membership status to a new state, and a
recommendation by the permanent members of the Security Council who retain their veto
power.54 Additionally, this explains why the claims to statehood and to UN membership by
certain states, such as Taiwan or Kosovo, are blocked while possibly a two-thirds majority of
the General Assembly would be willing to engage in recognition: they face a veto by the
permanent members China and Russia. The same can be said with regard to Palestine’s struggle
for recognition by the UN.
2.4. Withdrawal of recognition
A “willful retraction” must be distinguished from a “termination” of recognition.55 The latter
occurs when the entity that had enjoyed recognition ceases to exist, such as when a government
loses power. State practice of the former is very rare and some scholars argue that recognition
is irrevocable. 56 The Montevideo Convention on Rights and Duties of States contains a
provision to that effect57, and the Institut de Droit International maintains the same for de jure
recognition of a state.58 However, it is not unthinkable that an entity would lose the attributes
of statehood or the qualifications of governmental status 59 , which would make continued
recognition misplaced.60 SHAW also notes that the nature of recognition is such that the law will
never fully constrain and condition its use: the political interests of the state also influence a
decision to withdraw recognition.61 The Institut de Droit International did indeed show realism
by adding the nuance that “elle ne cesse ses effets qu'en cas de disparition définitive de l'un des
éléments essentiels dont la réunion se trouvait constatée au moment de la reconnaissance”.62
An entity loses statehood when it loses the attributes or characteristics, which made it a state in
the first place. OPPENHEIM warns that it is particularly important63, considering the significant
consequences of withdrawal of recognition, that the intention of the retracting state be
unambiguous (for instance, more than the mere discontinuance of diplomatic relations).64
2.5. Conditional recognition
The Montevideo Convention notes that recognition of states is unconditional.65 Nevertheless,
in practice, recognition is sometimes subjected to certain conditions. The attachment of
53
Charter of the United Nations of 24 October 1945, 1 UNTS XVI (1945) (hereinafter UN Charter), art. 4
(emphasis added).
54
Rule 136 Rules of procedure of the General Assembly of the United Nations.
55
M. J, PETERSON, Recognition of Governments: Legal Doctrine and State Practice, 1815-1995 (Macmillan Press
1997), p. 17.
56
ibid.
57
Article 6 Montevideo Convention (n 34). Even though it is ratified by only sixteen states, the Montevideo
Convention is often characterised as embodying customary international law. On the origin an relevance of the
convention, see infra III.2.1.
58
Institut de Droit International, “Resolution Concerning the Recognition of New States and New Governments
(October 1936)” (1936) 30(4) AJIL 185, article 5.
59
These attributes and qualifications will be extensively discussed further on.
60
R. JENNINGS, & A. WATTS, Oppenheim's International Law: Peace. (9th edn, Oxford, OUP 2008), p. 176.
61
SHAW (n 25) 468.
62
Institut de Droit International (n 58) art. 5.
63
See infra CHAPTER V.
64
JENNINGS & WATTS (n 60) 177.
65
Article 6 Montevideo Convention (n 34).
9
additional obligations for the recognised state is evidence of the political aspect of recognition.
Such obligations cover for example the respect for the rights of ethnic, national or religious
minorities; or respect for democracy and human rights. 66 The nature of such additional
conditions must however be distinguished from the established criteria for recognition –
particularly the new, ‘moral’ criteria that have emerged since the Yugoslav crisis.67 Failure to
satisfy all conditions does not nullify recognition. 68 The recognised entity will remain
recognised. Non-fulfillment of the conditions is rarely qualified as a breach of international law
– this is only the case when they are for instance enshrined in a bilateral treaty. Possible
sanctions include the severance of diplomatic relations. 69 The concept of conditional
recognition has been criticised by various authors, such as JESSUP: “there is no basis for
continuing the nonsensical practice which has been called “conditional recognition”.”70
2.1. Premature recognition
The recognition of an entity that does not (yet) meet the foundational requirements of statehood
is deemed premature.71 KELSEN characterises it as an illegal act.72 This is often invoked in cases
of attempted separation by a seceding entity from a parent state: while international law is
seemingly neutral towards acts of secession – it neither grants the right nor prohibits it73 – the
recognition of such entity, when it has not yet acquired all the attributes that typify a state –
could infringe on the territorial integrity of the parent state. The Restatement (Third) of the
Foreign Relations Law of the United States in that regard specifies the concept of premature
recognition and the connected requirement to withhold recognition when it represents an
“improper interference in the internal affairs of the state”. 74 LAUTERPACHT finds that an
international tribunal should find recognition of new states in situations that have not yet
stabilised invalid. 75 Still, the question remains who would decide what “stabilised enough”
means and whether this would amount to consistent practice. The difficulty in determining
when recognition is premature lies in defining the struggle for independence of the emerging
state.76 However, not every emergence of a new state requires the consent of the parent state.
Non-consensual state creation can therefore not be equated to premature recognition. 77 A
66
SHAW (n 25) 465.
ibid.
68
JENNINGS & WATTS (n 60) 176.
69
ibid.
70
P.C. JESSUP, A Modern Law of Nations: An Introduction (Hamdon (Conn), Archon Books 1968), p. 48.
71
D. RAIČ, Statehood and the law of self-determination (Leiden, Kluwer Law International 2002), p. 29.
72
H. KELSEN, “Recognition in International Law: Theoretical Observations” (1941) 35 AJIL 605, 610.
73
For instance, the principle of self-determination enshrined in article 2(1) of the UN Charter, while seemingly
providing a legal basis for a right to secession, is restricted by the principles of sovereignty and territorial integrity.
Secession is thus always a matter of balancing rights: D. THÜRER & T. BURRI, “Secession” (2009) in WOLFRUM,
R. (ed) Max Planck Encyclopedia of International Law (OUP 2015), <opil.ouplaw.com/home/EPIL> §15.
74
See Restatement (Third) of Foreign Relations Law of the United States (ALI, 1987), Section 202, comment d:
“other states may use to treat [an entity] as a state when circumstances warrant doubt that it will continue to satisfy
requirements of statehood”, and “[i]n such circumstances, refusing to treat it as a state may not only be justified
but required, since premature acceptance is a violation of the territorial integrity of the state theretofore in control
of that territory.” Comment f notes that the treatment of an entity that does not fulfill the qualification criteria of a
state as a state may rise to “an improper interference in the internal affairs of the parent state and may rise to being
a violation of the Charter of the United Nations.”
75
H. LAUTERPACHT, “Recognition of States in International Law” (1944) 53 The Yale Law Journal 385, 392.
76
J. L. BRIERLY & A. CLAPHAM, Brierly’s Law of Nations: An Introduction to the Role of International Law in
International Relations (7th edn, Oxford, OUP 2012), p. 150.
77
LAUTERPACHT, “Recognition of States in International Law” (n 75) 393.
67
10
balance is usually struck between the parent state’s rights and the seceding entity’s right to selfdetermination.
In the realm of recognition of governments, recognition can also be premature, in the sense that
recognition of a new government – often in times of civil unrest – possibly infringes on the
principle of non-intervention in the internal affairs of the state.78
The determination of whether an act of recognition is premature, remains a matter of fact.
Concurring claims to statehood or legitimate representation of a state create precarious
situations. The complexity of premature recognition and its current relevance – with the
characterisation by most of the international community of Russia’s recognition of Crimea as
‘premature’ – merits a more thorough analysis further on in this thesis.79
78
79
SCHUIT (n 3) 399-402.
See infra III.4.2(i).
11
III.
RECOGNITION OF STATES
“To recognize a political community as a State is to declare that it fulfills the conditions of
statehood as required by international law.”80
1. THE TRADITIONAL THEORIES OF RECOGNITION OF STATES
Before answering the fundamental question of the role of recognition in international law, an
exposition of the doctrinal dispute between the declaratory and the constitutive view on
recognition of states and governments81 is warranted.82
However, over the last decades, a tendency has emerged to question whether a conflict between
constitutive and normative theories is still relevant. CRAWFORD suggested, “the differences
between the declaratory and constitutive schools are less in practice than might have been
expected”. 83 DE VISSCHER found that recognition was a political act, which did have a
significant legal effects internationally and domestically, 84 a definition distinct from the
traditional declaratory and constitutive views, and set the trend to combine certain aspects of
the traditional theories. 85 More recently, the Committee on Recognition/Non-Recognition in
International Law of the International Law Association concluded after careful examination of
reports reflecting opinio iuris of different states: “In any case, there was practically no express
support for the constitutive doctrine […] did not translate into upholding a “pure” declaratory
doctrine […], its description was closer to the third view […]”. 86 This overview of the
traditional theories therefore concludes with a short opinion on the relevance of this “third
approach”.
1.1. Constitutive theory
According to the constitutive theory, recognition is essential for the existence, in a legal sense,
of a state. The juridical act of recognition itself creates a new state with rights and obligations
in international law, a new member of the international community. In other words, the political
act of recognition is a “precondition of the existence of legal rights”. 87 Recognition is
considered “a necessary act before the recognized entity can enjoy an international
personality”.88 Where early writers, such as SAMUEL VON PUFENDORF, clung to the notion of
80
LAUTERPACHT, Recognition in International Law (n 5) 6.
The mentioned doctrinal approaches are widely used in regard to recognition of states. They can, however, also
be applied to recognition of governments. The exposition on recognition of governments in CHAPTER IV therefore
occasionally refers to one of the subsequently defined theories. The debate is nevertheless mostly situated at the
state level.
82
BROWNLIE (n 10) 82.
83
J. CRAWFORD, “The criteria for statehood in international law” (1976) 48 British Yearbook of International Law
93, 105-106.
84
J. VERHOEVEN & P. DE VISSCHER, La Reconnaissance Internationale Dans La Pratique Contemporaine: Les
Relations Publiques Internationales (Paris, Pedone 1975), 853 p.
85
CRAWFORD, “The criteria for statehood in international law” (n 83) 105-106.
86
International Law Association, First Report of the Recognition/Non-Recognition in International Law
Committee (Sofia Conference, 2012), p. 6, http://www.ila-hq.org/en/committees/index.cfm/cid/1032.
87
BROWNLIE (n 10) 83.
88
M. DIXON, & S. WILLIAMS, Cases and materials on international law (Oxford, OUP 2010), p. 158.
81
12
sovereignty as a shield against foreign recognition89, the positivist approach90 valued state or
sovereign consent as the origin of rights and obligations in international law. Hence, a new state
had to be accepted by the existing sovereign actors before it had any rights in international
law.91 While an entity can exist in fact, supporters of the constitutive approach do not accord
legal value to this factual situation. Rather, recognition is a conditio sine qua non to the legal
existence of the state.
The constitutive theory is no longer widely adhered to today. Its greatest deficiency is perhaps
the discretionary power bestowed upon existing states in their recognition practice of new states
– or in the words of LAUTERPACHT: “the constitutive act creative of statehood is an act of
unfettered political will divorced from binding considerations of legal principle”92. Recognition
as a legal norm is thereby at risk of being misused as a political tool – used, for instance, for
the purpose of advancing state interests and withholding rights to entities not yet members of
the international community, which otherwise possibly have a strong claim to statehood. A
strict constitutive approach could also create situations where a state that is not universally
recognised has international personality only vis-à-vis some states and not others.93 It comes as
no surprise that the constitutive view was particularly popular in colonial times. To entrust
existing states with the power to determine whether a state has legal personality requires a form
of trust in the rule of law – in abiding by legal norms and not by national policy – which has
been proven to lack in the past. The Legal Status of Eastern Greenland case before the
predecessor of the International Court of Justice (ICJ)94, where little importance was accorded
to the presence of indigenous peoples in Eastern Greenland, exemplifies the way in which a
purely constitutive approach could be twisted into a policy tool.95 The absence of title over
territory (of the indigenous population) meant a colonial power could take title without regard
for other aspects of international law. The dispute between Norway and Denmark in this case
consisted of challenging claims of sovereignty, with Denmark’s claim mainly resting on its
continued recognition as the sovereign power in the region.
Another criticism is that the principle of sovereign equality of States opposes the notion that
previously existing states have the power to bar entry into ‘the family of nations’ to emerging
states.96 The notion of sovereign equality, a general principle of international law97, is to be
89
International Law Association, First Report of the Recognition/Non-Recognition in International Law
Committee (Sofia Conference, 2012), <http://www.ila-hq.org/en/committees/index.cfm/cid/1032> referrring to S.
VON PUFENDORF, Of the Law of Nature and Nations (1729).
90
Legal positivism is the view that law is constructed by the will of states and is free from any value judgment: it
consists of accepted norms (either by convention or custom) and is not contrained by its merits. F. LACHENMANN,
“Legal Positivism” (2011) in WOLFRUM, R. (ed) Max Planck Encyclopedia of International Law (OUP 2015),
<opil.ouplaw.com/home/EPIL>.
91
P.K. MENON, The Law of Recognition in International Law (Lewiston, New York: Edwin Mellen Press 1994),
p. 8: “No new state need have any relation to another unless it has accepted the other into the community of
nations”.
92
LAUTERPACHT, Recognition in International Law (n 5) 41.
93
BRIERLY & CLAPHAM (n 76) 138.
94
Legal Status of Eastern Greenland (Denmark v. Norway) (Judgment) [1933] PCIJ (Ser. A/B) No. 53, p. 22, 46.
95
T. D. GRANT, “Defining Statehood: the Montevideo Convention and its Discontents” (1999) 37 Columbia
Journal of Transnational Law 403, 422.
96
International Law Association, First Report of the Recognition/Non-Recognition in International Law
Committee (Sofia Conference, 2012), p. 3, <http://www.ila-hq.org/en/committees/index.cfm/cid/1032>
97
Art. 2(1) UN Charter; UNGA ‘Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter of the United Nations’ Res 2625 (XXV) (24
October 1970) UN Doc A/RES/2625(XXV) (hereinafter Friendly Relations Declaration).
13
understood as granting all states equal rights under international law. The potential control by
states over the legal personality of entities that otherwise fulfill the criteria for statehood,
conflicts with their internal and external independence from outside interference. On the other
hand, LAUTERPACHT, an advocate of the constitutive theory, argued that:
“personality as such cannot be automatic and that as its ascertainment requires the prior
determination of difficult circumstances of fact and law, there must be someone to
perform that task. In the absence of a preferable solution, such as the setting up of an
impartial international organ to perform the function, the latter must be fulfilled by
states already existing.”98
He continues to say that it is only when such function is carried out arbitrarily that objection
against this approach can be deemed valid. LAUTERPACHT’s view was that it falls upon existing
states, as their legal duty, to determine whether prior existence, a matter of fact, justifies full
international personality, a matter of law.99
The constitutive approach raises many other questions, regarding the number of states that must
recognise in order for a state to become fully sovereign (hence whether universal recognition
is necessary and what the consequences of non-universal recognition would be); the possibility
of the existence of a state solely in regard of states that have recognised it; and whether there is
a binding legal basis for decisions on recognition or whether it is a purely discretionary act.100
Most commentators today do not find that recognition in itself creates statehood. 101
Furthermore, a strict application of the constitutive approach is not confirmed by current state
practice. For instance, unrecognised entities are not characterised as terra nullius but enjoy
certain rights within the international community, testament of a more nuanced approach.
1.2. Declaratory theory
The declaratory theory stipulates that recognition is only the endorsement or approval of a preexisting situation.102 Once an entity fulfills all the conditions for statehood, it becomes a state,
irrespective of recognition by other states. In this approach, recognition is “merely a political
act recognizing a pre-existing state of affairs”.103 The Montevideo Convention on Rights and
Duties of States is the most authoritative source for the declaratory theory:
“Article 3. The political existence of the state is independent of recognition by the other
states. Even before recognition the state has the right to defend its integrity and
LAUTERPACHT, “Recognition of States in International Law” (n 75) 437.
J. CRAWFORD, The creation of states in international law (2nd edn, Oxford, Clarendon Press 2006), p. 16.
100
SLOANE (n 4) 117; BROWNLIE (n 10) 89.
101
BRIERLY & CLAPHAM (n 76) 139; BROWNLIE (n 10) 90-91: “cogent arguments of principle and the
preponderance of state practice…dictate a preference for the declaratory doctrine”; B.H. WESTON & R. FALK,
Basic documents in international law and the world order (2nd edn, West. Pub. Co. 1990) p. 847 (2nd edn, 1990):
“It is clear that recognition does not create the state. It only confirms that an entity has reached statehood”;
Conference on Yugoslavia Arbitration Commission Opinion No. 1 (29 November 1991) 31 ILM 1494 (1992):
“[T]he effects of recognition by other states are purely declaratory”.
102
BROWNLIE (n 10) 82.
103
DIXON & WILLIAMS (n 88) 158.
98
99
14
independence, to provide for its conservation and prosperity, and consequently to
organize itself as it sees fit […].”104
The declaratory theory is based on fact, holding that an entity’s legal existence can merely be
‘declared’. The entity in question is presumed to become a state when it fulfills certain criteria
for statehood. The Montevideo Convention is one of the sole conventional attempts at
conceptualizing this notion. Indeed, in order to successfully proclaim a declarative approach, it
is necessary first to define statehood – to establish what are the facts that lead to a state’s legal
existence.105 The legal rights and responsibilities are automatically accorded, in line with a
natural law conception. According to this view, recognition serves the purpose of entering into
political relations with another state, but does not entail any concrete legal obligations.106
The declaratory view seems to be in prominence today.107 Commentators have stated that a
strict constitutive approach does not reflect contemporary international practice108, and over the
years multiple authoritative sources have accepted it. The Tinoco Concessions arbitration
confirmed the declaratory approach early on, as it did not find non-recognition by foreign states
a decisive factor in determining the legal personality of Costa Rica. However, even though this
case is often cited in regard to state recognition, it will be covered in more detail in CHAPTER
IV concerning recognition of governments, as it was the government of Costa Rica that was not
accorded universal recognition.109 Other international jurisprudence confirms the declaratory
approach. In Deutsche Continental Gas-Geselsschaft v. Polish State, the arbitrators declared,
“the State exists by itself […] and the recognition of a State is nothing else than a declaration
of its existence, recognised by the States from which it emanates.”110 In 1936, the Institut de
Droit International also opted for the declaratory view.111
Later, the ICJ indirectly affirmed the declaratory approach in the Bosnian Genocide case.112
During the preliminary objections, the question was raised whether Bosnia and Herzegovina
had succeeded to the rights and obligations contained in the Genocide Convention, previously
held by the Socialist Federal Republic of Yugoslavia (SFRY) – answered in the positive by the
ICJ – and subsequently whether the Convention had entered into force between the parties. The
Federal Republic of Yugoslavia (FRY) submitted that the consensual basis necessary to
104
Article 3 Montevideo Convention (n 34).
The notion of statehood and the link with recognition will be elaborated on infra III.3.
106
KELSEN (n 72) 605.
107
VIDMAR (n 15) 361.
108
VERHOEVEN & DE VISSCHER (n 84) 715, commenting on the constitutive theory: “Quel que soit le bien-fondé
de sa logique propre, les théories “déclarativistes” de la reconnaissance des personnes en droit des gens sont à cet
égard beaucoup plus réalistes.”.
109
Tinoco Concessions Case (Great Britain v. Costa Rica) (1924) 18 AJIL 147. See infra IV.2.1.
110
Germano-Polish Mixed Arbitral Tribunal, Deutsche Continental Gas-Gesellschaft v. Polish State, (1929) 5 ILR
11, at 13. The case turned on whether Poland had the right – granted by the Versailles treaty of 1920 – to
expropriate a German company’s assets, which were situated in Polish territory. Polish control over that territory
had however not been recognised by Russia until after the treaty when into effect. Nevertheless, the arbitrators
found the non-recognition not to be determinative.
111
Institut de droit international (n 58) providing the following definition in article 1: “La reconnaissance d’un
État nouveau est l’acte libre par lequel un ou plusieurs États constatent l’existence sur un territoire déterminé d’une
société humaine politiquement organisée, indépendante de tout autre État existant, capable d’observer les
prescriptions du droit international, et manifestent en conséquence leur volonté de la considérer comme membre
de la Communauté international”.
112
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro) (Preliminary Objections) [1996] ICJ Rep 595 (hereinafter Application of
the Genocide Convention).
105
15
establish the jurisdiction of the ICJ was lacking due to the mutual non-recognition of the parties
before the ICJ, at the time of the disputed events and of the institution of the proceedings. The
ICJ found that the legal personality of Bosnia and Herzegovina was not dependent on its
recognition by the FRY. Indeed, the rights of Bosnia and Herzegovina were opposable to the
FRY, as both states had subsequently recognised each other in the Dayton-Paris Agreement.113
The ICJ stressed that the defect in recognition was merely procedural and treated the nonrecognised Bosnia and Herzegovina as a state.114
However, a strict application of the declaratory theory is also problematic for various reasons.
First, it entails the endorsement of existing facts, without regard for the circumstances of how
they came into existence. 115 Yet international law condemns actions threatening peace and
security, thus requires a denial of recognition going against such principles. When a violation
of international law results in a certain fact – such as the emergence of a new state - the integrity
of international law requires that no rights be gained from such acts. Second, the declaratory
view poses conceptual difficulties as it does not, as such, require recognition – a discretionary
political act – for a state to come into existence. LAUTERPACHT finds however that it falls upon
states to determine the difficult circumstances of fact and law surrounding the emergence of a
new state. He stresses that the “plenitude of the normal rights and duties which international
law attaches to statehood” are only brought into being when states take up that function.116
Even if a state factually exists according to the declaratory theory, recognition is necessary to
make its legal existence effective.117 This last concern was confirmed by the Supreme Court of
Canada in its decision on the legality of a hypothetical secession by Quebec from Canada.118
After clearly adopting the declaratory approach, the Supreme Court still found “the viability of
a would-be state in the international community depends, as a practical matter, upon recognition
by other states”.119
The declaratory view that the act of recognition does not have any legal consequences cannot
be upheld: ROTH rightly points out that “international law operates to protect the interests of an
entity only once it gains widespread legal (as opposed to political) recognition by other
states”.120 It seems that in order to be confirmed by state practice, concessions need to be made
to both traditional doctrines.
1.3. Towards a more practical definition: the third approach?
The declarative theory has dominated international law debates over the last decades. Now,
inconsistencies in state practice lead to the perception that the constitutive theory may be
gaining ground. An example is the Republic of Somaliland, which formally fulfills the generic
criteria for statehood and therefore should not need recognition to function like a sovereign
state, quod non. Other states, on the contrary, have been recognised, such as Croatia and
113
General Framework Agreement for Peace in Bosnia and Herzegovina, 35 ILM 75 (1996); Dayton Agreement
on Implementing the Federation of Bosnia and Herzegovina, 35 ILM 170 (1996).
114
Application of the Genocide Convention, § 25-26.
115
ROTH, Governmental Illegitimacy in International Law (n. 11) 127.
116
LAUTERPACHT, Recognition in International Law (n 5) 73.
117
ROTH, Governmental Illegitimacy in International Law (n 11) 129.
118
Reference Re Succession of Quebec, 37 I.L.M. 1340 (Can. 1998).
119
ibid, §142: “Although recognition by other states is not, at least as a matter of theory, necessary to achieve
statehood […]”.
120
ROTH, Governmental Illegitimacy in International Law (n 11) 129.
16
Slovenia, at a time when they (originally) did not meet the applicable conditions for
statehood.121
These theoretical contradictions threaten to undermine the importance of an analysis of state
practice: “the old doctrinal debate between the proponents of the declaratory and constitutive
theories has become less and less illuminating, if even it illuminated much at all”.122 Hence, as
explained above, a third approach has appeared, which defines recognition as a political act
with considerable legal consequences.123 Rather than a mere acknowledgment of the emergence
of a new state (declaratory), recognition may in some instance contribute to the conditions
necessary for its creation, a situation which does not fit in either two classical theories. In other
words, recognition can have constitutive effects. The relevance of such an approach and its
application in practice will be demonstrated throughout the next chapters.
In conclusion, ROTH captures the difficulties with the traditional approaches quite clearly:
“The debate between the declaratory and constitutive views of recognition in the end reduces
to the old query, “If a tree falls in the forest and nobody hears it, does it make a sound?”.
The tree may make a sound, but to no effect. So, too, an entity that fulfills the legal criteria
for statehood (or governance) has a valid claim to legal existence, but in the absence of
recognition, either it has no legal existence or its legal existence is inefficacious. Even
declaratists are bound to concede that entities are assured of enjoying rights under
international law only after recognition, just as constitutivists concede that once recognized,
the entity’s status is retroactive to the point at which the factual circumstances justified the
claim to the status.”124
2. THE
TRADITIONAL
RECOGNITION?
CRITERIA
OF
STATEHOOD:
DOES
FULFILMENT
WARRANT
A description of the practice of recognition of states requires an overview of what legally
constitutes a state in international law. The act of recognition – whether it is understood in the
constitutive or declarative sense – is still generally understood as the “act of ascertaining
whether a given community has fulfilled the requirements of a state in international law”.125
Recognition is thus in theory only accorded when certain basic criteria for statehood have been
met. The following section therefore attempts to illuminate the concept of statehood. There
exists however no consensus on the criteria necessary for the establishment of a state in
international law. 126 Few authoritative sources offer a practical definition of a ‘state’. For
instance, in its report on the Draft Declaration on the Rights and Duties of States, the
121
Despite disapproval by the international community, Germany took the lead in recognising both states in
January 1992 even before the Badinter Commission (the European advisory commission on the dissolution of
Yugoslavia, see more infra III.3.2) noted that Croatia had not fully complied with all provisions the EU had set
forward for recognition. See Conference on Yugoslavia Arbitration Commission Opinion No. 5 (11 January 1992)
31 ILM 1503-1505 (1992); RAIČ (n 71) 355-356.
122
GRANT, The recognition of states: law and practice in debate and evolution (n 1) 216.
123
International Law Association, First Report of the Recognition/Non-Recognition in International Law
Committee (Sofia Conference, 2012) and Second (Interim) Report (Washington Conference, 2014),
<http://www.ila-hq.org/en/committees/index.cfm/cid/1032>
124
ROTH, Governmental Illegitimacy in International Law (n 11) 129.
125
H. TAKI, “Effectiveness” (2013) in WOLFRUM, R. (ed) Max Planck Encyclopedia of International Law (OUP
2015), <opil.ouplaw.com/home/EPIL>
126
CRAWFORD, The creation of states in international law (n 99) 31.
17
International Law Commission (ILC) found it superfluous to provide a definition neither of the
term “State” nor of “the qualifications to be possessed by a community in order that it may
become a State”.127 In the Deutsche Continental Gas-Gesellschaft case, the arbitrators found
that a “[s]tate does not exist unless it fulfills the conditions of possessing a territory, a people
inhabiting that territory, and a public power which is exercised over the people and the
territory”. 128 Traditionally, four criteria are advanced, as formulated by article 1 of the
Montevideo Convention. The Montevideo Convention contains one of the most often cited and
relevant definitions of ‘a state as a person of international law’.129 Over the years, possible
additional criteria as prerequisites for statehood have emerged. This section therefore concludes
by indicating whether the Montevideo criteria can still be deemed relevant today.
It is a different question altogether whether unrecognised entities that fulfill the criteria of
statehood, but are not bestowed with international recognition, still enjoy (some) rights and
obligations under international law. This will therefore be addressed separately, in the section
on contested states. 130 The legal value of recognition of states is intertwined with the legal
existence of states. The issue whether recognition itself can be argued to be a criterion for
statehood, boils down to the dichotomy between the traditional approaches to the concept of
recognition. A constitutive approach would indeed require recognition as a conditio sine qua
non for statehood, but it has been proven that such an approach is not in practice today.131
Whatever the legal effects accorded to the act of recognition, the concepts of statehood and
recognition remain deeply intertwined. 132 CRAWFORD cautions to keep a clear distinction
between both.133 As recognition at its very core remains a political act (due to the discretion
states enjoy in granting it, discussed infra134), the considerations that form the basis of an act
of recognition do not necessarily coincide with the criteria for statehood. WARBRICK states that
there is “contemporary confusion” on the issue: “[e]ven if one were to concede that these
criteria have achieved a degree of legal status, it is not resolved whether they represent
obligations of States or criteria for statehood”.135
2.1. Back to the roots: the Montevideo Convention
The “best known formulation of the basic criteria of statehood” 136 is the most prominently
referred to in article 1 of the 1933 Montevideo Convention on Rights and Duties of States. It
stipulates that a state’s international legal personality requires (a) a defined territory, (b) a
permanent population, (c) a government, and (d) the capacity to enter into relations with other
states. An implicit criterion is independence.
127
ILC, Report of the International Law Commission on the Work of its First Session 12 April 1949, UN GAOR
4th Session, Supp. No. 10 , UN Doc A/CN.4/13 (1949), at 289.
128
Germano-Polish Mixed Arbitral Tribunal, Deutsche Continental Gas-Gesellschaft v. Polish State, (1929) 5 ILR
11, at 13.
129
See infra III.2.1; Article 1 Montevideo Convention (n 34).
130
See infra III.5.
131
See supra III.1.
132
GRANT, “Defining Statehood: The Montevideo Convention and its Discontents” (n 95) 447.
133
CRAWFORD The creation of states in international law (n 99) 72-73.
134
See infra III.4.1.
135
C. WARBRICK, “Recognition of States: Recent European Practice” in M.D. EVANS, Aspects of Statehood and
Institutionalism in Contemporary Europe (Dartmouth, 1997), 16-17.
136
CRAWFORD The creation of states in international law (n 99) 36.
18
(i) The straightforward criteria: a defined territory and a permanent population
The first two requirements are the least ambiguous: a permanent population is not dependent
on a certain number of inhabitants or nationality137 and a defined territory is not interpreted
strictly. Indeed, in the North Sea Continental Shelf case, the ICJ stated that “[t]here is […] no
rule that the land frontiers of a State must be fully delimited and defined, and often in various
places and for long periods are not”. 138 To exemplify its statement, the ICJ refers to the
admission of Albania into the League of Nations.139 Clearly, the boundary disputes with its
neighbouring states in the 1920’s – which were resolved after its admission – did not prevent
its membership to an international organisation that is constituted of states. The boundaries of
a state therefore do not need to be rigorously defined, and it has been argued that counter-claims
to a portion of the territory do not affect this criterion.140 Israel is the often-cited example of a
generally accepted state even though its exact frontiers are disputed and its existence is
challenged by a number of Arab states.141
(ii) The concept of ‘effective government’
The third requirement of an effective government necessitates a more thorough commentary.
There are two aspects to the concept: in order to be effective, a government must enjoy a degree
of control over the claimed territory on the one hand and exercise its authority without outside
interference on the other hand.142 The latter refers to independence from foreign governments.
The former, the required extent of control over the territory, will be influenced by the manner
in which a newly formed state came into existence.143 When independence is granted to a new
entity, even a minimal degree of control fulfills the requirement.144 In contrast, when an entity
moves to secede from an existing state, the required degree of governmental control depends
on whether that entity has a right to self-determination. In the event an entity does not, a
successful secession does require an effective and stable government in fact.145 The operation
of the principle of self-determination, on the contrary, has been argued to create more leeway
for a government to be labeled as having ‘effective control’, especially when the entity is being
coercively prevented to enjoy its rights.146
137
ibid 40.
North Sea Continental Shelf (Federal Republic of Germany v. Netherlands) (Judgment) [1969] ICJ Rep 3, §46.
139
ibid.
140
As argued by Jessup before the United Nations Security Council when defending the admission of Israel to the
UN in 1948: UNSCOR, 3rd Sess., 383rd meeting (2 December 1948) UN Doc S/PV.383. Jessup argued that “neither
at San Francisco nor subsequently has the United Nations considered that complete freedom to frame and manage
one’s own foreign policy was an essential requisite of United Nations membership” and interestingly that the
“reason for which I mention the qualification of this aspect of the traditional definition of a State is […] that the
term ‘State’, as used and applied in Article 4 […] may not be wholly identical with the term ‘State’ as used and
defined in classic textbooks”.
also implied in Deutsche Continental Gas-Gesellschaft v. Polish State (1929) 5 ILR 11, 14-15, discussed supra n
110.
141
SHAW (n 25) 199-200.
142
L. HENKIN, R.C. PUGH & O. SCHACHTER, International Law: Cases and Materials (2nd edn, Saint Paul (Minn.),
West Publ. co, 1993) p. 9.
143
ibid 10.
144
SHAW gives the example of the independence of the former Belgian Congo in 1960, which was widely
recognised despite the “virtual breakdown of the government”: SHAW (n 25) 205.
145
CRAWFORD “The criteria for statehood in international law” (n 85) 120; CRAWFORD The creation of states in
international law (n 99) 44.
146
CRAWFORD The creation of states in international law (n 99) 102.
138
19
The criterion of effectiveness has thus evolved over time. Its relevance has been influenced by
claims to a right to self-determination, which gained importance primarily during the era of
decolonisation and provides a more nuanced approach to the requirement of ‘effective
government’.147 In addition, self-determination resurfaces as an important principle to assess
the legality of recognition and has been described as an additional criterion of statehood. 148 The
operation of the principle in that context is discussed more in detail infra.149 Another evolution
is the relevance of collective or international recognition, which has increasingly served as a
counterbalance to the lack of effective control by the government of an emerging state. For
instance, during the dissolution of the FRY, the governments of Croatia and Bosnia and
Herzegovina were not effectively in control of the territories of the emerging states.
Nevertheless, recognition by the European Community and the subsequent admission the UN
remedied this lack of effectiveness.150
Finally, it can be noted that loss of this criterion does not extinguish statehood. Notwithstanding
the practical and legal consequences of the breakdown of a government, a ‘failed state’ is still
a state.151
(iii) The capacity to enter into relation with existing states
The capacity to enter into relations with existing states entails that a state must have the legal
competence and the “political, technical and financial capabilities”152 to form alliances or other
agreements with third states. While other subjects of international law equally enjoy this
capacity – such as international organisations – the distinguishing element for statehood is legal
independence. 153 Alternatively, independence is also considered to exist in customary
international law as a fifth requirement for statehood.154 The requirement is fulfilled even when
the control over foreign relations is handed over to another foreign sovereign, as confirmed by
the ICJ in the Nottebohm case.155 This is also evidenced by more recent practice of transferring
such capacity to a neutral entity, as was done in the case of Bosnia and Herzegovina in the
Dayton Peace Agreements in 1995.156 The conferral of these powers did not negate the capacity
of Bosnia and Herzegovina to enter into relations with other states. What is, in essence,
necessary is “international effectivité”157, which also helps differentiate this requirement from
147
SHAW (n 25) 205-206.
SHAW (n 25) 206.
149
See infra III.4.2(iii).
150
SHAW (n 25) 201. A more detailed analysis of the role of recognition in practice is given infra III.3.2.
151
SHAW (n 25) 201-202. The concept of ‘failed state’ does not form the focus of this thesis. Other aspects of the
law of recognition such as self-determination and the doctrine of non-recognition were chosen as main themes
instead.
152
Restatement (Second) of the Foreign Relations Law of the US (ALI, 1965) §201 comment e; SHAW (n 25) 204.
153
Referring to the legal capacity to form independent decision, and not the independence from foreign control,
which was discussed under the criterion ‘effective government’: SHAW (n 25) 202.
154
CRAWFORD The creation of states in international law (n 99) 62.
155
M. K. MALONE, “The Rights of Newly Emerging Democratic States Prior to International Recognition and the
Serbo-Croation Conflict”, (1992) 6 Temple International & Comparative Law Journal 81, at 81.; Nottebohm
(Liechtenstein v. Guatemala) (Judgment, Second Phase) [1955] ICJ Rep 4, 20.
156
SHAW (n 25) 203.
157
J. D’ASPREMONT, “Regulating Statehood: The Kosovo Status Settlement” (2007) 20 Leiden Journal of
International Law 649, 655.
148
20
the executive or legislative powers that are assigned to a sub-state entity of a federal.158 In
general, for example, the capacity to sign international treaties is reserved to states.159
This criterion is not prejudiced by an entity’s lack of formal relations with other states. In other
words, the capacity to do something does not require that this capacity is actually put in practice.
This argument is often made in support of Somaliland’s claim to statehood.160 Indeed, while
Somaliland has not been recognised by the international community, it boasts a government
that has the competence to engage in relations with other states, participates in a number of
agreements with third states and effectuated official visits to other countries – displaying “statelike” behavior - on a number of occasions.161
2.2. The relevance of the Montevideo criteria today
While the Montevideo criteria seem to identify the fundamental requirements for statehood,
their establishment does not per se culminate in the acquirement of statehood. As was
discussed162, this would only be the case in the event of an international consensus that the act
of recognition is strictly declarative. Neither do the four traditional criteria include recognition
of the emerging state by the international community as a condition for statehood – which
would be implied by a strict constitutive approach. The role of recognition in practice, closer to
the third approach, is elaborated on infra.163
The Montevideo formula is widely employed in international practice and has been suggested
to represent customary international law164, despite only sixteen states having formally ratified
the Montevideo Convention.165 However this is not without criticism, and “there has arisen a
body of scholarly opinion that calls into question past reliance on the Montevideo Convention
as an authoritative pronouncement on the characteristics of the state.”. 166 For instance,
CRAWFORD regards the capacity criterion as a consequence rather than a prerequisite of
statehood, and finds the aforementioned traditional criteria therefore over-inclusive.167 Others
claim that the Montevideo definition fails to adequately represent all essential elements to
statehood.168 Despite this, it can be stated that in general the criteria have been accepted “as the
normative starting point on state recognition”. 169 While their exact meaning is subject to a
158
ibid 655.
ibid 656.
160
See for instance: A.K. EGGERS, “When is a State a State? The Case for Recognition of Somaliland” (2007)
30(1) BC Int’l & Comp. L. Rev. 211-222.
161
ibid. The author contends that such capacity is also demonstrated by a number of international agreements and
“state-like” visits to foreign governments that Somaliland has engaged in.
162
See supra III.1.2.
163
See infra III.3.2.
164
J. DUGARD, D.L. BETHLEHEM, M. DU PLESSIS, A, KATZ, International Law: A South African Perspective
(Landsdowne, South Africa: Juta, 2007) p. 84; see reflected in Restatement (Third) of the Foreign Relations Law
of the United States (ALI, 1987) Section 201.
165
Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti,
Honduras, Mexico, Nicaragua, Panama, United States and Venezuela.
166
GRANT “Defining Statehood: The Montevideo Convention and its Discontents” (n 95) 434.
167
CRAWFORD, The creation of states in international law (n 99) 47.
168
For a comprehensive overview of all concerns raised in regard to the Montevideo Convention’s criteria for
statehood, see GRANT “Defining Statehood: The Montevideo Convention and its Discontents” (n 95) 434-447.
169
C. RYNGAERT & S. SOBRIE, “Recognition of states: international law or realpolitik? The practice of recognition
in the wake of Kosovo, South Ossetia, and Abkhazia.” (2011) 24(2) Leiden Journal of International Law 467,
472.
159
21
variety of interpretations, the Montevideo requirements can still be considered the backbone of
any recognition policy. This has led to considerably consistent state practice of recognition170
with as main guiding principle the effectiveness of an emerging state.171 As such, the relevance
of the criteria exists in the way they regulate the emergence of new states: facilitating
recognition when they have been met, and hampering an all too easy accession to statehood in
the event they have not.
This conclusion must be nuanced.172 A number of additional criteria of statehood have been
proposed, ranging from the requirement that an emerging state actually makes a claim of
statehood in the first place to the obligation to withhold any recognition of statehood to entities
arising out of an illegal situation.173 The development of these new criteria, mainly at the time
of the dissolution of Yugoslavia, also altered the role of recognition in practice. Additional
elements for recognition – the act most accurately identifying the different requirements of
statehood – will therefore be analysed in the next section, which delves deeper into the legal
effects of recognition in the emergence of states. Even if we accept this ‘new law’ on
recognition, the criteria for statehood must still be distinguished from the conditions for
recognition: fulfillment of all criteria does not ipso facto entail that an ensuing recognition is
legal.174 Indeed, the subsequent section on the legality of recognition will reveal a practice and
even duty of non-recognition of illegal situations.175
3. THE ‘NEW LAW’ ON STATE RECOGNITION
Recent international practice does not confirm the existence of the abovementioned traditional
criteria as the sole requirements for statehood. Several additional contemporary elements, on
which recognition is conditioned, can be distilled from the modern recognition policy of many
states, which was primarily developed during the disintegration of the SFRY. The international
community – chiefly the European Community (EC) – was faced with numerous claims of
independence and secessions in the region, which signaled the start of a major crisis both in
fact (in the form of civil wars and unrest) and in law, as the traditional legal framework on
statehood was rethought. The content of this ‘new law on state recognition’ and its relationship
with the traditional criteria is addressed first (3.1).
We will see that the events in the Balkan did not clarify the role of recognition in practice.
Rather, an ad hoc approach was adopted, in which legal argumentation was seemingly based
on desired results rather than on clear legal factors. 176 Indeed, why otherwise recognise
Montenegro and not Kosovo? Even more, why recognise Kosovo and not South Ossetia?177
The second part of this section thus attempts to provide an overview of the value of recognition
in different situations of emergence of new states, without purporting to posit its legal effects
R. RICH, “Recognition of States: The Collapse of Yugoslavia and the Soviet Union”, (1993) 4(1) EJIL 36, at
36.
171
RYNGAERT & SOBRIE (n 169) 473.
172
ibid 474.
173
GRANT “Defining Statehood: the Montevideo Convention and its Discontents” (n 95) 437-447.
174
GRANT, The recognition of states: law and practice in debate and evolution (n 1) 83.
175
See infra III.4.2.
176
RYNGAERT & SOBRIE (n 169) 484.
177
Different legal arguments can, of course, be drawn from the recognition policy of state that recognised (or did
not) these entities. However, contradictions are manifold: as noted by WORSTER, the justifications for nonrecognition of South Ossetia include respect for the sovereignty, independence or territorial integrity of Georgia –
which did not restrict those same states’ recognition of Kosovo. See WORSTER (n 24) 117-118.
170
22
with absolute certainty (3.2). This section attempts to synthesis the legal effects of recognition,
while its legality is analysed in the subsequent section.178
3.1. The disintegration of Yugoslavia as turning point: from clarity to obscurity
in the law of recognition
A new normative framework on state recognition was introduced by the process of
disintegration of the former Federal Republic of Yugoslavia, in the wake of the fragmentation
of the Soviet Union (which occurred as a matter of fact when different republics of Yugoslavia
withdrew from the organs of the Federal Government). 179 The EC set up a Conference on
Yugoslavia and an Arbitration Commission, which served an advisory function. It concluded,
“that the Socialist Federal Republic of Yugoslavia is in the process of dissolution”180, which
opened the door for EC Member States to recognise the emerging republics. The events led to
the adoption of the EC Guidelines on Recognition of New States in Eastern Europe and in the
Soviet Union (EC Guidelines) in 1991, a document which laid the groundwork for the
recognition practices of European states with respect to the newly established republics. 181 The
EC Guidelines take into consideration a number of new factors, including respect for the
provisions of the Charter of the United Nations, for the rule of law, democracy and human
rights, guarantees for the rights of ethnic and national groups and minorities, and respect for
the inviolability of all frontiers, amongst others.182
At first sight, the guidelines seem to supplement the traditional criteria for statehood to create
a ‘new law on state recognition’. Recognition is subjected to higher standards than those
previously accepted in customary international practice. 183 The “new generation” of
recognition criteria add a moral perspective to the traditional debate on statehood, which was
merely based on whether an entity possesses certain factual elements such as the Montevideo
criteria.184 The “amoral” rationale behind the traditional criteria makes way for a more valueoriented framework. 185 However, as GRANT affirmed, the “professed commitment to the
December 16 Guidelines did not […] translate into practice uniformly”.186 The adherence of
states to these guidelines has not been consistent, which creates much confusion as to their
content and their relationship with the Montevideo criteria. 187 Furthermore, the ICJ did not
clarify the “validity or the legal effects” of recognition in its Kosovo advisory opinion, but
restricted itself to finding that Kosovo’s declaration of independence did not violate
international law.188
178
See infra III.4.
E. DENZA, “European Practice on the recognition of States” (2011) 36(3) European Law Review 321, 323.
180
European Community Declaration on the ‘Guidelines on the Recognition of New States In Eastern Europe and
in the Soviet Union’ (16 December 1991) 31 ILM 1485 (1992), at 1488.
181
RYNGAERT & SOBRIE (n 169) 475.
182
European Community, Declaration on the ‘Guidelines on the Recognition of New States In Eastern Europe
and in the Soviet Union’, 16 December 1991, (1993) 4 E.J.I.L. 1993, 72.
183
DENZA (n 179) 324.
184
RYNGAERT & SOBRIE (n 169) 487.
185
RICH (n 170) 64.
186
GRANT The recognition of states: law and practice in debate and evolution (n 1) 95.
187
RYNGAERT & SOBRIE (n 169) 477.
188
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, [2010] ICJ Rep 403, §51 (Kosovo Advisory Opinion).
179
23
Undoubtedly, there is legal value in the classical framework of recognition. Its reliance on
effectiveness as a central criterion for recognition is often favoured since this guarantees that
the entities bestowed with recognition can effectively bear the consequences – can bear the
rights and duties that coincide with statehood. 189 As such, in reaching a decision on the
membership of a new state to the United Nations, the willingness and ability of states to carry
out the obligations of international law is a critical factor.190 The assurance that a new member
of the international community will be able to operate as one protects the “validity of
international law”. 191 The introduction of new moral criteria therefore does not ipso facto
undermine the threshold function of the principle of effectiveness. 192 Furthermore, a new
normative framework that would solely rely on the new elements introduced during the
dissolution of Yugoslavia would create a lot of uncertainty in the international legal order –
both in regard to the ‘presumption of statehood’ that existing states enjoy (since they do not all
possess all of the aforementioned moral criteria such as democracy193) and in regard to future
practice of state recognition (since there is no international consensus on the precise content of
the new criteria).194 Admittedly, the law of state recognition has changed. Nevertheless, it can
be contended that it has not (and it would not be beneficial if it did) completely thrown the
traditional elements of statehood overboard.
3.2. The politics of recognition and non-recognition and the variety of forms
through which states emerge
(i) The legal effects of recognition
In what way does recognition affect statehood? 195 On the one hand, if lack of statehood is
blamed on the deficit in the number of states recognising certain entities, there would be clear
state practice in favour of the constitutive approach. On the other hand, if statehood actually
depends on objective law criteria that these entities do not fulfill, the declaratory would provide
the appropriate theoretical background. Here the relevance of the ‘third approach’, distinct from
the traditional approaches, becomes apparent. It is clear that a single theoretical framework for
recognition policies, which so diversely affect the emergence of new states, would provide
stability and predictability. An example of the inconsistencies in the application of the
traditional recognition doctrines can be found in the opinions of the Badinter Commission. As
mentioned, in 1991, the European Community established an Arbitration Commission in
response to the crisis in Yugoslavia.196 The main purpose of the Badinter Commission was to
offer advisory opinions on the dissolution of the SFRY. More specifically, the Badinter
189
G. KREIJEN, State Failure, Sovereignty and Effectiveness: Legal lessons from the Decolonization of SubSaharan Africa (Leiden, Martinus Nijhoff Publishers 2004), p. 13; RYNGAERT & SOBRIE (n 169) 487; C.
HILLGRUBER, “The admission of new states to the international community” (1998) 9 EJIL 491, 499.
190
Art. 4(1) UN Charter.
191
HILLGRUBER (n 189) 502.
192
RYNGAERT & SOBRIE (n 169) 488.
193
KREIJEN (n 189) 24. The author points out that the appearance of human rights-related criteria for statehood
bears no relation to the continued existence of states, as this would lead to the end of many states that violate
human rights around the world.
194
ibid.
195
Referrring to the legal effects of the act of recognition on the issue of statehood, and not the consequences of
recognition at the national level, elaborated on infra, chapter V.
196
See supra III.3.1; European Political Cooperation Declaration on Yugoslavia (27 August 1991) EPC Press
Release, P.82/91.
24
Commission took a clear stance regarding the issue of recognition of the newly emerging states
in the region (without purporting to have a legal impact on the creation of these States). In its
Opinion No. 1, it stated that recognition was “purely declaratory”197, clearly opting for one of
the two traditional approaches to recognition. However, in practice, it seemed to acquiesce that
recognition “confer[s] certain rights and obligations under international law”198. This endorses
the fact that recognition can have constitutive effects, the view put forward in the ‘third
approach’.
Similarly, the implicit declaratory approach adopted by the ICJ in the Preliminary Objections
to the Bosnian Genocide case (as explained supra199), was called into question in Judge ad hoc
Milenko Kreća’s separate opinion. He found that the recognition granted to Bosnia and
Herzegovina was part of the global solution for the Yugoslav crisis, inspired by political
motives rather than based on clear legal grounds.200 In his words, “legally, the recognition of
Bosnia and Herzegovina within its administrative boundaries represented the recognition of a
non-existent State”. The international recognition therefore had constitutive effects, as it did
more than passively acknowledge the establishment of the state: it actively participated in its
creation.201
It has been argued that the legal effects of recognition, and hereby the application of either of
the aforementioned recognition theories, merely depends on the existence of the right legal
circumstances.202 The emergence of new states can take a variety of forms. Recognition is of
course not the primary concern in cases of state succession (“the replacement of one State by
another in the responsibility for the international relations of territory”203) that only involve
existing states.204 Recognition is not essential when there is no change to the legal personality
of the predecessor state.205 This is not to say, however, that any claim of succession is always
upheld. Still, for instance, the Russian Federation was uninterruptedly recognised as the
successor of the Soviet Union, which included a position as a permanent member on the United
Nations Security Council.206 To be qualified as a successor state can therefore be extremely
important and impactful, as it signifies the rights and obligations of the predecessor state are
passed on. Situations of unification of two states are also not problematic, as they usually occur
by consent and there is therefore no reason to withhold recognition. Prominent examples
include North and South Yemen, or North and South Vietnam.
197
Conference on Yugoslavia Arbitration Commission Opinion No. 1 (29 November 1991) 31 ILM 1494 (1992).
Conference on Yugoslavia Arbitration Commission Opinion No. 8 (4 July 1992) 31 ILM 1521 (1993).
199
See supra text accompanying n 112.
200
Application of the Genocide Convention (Diss. Op. Judge ad hoc Milenko Kreća) [1996] ICJ Rep 207, at 688,
§26.
201
ibid at 691: although Judge ad hoc Kreća did find that the declaratory approach is the yardstick that states
should strive to abide by: “phcnomenologically, in this case, the recognition of Bosnia and Herzegovina did not
follow the natural logic of the legal process of recognition, namely, that it should be a passive acknowledgment of
the establishmeni of the State”.
202
VIDMAR (n 15) 361-387.
203
Vienna Convention on Succession of States in Respect of Treaties (signed 23 August 1978, entered into force
6 November 1996), 1946 UNTS 3, art. 2(1)b.
204
J. KLABBERS, State practice regarding state succession and issues of recognition: the pilot project of the
Council of Europe (Den Haag, Kluwer Law International 1999), p. 32.
205
M. SKRK, “Recognition of States and Its (Non-)Implication on State Succession: The Case of Successor States
in the Former Yugoslavia, in M. MRAK (ed.), Succession of States (Martinus Nijhoff Publishers 1999), p. 7.
206
DENZA (n 179) 325.
198
25
When states move to separate, either by dissolution into a number of new states or secession
from a parent state207, recognition takes on a different role. For instance, declaratory recognition
has occurred in situations of “consensual state creation” – such as the prompt recognition of the
Czech Republic and Slovakia after the dissolution of Czechoslovakia in 1992 - and in situations
of “political non-recognition”. 208 An example of the latter is the appearance of the nonrecognised Federal Republic of Yugoslavia (FRY) before the ICJ in the Bosnian Genocide
case209, which implied that universal recognition is not necessary for an entity to be considered
a state (with access to the ICJ). The ICJ accepted the date of ‘creation’ of the FRY put forward
by the Badinter Commission 210 , without requiring widespread recognition. 211 The denial of
recognition of the FRY by, for example, the United Kingdom, until 1996 (while the Badinter
Commission held that the FRY became a state when it adopted its constitution on 27 April
1992 212 ) has been described as “overly political”. 213 In such situations, non-recognition
therefore does not affect the legal status of the entity claiming statehood; rather, it has acquired
international subjectivity despite non-recognition.
In the contrary, recognition could prove to be the missing link in the constitution of the new
State in the event of (unilateral) secession. International recognition may in such cases have
constitutive effects, albeit it would need to be virtually universal in order to overturn the refusal
of consent by the parent state. 214 Inversely, when the parent state consents to the secession, its
territorial integrity is no longer implicated. The legal effects of recognition or non-recognition
therefore depend on the circumstances present during the emergence of the new state. One of
the criteria that has gained considerable relevance – specifically since the events in the Balkan
– is the right to self-determination. The right holds a central position in the EC Guidelines and
was also invoked by most states claiming independence at the time. It possibly modifies the
legality and the legal effect of recognition considerably, and is therefore addressed immediately
below and in the subsequent section regarding the legality of recognition.215
In sum, the choice to either withhold or grant recognition is often reasoned by virtue of the legal
criteria for statehood. However, when recognition is granted before the entity has actually
acquired all the necessary elements to become a state, it will have constitutive effects.
Nevertheless, care must be taken in such situations, as recognition can be condemned as
‘premature’ – a concept further analysed infra.216
207
Vienna Convention on Succession of States in Respect of Treaties of 23 August 1978, 1946 UNTS 3, art. 34:
“when a part or more parts of the territory of a State separate to form one or more States, whether or not the
predecessor State continues to exist”.
208
VIDMAR (n 15) 365.
209
Application of the Genocide Convention §45.
210
Conference on Yugoslavia Arbitration Commission Opinion No. 8 (n 198).
211
Application of the Genocide Convention §25.
212
Conference on Yugoslavia Arbitration Commission Opinion No. 8 (n 198).
213
VIDMAR (n 15) 373.
214
Reference Re Succession of Quebec, 37 I.L.M. 1340 (Can. 1998).
215
Self-determination is almost a subject of international law in itself and touches on so many different aspect of
public international law that it falls outside the scope of this treaty to discuss it comprehensively. See for an indepth study (in relation to the doctrine of recognition as well): RAIČ (n 71) 515 p.
216
See infra III.4.2(i).
26
(ii) The significance of the principle of self-determination
SHAW argues that the principle of self-determination has become an additional criterion of
statehood in its own right. 217 The right to self-determination is recurrently invoked as a
justification for the constitution of the new state in cases of secession. Historically however, in
the context of the emergence of states, the scales often tipped in favour of the inviolability of
borders of the parent state. This was seen clearly in the Council of the League of Nations’ report
on the Aaland Islands, in which the International Commission of Jurists examined the islands’
claim of self-determination and unification with the Kingdom of Sweden. The International
Commission of Jurists determined that the right to self-determination was not absolute.218 The
decision purports that the principle is not even an international legal norm: “Positive
International Law does not recognize the right of national groups, as such, to separate
themselves from the State of which they form a part by the simple expression of a wish, any
more than it recognizes the right of other States to claim such a separation.”219
This contention does not hold true today: the principle is included in article 1(2) UN Charter220
and protected in numerous fundamental human rights treaties.221 It has been assessed by the
ICJ on several occasions222 and recently acknowledged by the Canadian Supreme Court as a
general principle of international law.223 Cases of secession are thus scrutinised under the lens
of an alleged right to self-determination. Admittedly, in cases of non-consensual secession, the
principle of self-determination competes with the principle of territorial integrity.224 Indeed, for
example, in rejecting Kosovo’s declaration of independence, Serbia demanded “that all States
Member of the United Nations fully respect the sovereignty and territorial integrity of the
Republic of Serbia, in accordance with their obligations under international law […]”.225 While
the international legal system does not forbid secession as such226, there are examples abound
of entities claiming a right to self-determination in their struggle for secession but that have not
been recognised by any state: Somaliland, Nagorno-Karabakh, Transdniestria, South Ossetia
217
SHAW (n 25) 206.
International Committee of Jurists, Report on the Legal Aspects of the Aaland Islands Question, League of
Nations O.J. (October 1920), Special Suppl. No. 3.
219
ibid.
220
Art. 1(2) UN Charter.
221
UN Charter art. 1(2); International Covenant on Civil and Political Rights (adopted 16 December 1966, entered
into force 23 March 1976) 999 UNTS 171, art. 1 (hereinafter ICCPR); art. 1, Dec. 16, 1966, 999 U.N.T.S. 171;
International Covenant on Economic, Social and Cultural Rights (signed 16 December 1966, entered into force 3
January 1976), 993 UNTS 3, art. 1 (hereinafter ICESCR); see also A. CASSESE, Self-Determination of Peoples: a
Legal Reappraisal (CUP 1995) p. 171–172.
222
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 12; Western Sahara
(Advisory Opinion) [1975] ICJ Rep 12; East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90.; Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ
Rep 136.; see SHAW (n 25) 254-255.
223
Reference Re Secession of Quebec, 37 I.L.M. 1340, 1368 (Can. 1998).
224
G.A. Res. 50/6, §1, U.N. Doc. A/RES/50/6 (Oct. 24, 1995) (U.N. General Assembly’s Declaration on the
Occasion of the Fiftieth Anniversary of the United Nations stating that member states will “[c]ontinue to reaffirm
the right of self-determination of all peoples” but that recognition of the “inalienable right of self determination .
. . shall not be construed as authorizing or encouraging any action that would dismember or impair . . . the territorial
integrity or political unity of sovereign and independent States . . . .”).
225
Letter to the UN Secretary General, 19 February 2008, Un Doc A/62/703-S/2008/111.
226
T. M. FRANCK, “Opinion Directed at Question 2 of the Reference”, in A. BAYEFSKY (ed.), Self-determination
in International Law: Quebec and Lessons Learned (Cambridge, Kluwer Law International 2000) 83.
218
27
and Abkhazia.227 This leads SHAW to conclude that self-determination is a concept “capable of
developing further so as to include the right to secession from existing states, but that has not
as yet convincingly happened”.228
4. THE LEGALITY OF RECOGNITION
Does the ‘new law of recognition’ hold any truly normative rules at all, or is it to be used at
will of states engaging in recognition of new states? This section examines more in depth the
additional features that have been considered by states before granting recognition to putative
states, thereby focusing on whether there exists a duty of either recognition or non-recognition
in certain circumstances. This also sheds light on the exact nature of possible additional criteria
for statehood. Indeed, despite the evolution in the criteria for recognition over the last decades
and the sometimes purely political grounds for granting or withholding recognition, there seems
to remain a basic standard for statehood – expressed by way of binding obligations of (non)recognition. Any altercations beyond that baseline can be deemed to have a political character
and are less relevant for the ‘law of recognition’.
First, it will be exposed to what the scope is of the discretion that states are entitled to in the
law of recognition (4.1), followed by an analysis of the extent to which non-recognition might
be mandated by international law (4.2).
4.1. A duty of recognition or freedom of states to recognise?
Stepping aside from the legal circumstances that could create states and the role of recognition
therein (the legal effects of the act on the emergence of the state), the legality of the act of
recognition itself must also be considered. LAUTERPACHT and GUGGENHEIM originally
proposed that there was a legal obligation to recognise new states fulfilling the conditions for
statehood put forward by international law.229 Of course, LAUTERPACHT was a proponent of the
constitutive theory: since recognition creates states, he found that “[i]f this fact is present
[statehood], States fall under a duty to declare its existence and thus to bring into being the
international right and duties of the new State”.230 This was affirmed to a certain extent by
BROWNLIE: “Recognition, as a public act of state, is an optional and political act and there is no
legal duty in this regard. However, in a deeper sense, if an entity bears the marks of statehood,
other states put themselves at risk legally, if they ignore the basic obligations of state relations”.
231
In a way, BROWNLIE’S contention finds confirmation in the maxim ex factis ius oritur, which
seems to preclude states from withholding recognition when the facts at hand actually confirm
the acquirement of the attributes of statehood. Still, state practice demonstrates that despite
fulfilling all the traditional requirement of statehood, some entities remain unrecognised. For
instance, the international community has not of yet recognised Somaliland as a sovereign state
while it has a strong claim to statehood. Somaliland became independent from British colonial
rule and joined with Somalia Italiana in 1960, but removed itself from the union in 1991. It now
227
SHAW (n 25) 237-238.
SHAW (n 25) 257.
229
BROWNLIE (n 10) 89; LAUTERPACHT, “Recognition of States in International Law” (n 75) 385.
230
LAUTERPACHT, Recognition in International Law (n 5) 74.
231
BROWNLIE (n 10) 94.
228
28
has a permanent population, a clearly defined territory, a constitution, and is self-governing,
entertaining cooperative bilateral relations with other states such as Ethiopia.232 Commentators
find that the reluctance to recognise Somaliland lies in the significance the international
community accords to the general principles of territorial integrity of states, as enshrined in the
UN Charter. 233 Hence, states show deference to the internal affairs and the interests of the
‘parent state’. The call for recognition of Somaliland is also an example that even though some
see recognition as a political concept, it seems to be formally necessary in order to create a legal
personality with all its consequences.
Hence, there exists currently a general agreement that there is no legal duty to recognise an
entity as a state.234 According to KELSEN, the unwillingness or refusal to recognise a new entity
is not a breach of international law.235 The decision to recognise new states is an autonomous
one. This follows from the nature of the act of recognition itself: unilateral acts, such as
recognition, are inherently discretionary. 236 While the normative framework of statehood
elaborated on supra237 forms the basis on which states build their foreign policy on recognition,
states still have a wide margin of appreciation and interpretation of these criteria. 238 The
corollary of such freedom to recognise is that even entities bearing the accepted marks of
statehood in international law today are sometimes denied recognition.
While it can be argued that it remains within a state’s sovereign decision power to grant
recognition, the question can still be raised whether a state’s discretion to withhold recognition
is not at all constrained. Do certain situations warrant non-recognition by all members of the
international community? The following section presents an overview of the state practice and
rationale of the theories of unlimited discretion (i), respectively limited discretion (ii) in
granting or denying state recognition.
(i) The theory of unlimited discretion
A theory of unlimited discretion, which would imply that acts of recognition are neither
obligated nor prohibited in any situation, can only be reasonably justified if one accepts that
recognition is a purely political process.239 The existence of legally binding criteria as a basis
for statehood would undermine this view, as states would no longer have the freedom to engage
in recognition at will.240 Only a purely constitutive approach is reconcilable with this theory241,
which legitimises in a way the fact that recognition is not always granted to entities that
objectively bear all the objective criteria for statehood. As noted, Somaliland is such a case of
232
As argued by A.K. EGGERS (n 160).
article 2(4) UN Charter.
234
International Law Association, Second (Interim) Report of the Recognition/Non-Recognition in International
Law
Committee
(Washington
Conference,
2014),
p.
2,
<http://www.ilahq.org/en/committees/index.cfm/cid/1032>
235
KELSEN (n 72) 610.
236
This is also the strong contention put forward by the International Law Commission. See ILC, Sixth Report on
Unilateral Acts by States (30 May 2003) UN Doc A/CN.4/534 (2003), §39.
237
See supra III.2.
238
RYNGAERT & SOBRIE (n 169) 473.
239
WORSTER (n 24) 148.
240
CRAWFORD, The creation of states in international law (n 99) 13-14.
241
LAUTERPACHT (n 5) 2.
233
29
non-recognition. Tibet and East Timor are also often cited as examples of refusal of recognition
for mere political reasons.242
To a certain extent, the declaratory theory can be reconciled with this approach, in the sense
that it purports that the nascent state already exists prior to recognition, and that the act of
recognition itself is purely of an administrative and thus discretionary nature.243 In other words,
the declaratory theory “fully accepts the view of the rival doctrine according to which there
does not exist, in any circumstances, a legal duty to grant recognition”.244 Nevertheless, a claim
of unlimited discretion is only practically relevant under a strict constitutive approach, since
under the opposing view an emerging state fulfilling the necessary criteria is already entitled to
rights and obligations connected to statehood, and the act of recognition has less important legal
effects, if any at all.
However, no uniform state practice or opinio iuris confirm a theory of unlimited discretion.
States invoke a variety of legal reasons for their recognition policies, and the respect for
fundamental international norms is often one of them.245 A practical illustration of this assertion
is the fifth principle of the Friendly Relations Declaration, which provides:
“Every State has the duty to promote, through joint and separate action, realization of
the principle of equal rights and self-determination of peoples, in accordance with the
provisions of the Charter […].
The establishment of a sovereign and independent State […] constitute modes of
implementing the right of self-determination by that people.”246
While this does not reflect an obligation to recognise entities claiming a right to selfdetermination – in the sense that non-recognition would represent a violation of international
law – it does diminish the contention that a state has unlimited discretionary power to withhold
recognition.247
(ii) The theory of limited discretion
Admittedly, acts of non-recognition are mostly inspired by political motives. However, as
OPPENHEIM conceded already early on: “[t]he bulk of the practice of States probably supports
the view that Governments do not deem themselves free to grant or refuse recognition to new
States in an arbitrary manner, by exclusive reference to their own political interests, and
regardless of legal principle”.248 Certain authors affirm that the recognition of states is actually
242
VIDMAR (n 15) 361-387.
WORSTER (n 24) 148.
244
LAUTERPACHT (n 5) 2.
245
WORSTER (n 24) 146-148.
246
Friendly Relations Declaration (n 97), Principle V, adopted without objection in the Sixth Committee and
approved without a vote by the General Assembly (emphasis added).
247
The principle enshrined in the Friendly Relations Declaration provides a duty for states to strike a balance
between concurrent principles: “Nothing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political
unity of sovereign and independent States […].”, ibid.
248
L. OPPENHEIM & H. LAUTERPACHT, International Law: a treatise, (6th edn, London: Longmans, Green, 1947),
p. 125. He adds: “Undoubtedly, as the recognising State is in this particular matter both the guardian of ist own
interests and an agent of International Law, it is unavoidable that political considerations may from time to time
influence the act or refusal of recognition“.
243
30
prohibited when the emergence of the new state results from conduct that violates fundamental
norms of international law.249 LAUTERPACHT formulated this prohibition in a broad way by
adding a nuance to the constitutive theory of recognition, of which he was a strong advocate.
As explained above 250 , the constitutive theory grants states the discretionary authority to
recognise other entities as states. A strict application of this theory allows for the recognition
of the effects of any act that would result in the creation of a new state, even when it is illegal.
Nevertheless, LAUTERPACHT admits that “a state cannot come into existence contrary to a
treaty”251. States can conventionally bind themselves not to accord legal rights and obligations
to unlawful situations.252 The question remains whether such an obligation can be extended to
situations outside of a treaty. In that regard, LAUTERPACHT noted that non-recognition “is the
minimum of resistance which an insufficiently organized but law-abiding community offers to
illegality; it is a continuous challenge to a legal wrong”. 253 As illustrated by the principle ex
iniuria ius non oritur, illegal acts under international law should not be legitimised. Whether
this amounts to a strictly binding obligation under international law to withhold recognition
remains a matter for conjecture. State practice does not seem to support such a general
obligation of non-recognition.254 Alternatively, non-recognition, rather than being prescribed
international law, can be regarded as a sanction in response to violations of international law.
What particular norms of international law lay at the basis of such non-recognition – whether
in the form of a duty or a sanction – is exposed below. For instance, recognition of unlawful
acquisitions of territory is considered by some a violation of the principle of non-intervention
and consequently as an illegal act. 255 Other principles have been advanced as obstacles to
recognition, such as the prohibition of the use of force, the principle of self-determination and
the prohibition of racial discrimination (the latter’s most prominent example being the
collective non-recognition of the state of Rhodesia256). The following section addressed each
of these issues in turn.
4.2. Limits to states’ discretionary power: legal obligation of non-recognition?257
It is useful to keep in mind that three distinct grounds of non-recognition can be identified.258
First, non-recognition can be inspired by political or diplomatic factors (not motivated by the
illegality of a certain situation) – as indicated, there is no general obligation to grant
recognition. 259 Consequently, the international legality of a state need not necessarily be
249
See more detailed on a duty of non-recognition infra III.4.2; CRAWFORD, The creation of states in international
law (n 99) 105; DUGARD (n 7) 135.
250
See supra III.1.1.
251
LAUTERPACHT (n 5) 420.
252
ibid 410.
253
ibid 431.
254
International Law Association, Second (Interim) Report of the Recognition/Non-Recognition in International
Law
Committee
(Washington
Conference,
2014),
p.
4,
<http://www.ilahq.org/en/committees/index.cfm/cid/1032>
255
RYNGAERT & SOBRIE (n 169) 472.
256
See generally: V. GOWLLAND-DEBBAS, Collective Responses to Illegal Acts in International Law: United
Nations action in the question of Southern Rhodesia (Dodrecht, Martinus Nijhoff Publishers 1990), 753 p.
257
The debate surrounding the doctrine of non-recognition includes a numerous amount of state practice, opinions
of learned authors, etc. The nuances are too vast to comprehensively present in this thesis. For a more
comprehensive overview of the evolution of the duty of non-recognition, see RAIČ (n 71) 89-170.
258
GOWLLAND-DEBBAS (n 256) 275-276.
259
See supra III.4.1.
31
disputed for states to withhold recognition. This is an expression of the discretionary power of
states in that regard. Second, the qualification itself of the statehood of an entity can be subject
to controversy. Such situations are addressed as premature recognitions. Lastly, law may still
prove stronger than facts in situations where non-recognition cannot be explained by the nonacquirement of all elements of statehood, but rather by the “intrinsic illegality of the situation”
which would be created by recognition.260
In respect of the latter ground for non-recognition, VERHOEVEN has argued that:
“Il n’y a plus légalité ou illégalité dans le droit; il y a seulement existence ou inexistence
pour le droit. […] Il peut certes y avoir des Etats malhonnêtes, barbares, injustes …, des
Etats qui violent ou qui respectent le droit, …, mais l’existence étatique comme telle
demeure un fait préalable au droit et à la légalité qu’il enserre.”261
VERHOEVEN‘s position is thus that a distinction must be made between the non-existence of
statehood (making an act of recognition invalid or, in other words, premature) and the illegality
of an act of recognition (of which entities that validly fulfill the conditions for statehood can be
the object). Premature recognition will be briefly addressed first (i), followed by an analysis of
the scope and nature of (collective) legal obligations of non-recognition (ii). Because of their
growing importance in recognition policies and their possible qualification as grounds for nonrecognition, the principle of self-determination (iii) and democratic legitimacy (iv) of an
emerging state are discussed a little more extensively.
(i) Premature recognition
Premature recognition was already touched upon in the conceptual introduction to this thesis,
as the term is used in the sphere of recognition of governments as well. 262 As noted, KELSEN
does not find there is any obligation in international law to grant recognition to an entity that
fulfills all the criteria of statehood generally accepted in international law, but there might be
an obligation to withhold it when it does not. 263 Premature recognition in situations of
secession, even when no additional aid is given to the secessionist entity, can amount to an
intervention in the internal affairs of the state from which the new entity is attempting
separation.264 Contrary to the collective obligations to withhold recognition elaborated on infra,
premature recognition does not always coincide with serious violations of ius cogens by the
emerging entity or other illegal situations. Rather, it is the recognition itself that would represent
a violation of international law. The determination of statehood is never straightforward: “[i]t
is impossible to determine by fixed rules the moment at which other states may justly grant
recognition of independence to a new state; it can only be said that so long as the struggle is
proceeding, recognition is premature, whilst on the other hand, mere persistence by the old state
in a struggle which has obviously become hopeless is not sufficient cause for withholding
recognition”.265
260
GOWLLAND-DEBBAS (n 256) 276.
VERHOEVEN & DE VISSCHER (n 84) 715.
262
See supra II.2.1.
263
KELSEN (n 72) 610.
264
R. ROTH, “Secession, coups and the international rule of law: assessing the decline of the effective control
doctrine” (2010) 1 Melb. J. Int'l L. 393, 400.
265
BRIERLY & CLAPHAM (n 76) 150, referring to Oppenheim’s International Law 9th edn, vol. I, 143-6.
261
32
A very strict application of the doctrine on premature recognition, however, would entail that
the legality of the act of recognition would be conditioned on binding statehood criteria – that
are, as we have seen, not always as clear-cut. The violation of international law would bring
about the international responsibility of the recognising state. Such a general duty of nonrecognition is not unanimously accepted by states. For instance, the United Kingdom clarified
at the latest conference of the Committee on Recognition/Non-recognition in International Law
(2014) that it only acknowledges the duty of collective non-recognition (the third type of nonrecognition) – anything else is “essentially pragmatic rather than doctrinaire”. 266 Australia only
accepts UNSC Resolution as obligations of non-recognition.267 Italy and Russia do not base
their non-recognitions on legal obligations but rather on political grounds, which may be
revised over time.268
Nevertheless, the doctrine of premature recognition is widely accepted amongst scholars 269, in
the sense that there rests an obligation on states to withhold recognition when not all traditional
criteria of statehood have been acquired: an act of recognition to the contrary would indeed
constitute an unlawful intervention and cannot create any legal effects.270 As the name suggests,
an entity can ‘mature’ into a state, which helps distinguish this form of non-recognition from
the collective obligation of non-recognition (that applies at all times). 271 In sum, such an
approach to the doctrine can be reconciled with the idea that acts of recognition are
discretionary but exist within a legal framework – one that encompasses for instance the
prohibition of non-intervention in internal affairs.272
(ii) Non-recognition and external legality: compliance with international law
In 1932, the U.S. Secretary of State Henry L. Stimson issued a diplomatic note to the Chinese
and Japanese Governments stating the U.S. Government did “not admit the legality of any
situation defacto […] and that it does not intend to recognize any situation, treaty, or agreement
which may be brought about by means contrary to the covenants and obligations […]”.273 The
United States hereby declared its foreign policy of non-recognition of any territory obtained by
unlawful means: recognition could no longer serve as an instrument to accord legal validity to
situations of acquisition of territory by violence. The direct motivation for this new doctrine
was the Japanese conquest of Chinese territory in 1931, which occurred in violation of a number
of international treaties.274 The sanction for such breaches of international law came in the form
of non-recognition of the newly formed entity by the Japanese, Manchukuo, by a majority of
states. This practice is now known as the ‘Stimson doctrine’. It was referred to in the dissenting
266
International Law Association, Second (Interim) Report of the Recognition/Non-Recognition in International
Law
Committee
(Washington
Conference,
2014),
p.
4-8,
<http://www.ilahq.org/en/committees/index.cfm/cid/1032>
267
ibid 4.
268
ibid 5.
269
RAIČ (n 71) 95, referring to CHEN, KELSEN, LAUTERPACHT and TEUSCHER (n. 22).
270
ibid 95.
271
ibid 92.
272
For a more detailed analysis of premature recognition and how it relates to the principle of self-determination
see RAIČ (n 71) 92-105.
273
D. TURNS, “The Stimson Doctrine of Non-Recognition: Its Historical Genesis and Influence on Contemporary
International Law” (2003) 2 Chinese J. Int'l L., 105-107.
274
J. TRONE, “The Stimson Doctrine of Non-Recognition of Territorial Conquest” (1996-1997) 19 U.Queensland
L.J. 160, 160 (according to Stimson, the Kellogg-Briand Pact (Pact of Paris), the League of Nations Covenant and
the Nine Power Treaty had been breached by Japan).
33
opinion of the Portuguese Judge ad hoc Skubiszewski in the Case Concerning East Timor
before the ICJ, as being a catalyst of the collective obligation of non-recognition of unlawful
situations.275 Indeed, the original Stimson doctrine addressed situation of illegal annexations of
territory but quickly evolved into a form of sanction for violations of peremptory norms of
international law, which dictates that states withhold recognition even when (most of) the
traditional criteria of statehood had been met.276 Over the years, state practice has confirmed
that a claim of statehood arising from a breach of ius cogens norms conflicts with a “duty of
non-recognition”, considered of customary nature.277 For instance, the Restatement (Third) of
the Foreign Relations Law of the United States, of a certain authority even though it does not
have a binding effect, provides that a state is required not grant recognition or treat as a state
any entity which has "attained the qualifications of statehood as a result of a threat or use of
armed force in violation of international law".278
Three subtle variations to the doctrine of non-recognition exist279, which all come down to a
duty of the international community to satisfy itself that an entity claiming to be a state by
fulfillment of the traditional criteria of statehood has not emerged in violation of any
international rule.280
Firstly, the International Law Commission (ILC) captured the duty of non-recognition in its
Draft Articles on Responsibility of States of Internationally Wrongful Acts of 2001.281 Articles
40 and 41 of the ILC Draft Articles deal with the particular consequences of a “serious breach
by a state of an obligation arising under a peremptory norm of general international law”.282
Two conditions must be fulfilled for a situation to fall within the scope of this obligation: there
must be a breach of a ius cogens norm (the character of the obligation breached), which must
be serious (the intensity of the obligation breached, namely “a gross or systematic failure by
the responsible state to fulfill the obligation”283). The commentaries to the ILC Draft Articles
state as examples of such norms the prohibition of aggression, the prohibition against racial
discrimination and apartheid or the obligation to respect the right to self-determination.284 The
commentaries provide a general assessment of what the second element entails (a certain order
of magnitude and scale of the violation). However, it does not go into detail about the concept,
deeming it a matter that will be addressed by a competent international organ when the need
arises.285 As such, the ILC doctrine of non-recognition relies on an authoritative determination
275
East Timor (Portugal v Australia) (Judgment, Diss. Op. Judge ad hoc Skubiszewski) [1995] ICJ Rep 224, §125.
C. WARBRICK, “States and Recognition in International Law”, in M.D. EVANS (ed.), International Law (2nd
edn, Oxford, OUP 2006), p. 247-248.
277
VIDMAR (n 15) 382.
278
Restatement (Third) of the Foreign Relations Law of the United States (ALI, 1987) §202(2).
279
E. MILANO, “The non-recognition of Russia’s annexation of Crimea” (2014) Zoom out I QIL 35, 39-51.
280
N.L. Wallace-Bruce, Claims to Statehood in International Law, 1994, at 66: “if an entity emerges onto the
international scene through acts which are illegal under international law, no matter how effective it might be, its
claim to statehood could not be maintained. It is an illegitimate child which cannot be clothed with legitimacy by
the international community. The effect is that the claimant fails this new test of international legality and so its
claim should be denied.”
281
Draft Articles on Responsibility of States for Internationally Wrongful Acts in Report of the International Law
Commission on the Work of its Fifty-third Session, UN GAOR 56th Session, Supp. No. 10, UN Doc A/RES/56/10
(2001) (hereinafter ILC Draft Articles on State Responsibility).
282
ibid arts. 40 and 41.
283
ibid art. 40(2).
284
ibid (with commentaries) p. 112-113. This is an exemplative list.
285
ibid (with commentaries) p. 113, commentary (9).
276
34
of the illegality of a situation.286 Examples of UN Security Council resolutions dealing with this
issue were given by the ICJ in its Kosovo advisory opinion287: Resolution 216 and 217 (1965)
in which it called upon states not to recognise the illegal situation in Southern Rhodesia288,
Resolution 541 (1983) concerning northern Cyprus289 and Resolution 787 (1992) that addressed
the Republika Srpska290. The ILC approach was confirmed by the ICJ in its Legality of the Wall
advisory opinion291, in which it determines that Israel’s responsibility under international law
was triggered by various breaches of international law.292 To determine the legal consequences
of these breaches, the ICJ based itself on the erga omnes nature of the obligations293 and found
that:
“Given the character and the importance of the rights and obligations involved, the
Court is of the view that all States are under an obligation not to recognize the illegal
situation resulting from the construction of the wall in the Occupied Palestinian
Territory, including in and around East Jerusalem”.294
The ICJ here identifies an obligation of non-recognition of illegal situations295, and particularly
serves as the ‘authoritative determinant’ of the illegality. The reasoning is similar to articles 40
and 41 of the ILC Draft Articles, in the sense that it specifies the consequences for third states
of breaches of erga omnes obligations in international law by another state. The interesting
aspect of the ILC Draft Articles is that non-recognition is addressed as a specific international
legal consequence of a breach of ius cogens. In essence, it is a collective reaction to an
international wrong, a countermeasure that can be supplemented by any other lawful means,
such as the refusal to “render aid or assistance in maintaining that situation”.296
Secondly, a broader doctrine of non-recognition exists, as put forward in the ICJ’s Namibia
advisory opinion. 297 In determining the legal consequences of the UNSC resolution 276
(1971)298 – which called upon states not to recognise the situation in South West Africa – the
286
MILANO (n 279) 47.
Kosovo Advisory Opinion (n 188) §81.
288
UNSC Res 216 (12 November 1965) UN Doc S/RES/216; UNSC Res 217 (20 November 1965) UN Doc
S/RES/217, both adopted by 10 votes to none with 1 abstention (France).
289
UNSC Res 541 (18 November 1983) UN Doc S/RES/541.
290
UNSC Res 787 (16 November 1992) UN Doc S/RES/787.
291
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)
[2004] ICJ Rep 136 (hereinafter Wall Advisory Opinion).
292
ibid §155: The Court found that the violated erga omnes obligations by Israel were the right of the Palestinian
people to self-determination, and certain of its obligations under international humanitarian law.
293
ibid: “[…] the obligations violated by Israel include certain obligations erga omnes. As the Court indicated in
the Barcelona Traction case, such obligations are by their very nature ‘the concern of all States’ and, “In view of
the importance of the rights involved, all States can be held to have a legal interest in their protection.”.
294
ibid §159 (emphasis added).
295
S. OLLESON, The Impact of the ILC’s Articles on Responsibility for Internationally Wrongful Acts, Preliminary
Draft,
BIICL,
<http://www.biicl.org/files/3107_impactofthearticlesonstate_responsibilitypreliminarydraftfinal.pdf> (consulted
5 May 2016).
296
Article 41(2) ILC Draft Articles on State Responsibility (n 281).
297
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16 (hereinafter
Namibia Advisory Opinion).
298
UNSC Res 276 (30 January 1970) UN Doc S/RES/276, adopted with 13 votes to none, with 2 abstentions
(France and United Kingdom).
287
35
ICJ noted that the resolution was a “declaration of illegality or invalidity”299 but based the duty
of recognition on general international law300, thereby going further than ILC Draft Articles,
which only address violations of erga omnes rules. In her separate opinion to the Wall advisory
opinion, Judge Higgins adopts this view, and is of the opinion that the nature of the obligation
should not be a decisive factor in determining these consequences.301 Referring to Namibia, she
finds that any determination of the illegality of a situation brings about a duty of nonrecognition: “[t]hat an illegal situation is not to be recognized or assisted by third parties is selfevident, requiring no invocation of the uncertain concept of ‘erga omnes’”.302 Judge Higgins
focuses less on the nature of the breach than on the erga omnes effect of the breach. 303 Still,
this approach also requires that the illegality be authoritatively determine by a competent body,
whether it be the UN Security Council, UN General Assembly or the ICJ itself.304
Thirdly, non-recognition can also be perceived as a sanction, which meets the concern that there
is not always consistent practice by UN bodies in declaring the illegality of certain situations
(which could of course be attributed to the fact that every UN Security Council resolution is
subjected to a possibly veto by one of the permanent members).305 Under this approach, nonrecognition can conceivably take the form of an obligation (when it is imposed by way of a
binding resolution), but it can just as well fall under a policy of non-recognition.306 An example
of the latter is the opposition by the Parliamentary Assembly of the Council of Europe in 2008
and the European Parliament in 2011 to the declarations of independence by South Ossetia and
Abkhazia, calling for non-recognition of the illegal situations.307
(iii) The relevance of the principle of self-determination for the obligation of nonrecognition
Respect for the right of self-determination of peoples by a new state has emerged as one of the
peremptory rules of international law that warrants a collective obligation to withhold
recognition.308 More specifically, recognition of an entity that violates the internal right to selfdetermination (which encompasses the right to participate in the decision-making process of a
state309) remains without legal effects. The primary example of a situation, which required nonrecognition by the international community, is Rhodesia. The UN Security Council by its
Resolution 216 called upon states not to recognise the white racist regime that was in place at
299
ibid §121.
ibid.
301
Wall Advisory Opinion (Sep. Op. of Judge Higgins) [2004] ICJ Rep 207.
302
ibid §38.
303
MILANO (n 279) 41 (as opposed to the erga omnes nature of the rule breached).
304
Wall Advisory Opinion, §38.
305
Art. 4 UN Charter; for a comprehensive overview of the use of (non-)recognition as sanction see A. H. BERLIN,
“Recognition as sanction: using recognition of new states to deter, punish, and contain bad actors” (2009-2010)
31 J. Int'l L. 531-591.
306
MILANO (n 279) 49.
307
PACE, “The Consequences of the War between Georgia and Russia”, Resolution 1633 (2008) (2 October
2008), 35th Sitting, §24; European Parliament Resolution of 17 November 2011, containing the European
Parliament’s recommendations to the Council, the Commission and the EEAS on the negotiations of the EUGeorgia Association Agreement (2011/2133(INI)).
308
HILLGRUBER (n 189) 506.
309
RAIČ (n 71) 272.
300
36
the time.310 These events, as was mentioned 311, lead SHAW to conclude that respect for the
principle of self-determination is an additional criterion for statehood. 312 In a parallel
contention, RAIČ finds that recognition would violate ius cogens if it were accorded to an entity
that violates the internal right to self-determination, which can be qualified as a right with erga
omnes character.313
The realisation of the principle of external self-determination (the mode of implementation of
the right to self-determination, by for instance establishing an independent and sovereign
state314) is also relevant for the law of recognition in situations of seceding states. It cannot be
withheld that there exists an obligation to grant recognition when a state claims a clearly
identifiable right to self-determination, as there is only a duty in international law to respect the
right – not to actively promote it outside one’s borders by acts of recognition.315 The scope of
this right was confirmed by the ICJ in the East Timor case.316 On the other hand, the question
remains whether there is an obligation to withhold recognition when an emerging state has not
evidently acquired a unilateral right to secede – a right which envelops the obligation to respect
the law to self-determination.317 Some argue that such ‘illegal’ secession does not fall within
the scope of any doctrine of collective non-recognition, as it does not violate any international
legal rule.318 Others maintain that recognition of an emerging state that does not respect the
external law of self-determination amounts to a prohibited intervention in the internal affairs of
the parent state, since the right to unilateral secession has become a criterion for statehood,
hence qualifies as premature.319
(iv) Non-recognition and internal legality: democratic legitimacy
Can statehood be made conditional on internal legality? As we have seen, particularly since the
disintegration of Yugoslavia, moral considerations were introduced into an otherwise factual
debate.320 Democratic legitimacy has indeed been suggested as a new “moral criterion” for
recognition of states: while the principle of effectiveness still serves as a “vital threshold” for
statehood, it is supplemented by a requirement of democratic institutions in the emerging
state.321 There seem to be two problems with this contention. On the one hand, 30.5% of states
worldwide have non-democratic governments (so-called “authoritarian regimes”) and perhaps
another 22.2% only partly democratic governments (“hybrid regimes”). 322 These states do,
however, hold widespread recognition by the international community. 323 This would imply
that the international legal status of an existing state is not affected by the deterioration of the
democratic legitimacy of its government. This caveat to the new ‘democratic criterion’ has
310
UNSC Res 216 (12 November 1965) UN Doc S/RES/216.
See supra III.3.2(ii).
312
SHAW (n 25) 206.
313
RAIČ (n 71) 429.
314
Friendly Relations Declaration (n 97) Principle V.
315
RAIČ (n 71) 428. The author gives Macedonia as a primary example of this contention.
316
East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90.
317
RAIČ (n 71) 429.
318
RYNGAERT & SOBRIE (n 169) 486.
319
RAIČ (n 71) 429
320
See supra III.3; see also RICH (n 170) 64.
321
RYNGAERT & SOBRIE (n 169) 488.
322
The Economist’s Democracy Index 2015, available <http://www.yabiladi.com/img/content/EIU-DemocracyIndex-2015.pdf>
323
S.D. MURPHY, “Democratic Legitimacy and the Recognition of States and Governments”, in G.H. FOX and
B.R. ROTH (eds.), Democratic Governance and International Law (Cambridge, CUP 2000), p. 129.
311
37
however been justified under the contention that the conditions for loss of statehood are
evidently much more stringent than those for acquirement, since imposing new criteria on
existing states would interfere in their domestic affairs – a violation of a basic norm of
international law. 324 However, such an argument would be much more valuable if the
constitutive approach to recognition was generally accepted, quod non. Indeed, only when
emerging states are not considered subjects of international law yet – because they have not
been recognised – can there be no ambiguity as to a requirement of democracy intervening in
their internal affairs and no discrimination in respect of existing states.325 Under the constitutive
approach, emerging states are not sovereign subjects of international law until recognition and
cannot invoke protection from the prohibition of non-intervention.326
What to think then of the statement by the United States that “in addition to the traditional
criteria for recognition of States, recognition should only be accorded in light of, inter alia, the
prospective State’s adherence to democracy and the rule of law […]”327? Or the “Declaration
on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union”,
issued by the EC in 1991, which strongly emphasised the importance of democratic
constitutions and respect for democracy and human rights as a condition for recognition?328
Despite these statements, democratic legitimacy has not always led to recognition – a case in
point being Macedonia. 329 The practice of states is not uniform and specifically during the
disintegration of Yugoslavia has been dismissed as sui generis.330 The claim that there exists
an obligation of non-recognition in case of lack of democracy of an emerging entity therefore
probably goes a bridge too far.331 The introduction of vague, more morally tinted criteria of
statehood has opened the door for inconsistent state practice332, from which it is difficult to
discern what could perhaps constitute customary international law. 333 Consequently, states are
free to recognise undemocratic states – a statement that does not diminish their power to use
diplomatic or economic means to enforce a democratic standard.334 Conversely, withholding
recognition – as there is no duty to recognise - can become a mechanism of foreign policy to
induce respect for democratic standards. When an emerging entity boasts democratic
institutions, this will strengthen its claim to statehood – but it will not secure it.
5. CONTESTED STATES AND THEIR STATUS UNDER INTERNATIONAL LAW
5.1. The legal status of contested states in general
As the comments to the Restatement (Second) of Foreign Relations Law of the United States
note: “[t]he creation of new states is a much less frequent occurrence than a change of
324
HILLGRUBER (n 189) 501.
ibid.
326
ibid.
327
“Testimony by Ralph Johnson, Deputy Assistant Secretary of State for European and Canadian Affairs (Oct.
17, 1991)”, Foreign Policy Bulletin 2 (Nov.-Dec. 1991), p. 42, as cited in MURPHY (n 323) 131.
328
European Community, “Declaration on the ‘Guidelines on the Recognition of New States In Eastern Europe
and in the Soviet Union’16 December 1991” (1993) 4 E.J.I.L., 72.
329
MURPHY (n 323) 132.
330
RICH (n 170) 60-62.
331
ibid 139.
332
RICH (n 170) 55.
333
J. WOUTERS, B. DE MEESTER & C. RYNGAERT, “Democracy and International Law” (June 2004) Working Paper
5 LIRGIAD 17-19, available <https://www.law.kuleuven.be/iir/nl/onderzoek/wp/WPLirg5.pdf>
334
ibid.
325
38
government. For this reason, there is little occasion for the question to arise whether an entity
that meets the requirements under international law for recognition as a state, but is not so
recognized, has the rights of a state”335. Since that statement, however, there has often been
occasion to define the rights of newly emerging states – primarily after the dissolution of the
SFRY.
Having addressed the different theoretical approaches to recognition and its legal effects on the
emergence of states in practice, and based on the aforementioned ‘third approach’, one comes
to the conclusion that certain rights and privileges will only be accorded to a putative state after
recognition (the constitutive effects of recognition). Indeed, state practice confirms that
recognition is necessary for de facto entities – that fulfill all the objective criteria for statehood
– to acquire sovereign status vis-à-vis third states. They do not simply become full-fledged
subjects of international law by default: third states still have the discretionary power to deny
legal status to such entities.336 This also reflects the importance of non-recognition as more than
a mere political tool. Non-recognition is indeed effectively able to prevent the far-reaching
consequences that are associated with sovereign status within the international community.337
Still, is it able to prevent all legal consequences? What is the exact role of recognition in
creating international subjectivity? For instance, the almost universal non-recognition of the
Turkish Republic of Northern Cyprus (TNRC) bars it from actively claiming any sovereign
rights before an international tribunal. The TRNC’s international relations are very limited: it
is an observer member of some international organisations338 and several representative offices
are located on its territory.339 Still, we will see that it is not treated as a state with the capacity
to bear international responsibility: case law of the European Court of Human Rights is
testament to that.340
A distinction must be made between several types of non-recognition. On the one hand, the
circumstances leading up to the emergence of a new state – a breach of ius cogens for instance
– may warrant non-recognition.341 On the other hand, recognition can be withheld on political
grounds, whether induced by third states or national policy. The consequences of the latter form
of non-recognition primarily manifest themselves in the extent of bilateral relations between
the non-recognising state and the emerging entity, and do not necessarily affect the claim to
statehood of the emerging nation.342 An unambiguous example of political non-recognition is
that of Macedonia in the 1990’s. Indeed, the emergence had not been initiated or sustained by
a breach of ius cogens, nor could any parent state claim sovereignty over its territory, as it was
not a case of unilateral secession, but of dissolution. It was mainly Greece’s objection to the
name of the new state that deterred the EC member states from recognising it, despite it being
335
Restatement (Second) of the Foreign Relations Law of the United States (ALI, 1965) §107, comment a,
illustration 1.
336
HILLGRUBER (n 189) 494.
337
ibid.
338
The Organisation of Economic Cooperation (ECO), see http://mfa.gov.ct.tr/foreign-policy/internationalorganisations/relations-with-the-eco/; the Parliamentary Assembly of the Council of Europe (PACE), see
http://mfa.gov.ct.tr/foreign-policy/international-organisations/council-of-europe/pace/.
339
Turkey has an embassy in Nicosia; Australia, Germany, the United Kingdom and the United States have
representative offices and France has a cultural office. It has several representative offices abroad but only its
embassy in Turkey has true diplomatic status.
340
See infra III.5.2(iv).
341
As was elaborated on supra III.4.2(ii).
342
CRAWFORD, The creation of states in international law (n 99) 27.
39
the recommended course of action by the Badinter Commission.343 By the time the EC member
states conceded, the UN had already admitted the ‘Former Yugoslav Republic of Macedonia’
as a member state.344 Macedonia was clearly a state before universal recognition.345
Contested states are entities that fail to attract widespread recognition despite fulfilling most or
all criteria for statehood. However, non-recognition does not prevent these entities from having
constitutions and flags346, entertaining (diplomatic, trade, or other daily) relations with third
states, establishing governmental institutions, applying for membership to various international
organisations, or having standing before certain tribunals.347 This results in an “international
legal limbo in connection with the application of many international legal rights and
obligations”348. Examples of entities that have state-like characteristics but are not universally
recognised, are Abkhazia 349 , South Ossetia 350 , and also Somaliland, Nagorno-Karabakh,
Transdniestria, Taiwan, Kosovo, Palestine, and Western Sahara.351 These entities are either not
recognised352 or only partially.
We have come a long way from the original Westphalian conception that only states stricto
sensu possessed international subjectivity. It has evolved and legal personality is now accorded
to other subjects, ranging from international organisations to belligerent communities.353 The
issue today is what de facto states are entitled to under international law. Can they claim any
protection against, for example, the use of armed force in their territory? Are they to a certain
extent, despite their status as non-state entity, subjects of international law, able to claim certain
rights and privileges? Are they also bound by international law, and if so, how can they be held
accountable for violations? BROWNLIE contends “political entities legally proximate to states
[…] are not sovereign states in the normal sense, yet legally the distinction is not very
significant”354. The ICJ has also recognised that a state-like entity such as Kosovo could incur
legal rights and responsibilities.355
5.2. Contested states: a gradual road to statehood?
This section attempts to clarify the status of contested states under international law, addressing:
their capacity to entertain bilateral relations (i), respectively multilateral relations (ii), and their
right and duties under international law (iii).
343
Conference on Yugoslavia Arbitration Commission Opinion No. 6 (11 January 1992) 31 ILM 1501, §4.
UNGA Res. 47/25 (8 April 1993).
345
VIDMAR (n 15) 373.
346
Case in point being Palestine that was flies its flag at the UN Headquarters as of September 2015:
http://www.un.org/press/en/2015/ga11676.doc.htm.
347
C. HENDERSON, “Contested States and the Rights and Obligations of the Jus ad Bellum” (2012-2013) 21
Cardozo J. Int'l & Comp. L. 367, 370-371.
348
HENDERSON (n 347) 369.
349
A “state-like entity” according to the European Union's Independent International Fact-Finding Mission:
CEIIG, Independent International Fact-Finding Mission on the Conflict in Georgia, Volume II, at 134 (Sept. 30,
2009), available at http://www.mpil.de/files/pdf4/IIFFMCG_Volume_II1.pdf.
350
An entity “short of statehood”: ibid.
351
HENDERSON (n 347) 369.
352
Somaliland.
353
MALONE (n 155) 81.
354
I. BROWNLIE, Principles of Public International Law (n 10) 59.
355
Kosovo Advisory Opinion (n 188) §116.
344
40
(i) Bilateral relations of contested states: the power to conclude international
agreements
The establishment of diplomatic and consular relations in a state implies recognition of its legal
status, hence states that do not recognise an emerging entity will not engage in official relations
with it. Are contested states then precluded from concluding any kind of bilateral agreement
with non-recognising states? State practice demonstrates the contrary: contested status does not
hinder the initiation of unofficial relations. Furthermore, states are usually innovative in setting
up relations that are clearly inspired by diplomatic law. For instance, the United States, the
United Kingdom, Japan, Australia, Austria, Belgium, France, and Greece have accorded
distinctive privileges and immunities to the semi-official offices they have opened in the nonrecognised Taiwan.356
While the conclusion of bilateral treaties in principle requires mutual recognition by both
parties, non-political bilateral agreements such as trade deals are possible without recognition.
Indeed, CRAWFORD has described contested entities as “investment entit[ies]” 357 , naming
Taiwan as an undisputed example of a non-state that still enjoys the capacity to engage in
foreign investment agreements and bilateral investment treaties (BITs).358 In practice, states
have however shown reluctance to enter into agreements with entities whose statehood they
contest as this might imply recognition. Non-recognition therefore has significant non-legal
consequences, primarily for the economic development of an emerging state: investment will
prove precarious and third states will refrain from capitalising in insecure markets.
Additionally, there remains insecurity as to the dispute resolution systems that would be open
to such investments.
(ii) Multilateral relations, including admission to international organisations
It has been noted that “[o]nly states sit in the United States Security Council, only states petition
the ICJ and only states participate in the Nuclear Non-Proliferation Treaty regime”.359 Indeed,
membership in international organisations is governed by the practice of that organisation and
the provisions of its constituting treaty.360 Without wanting to delve too deep into the law of
international organisations, it can be noted that in principle, such membership is only open to
independent and sovereign states.361 The UN, IAEA, UNESCO, WHO and WIPO provide that
only “States” may become member states.362 The FAO ensures membership for “nations”363
and the IMF, IBRD and IFC refer to “countries”. 364 Hence, admission is unfeasible for
universally non-recognised states, such as Somaliland, or recognised by only a few states, such
B. R. ROTH, “The entity that dare not speak its name: unrecognized Taiwan as a right-bearer in the international
legal order” (2009) 4 E. Asia L. Rev. 91, 111.
357
CRAWFORD, The creation of states in international law (n 99) 220.
358
ibid 219.
359
R. CAPLAN, Europe and the Recognition of New States in Yugoslavia (Cambridge, CUP 2005), p. 9.
360
P.-E. DUPONT, “Foreign Investment and the Status of Kosovo in International Law” (2009) 10 J. World
Investment & Trade 937, 947.
361
DUPONT (n 360) 947.
362
Art. 4(1) UN Charter; Article IV of the Statute of the International Atomic Energy Agency; Article II
Constitution of UNESCO; Article 3 of the Constitution of the World Health Organisation; Article 5 of the
Convention Establishing the World Intellectual Property Organisation.
363
Article II of the Constitution of the Food and Agriculture Organization of the United Nations.
364
Article II of the Articles of Agreement of the International Monetary Fund, membership to which is required
for both the IBRD and IFC.
356
41
as Abkhazia. However, increasingly, contested states which are partially recognised – not
universally and neither by a neglectful number – have been admitted to international
organisations despite their disputed status. Indeed, Kosovo’s membership in the International
Monetary Fund (IMF) and the International Center for Investment Disputes (ICSID), seems to
disprove the general contention that it is not a state. Non-recognition by certain states thus
clearly does not prevent contested entities to be afforded access to organisations originally
reserved to states stricto sensu. Admission to the UN, however, still seems far off for the
aforementioned states for two reasons. First, member states to the UN are considered
universally recognised states that have obtained de jure statehood – a form of collective
recognition that not all current member states might agree to. 365 The second, principal reason
is the highly likely veto by one the five permanent members of the UN Security Council, which
have to acknowledge the application for membership.366
Very recently, on March 16, 2016, Palestine became a contracting party to the 1907 Hague
Convention for the Pacific Settlement of International Disputes (1907 Convention)367, which
governs the membership to the Permanent Court of Arbitration (PCA). The 1907 Convention
does not list the preconditions necessary to become a contracting state. Rather, a specific
procedure for “States Members of the United Nations which do not yet participate in the Court”
was agreed upon unanimously by the PCA member states in 1959 368: these states would be
invited to deposit their instruments of accession and consequently become parties to the PCA.
The course of events that followed after Palestine and Kosovo’s submissions of their
instruments of accession, demonstrate that this is not a straightforward rule. While the 1907
Convention was originally planned to enter into force for both states accordingly, the
Administrative Council of the PCA kept the request for admission (for Kosovo) and suspended
the membership (for Palestine) under review after the accessions where challenged by Serbia
and a group of Arab States respectively. 369 With a simple majority 370 , the Administrative
Council was able to reinstate Palestine’s membership. It is interesting to see what elements
were taken into account for the admission of Palestine, and hence, in general, what
preconditions for accession to the 1907 Convention can be derived from these considerations.
It seems that membership is afforded when the applicant entities are acknowledged as ‘states’
by the international community. No doubt Palestine’s status as observer non-member state
before the UN, something Kosovo does not possess, makes the difference. It would thus seem
that membership to UN specialised agencies (such as the IMF and World Bank in the case of
Kosovo) is not sufficient.
Nevertheless, as is evidenced by widespread practice, the capacity to conclude international
agreements does not necessarily depend on “status as a member of the international
community” 371 . It could be argued then, that once a de facto state has entered into an
365
Despite inconsistent practice by the UN, as discussed more in detail by WORSTER (n 24).
Art. 4(2) UN Charter.
367
A. ZIMMERMAN, “Palestine at the Gates of the Peace Palace: The long and windy road towards Palestinian
membership in the Permanent Court of Arbitration” (EJIL: Talk!, 5 April 2016), at
http://www.ejiltalk.org/palestine-at-the-gates-of-the-peace-palace-the-long-and-windy-road-towards-palestinianmembership-in-the-permanent-court-of-arbitration/; Convention for the Pacific Settlement of International
Disputes, (18 October 1907) 2 AJIL Supp. 43 (1908).
368
ibid: ZIMMERMAN argues that is the subsequent agreement referred to in article 94 of the 1907 Convention.
369
ZIMMERMAN (n 367).
370
ibid. The voting was 54 votes in favour and 25 abstentions.
371
Report of Mr. H. Lauterpacht on the Law of Treaties, Yearbook of the International Law Commission (1953),
vol. II, at 137, as cited in DUPONT (n 360) 954.
366
42
international agreement, it will be treated as a state for the purpose of that treaty 372 - an
argument that is supported by the need for efficiency in international dispute resolution. As
such, when there is an investment treaty, it is justifiable that there be a possibility to resolve
disputes arising from it, between the investor and the de facto state, before an arbitral tribunal
or other international court.373
The line is drawn at disputes between states. The ICJ, the ultimate international dispute
settlement body, has not opened its doors to non-recognised states – yet. As its Statute provides
that only states may be parties in cases before the ICJ and such state must be a member of the
UN374, contested states face the same main issue as when petitioning for UN membership: the
veto of the permanent members of the UN Security Council. In sum, despite having state-like
capacities, which increase with the number of states that recognise it, a contested state will
never truly acquire full de jure statehood until it is universally recognised.
(iii) Rights and duties of contested states
Several policy arguments can be made in favour of including unrecognised states in the scope
of applicability of the principles of self-defense, territorial integrity and prohibition of
intervention and the threat or use of force. To proclaim that recognition as a state is a
precondition to enjoying the protection of international legal obligations considerably weakens
the purpose of the UN Charter to maintain international peace and security.375 Strictly speaking,
this possible justification (that the invaded entity is not a sovereign state) for foreign
intervention has never been invoked. However, variations have been expressed: for instance,
the Soviet regime invaded Eastern Poland in 1939 on the grounds that “the Polish State and
Government have, in fact, ceased to exist”.376
The principle of territorial integrity is the least ambiguous one. It flows from the principle of
uti possidetis, which was noted by the ICJ to be a “general principle, which is logically
connected with the phenomenon of the obtaining of independence, wherever it occurs”377, that
internal boundaries become international boundaries after independence.378 This was confirmed
by the Arbitration Commission on the disintegration of Yugoslavia in 1992.379
The issue remains whether protection by the principles of non-intervention and prohibition of
threat or use of force, as enshrined in the UN Charter380, extends to non-member entities that
are not universally recognised. Of course, the principles are without a doubt applicable between
member states that are all bound by the aforementioned provisions vis-à-vis any other admitted
member – whether or not they have mutually granted each other recognition.381 Article 2(4) UN
Charter also specifically protects “all states” from forcible action by member states, thus
including non-member states. Significantly, it prohibits the use of force by member states “in
372
DUPONT (n 360) 954.
ibid.
374
Article 34(1) Statute of the International Court of Justice, 39 AJIL Supp 215 (1945).
375
Art. 1 UN Charter.
376
As cited in I. BROWNLIE, International Law and the Use of Force (Clarendon Press 1963) p. 381.
377
Frontier Dispute (Burkina Faso/Mali) (Judgment) [1986] ICJ Rep 554, §20.
378
MALONE (n 155) 100.
379
Conference on Yugoslavia Arbitration Commission Opinion No. 3 (November 1991) 31 ILM 1499 (1992), at
1.
380
Respectively arts. 2(1) and 2(4) UN Charter.
381
HILLGRUBER (n 189) 496.
373
43
their international relations”. 382 While the provision is thus not contained to intra-member
conflicts, a strict reading prevents the application of this principle to domestic conflicts. For
instance, incidents between China and Taiwan – under the “one China” policy” 383 – could
plausibly be treated as internal.384 Nevertheless, what constitutes an “international” situation
has often been extensively interpreted – for example, by the UN Security Council in its
determination of what is comprised under a "threat to [...] international peace and security"385,
or in the Additional Protocol I (1977) to the Geneva Conventions, which relates to international
armed conflicts, as encompassing more than intra-state armed conflicts 386 . A broad
understanding of “international relations” could therefore include situation of military
interventions by parent/original states in contested states.387
With regard to the relationship between third states (not the original or parent state) and entities
whose statehood they contest, the broad wording of the non-use of force principle has been
acknowledged to prohibit any extraterritorial violent actions that cannot be justified as an
exercise of the right to self-defense – whether the targeted state has been recognised or not.388
On the other hand, in the specific case of unilateral secession, entities whose secession was not
recognised by third states can still be considered part of the parent state and thereby protected
against foreign interventions by the parent state’s claim to territorial sovereignty.389 A possible
separate line of argumentation is that contested states may also rely on their right to selfdetermination to invoke protection against uses of force. 390 Indeed, contested states usually
have the same characteristics as “peoples” that possess the right to “freely determine their
political status and freely pursue their economic, social and cultural development”391 – such as
a relatively defined territory and political institutions advocating the contested state’s
interests.392 They are thus protected against “forcible actions” by third states, as provided in the
Friendly Relations Declaration.393 Notably, the ICJ has characterised this principle as erga
omnes.394
Furthermore, protection against prohibited intervention can be inferred from the political
independence of de facto states. When contested entities have political bodies representing their
interests and thus serving as their legitimate representatives, such as Kosovo, the UN Charter
provisions should be extensively interpreted to include in that concept such politically
382
Art. 2(4) UN Charter.
Article 2 of China’s Anti-Secession Law as noted in C. HENDERSON, “Contested states and the rights and
obligations of the ius ad bellum” (2012-2013) 21 Cardozo J. Int'l & Comp. L, p. 381.
384
Which would not deprive both states from any protection: international human rights law would still be
applicable.
385
Art. 39 UN Charter.
386
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims
of International Armed Conflicts (Protocol I) art. 1(4), June 8, 1977, 1125 U.N.T.S. 3,7: refers to “peoples” fighting
for their right to self-determination.
387
This argument is made by reference to a hypothetical invasion by China of Taiwan, which would, according to
the author, in that context most certainly be qualified as a state or at least an entity assimilated to a state: O.
CORTEN, The Law Against War: The prohibition on the use of force in contemporary international law (Oxford,
Hart Publishing 2010), p. 151.
388
BROWNLIE, International Law and the Use of Force by States (n 376) 380.
389
HILLGRUBER (n 189) 495.
390
HENDERSON (n 347) 384.
391
Art. 1(1) ICCPR; International Covenant on Economic, Social and Cultural Rights, art. 1(1).
392
C. HENDERSON (n 383) 387.
393
Friendly Relations Declaration (n 97), Principle 1.
394
Wall Advisory Opinion, §155-156.
383
44
independent entities.395 Indeed, this flows from the wide scope of application of the prohibition
of aggression, captured in the UN General Assembly resolution on the definition of aggression.
Article 1 of that resolution defines aggression as “the use of armed force by a State against the
sovereignty, territorial integrity or political independence of another State, or in any other
manner inconsistent with the Charter of the United Nations” and expressly notes that the notion
‘state’ is “used without prejudice to questions of recognition or to whether a State is a member
of the United Nations”. 396
One last remark can be made concerning the external enforcement of the protection of contested
states. The abovementioned rights and obligations are dependent on a certain form of
reciprocity between the subjects of international law. This entails that states willingly constrain
their actions in order to benefit from the same behavioral restrictions by other states. 397
However, this form of compliance also implies that states expect a certain level of equality
between them and the other protected entities. It is a plausible contention that only when nonmember states bear all the relevant marks of statehood, can they be deemed to completely fall
under the scope of the UN Charter. Hence when the statehood of the entity, which has been
attacked, is called into question, it seems that only the UN Security Council, pursuant to its
competence under Chapter VII of the UNC, has the ability to clarify the international character
of the conflict at hand (making the UN Charter provisions applicable). It has been argued that
only such UN Security Council binding resolution can effectively protect unrecognised nonmember entities from uses of force and thereby “fills a lacuna in legal protection under
international law” 398 – a lacuna which arises when a state refuses to accord any rights to
contested entities.
(iv) Rights of individuals in contested states and the question of ‘state’
responsibility
While an in-depth analysis of the rights of individuals in contested states exceeds the scope of
this thesis, it is briefly touched upon here in relation to state responsibility and in CHAPTER V,
which focuses on the consequences of non-recognition for individuals affected by (legal) acts
of contested states before domestic and regional courts.399 A preliminary question here is in
what way a non-state could incur state responsibility. Article 10 of the ILC Draft Articles on
State Responsibility provides some clarity.400 Indeed, internationally wrongful acts are breaches
of international obligations attributable to a state. 401 This is broadly codified however to
include “conduct of a movement, insurrectional or other, which succeeds in establishing a new
State in part of the territory of a pre-existing State or in a in a territory under its
administration”. 402 It seems that before such establishment has occurred, however, the
395
MALONE (n 155) 98.
UNGA, Definition of Aggression, Res 3314 (XXIX) (14 December 1974), adopted without a vote (emphasis
added).
397
HENDERSON (n 383) 390.
398
HILLGRUBER (n 189) 497.
399
While the extent of (human rights) protection of individuals within a contested states clearly falls outside the
scope of this thesis, an interesting side-note to be made in this regard is that any gap in protection could perhaps
be resolved by a ‘World Court of Human Right’, substantially discussed further in “Do We Need a World Court
of Human Rights?” (thesis, S. Schiettekatte, forthcoming June 2016).
400
Art. 10 ILC Draft Articles on State Responsibility (n 281).
401
ibid art. 2.
402
ibid art. 10(2).
396
45
territorial (parent) state that has accepted international law obligations (customary or treaty) is
bound to respect them until succession.403 This is consistent with the view that a legal void must
be avoided in regard to protection of individual (human) rights.404 Such is confirmed regionally
by the ECtHR which has attributed certain human rights violations, which occurred on the
territory of contested states, to the state party to the ECHR that effectuated effective control.405
The ECtHR interestingly has also urged ‘parent states’ to regain control over parts of its
territory that have claimed independence in order to ensure effective protection of human rights
in that area.406
5.3. The ultimate contested state: Palestine
The legal status of Palestine is a hot topic within the international legal community. Despite the
acknowledgment of its declaration of independence of November 1988 by the UN General
Assembly407 , subsequent recognition by 137 other states 408 , its notable admission as a full
member state of the UN specialised agency UNESCO, the upgrade of its status within the UN
to ‘non member observer state’ 409 and its recent accession to the Rome Statute of the
International Criminal Court (ICC), it remains the ‘quintessential contested state’. Palestine’s
road to statehood is controversial and its international subjectivity unclear. The following
overview of its recent attempts to receive international recognition aims to provide a
clarification of its legal status under international law.
Already in January 2009, Palestine lodged a declaration with the ICC pursuant to article 12(3)
of the Rome Statute.410 The article provides the opportunity for states that are not parties to the
Rome Statute to grant jurisdiction to the ICC with respect to crimes committed in their territory,
by lodging an ad hoc declaration with the Registrar. 411 The Office of the Prosecutor
subsequently had to make the determination whether Palestine fulfilled the preconditions
necessary for the ICC to exercise such jurisdiction and proceed with an investigation. In
examining the scope and meaning of the relevant provisions, the Prosecutor analysed the
403
The articulation of a clear rule with regard to treaty succession and respect of rights of individuals in newly
emerged states warrants a research project in its own right and thus exceeds the scope of this thesis. For a recent
overview of human rights obligations of contested states see: A. CULLEN AND S. WHEATLEY, “The human rights
of individuals in de facto regimes under the European Convention on Human Rights” (2013) 13 Human Rights
Law Review, 691-728.
404
ibid: the conclusion has more nuances, but a detailed analysis exceeds the scope of this thesis (although it is
touched upon more in-depth infra V.3).
405
Loizidou v Turkey, App. no 15318/89 (ECtHR, 18 December 1996), §56-57 (establishing that Turkey was
responsible as it had effective control); Ilaşcu and Others v Moldova and Russia App. No 48787/99 (ECtHR, 8
July 2004), para 330-331 (establishing that Moldova did not have effective control over the territory in question
(Transdniestria) but still had a positive obligation to take the necessary judicial, economic and diplomatic rights
to guarantee the rights provided in the ECHR).
406
Ivantoc and others v Moldova and Russia, App. No 23687/05 (ECtHR, 4 June 2012), §106.
407
UNGA, Question of Palestine, Res 43/177 (15 December 1988) UN Doc A/RES/43/177 (adopted with 104
votes in favour and 36 abstentions; Israel and the United States voted against).
408
Website of the Permanent Observer Mission of the State of Palestine to the United Nations,
http://palestineun.org/about-palestine/diplomatic-%20relations/ (consulted 8 May 2016).
409
UNGA Status of Palestine in the United Nations, Res 67/19 (29 November 2012) Un Doc A/RES/67/19 (see
further for more detailed discussion, n 417).
410
Declaration recognizing the Jurisdiction of the International Criminal Court, The Hague, 21 January 2009, at
https://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4C8071087102C/279777/20090122PalestinianDeclaration2.pdf.
411
E. KONTOROVICH, “Israel/Palestine – the ICC’s Unchartered Territory” (2013) 11(5) J of Intl Criminal Justice
979-999.
46
wording of article 12 of the Rome Statute with reference to article 125 of the same treaty. The
latter provision allows for “all states” to accede to the Rome Statute.412 The Prosecutor found
that he did not have the authority to determine whether an applicant constitutes a ‘state’. Rather,
he concluded that the UN Secretary-General, as the depositary of the treaty, is the competent
organ to assess whether accession occurs in conformity with article 125. The Prosecutor’s
reasoning has two implications. First, conferring jurisdiction under an ad hoc declaration
requires the applicant to have the same legal status as states seeking accession to the Rome
Statute. Second, the Secretary-General is the sole competent authority to decide on statehood
for purposes of determining the ICC’s jurisdiction. This last assumption has been criticised,
suggesting instead that in regard article 12(3), it is the ICC Registrar that receives the ad hoc
declarations and hence is competent to make a determination of the applicant’s statehood.413
Still, in the event the reasoning of the Prosecutor is accepted, it is of particular relevance for
the case of Palestine’s legal status to analyse the UN Secretary-General’s practice in
determining statehood (albeit in its capacity of depositary of accession to multilateral treaties
in general). In contentious cases of accession, this decision is yielded to the UN General
Assembly. 414 Since at the time Palestine’s status in relation to the UN was still that of an
“observer”, the Prosecutor refused to start an investigation pursuant to the ad hoc declaration.
Shortly thereafter however, the UN General Assembly clarified Palestine’s status in its
Resolution 67/19 of 29 November 2012. After it received an official application by Palestine
for UN Membership in September 2011, the UN General Assembly upgraded Palestine’s status
to that of a “non-member observer state”. 415 In light of this, Palestine attempted once again to
grant the ICC jurisdiction by lodging a new declaration on 1 January 2015. 416 Additionally,
Palestine acceded to the Rome Statute on 2 January 2015 in conformity with article 125-126 of
the Statute. Hence, it became a state party to the Rome Statute as of 1 April 2015.
What are the implications of the accession of a non-universally recognised entity to an
international body that is only open to states, such as the ICC? It seems that Palestine, even
though a contested state, nevertheless enjoys most of the rights attached to statehood. The
access to a forum for international dispute settlement implies it has the right to lodge complaints
against other states (within the scope of the ICC’s jurisdiction). Are we witnessing a shift from
412
Art. 125 Rome Statute of the International Criminal Court of 17 July 1998, 2187 UNTS 3 (1998).
D. AKANDE, “ICC Prosecutor Decides that He Can’t Decide on the Statehood of Palestine. Is He Right?” (5
April 2012) EJIL: Talk! at http://www.ejiltalk.org/icc-prosecutor-decides-that-he-cant-decide-on-the-statehoodof-palestine-is-he-right/.
414
Summary of Practice of the Secretary-General of Multilateral Treaties, ST/LEG/7/Rev.1, §81-83, at
https://treaties.un.org/doc/source/publications/practice/summary_english.pdf; concerning the UN Secretary
General assessment of accessions: “If he were to receive an instrument of accession from any such area, he would
be in a position of considerable difficulty unless the [General] Assembly gave him explicit directives on the areas
coming within the “any State” or “all States” formula. He would not wish to determine, on his own initiative, the
highly political and controversial question of whether or not the areas whose status was unclear were States. Such
a determination, he believed, would fall outside his competence. He therefore stated that when the “any State” or
“all States” formula was adopted, he would be able to implement it only if the General Assembly provided him
with the complete list of the States coming within the formula, other than those falling within the “Vienna
formula”, i.e. States that are Members of the United Nations or members of the specialized agencies, or Parties to
the Statute of the International Court of Justice”.
415
UNGA Res 67/19 (29 November 2012), UN Doc A/RES/67/19 (emphasis added).
416
Palestine declares to accept the jurisdiction of the Court “for the purpose of identifying, prosecuting and judging
authors and accomplices of crimes within the jurisdiction of the Court committed in the occupied Palestinian
territory including East Jerusalem, since June 13, 2014”. See President of the State of Palestine, Declaration
Accepting the Jurisdiction of the International Criminal Court, 31 December 2014, https://www.icccpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf.
413
47
the traditional criteria of statehood to a more practical approach to international law, where the
reality of statehood evolves over time?
A different matter is the legal significance of the aforementioned admission of Palestine to the
UN as a ‘non member observer state’.417 Did the UN General Assembly Resolution – with 138
votes in favour, 9 against and 41 abstentions – nevertheless amount to collective recognition?
Two distinct elements disprove the possibility that Resolution 67/19 had constitutive effects
towards Palestine’s statehood. Firstly, it is important that Palestine did not become a member
to the UN: only full membership to the UN is regulated by its Charter, which provides in article
4(1) that it is open to “all peace-loving states”. There is no express provision listing the
prerequisites for admission as a non-member observer state in the UN Charter. It is thus given
meaning by practice. Moreover, despite the resolution, Palestine is still not a state party to the
Charter itself. Secondly, it is questionable whether the voting itself provides opinio iuris of tacit
constitutive recognition of Palestine. The resolution’s preamble notes that 132 of the 138 states
voting in favour had previously recognised the state of Palestine, which minimized the number
of implicit recognitions the Resolution generated. Additionally, such reasoning would imply
that the dissenting and abstaining states’ discretionary power to accord recognition is
substituted by the voting rules in an international organisation – which if based on simple
majority, could override the policy of certain states regarding recognition.
Whatever the implications of Resolution 67/19, several states subsequently accorded Palestine
individual recognition. Sweden was the first EU member state to officially recognise the state
of Palestine on 30 October 2014 and the Palestinian embassy was opened in January 2015.418
The United Kingdom House of Commons voted in favour of Palestine’s recognition as a state
– which does not however bind the government.419 On 13 May 2015, the Holy See recognised
Palestine as a sovereign state.420
The case of Palestine is testament to the fact that the issue of recognition will never solely be
about the strict application of theoretical criteria of statehood but remains interwoven with
political motives. Furthermore, it does not confirm the traditional theories on recognition. One
finds that the traditional declaratory theory is problematic for Palestine since it does not exactly
fulfill all the pre-conditions of statehood, such as a clearly defined territory – the territories of
the West Bank and Gaza Strip still being a point of heavy contention - and a government with
full, effective control over that territory, although admittedly it is only the latter that is truly of
consequence.421 Even under a constitutive test – not generally accepted today – the question
remains whether recognition by about 70% of the UN member states is sufficient to support
Palestine in its quest for statehood. As of today, Palestine is not yet granted all rights and
obligations conferred to states in international law. However, the growing number of
recognition it receives entails it is able to enter into an increasing amount of bilateral and
multilateral relations.
417
UNGA Res 67/19 (29 November 2012) Un Doc A/RES/67/19.
Aljazeera
News,
‘Sweden
recognises
state
of
Palestine’
(30
October
2014)
http://www.aljazeera.com/news/europe/2014/10/sweden-recognises-state-palestine-2014103084649277571.html
accessed 14 June 2016.
419
I. SCOBBIE, “UK House of Commons calls for Palestine to be recognised as a state” (14 October 2014) EJIL:
Talk! at http://www.ejiltalk.org/the-uk-house-of-commons-calls-for-palestine-to-be-recognised-as-a-state/.
420
http://www.reuters.com/article/us-vatican-palestinians-idUSKBN0P618120150626
421
See supra III.2.1(ii).
418
48
6. CONCLUSION
Despite a process of evolution in the nature of legal subjects of international law and the
proliferation of non-state actors with varying rights and obligations, statehood is the fundament
of sovereignty, and hence the foundation of numerous key aspects of international law. In a
world founded on a Westphalian conception of the law – albeit it is a changing legal order –
recognition enters the fore as a source of this sovereignty and triggers numerous questions: do
states truly hold the power to deny entry into their ‘select group’ to emerging entities? To what
extent and how are existing states constrained in their policy towards quasi-states? More
fundamentally, how can recognition be legally framed if statehood itself is not clearly defined?
There is no way around it: the “critical tension in recognition law”422 between politics and law
remains a force to be dealt with.
Originally, the notion of recognition was conceived in the interest of existing states. This is
evidenced by the traditional adherence to the constitutive theory, which implied that the ones
already in the statehood game could arbitrarily decide who would be allowed to play along.
LAUTERPACHT’s premise that there was a possible duty of recognition when an entity fulfilled
all the conditions for statehood did not hold for long: discretionary power won against
submission to binding criteria for statehood. Nevertheless, the impact of this discretionary
power gradually changed: the original members had the discretion to choose whom they wanted
in their team, but this did not prevent others from playing. Indeed, this is ultimately what a strict
declaratory approach leads to: states are states when they meet the criteria for statehood, and
that’s the end of the matter. Such approach was long preferred by international actors and
scholars because of its potential in diminishing arbitrariness in fundamental recognition
decisions and furthering international stability. However, the declaratory view cannot be upheld
for two reasons. First, only a clear legal framework benefits stability, something the very nature
of emergence of new states is dissonant with. Situations of dissolution or separation of states
are never identical and very much influenced by other contextual elements than the traditional
(Montevideo) ‘territory-control-capacity’ rhetoric. Second, a declaratory approach is not
consonant with our globalising world in which the impact of civil society is felt even in the
realm of the law of recognition. Indeed, new ‘moral’ criteria for statehood have emerged, which
lead us to conclude that recognition is no longer solely the prerogative of states but is
conditioned by an increase of participation on the international level by civil society.
The foregoing also explains the inconsistent state practice of recognition of states. The
traditional Montevideo criteria remain of course persistent due to their simplicity and
conciseness. Effectiveness of an emerging state should remain the guiding norm for
recognition: only factual capacity to function as a state (to actually respect international law
and to be able to enter into international relations) guarantees the viability of the emerging
entity. The traditional criteria therefore endure as the groundwork for recognition decisions.
The modern criteria then represent guiding principles. This view is compatible with the fact
that existing states ‘survive’ despite being in flagrant disjunction with the new moral
framework.
The remaining issue is that however strong the belief of ‘what should be’ is, it is not sufficient
in itself to become ‘what is’. The difficulty in the law of recognition today lies in the fact that
it has not achieved full legal status – yet. For it to become customary international law, states
422
GRANT, The recognition of states: law and practice in debate and evolution (n 1) xx.
49
would need to practice by what they preach and feel bound in their recognition policies by these
new norms, which proves difficult when the rules themselves are still ‘in statu nascendi’.
What has evolved more consistently is the doctrine of non-recognition. In fact, where the new
normative framework leaves us perplex in regard to the norms governing the granting of
recognition, it provides clear and agreed upon boundaries for it. Even more, it could be argued
that the doctrine of non-recognition is the negative corollary of the emerging ‘moral’ criteria:
statehood is promoted when it is in concert with the latter, and downgraded when it breaches
the fundamental norms protected in the doctrine of non-recognition. In other words: on the one
hand the birth of emerging entities is rendered more difficult when it is not backed up by moral
claims, and on the other hand “’wrongful birth’ precludes statehood” 423 . Indeed, that the
violation of certain norms “obviates statehood” 424 is actually reconcilable with the third
doctrinal approach to recognition: when an entity fulfills all the objective criteria for statehood
(whether these include the moral norms or not) but is denied recognition, it cannot be a fullfledged state, as it is barred from enjoying the constitutive effects of recognition by the fact that
it has emerged on illegal grounds.
A. PETERS, “Statehood after 1989: ‘Effectivités’ between Legality and Virtuality”, (2010) 3 European Society
of International Law (SSRN) at 6.
424
RAIČ (n 71) 156.
423
50
IV.
RECOGNITION OF GOVERNMENTS
The recognition of a state often entails the recognition of its government. Most states today
have declared only to recognise states and not governments. 425 Despite the current state
practice, TALMON argues that the subject of recognition of governments is not out-dated.426 It
remains of importance, as it is only the official government of a state that can entertain
international relations in name of the state it represents. In light of the development of
international law and relations since TALMON’s statement, this can only be affirmed:
recognition of governments – or de-recognition – has become a prominent topic of international
debate since the most recent crisis in both Libya and Syria.
The following chapter therefore attempts to provide an overview of the legal framework
surrounding recognition of governments: touching briefly upon the nature of recognition of
governments (1), then delving into the evolution of the character of and the criteria for
recognition (2). The current relevance of democratic legitimacy will be analysed more in depth,
as it has recently surfaced as an extremely important consideration in recognition policies. Next,
it is discussed in what way recognition could be deemed premature and eventually represent a
violation of the principle of non-intervention (3). Finally, these concepts are brought in relation
to the recent events in Libya and Syria – therefore taking a look at the recognition of opposition
groups as ‘legitimate representatives of a people’, and what this entails for a sitting
government’s legitimacy and legality (4).
1. THE NATURE OF RECOGNITION OF GOVERNMENTS
The objective of recognition of governments is two-fold. On the one hand, it is an indication of
the willingness of the recognising state to entertain or continue official relations with the
government in question. 427 We will see that the formulation of the act of recognition is
particularly important in this regard, since governmental entities can be recognised in various
capacities.428 This capacity will reflect the breadth of the official relations that a recognising
state is willing to engage in and the acceptance of the privileges and immunities that are usually
accorded to a government. On the other hand, recognition of a government is also an
acknowledgement by the recognising state of the legality or legal status of the government in
question. This latter purpose is reflected in the criteria that have emerged in state practice for
such recognition.429
An example is Switzerland, see Federal Department of Foreign Affairs, ‘The recognition of states and
governments
under
international
law’
(Switzerland,
last
updated
22
February
2016)
https://www.eda.admin.ch/eda/en/fdfa/foreign-policy/international-law/respect-promotion/the-recognition-ofstates-and-governments.html accessed 14 June 2016.
“Switzerland’s consistent practice since the end of the Second World War has been only to recognize states, not
governments.”
426
S. TALMON, Recognition of Governments in International Law: With Particular Reference to Governments in
Exile (Oxford, Clarendon Press 1998), p. 10: “On the basis of both principle and State practice it is thus argued
that recognition of governments, either as a concept of international law or indeed as a term appearing in official
statements, has not been abolished”.
427
Although occasionally a recognition is accompanied by the express intention not to establish official relations.
An example is the United Kingdom’s recognition of the Democratic People’s Republic of Korea and its
government: SCHUIT (n 3) 384.
428
See infra IV.4.1.
429
Elaborated on infra IV.2.
425
51
Recognition as a unilateral act entails that any decision to recognise has a discretionary
character. 430 This brings us to the conclusion that, as with recognition of states, there exists no
international obligation of recognition of governments. Inversely, political entities seeking
recognition have no right to recognition. Nevertheless, any act of recognition will always be
constricted by general principles of international law, which include most prominently in the
context of recognition the principle of territorial integrity. For example, questions have been
raised whether the recognitions by France and the United Arab Emirates of the Transitional
National Council in Libya, which rose against the Gadhafi government during the Libyan
conflict in 2011, was premature and thus whether there was an interference into the internal
affairs of the Libyan state.431 This will be addressed more in depth further on.432
Existence of an effective and independent government is the essence of statehood.433 We will
see, however, that non-recognition of a political regime is not necessarily a determination that
the state represented by that regime does not qualify for statehood: governments come and go.
Rather, when an entity is not deemed to be a government in terms of independence and
effectiveness, non-recognising states will be unwilling to have normal relations with the state
concerned, which entails numerous consequences for the normal functioning of both the state
and government concerned. Conversely, it is important to clearly distinguish between the two
different objects of recognition. The recognition of the government of a state cannot but indicate
that the recognising state accepts the legal personality of the state as such. In contrast,
recognition of the state does not result in the establishment of governmental authority to any
entity claiming to be its legitimate representative.434
On a final note, it is important to consider that the doctrinal debate between the constitutive and
declaratory approach is accorded much less consideration in the realm of recognition of
governments, which is generally accepted to be of declaratory nature. 435 This proposition
corresponds with the main criterion for recognition: effective control.436 Indeed, traditionally,
legal facts – the exercise of effective control over a territory by a certain authority – create
governmental status.
2. THE LEGAL CHARACTERISATION OF GOVERNMENTAL STATUS
How has the international community’s understanding of what constitutes a ‘government’
evolved? A governments’ legitimacy – its “justification of the exercise of public authority”437
– traditionally depended upon its effectiveness: “a government which is in fact in control of the
country and which enjoys the habitual obedience of the bulk of the population with a reasonable
expectancy of permanence, can be said to represent the state in question and as such to be
deserving of recognition”.438 Still, the power of effective control is not unlimited. A tendency
to acknowledge a government’s democratic legitimacy has perceptibly gained importance over
the years. By way of example, one can refer to UN Security Council resolutions 1970 (2011)
430
ILC, Sixth Report on Unilateral Acts by States (30 May 2003) UN Doc A/CN.4/534 (2003), §39.
SCHUIT (n 3) 385.
432
See infra IV.3.
433
BROWNLIE (n 10) 90.
434
SHAW (n 25) 457.
435
MENON (n 91) 18-26; ROTH, Governmental Illegitimacy in International Law (n 11) 126.
436
SHAW (n 25) 455.
437
R. WOLFRUM, “Legitimacy in International Law” (March 2011) in WOLFRUM, R. (ed) Max Planck
Encyclopedia of International Law (OUP 2015), <opil.ouplaw.com/home/EPIL> §1.
438
JENNINGS & WATTS (n 60) 150.
431
52
and 1973 (2011), which strongly condemned the Libyan violent actions against its citizens and
authorised military intervention. 439 While still addressed to ‘the Libyan authorities’, it is
interesting to note that most votes in favour were justified by referring to the government’s
‘loss of legitimacy’.440 With regard to Syria’s sitting government, similar claims have been
heard441 – or claims to the opposite, for instance by Russia concerning Assad’s ‘legitimate
regime’. 442 It seems the international community is now qualifying effectiveness of
governments. FRANCK famously predicted: “[w]e are witnessing a sea change in international
law, as a result of which the legitimacy of each government will one day be measured definitely
by international rules and processes”.443 The following sections first addresses the traditional
approach to the law of recognition of governments, including the classic ‘effective control’
criterion (2.1) and subsequent attempts to illuminate the concept of ‘legitimacy’, which has
nuanced the doctrine of effective control, with a special emphasis on the possible new criterion
for recognition of democratic legitimacy (2.2). Reference to a government’s ‘legitimacy’ in the
next sections refers to the international legitimacy of a government, namely whether the
government in question is perceived by the international community as having a right to
represent the state it claims to represent.444 It is however distinct from an entity’s legality: loss
of legitimacy does not ipso facto entail illegality of a government.445
2.1. The traditional approach to recognition of governments
Determinations of the legality of a government do not occur on a regular basis. In particular
when foreign governments come to power constitutionally, there seems to be no need for
recognition.446 This again fits in with the declaratory approach to recognition. For instance, the
accession of a new head of state without revolution and following elections will usually be
unproblematic and not warrant (express) recognition. 447 When a new government however
seizes powers against the provisions of the constitution, it is questionable whether it is the
rightful representative of the state. Unconstitutional changes of governments usually call for a
re-evaluation of a government’s legitimacy through renewed recognition. Even states that have
declared not to recognise governments will implicitly express their intention to accept the new
entity as the legitimate representative of the state, for instance by continuing diplomatic
relations or concluding a bilateral treaty (when the counterparty to that treaty is a government
not yet recognised).448
439
UNSC Res 1970 (16 February 2011) UN Doc S/RES/1970 and UNSC Res 1973 (17 March 2011) UN Doc
S/RES/1973 (10 votes in favour and 5 abstentions).
440
See for instance considerations by Lebanon, the United Kingdom, Brazil, Colombia: UN Press Release
SC/10200, 17 March 2011, available at http://www.un.org/press/en/2011/sc10200.doc.htm.
441
Joint
UK,
French
and
German
Statement
on
Syria
(18
August
2011),
at
http://www.number10.gov.uk/news/joint-uk-french-and-german-statement-on-syria/.
442
BBC News, ‘Putin does not rule out granting Syria's Assad asylum’ (12 January 2016)
http://www.bbc.com/news/world-europe-35294890 accessed 14 June 2016.
443
T.M. FRANCK, “Legitimacy and the democratic entitlement”, in G.H. FOX and B.R. ROTH (eds.), Democratic
Governance and International Law, Cambridge (Cambridge University Press, 2000) p. 129.
444
J. D’ASPREMONT & E. DE BRABANDERE, “The Complementary faces of legitimacy in international law: the
legitimacy of origin and the legitimacy of exercise” (2010-2011) 34 Fordham Int'l L.J. 190, 193-194.
445
A. BUCHANAN & R.O. KEOHANE, “Precommitment Regimes for Intervention: Supplementing the Security
Council” (2011) 25 Ethics and International Affairs , 43.
446
JENNINGS & WATTS (n 60) 149.
447
ibid 148-149.
448
ibid.
53
There are no legally binding, objective criteria that serve as the basis for the decision to
recognise governments. 449 Indeed, there exists no counterpart in the law of government
recognition for the Montevideo Convention, which – albeit contested – provides at least a
starting point for the legal characterisation of statehood. 450 A state evaluating its bilateral
relations with a foreign government in principle enjoys considerable freedom in its judgment.451
Due to the policy of numerous states to refrain from recognition of governments, it often falls
onto the judicial branch to evaluate the governmental character of an entity, for example when
such entity makes a claim before a court concerning state property or assets. While the
consequences of non-recognition at the domestic level are discussed more in detail infra452,
such national jurisprudence provides state practice for the legal characterisation of
governments, as courts attempt to withhold general principles for the determination of
governmental status. For example, in Republic of Somalia v. Woodhouse Drake & Carey
(Suisse) SA, the British courts established that after the 1980 policy change of the United
Kingdom, a judgment could no longer exclusively rely on the British government’s dealings
with the entity claiming to be the legitimate representative of the state of Somalia. 453 In this
case, relevant considerations by the court include the constitutional legality of the claimant and
the degree, nature and stability of the administrative control effectuated by the claimant. 454
Several doctrines have evolved concerning the legal characteristics that could confer
governmental status. Traditionally, due regard is given to the effective control of the authority
over the territory of the state, and whether that control manifests itself as stable and permanent
– a so-called “sustainability of power” 455 . Control over territory entails control over the
population of the state, which the authority in question claims to represent.456 This approach to
recognition of governments shows a certain deference to the internal affairs of states. The idea
that regime changes are a matter of a state’s sovereignty has led many states to denounce a
practice of recognising governments. 457 This use of the principle of non-intervention as
guidance for the establishment of foreign policies is visible also in the law of recognition of
states. Indeed, the Montevideo Convention of 1933 endorses a declarative, factual approach to
recognition, which does not accord great legal significance to the act of recognition itself. In
the area of recognition of governments, the Estrada Doctrine emerged as a strict application of
this theory. The granting of recognition is deemed to imply an external judgment upon internal
affairs, which would insult the government in question.458 The rationale behind the doctrine is
based on an extreme form of de factoism: states will either continue or discontinue diplomatic
449
VERHOEVEN & DE VISSCHER (n 84) 597-603.
SCHUIT (n 3) 388.
451
J. D’ASPREMONT, “Legitimacy of governments and the age of democracy” (2005-2006) 38 NYU Journal of
International Law and Politics 878, 878.
452
See infra V.
453
B. KINGSBURY, “Judicial determination of foreign “government” status” (1993) 109 Law Quarterly Review
377- 382.
454
Somalia v Woodhouse Drake & Carey (Suisse) SA (The Mary) [1993] Q.B. 54 (QBD (Comm)).
455
SCHUIT (n 3) 390.
456
ibid.
457
ROTH, Governmental Illegitimacy in International Law (n 11) 137.
458
J. VIDMAR, “States, Governments, and Collective Recognition” (2014) 31 forthcoming Chinese (Taiwan)
Yearbook
of
International
Law
and
Affairs
(SSRN),
p.
14,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2482997. The Estrada doctrine is named after the Mexican
Foreign Secretary Genaro Estrada, who declared in 1930 that Mexico would no longer pronounce judgment on the
lawfulness of foreign governments.
450
54
relations without pronouncing judgment, as to minimize any possible influence on internal
political strife.459
A notable case in which the effective control criterion was discussed is the Tinoco Concessions
arbitration, in which Great Britain requested compensation from the new government of Costa
Rica for the sudden nullification of certain contracts that the preceding Tinoco regime had
concluded with British petroleum corporations. 460 The Tinoco regime had come to power
through a coup d’état and had not been recognised by some nations, including Great Britain.
The arbitrator W. H. TAFT found that the current government of Costa Rica could nonetheless
be bound by the actions of the Tinoco regime in its capacity as de facto government, as the
latter had functioned effectively until a few months before it ended. 461 In the arbitration, a
balance was struck between the complete governmental control of the regime and its eventual
illegitimacy or irregularity of origin, the former being sufficient for qualification as a de facto
government.462 As such, it becomes clear that effective control is a critical criterion for the
establishment of the existence of a government and the legal implications this entails. SHAW
sees in the Tinoco arbitration an example of the varying importance accorded to the factual
situation in the context of recognition. 463 More specifically, the significance of recognition
increases – in other words, recognition has a greater legal impact – when the facts at hand would
otherwise not uphold it, as opposed to situations where the facts do confirm the claim for
recognition. The relevance of this arbitration also lies in the fact that despite non-recognition,
a de facto government can still incur (rights and) obligations in the name of the state.
Furthermore, it emphasised the importance of the state itself as the relevant legal entity in regard
to contracts, even more so than the government in this case.464
The test of effective control is a rather pragmatic one, which is increasingly supplemented by
other considerations. Indeed, the issue of recognition of governments becomes more complex
when two entities compete for governmental status with regard to one state. TALMON
distinguishes three situations in which this occurs: when two (or more) de facto authorities put
forward a claim of governmental authority over one state, when an entity claims to be the
government of a seceded part of a state’s territory (and this secession is de facto, thus not
recognised by the parent state, which results in a competing claim with regard to that territory),
and finally, the more often cited case of a government in exile (competing with the government
actually exercising effective control over the state in question).465
Furthermore, a strict application of criterion of effective control could lead to recognition of
entities that gained power in violation of international law. While a revolutionary seizure of
power could be accepted in some instances (as when the constitutionality of a government is
deemed to lie exclusively within the internal affairs of a state), recognition of an authority which
came to power by a breach of international law (such as a violation of the prohibition of the use
of force) suggests the approval or endorsement of the illegal situation by the recognising state.
States therefore do not strictly rely on considerations of effective control. As ROTH puts it, “the
459
SCHUIT (n 3) 393.
Tinoco Concessions Case (Great Britain v Costa Rica) (1924) 18 AJIL 147.
461
ibid, 150.
462
ibid, 154.
463
SHAW (n 25) 456.
464
In the end, the arbitrator did decide in favour of Costa Rica. However, this was due to the facts of the case and
this does not affect the reasoning in the case.
465
TALMON (n 426) 7-8. An analysis of the distinctions in the abovementioned situations exceeds the scope of this
thesis, see however the comprehensive book on the subject by TALMON.
460
55
morally troubling and legally disruptive principle that might makes right, has always faced
challenges from one form or another of legitimism – the idea that right, somehow specified,
withstands even the most effective lawlessness” 466 . From ROTH’s perspective however, the
effective control test is not fundamentally incompatible with legitimism. Indeed, effectiveness
is measured by the reaction of the people to the governmental entity.467 He quotes the Pakistani
Supreme Court, which found: “It is not the success of the revolution, therefore, that gives it
legal vitality but the effectiveness it acquires by habitual submission to it from its citizens”468.
Therefore, effective control could reflect popular consent.
2.2. The concept of legitimacy
(i) Different doctrines of legitimism
Legitimacy of a government concerns both the acquirement of power and the exercise of this
power. 469 The concept evolved from a norm of dynastic legitimism into a notion of
constitutional legitimism, which warrants recognitions only when entities come to power by
constitutional means.470 The legitimacy doctrine gained more importance after the 1907 vision
of the Ecuadorian Minister of Foreign Affairs Tobar was endorsed in a multilateral treaty471. A
number of (Central-American) states decided to deny recognition to any entity that claimed
power on the basis of a coup d’état or revolution against the existing legal order, until free
elections were held. The Tobar doctrine was one of the first steps towards a more nuanced
principle of effectiveness in recognition policies, which started to consider the lawfulness of a
situation prior to recognition based on a state’s constitution. The accreditation of delegates to
the UN also reflects an assessment of the constitutional legitimism approach. 472 The UN’s
policy in that regard was set in 1950. Concerned with the importance of uniformity within its
various organs and the possibility of their conflicting decisions on the representation of a state,
it issued a resolution stating that the UNGA was the most suitable organ to confer representative
status to an entity.473 In its determination of such status, the General Assembly has based itself
on the constitutional origin of the delegation claiming to be the legitimate representative of its
state.474
ROTH finds the constitutional legitimacy doctrine to be hampered by a “logical incoherence”:
any constitutional order finds its bare origins outside of the constitution itself and a strict
application of the doctrine thus implies that no government is truly constitutional neither
deserves recognition.475 Even though the doctrine was endorsed by the United States, it was not
widely followed. This was also caused by the lack of defined procedures to assess the popular
466
B. ROTH, Governmental Illegitimacy in International Law (n 11) 136.
ibid 138.
468
Asma Jilani v. The Government of Punjab [1972] PLD DC 139, 179-180 (as quoted in ROTH, Governmental
Illegitimacy in International Law (n 11) 138.
469
D’ASPREMONT “Legitimacy of governments and the age of democracy” (n 451) 881-884.
470
ROTH, Governmental Illegitimacy in International Law (n 11) 142-144.
471
Ratified by Guatemala, El Salvador, Honduras, Nicaragua and Costa Rica.
472
D’ASPREMONT “Legitimacy of governments and the age of democracy” (n 451) 903.
473
UNGA (Ad Hoc Political Committee), Recognition by the United Nations of the representation of a Member
State, Resolution 396 (V) (14 December 1950) UN Doc A/RES/396(V).
474
D’ASPREMONT “Legitimacy of governments and the age of democracy” (n 451) 905, referring to the cases of
Kuwait, Afghanistan, Haiti, and Sierra Leone.
475
ROTH, Governmental Illegitimacy in International Law (n 11) 5.
467
56
consent for the new regime. Again, a certain deference for the internal affairs of a state gained
the upper hand. Indeed, in the Tinoco Concessions arbitration, it was noted that “the legitimist
principle that served as a basis for non-recognition [of the Tinoco regime by the United
Kingdom] has not been acquiesced by all the nations of the world”. 476 Nevertheless,
commentators note that the doctrine has perhaps evolved after the Cold War and now includes
a norm of democratic governance.477 If this is the case, the effective control doctrine is to be
balanced against the democratic legitimacy of a new government, distinct from the
constitutionality of the government. The emergence of this new norm is discussed next.
(i) Democratic legitimacy and the ‘democratic entitlement’
Simply stated: do all governments need to be democratic in order to legitimately control and
govern over a state? The answer is obviously negative. Nevertheless, it is a relevant question
what the extent is of support of democratic governments, and whether this can be translated in
a legal norm. If the democratic legitimism approach truly gains ground, it could possibly
override any effectiveness of control that an entity has over a certain territory – signifying a
definite departure from the strict application of the effective control doctrine in the Tinoco
Concessions arbitration decision.478
There exists widespread opinio iuris that governmental legitimacy is contingent on the respect
by the government for international law and for the human rights of its population. This was
voiced by the European Union479, the G8480, the League of Arab States481, and other individual
states such as the United States.482 States have also increasingly responded to undemocratic
seizures of power with non-recognition of the new (self-proclaimed) governments. 483 Of
course, existing states qualified as ‘undemocratic’ today continue to enjoy (almost) universal
recognition. The People’s Republic of China and the Socialist Republic of Vietnam can be cited
as examples.484 However, continued recognition of non-democratic governments should in the
majority of circumstances not be equated with approval of the political form of government. As
noted 485 , states might simply have abandoned a practice of recognition. Also, in certain
situations, engaging in normal relations with a government has been said to better serve the
476
Tinoco Concessions Case (Great Britain v. Costa Rica) (1924) 18 AJIL 147.
ROTH, Governmental Illegitimacy in International Law (n 11) 148.
478
D’ASPREMONT “Legitimacy of governments and the age of democracy” (n 451) 903. The author cites Panama
and Angola as examples for this contention, as the lack of effectiveness did not prevent recognition of the new
democratic governments.
479
European Council (Extraordinary European Council), ‘Declaration on developments in Libya and the Southern
Neighbourhood region’ (Brussels, 11 March 2011), European Council Doc EUCO 7/1/11, REV 1, 20 April 2011,
https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/119780.pdf accessed 14 June 2016.
480
G8 Declaration, ‘Renewed Commitment for Freedom and Democracy’ (G8 Summit of Deauville, 26-27 May
2011),
http://www.nato.int/nato_static/assets/pdf/pdf_2011_05/20110926_110526-G8-Summit-Deauville.pdf
accessed 14 June 2016.
481
See Letter dated 14 March 2011 from the Permanent Observer of the League of Arab States to the United
Nations to the President of the Security Council (15 March 2011) UN Doc S/2011/137.
482
US State Department, Daily Press Briefing (Washington DC, 4 March 2011),
http://www.state.gov/r/pa/prs/dpb/2011/03/157749.htm accessed 14 June 2016.
483
D’ASPREMONT “Legitimacy of governments and the age of democracy” (n 451) 902. The author cites as
example reactions to the coups in Sierra Leone, Haiti, Niger, Ivory Coast, Guinea Bissau and Togo.
484
The United States for instance waited until 1995 to normalise its diplomatic relations with Vietnam, but upon
its (implicit) recognition did not impose democratic legitimacy as a condition. The U.S. only notes it expects
respect for human rights and the rule of law, see http://vietnam.usembassy.gov/usvnrelations.html; MURPHY (n
323) 144-145.
485
See supra IV.2.1.
477
57
interest of the people and advance a transition to democracy than disassociating with the state
completely. 486 Furthermore, (continued) recognition of undemocratic regimes is possibly
inspired by the prohibition in international law to respect the internal affairs of the state.
According to the Friendly Relations Declaration, “every State has an inalienable right to choose
its political, economic, social and cultural system, without interference in any form by another
State”.487 It is thus a prerogative of state sovereignty that a state is free to choose its form of
government.
Despite the existence of undemocratic governments accepted by the international community,
can democratic legitimacy be seen as an important, maybe fundamental principle in recognition
policies? Notably in Haiti between 1991 and 1994, military and police authorities effectuated a
coup d’état against the legitimately elected government of President Aristide. The international
community, led by the efforts of the Organization of American States (OAS), continued to
recognise Aristide’s government in exile. The OAS member states hereby proactively denied
legitimacy to a non-democratic government, which had obtained effective control over the
territory of the state in question, showing that the balance does tip in favour of democracy.
Nevertheless, it has been noted that it cannot necessarily be inferred from such practice that
democratic legitimacy is now a norm universally upheld in recognition policies.488 Indeed, the
OAS Permanent Council noted that the recommended actions were to be installed “with due
respect for the policy of each member state on the recognition of states and governments”.489
Additionally, the extensive role of the OAS in the promotion of the collective non-recognition
of the new government is also due to the fact that democratic legitimacy is one of the
fundamental norms of the organisation. For instance, the Charter of the OAS provides that
members may be suspended from participation in the organs of the OAS when their
“democratically constituted government has been overthrown by force”. 490 In a sense, this
limits the precedential value of the collective actions in regard to Haiti, as the commitment of
the OAS member states to the promotion of democracy is therefore not ipso facto evidence of
a new universal standard in recognition policies.491
Other intergovernmental organisations enforce democratic standards upon their members.
ECOWAS boasts a protocol enshrining as “constitutional principles shared by all Member
States”, amongst others: “zero tolerance for power obtained or maintained by unconstitutional
means” and “strict adherence to democratic principles”. 492 In light of these principles,
ECOWAS has condemned and sanctioned undemocratic changes of governments in such states
as Guinea, Guinea-Bissau, Mauritania, Niger and Mali.493 ASEAN and the Council of Europe
486
MURPHY (n 323) 144-146.
Friendly Relations Declaration (n 97), Principle III.
488
TALMON (n 426) 12.
489
OAS Permanent Council, Support to the Democratic Government of Haiti, OEA/ser.F/V.1 (3 October 1991)
OAS Doc MRE/Res 1/91 (1991).
490
Charter of the Organisation of American States (signed 30 April 1948, entered into force 13 December 1951),
119 UNTS 3, article 9. This occurs by two-thirds majority vote in the OAS General Assembly.
491
TALMON (n 426) 12.
492
ECOWAS, Protocol A/SP1/12/01 on Democracy and Good Governance (2001) supplementary to the Protocol
relating to the Mechanism For Conflict Prevention, Management, Resolution, Peacekeeping and Security
(December
2001)
<http://www.internationaldemocracywatch.org/attachments/350_ECOWAS%20Protocol%20on%20Democracy
%20and%20Good%20Governance.pdf> accessed 14 June 2016.
493
AKENROYE, A., “ECOWAS and the Recent Coups in West Africa: Which Way Forward?” (IPI Global
Observatory, 8 May 2012) https://theglobalobservatory.org/2012/05/ecowas-and-the-recent-coups-in-west-africawhich-way-forward/ accessed 14 June 2016
487
58
also make the legitimate status of their member state dependent on adherence to democratic
standards.494
A more recent example which seems to confirm again that democracy might still evolve into a
– certainly guiding, perhaps binding – principle in recognition policies is the involvement of
third states in the internal struggle in Libya in 2011. An analysis of the numerous recognitions
in support of the National Transitional Council (NTC) shows that the effective control it held
over the territory of Libya cannot have been the decisive criterion – since it did not have such
control – but that recognition was mostly inspired by the NTC’s official commitment to
democracy. 495 Indeed, the United Kingdom, despite its long-held policy not to recognise
governments, did issue a statement to that effect, noting that the decision was based on the
legitimacy of the NTC: “[t]hrough its actions the NTC has shown its commitment to a more
open and democratic Libya […] in stark contrast to Qadhafi, whose brutality against the Libyan
people has stripped him of all legitimacy”.496 The legality of the recognition of the NTC will
be discussed in greater detail infra.497
In sum, a ‘democratic entitlement’ cannot be said to exist as of yet in international law. To
accept such a proposition would have far-reaching consequences. It has been posited that
“[i]nternational politics as it is now practiced would effectively halt”498. If it truly has become
a guiding legal norm, states must incorporate it in their foreign policy and deny any legitimacy
to a government acting contrary to democratic standards499, in the same way as the Apartheid
regime in South Africa was denied any validation.500 Such a strict application of democratic
legitimism certainly does not find enough confirmation in state practice. Furthermore,
recognition must always be balanced against the prohibition of non-intervention in internal
affairs, especially when it involves domestic disputes as to which entity can rightly claim to be
the legitimate representative of a state. This aspect is the subject of the following section.
3. RECOGNITION OF GOVERNMENTS AND THE PRINCIPLE OF NON-INTERVENTION
As with the recognition of states, recognition of a government that does not (yet) fulfill the
accepted criteria to exercise governmental power possibly amounts to a violation of the
principle of non-intervention in the internal affairs of a state. This is even more true in the realm
of recognition of governments, as the Friendly Relations Declaration, which clarifies the
principle enshrined in article 2(7) UN Charter, provides explicitly that it does not allow for
interference “in matters within the domestic jurisdiction of any state”, which includes the
internal political processes of a state. 501 In the Nicaragua judgment, the ICJ stated that it
K. ODENDHAL, “National and International Legitimacy of Governments” (20 July 2015) 4 ESIL Reflections, 5
at http://www.esil-sedi.eu/sites/default/files/ESIL%20Reflection%20ODENDAHL.pdf.
495
C. WARBRICK, “British policy and the National Transitional Council of Libya”, (2012) 61 International
Comparative Law Quarterly 247, 250. This is reminiscent of the practice of the European Community regarding
the recognition of states during the dissolution of Yugoslavia 495, where certain states were granted recognition
despite not having a government with effective control. See RICH (n 170) 49-51: specifically Bosnia-Herzegovina
did not meet all the criteria for statehood and was nevertheless recognised by the EC.
496
As quoted in: WARBRICK, “British policy and the National Transitional Council of Libya” (n 495) 253.
497
See infra IV.4.
498
FOX & ROTH, “Democracy and International Law” (2001), 27 Review of International Studies, 350.
499
What those standards are, is of course matter for conjecture that exceeds the scope of this thesis. See for an
overview FOX & ROTH, “Democracy and International Law” (n 498) 327-352.
500
FOX & ROTH, “Democracy and International Law” (n 498) 350.
501
Friendly Relations Declaration (n 97)Principle III.
494
59
encompassed “the choice of a political, economic, social and cultural system, and the
formulation of foreign policy”.502 It is possible for political or economic measures to qualify as
illegal interventions. 503 The refusal to recognise any government, as put forward in the
abovementioned Estrada doctrine, is exemplative of a cautious approach that accords great
consideration to the principles of non-intervention and state sovereignty.504 Considering the
above discussing on the criteria for recognition, recognition will occur prematurely when the
recognised entity’s legitimacy is contested, whether in the form of a lack of effective control,
or lack of legitimism, depending on the doctrine that is accepted. Indeed, “non-intervention
clearly and consciously discriminates in favor of the established government”.505
In order to determine the international legal consequences of premature recognition of
governments, one could turn to the ILC Draft Articles on State Responsibility: a state will only
be affected by its decision to recognise a government prematurely in the event the act occurred
in violation of an international obligation506 (here, the obligation to respect a state’s sovereignty
by not intervening in internal affairs), the act is attributable to the state507 and there are no
circumstances precluding wrongfulness 508. The wronged and rightful government of a state
could then claim the international responsibility of the recognising state with all ensuing
consequences.509 It has however been noted that, in the realm of recognition of governments,
“[s]ince the penalties for premature recognition are usually weak, it is an inexpensive and
relatively safe policy”.510 As was noted, a “non-effectivist policy”511 – one that is not based on
effective control – is not strictly prohibited by international law, but is merely a standard
doctrine for recognition. Thus, states tend to express their approval of a new regime through
recognition and are not legally restricted by that regime’s effectiveness. Such expression does
not necessarily have any concrete influence on the internal affairs of the state. PETERSON
classifies such premature recognition of governments as political.512 Where the objective of the
premature recognition is more than mere approval however, and is supplemented by material
support (military, financial, or otherwise), the recognition certainly comes into conflict with the
principle of non-intervention. The most recent recognition that has possibly come in conflict
with the principle of non-intervention is that of the National Transitional Council (NTC) in
Libya. It merits further analysis in the next section.
Recognition and the principle of non-intervention are also related in another way. The ILC
Draft Articles on State Responsibility provide that consent is one of the grounds precluding
wrongfulness of violations of international law.513 Intervention by a third state, which would
otherwise amount to a breach of international law, could thus possibly be justified under the
502
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)
(Judgment) [1986] ICJ Rep 14, §205 (hereinafter Nicaragua).
503
Friendly Relations Declaration (n 97) Principle III; ROTH, Governmental Illegitimacy in International Law (n
11) 169.
504
SCHUIT (n 3) 401.
505
ROTH, Governmental Illegitimacy in International Law (n 11) 171.
506
Art. 2(b) ILC Draft Articles on Responsibility of States (n 281).
507
ibid arts. 2(a) and arts. 4-11.
508
ibid arts. 20-26.
509
ibid arts. 30-31.
510
M. J. PETERSON, Recognition of Governments: Legal Doctrine and State Practice, 1815-1995 (Macmillan Press
1997), p. 156.
511
ibid.
512
ibid.
513
Art. 20 ILC Draft Articles on State Responsibility (n 281).
60
rhetoric of consent by the government. Such was also confirmed in the Nicaragua case, where
the ICJ posited that there exists no right of intervention in support of opposition groups within
another state514 - thereby incidentally positing that such a right to intervention does exists at the
invitation of the government of a state. 515 The commentaries to the Draft Articles however
already provide that the consent must be “valid”, which could become problematic in situations
where it is not clear which entity actually has the authority to grant such consent – including
cases where the legality of a government is under question.516 As we have seen, a government’s
legitimacy is traditionally rooted on the principle of effective control. However, with the
evolution of new qualifications for the legitimacy of a government (such as democratic
legitimism) the issue arises whether the consent of governments that do not meet these criteria
can still be deemed “valid”, and conversely, whether opposition groups that do pledge respect
for human rights and democracy have a right to issue invitations to intervene. 517 Such
observations are particularly relevant today, seeing that Russia justified its military intervention
in Ukraine in 2014 by invoking consent from the government: first, from the government of
Crimea – which cannot be deemed “valid” consent in terms of article 20 ILC Draft Articles –
and then shifted its rhetoric by invoking consent from the then recently deposed president of
Ukraine.518 Inevitably, questions as to the legitimacy of the given consent ensued.519 While an
analysis of the evolution of invitations to intervene by non-governmental groups exceeds the
scope of this thesis520, it is important to keep this observation in mind in the next section that
scrutinises recognition of ‘legitimate representatives of a people’: does this new form of
‘legitimacy’ also bestow on such groups the right to issue an invitation to intervene and on
recognising states to aid their cause, maybe even by military means? In that regard, FOX
cautions for the implications of such alterations to the Nicaragua rule – the danger of
politicising a legal rule.521
4. THE OBJECT OF RECOGNITION: NOT PER SE A GOVERNMENT
What can be characterised as a ‘light’ form of recognition has recently emerged in state practice.
In situations of competing claims for governmental authority over state territory by recognised,
sitting governments on the one hand and opposition groups on the other hand, states have very
recently developed a practice of recognition quite distinct from the traditional practice
discussed above. Perhaps in order to avoid crossing the delicate threshold of the principle of
non-intervention and incurring the legal consequences of state responsibility, recognition is no
longer exclusively directed at the representative of a state, but also at the “legitimate
representative of the people”. In the following section, an attempt is made at distinguishing this
new form of recognition and its respective consequences in international law, and it is discussed
in what circumstances this light recognition can be deemed (un)lawful. Indeed, “historical
514
Nicaragua, §209.
Nicaragua, §246.
516
ILC Draft Articles on State Responsibility (n 281), with commentaries, p. 73, commentary (5).
517
FOX, “Intervention by Invitation” (n 517) 818.
518
BBC News, ‘Ukraine's Yanukovych asked for troops, Russia tells UN’ (4 March 2014)
http://www.bbc.com/news/world-europe-26427848 accessed 14 June 2016.
519
Z. VERMEER, “Intervention with the Consent of a Deposed (but Legitimate) Government? Playing the Sierra
Leone Card.” (March 2014) EJIL: Talk! at http://www.ejiltalk.org/intervention-with-the-consent-of-a-deposedbut-legitimate-government-playing-the-sierra-leone-card/.
520
See for a succinct and current analysis of the matter: G.H. FOX, “Intervention by Invitation”, in M. WELLER
(ed.), The Oxford Handbook of the Use of Force in International Law (Oxford, OUP 2015), 816-840.
521
ibid.
515
61
antecedents are so sparse that it may be that we are witnessing the emergence of a new category
of quasi-state entities”.522
4.1. The “defining formulae”
As noted 523 , recognition of governments serves as an indication of willingness by the
recognising government to enter into official relations with the recognised government. 524
Recognition in principle confers a legitimate right of representation to the recognised entity.
The effects of recognition however differ depending on the entity that is accorded recognition:
the extent of the relations that a recognising state is willing to enter into is demonstrated by the
object of recognition. 525 The precise wording – the “defining formulae” – of the act of
recognition therefore becomes very important in order to discern the capacity of the recognised
entity, and by that, the extent of the official relations the state is willing to enter into. 526
Consequences of this qualification are far-reaching. For instance, as was noted, only the group
that is considered the government of a state can issue a legitimate invitation to intervene527 or
has powers of representation in intergovernmental organisations.
The most widespread variety of “formulaes” was seen in the year of 2012, when numerous
states announced their support for the ‘National Coalition for Syrian Revolutionary and
Opposition Forces’, also known as the Syrian Opposition Council (SOC). 528 The SOC was
gradually recognised as the ‘legitimate representative of the Syrian people’.529 The wording of
the supportive statements varied – from ‘recognition’ to ‘acceptance’, ‘acknowledgment’,
‘consideration’ of the ‘legitimate representative’ or ‘representatives’ of either the ‘Syrian
people’ or the ‘aspirations of the Syrian people’. The legal effect of these statements remained
unclear. They did not, however, amount to the recognition of a new government of Syria.530
Such recognition would go against the practice of some states recognise only states 531 and
would necessarily resulted in the closure of embassies.532 The opposite is true, as Syria’s seat
FOX “Intervention by Invitation” (n 548) 839.
See supra IV.1.
524
S. TALMON, Recognition of Governments in International Law: With Particular Reference to Governments in
Exile (OUP 2001) p. 21.
525
ibid.
526
ibid 26.
527
See supra IV.3.
528
US Department of State, Fact Sheet Office of the Spokeperson, ‘Syrian Crisis: US Assistance and Support for
the Transition’ (29 September 2014), http://www.state.gov/r/pa/prs/ps/2014/09/232266.htm accessed 15 June
2016. BBC News, ‘Guide to the Syrian Opposition’ (17 October 2013) http://www.bbc.com/news/world-middleeast-15798218 accessed 15 June 2016.
529
NPR News, ‘Obama Recognizes Rebels As ‘Legitimate Representative’ of Syrian People (11 December 2011)
http://www.npr.org/sections/thetwo-way/2012/12/11/167008761/obama-recognizes-rebels-as-legitimaterepresentatives-of-syrian-people accessed 15 June 2016; The Guardian, ‘UK: Syrian opposition 'sole legitimate
representative' of the people’ (20 November 2012) https://www.theguardian.com/world/2012/nov/20/uk-syrianopposition-sole-legitimate-representative-people accessed 15 June 2016; Aljazeera News, ‘GCC recognises new
Syrian
opposition
bloc’
(12
November
2012)
http://www.aljazeera.com/news/middleeast/2012/11/20121112175539534504.html accessed 15 June 2016; RT
News, ‘EU follows Italy’s move to recognize Syrian opposition coalition (19 November 2012)
https://www.rt.com/news/syria-opposition-eu-representative-099/ accessed 15 June 2016.
530
FOX, “Intervention by Invitation” (n 520) 838.
531
Such as the UK, see S. TALMON, “Recognition of Governments: An Analysis of the New British Policy and
Practice” (1992) 63(1) BYBIL 231, at 243-248.
532
FOX, “Intervention by Invitation” (n 520) 838.
522
523
62
in the United Nations continues to be filled by representatives appointed by the Assad
government. The SOC offices that have gradually been opened in the different recognising
states do not hold diplomatic benefits.533
The other example of employing different wording when recognising representative entities is
of course Libya. At the outset of the revolution in Libya, the NTC was mostly recognised as
the legitimate representative of the Libyan people and rarely as the representative of Libya. For
example, early on in April 2011, the United Kingdom acknowledged the NTC in its capacity as
“legitimate political interlocutor” of the Libyan people.534 A statement by the Foreign Ministry
quickly followed, which found that the Gaddafi government had lost its legitimacy and
recognised the NTC as the legitimate representative of the Libyan people. This did not entail
immediate de-recognition of the Gaddafi government, but was characterised as a preparatory
act for “a political transition in which Libyans can decide on their own future”.535 In a reaction
to these events, TALMON argued that the criterion of effective control over state territory cannot
be neglected in recognition policies – even more, that a formal recognition of an entity that did
not exercise such control as de jure government should be deemed premature.536 Applied to the
Libyan situation in 2011, he noted that, for instance, the United States were right in refraining
from recognising the NTC, as doing otherwise, “while Qaddafi forces are still in force in the
capital […] would arguably constitute an illegal interference in the internal affairs of Libya”.537
Thus, under such rhetoric, the early recognitions by France and the United Arab Emirates of
the NTC as “the only holder of governmental authority”538 contravened international law in the
sense that they were premature.
A different rhetoric can also be used, namely that of the legitimacy doctrine. As evidenced by
the United Kingdom’s statement, it can be argued that by committing war crimes and crimes
against humanity the Gaddafi government lost any claim of legitimacy.539 Nevertheless, this
does not automatically bestow legitimacy on the existing opposition group. In order to be
granted governmental authority under the legitimacy doctrine, an entity is still required to enjoy
popular support. However, at the time of France’s and the United Arab Emirates’ recognition,
the Libyan people’s support for the NTC had not been clearly established.540 This is evidenced
by subsequent events, such as the continued unrest in the region even after the fall of the Gadaffi
government.541
The recognition of the NTC as the legitimate representative of Libya by the 32-member Libya
Contact Group followed in July 2011. It can definitely be characterized as an “upgrade” from
the NTC’s previous status, in the sense that it resulted in the NTC gaining “governmental
533
US State Department, Daily Press Briefing (Washington DC, 6 February 2013 and 7 February 2013)
http://www.state.gov/ accessed 14 June 2016.
534
Foreign & Commonwealth Office,‘Foreign Secretary announces assistance to the National Transitional Council
in Libya’ (London, 20 April 2011) <https://www.gov.uk/government/news/foreign-secretary-announcesassistance-to-the-national-transitional-council-in-libya> accessed 1 June 2016.
535
As quoted in WARBRICK, “British policy and the National Transitional Council of Libya” (n 495) 252.
536
S. TALMON, “Recognition of the Libyan Transitional Council” (ASIL Insights, Vol. 15, issue 16, 11 June 2011)
at https://asil.org/insights/volume/15/issue/16/recognition-libyan-transitional-council.
537
ibid.
538
French Ministry of Foreign and European Affairs, Press Release, ‘Libyan National Transitional Council:
Statement by Alain Juppé’ (Paris 7 June 2011) http://www.ambafrance-uk.org/National-Transitional-Council-now
accessed 14 June 2016. The United Arab Emirates issued an implicit recognition see SCHUIT (n 3) 396.
539
SCHUIT (n 3) 398.
540
TALMON “Recognition of the Libyan Transitional Council” (n 536).
541
SCHUIT (n 3) 398.
63
authority” over the territory that it controlled – in other words, becoming the government of the
state. It ensued that the Gaddafi government lost its authority. The Gaddafi government had up
till then held normal inter-governmental relations with most states around the world. The
recognition of the NTC as the government of Libya thus occurred in a gradual way. Initially, it
was a mere political act, only to gradually become legally relevant, and eventually led to the
acceptance of the NTC’s credentials by the UN General Assembly in September 2011.542
4.2. The distinction between political and legal recognition
A distinction must thus be drawn between political and legal recognition of governments. The
legally recognised government of a state is its legal representative. Even though a government
can lose its legitimacy, this does not automatically entail it becomes illegal. Such government,
continuing to exercise effective control – subject to the nuances of democratic legitimacy –
over the state’s territory, will remain the representative of the state until its legal derecognition.543 It is of importance that recognition of an entity in another capacity than the
government of a state – as the legitimate representative of a people – does not entail the
recognition of a legitimate replacement of the current government. A state cannot have two de
jure governments.544
What then, to think of such acts of recognition? Only when legal consequences are attached to
the factual situation of an entity being considered as such ‘legitimate representative of a people’,
will it constitute a “legally relevant act”.545 TALMON argues that such situation can only arise
when the ‘people’ that a group claims to represent are not of themselves a single people
constituting a sovereign and independent state.546 Only when there is a people with its own right
to self-determination – a people that can be distinguished from the state itself, and therefore
only occurring in states composed of more than one people – can an entity claim a distinct
political status.547 When the people constitute the state – a single people – that right becomes
the right against outside interference of the state itself. 548 As such, the right to selfdetermination of a (single) people is transferred to the state. Hence, the concept of the
simultaneous – legal – existence of a people, alongside the government representing the state
itself, does not exist in international law.549 Recognition of ‘the legitimate representative of the
people’, in situations where the people and the state are one and the same legal person therefore
cannot have any legal effect, and can only be qualified as political recognition.550 For instance,
as Syria is constituted of a single people, its legal representative cannot be said to legally exist
or possess powers of representation separate from those of the Syrian state. The recognition of
the SOC can therefore only be political, an encouragement of the opposition group by the
542
UNGA, Res A/66/360 (16 September 2011) UN Doc A/RES/66/1.A.
JENNINGS & WATTS (n 60) 150.
544
TALMON, “Recognition of the Libyan Transitional Council” (n 536).
545
S. TALMON, “Recognition of Opposition Groups as Legimitate Representative of a People” (2013) Bonn
Research Papers on Public International Law Paper No 1/2013, 3 March 2013, p. 17.
546
ibid.
547
Art. 1 ICCPR and Art. 1 ICESCR.
548
Also the principle of non-intervention: See Friendly Relations Declaration (n 97) Principle V.
549
TALMON, “Recognition of Opposition Groups as Legitimate Representative of a People” (n 545) 17.
550
ibid 18.
543
64
international community at the most.551 The consequences of political recognition of the SOC
are rather found in the sphere of financial and material support.552
Historically, the international community has accorded recognition to legitimate representatives
of a people when a right to self-determination was clearly present and the people were not
adequately represented by an existing government – due to alien occupation, colonial
domination or racist regimes.553 Thus from the UNGA Resolution 37/43 (1982) which called
upon all states “to extend their support to the Palestinian people through its sole and legitimate
representative, the Palestinian Liberation Organization, in its struggle to regain its right to selfdetermination and independence” 554 , it can be inferred that recognition of the PLO as the
legitimate representative of the Palestinian people does have legal consequences – it has
obtained a certain status under international law.555
Nevertheless, while recognition of the ‘legitimate representative of a people’ does not confer
rights of representation, right to military assistance, nor de-recognition of the sitting
government556, can the support for an opposition group be qualified as an intervention “directly
or indirectly, with or without armed force in support of an internal opposition in another State,
whose cause [appears] particularly worthy by reason of the political and moral values with
which it [is] identified”, which is qualified as a prohibited intervention by the ICJ? 557 The few
occurrences of such recognition – in Libya and Syria, discussed infra – were motivated by the
capacity for opposition groups to subsequently draw on state funds rather than taking up
significant state functions.558 The effects are more political than legal.
5. CONCLUSION
A legal discussion of a political body that is a government, comes of course with the
unavoidable controversy. The recognition of governments is, even more than in the realm of
recognition of states, given a political tone. Nevertheless, this chapter attempted to discern the
legal value of certain considerations that have been put forward recently. Especially since the
gradual departure by states from the Estrada doctrine, legally valid questions have surfaced,
such as: could (non-)recognition of a (democratically) elected government be a lawful response
551
ibid.
House of Commons, Official Report, Parliamentary Debates, vol 553, cols 445, 456 (20 November 2012),
http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm121120/debtext/1211200001.htm#12112042001202 accessed 14 June 2016. Mr. Hague stated: “I think that there will be further
international recognition for the coalition—I think that, for example, other EU countries will recognise it, in
stages—and that growing international recognition will in turn lead to an increase in practical support. I have
announced several areas in which we would increase our own practical support and channel it through the coalition,
and if other countries do the same, that will steadily add to their credibility inside and outside Syria.”
553
D. AKANDE, “Self Determination and the Syrian Conflict – Recognition of Syrian Opposition as Sole
Legitimate Representative of the Syrian People: What does this Mean and What Implications Does it Have?” (6
December 2012) EJIL: Talk! at http://www.ejiltalk.org/self-determination-and-the-syrian-conflict-recognition-ofsyrian-opposition-as-sole-legitimate-representative-of-the-syrian-people-what-does-this-mean-and-whatimplications-does-it-have/.
554
UNGA, Importance of the universal realization of the right of peoples to self-determination and of the speedy
granting of independence to colonial countries and peoples for the effective guarantee and observance of human
rights, Res 37/43 (2 December 1982) UN Doc A/RES/37/43, §23.
555
TALMON, “Recognition of Opposition Groups as Legitimate Representative of a People” (n 545) 16.
556
ibid 23-25.
557
Nicaragua, §206.
558
FOX, “Intervention by Invitation” (n 520) 839.
552
65
by states or the international community during a humanitarian crisis and flagrant violations of
human rights? Can a persevering, effective government be denied legitimacy, and if so, does
this point towards a real shift from fact to morality in the realm of recognition of governments?
In general, it can be noted that while the recent events in Libya and Syria seemed to announce
a new era for the concept of ‘legitimacy’, one cannot but notice that state practice of recognition
of governments still only occurs in circumstances that generally correspond with TALMON’s
three categories 559 : overthrow of a democratically elected government, disputes regarding
effective control between two entities claiming to be the legitimate government and
governments in exile.
On its face, a democratic entitlement – understood in a procedural way as the right to free and
fair elections – should not come as a groundbreaking norm. Did the ICCPR and ICESRC,
virtually universally ratified, not confer the right of self-determination on peoples, the right to
“freely determine their political status and freely pursue their economic, social and cultural
development”? 560 The real issue is how such an entitlement translates in state practice of
recognition of governments. Indeed, a distinction needs to be made between ‘national’ and
‘international legitimacy’. National legitimacy is regulated by the people: it reflects the
acceptance of the authority of the government. In international terms, this used to be translated
by way of the ‘effective control’ standard, used by states to assess the legitimacy of a
government. However, international legitimacy is in the process of being re-qualified by the
international community. It is important to understand this process well, since international
principles are often used to back up foreign policy decisions.
State practice regarding new criteria for recognition of government is not, however, consistent
enough to underscore a new general customary rule of democratic legitimism over effective
control. In some instances coup d’états are strongly condemned and the undemocratically
overthrown government supported – in other cases, undemocratic governments are
continuously condoned. Probably the most interesting (r)evolution in the law of recognition
was the acceptance by a great part of the international community of the NTC as the legitimate
representative of Libya – while in fact, it had not achieved this status through any democratic
election whatsoever, and the recognition policies were supported by arguments concerning the
effective control that the NTC held over certain parts of Libya. While this is of course not an
absolute return to square one, it does highlight that effective control remains an essential
principle in the law of recognition.
This triggers new questions relating to the principle of non-intervention, since in the event
neither the required threshold of effective control is reached nor democratic elections are held,
recognition might be considered premature. This issue was indirectly considered by the British
courts in British Arab Commercial Bank v. NTC of the State of Libya561, which had to make the
preliminary assessment as to which entity was the legitimate government of Libya. However,
it seems we are stuck with a circular reasoning: where the British courts made an autonomous
assessment on Somalia v. Woodhouse 562 , they completely abandoned this when the British
government issued a certificate recognising the NTC as the representative of Libya. This
559
See text accompanying n 465.
Common art. 1 ICCPR and ICESRC.
561
British Arab Commercial Bank PLC v National Transitional Council of Libya [2011] EWHC 2274 (Comm),
discussed briefly infra V.1.
562
See text accompanying n 580.
560
66
implies that there is no real judicial control over an eventual arbitrariness in the recognition of
governments.
67
V.
THE CONSEQUENCES OF NON-RECOGNITION AT THE DOMESTIC
AND REGIONAL LEVEL
The legal personality of an entity within the international community matters greatly at the
national level, as only states and governments are granted certain prerogatives before domestic
courts. While the competent authorities within a state – usually the executive, issue formal
recognition of new states and governments as it is “fundamentally a political act” 563 – the
judiciary handles disputes over the legal implications of recognition. There is thus a certain
interaction between both branches of government: an analysis of judgments regarding contested
states automatically sheds light on the practice of courts to either follow official statements of
(non-)recognition or maintain some level of deference towards the executive. State practice
demonstrates that the legal effects of an official statement of recognition is more limited in
continental courts (where the act of recognition is accorded mere probative value) than in
common law countries, where the executive’s position on the legal personality of the entity is
usually determinative. 564 A strict application of the latter was supported by LAUTERPACHT:
commenting on Anglo-American practice, he found that “no juridical existence can be
attributed to an unrecognized government and no legal consequences of its purported factual
existence can be admitted”. 565 He came to the same conclusion in regard to continental
practice.566 The “one voice doctrine” was recently confirmed on the national level by the US
Supreme Court in the case Zivotofsky v Kerry (Zivotofsky II)567, which centered around whether
it is the executive or the judiciary holds the power of recognition in the US – the Supreme Court
held for the former if it has indicated any foreign policy. Interestingly, the case gives some
indication as to what the implications of non-recognition are for individuals, as it is a delicate
case concerning the right of individuals born in Jerusalem to register Israel as their state of birth
on their passport.568
Recognition is thus crucial for the ascertainment of certain rights and privileges of the
individuals of the recognised state or of the new state or government itself. The ICJ’s Namibia
advisory opinion of 1971 must always be borne in mind in that regard, as it gives us an idea of
the possible consequences of non-recognition in general. 569 The ICJ named abstention of
entering into treaty relations, from invoking or applying existing (bilateral) treaties, engaging
in diplomatic or consular relations, on top of economic or other forms of official relations.570
However, these consequences are mainly situated in the public international law sphere. Nonrecognition as elaborated on infra, also has major implications for private (international) law.
The Namibia opinion urged for nuance in denying the validity of legal acts in cases of non563
SHAW (n 25) 471.
This is due to the often commented “one voice doctrine” (the judiciary and executive speak in one voice), which
leads to official statements usually being conclusive evidence as to the legal status of a foreign authority or entity.
As noted for British practice in The Arantzazu Mendi, [1939] A.C. 256 (H.L.) 264 (UK): “[o]ur state cannot speak
with two voices on such a matter, the judiciary saying one thing, the executive another.”
565
LAUTERPACHT (n 5) 145.
566
LAUTERPACHT (n 5) 151: the author notes that “[i]n the countries of the European continent the courts, with
slight exceptions, have adopted the view that prior to recognition the unrecognized authority and the acts
emanating from it are a mere nullity.”
567
Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S.Ct. 2076 (2015).
568
See for more detail: C. MACLACHLAN, “Agora: Reflections on Zivotofsky v. Kerry: Speaking with One Voice
on the Recognition of States” (AJIL Unbound, 21 August 2015) https://www.asil.org/blogs/agora-reflectionszivotofsky-v-kerry-speaking-one-voice-recognition-states#_ftnref39.
569
Namibia Advisory Opinion, §121-127.
570
ibid.
564
68
recognition (the “Namibia exception”571), stating it cannot result in the illegality of advantages
derived from international cooperation “such as, for instance, the registration of births, deaths
and marriages, the effects of which can be ignored only to the detriment of the inhabitants of
the [t]erritory.”572 Judge Dillard concurred in his separate opinion that an obligation of nonrecognition as it existed in respect of South Africa’s presence in Namibia did not provoke an
automatic application of the ‘doctrine of absolute nullity’.573 Rather, it must be interpreted to
allow certain legal acts to have effect with the welfare of the inhabitants of Namibia in mind.574
The denial of legal consequences to an entity as a result of non-recognition is thus not absolute.
Established facts still have “legal force” to a certain extent.575 The relevant consequences of
non-recognition are more situated at the level of the validity of legal acts performed by the
(non-recognised) entity itself – such as enacted laws or contracts. The capacity in which an
entity was recognised also determines whether it has legal standing before municipal courts of
the recognising state, can incur responsibility for its ‘sovereign’ acts and invoke jurisdictional
and enforcement immunity, and is conferred the possession of state property. 576 The most
relevant of these consequences of non-recognition in private (international) law are analysed
below.
It is interesting to note that the considerations that will follow support a ‘third approach’ to
recognition (declaratory with constitutive effects). Indeed, recognition is constitutive to the
extent that the legal standing, cognizance of foreign acts, and other domestic aspects depend on
the recognised status of an entity.577
1. LOCUS STANDI
Recognition as a state or government confers legal status, which is necessary for the
enforcement of rights and privileges accorded to such entities under international law – the
standing to sue. Both states and governments will be affected by non-recognition. For instance,
while a state remains recognised and thus enjoys rights and responsibilities under international
law despite non-recognition of its government, only when the latter is recognised will it be able
to take action on behalf of a state and effectively represent it.578
The relativity of recognition becomes clear from the judgment in East Timor and others v
Netherlands.579 In that case, the Democratic Republic of East Timor put forward a claim against
the Netherlands, which the latter rejected due to the fact that East Timor did simply not have
standing before the (Dutch) court, as it was not recognised. Despite having due regard for the
non-recognition by the Dutch government, the court also analysed whether East Timor could
be deemed to have fulfilled the requirements of statehood – quod non. This led to the claim
being inadmissible in court, as East Timor did not have locus standi.
571
MILANO (n 279) 40.
ibid §125.
573
Namibia Advisory Opinion (Sep. Op. of Judge Dillard), at 167.
574
ibid.
575
JENNINGS & WATTS (n 60) 201.
576
KINGSBURY (n 453) 377- 382.
577
SHAW (n 25) 471.
578
JENNINGS & WATTS (n 60) 198.
579
East Timor and others v Netherlands, Decision on admissibility, ILDC 2118 (NL 1980), Netherlands, The
Hague (District Court).
572
69
In the United Kingdom, the case Somalia v Woodhouse is informative as to British courts’
practice when confronted with claims from unrecognised entities. In that case, it was unsure
whether the “Interim Government of Somalia” was the legitimate government of Somalia,
which was troubled by unrest – hence whether it was the legitimate representative of the state.580
The resolution of this issue was placed in the hands of the courts since the 1980 policy by the
UK government of no longer recognising governments. The court did not refer to the
Government’s dealings with the entity in question nor with the question of its international
recognition, but at its constitutional legitimacy and the extent of its effective control. The court
determined that the “Interim Government” did not have locus standi.581
More fundamentally, the recognition of governments played a significant role in the outcome
of the recent case British Arab Commercial Bank v. NTC of the State of Libya.582 Following the
statement by the Libya Contact Group on 15 July 2011 (as discussed supra583) the UK diverted
from its recognition policy and declared to deal with the NTC as sole legitimate representative
of Libya. The British Arab Commercial Bank, which mostly issued grants to Libyan students
in the UK, received contradicting instructions pertaining to the operation of its accounts and
demanded “urgent declaratory relief” by instituting proceedings against the NTC.584 The court
determined that the recognition by the UK government of the NTC was conclusive evidence as
to its status as government of Libya. Hence, the former Gaddafi government had no locus standi
before the courts and could no longer give binding instructions to the British Arab Commercial
Bank.585
2. PRIVILEGES AND IMMUNITIES
It flows from the principle of sovereign equality 586 that states enjoy jurisdictional and
enforcement immunity from the jurisdiction of national courts. The ICJ prominently analysed
the principle of sovereign immunity in its Jurisdictional Immunities of the State judgment,
noting that the principle is embedded in customary international law.587 The ICJ based itself on
extensive state practice and opinio iuris, which ultimately led to the drafting of the United
Nations Convention on the Jurisdictional Immunities of States and their Property. 588
International law requires national courts to grant any sovereign state immunity from
jurisdiction for itself or from measures of constraint for its property. 589 Since the beneficiaries
of these immunities are sovereign states, the concept of what constitutes a ‘state’ in international
law becomes an important factor, and hence the legal consequences of recognition come into
580
Somalia v Woodhouse Drake & Carey (Suisse) SA (The Mary) [1993] Q.B. 54 (QBD (Comm)).
A more detailed account in: KINGSBURY (n 453) 377-382.
582
British Arab Commercial Bank PLC v National Transitional Council of Libya [2011] EWHC 2274 (Comm).
583
See supra IV.4.
584
D. AZARIA, Oxford Reports on ILDC (29 June 2012), at F12, available at
http://opil.ouplaw.com/view/10.1093/law:ildc/1807uk11.case.1/law-ildc1807uk11?rskey=3iHnT9&result=1&prd=OPIL.
585
ibid H5.
586
Art. 2(1) UN Charter.
587
Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) (Judgment) [2012] ICJ Rep 99,
§55-57.
588
UN Convention on Jurisdictional Immunities of States and Their Property (2 December 2004) Annexe, UN
Doc. A/RES/59/38, art 18. The Convention has not yet entered into force but reflect the customary international
law on the matter.
589
P.-T. STOLL, “State Immunity” (2011) in R. WOLFRUM, (ed) Max Planck Encyclopedia of International Law
(OUP 2015), <opil.ouplaw.com/home/EPIL>.
581
70
play. It has been argued “the earlier practice of denying immunity to states not recognized by
the foreign state lacks any legal basis in contemporary international law, as sovereignty no
longer depends on recognition”.590 However, this conclusion seems to be inappropriate, as it
has been asserted that recognition still has certain constitutive effects and contested states
cannot be equated to sovereign states.591
Often the subject of sovereign immunity is clarified in domestic law, such as Australia’s
Foreign States Immunities Act or the United States’ Foreign Sovereign Immunities Act.592 In
Australia, it is for instance common practice that immunity is only granted when the Minister
of Foreign Affairs has issued a certificate that describes a country as a “foreign State”.593 In the
UK, which entities fall under the concept ‘State’ embodied in the UK State Immunity Act 1978
is determined conclusively by a certificate from the Secretary of State for Foreign and
Commonwealth Affairs.594
The judiciary also plays an important role in assessing whether a contested entity can invoke
immunity. For instance, Palestine’s fulfillment of the criteria of statehood is undoubtedly
contested and this has affected its status before domestic courts. The Italian judiciary’s practice
in that regard is an application of the declaratory theory. The Italian Court of Cassation denied
constitutive effects to the recognition by third states and objectively assessed that due to the
PLO’s lack of territorial sovereignty over Palestinian territories it could not be granted
sovereign immunity from criminal prosecution.595 In the same vein, in 1991, the PLO’s claim
of sovereign immunity before a U.S. Federal Court was rejected as the court determined
Palestine was not a state under international law.596 However, it belongs to a state’s prerogative
to accord certain privileges and immunities despite non-recognition of the state itself. Such is
the policy in Greece, which has not recognised Palestine as a state but applies the diplomatic
immunities and privileges to the members of the “Diplomatic Representation of Palestine”.597
More recently in 2004, the Italian Court of Cassation based itself on the non-recognition of the
Republic of Montenegro to deny personal immunity to its President.598
590
ibid 19.
See supra III.1.3; see also International Law Association, Second (Interim) Report of the Recognition/NonRecognition in International Law Committee (Washington Conference, 2014), p. 10, at http://www.ilahq.org/en/committees/index.cfm/cid/1032. For instance, the Italian delegation noted that “Italian courts have
refused to recognise any specific privileges and immunities associated with statehood to non-recognised
entities…”.
592
Foreign States Immunities Act 1985; Foreign Sovereign Immunities Act, 28 U.S.C. 1602-1604.
593
International Law Association, Second (Interim) Report of the Committee on Recognition/Non-Recognition in
International
Law
(Washington
Conference,
2014),
p.
11,
at
http://www.ilahq.org/en/committees/index.cfm/cid/1032.
594
DIXON & WILLIAMS (n 88) 167-168.
595
Italian Court of Cassation, 28 June 1985, Judgment n. 1981.
596
Klinghoffer v. Achille Lauro, 937 F.2D 44, 47 (2nd Cir. 1991).
597
International Law Association, Second (Interim) Report of the Committee on Recognition/Non-Recognition in
International
Law
(Washington
Conference,
2014),
p.
11,
at
http://www.ilahq.org/en/committees/index.cfm/cid/1032.
598
Italian Court of Cassation (III sezione penale), 17 September 2004, case n. 49666.
591
71
3. JUDICIAL COGNIZANCE OF FOREIGN LEGAL ACTS
The practice of according private legal effects to acts or legislation of non-recognised entities
differs amongst jurisdictions. In what follows, some examples are given, without claiming to
establish all the existing nuances to the acceptance of foreign legal acts in domestic courts.
First, to understand the scope of the consequences of non-recognition, it is useful to analyse
case law at the regional level. In the Loizidou v. Turkey case, the ECtHR was faced with a claim
concerning the ownership of property on the territory of the TRNC and had to determine
whether any legal consequences could be accorded to legal acts of an unrecognised entity – the
TRNC.599 The applicant objected to the validity of the Constitution of the TRNC (proclaimed
in 1985), which declared that all abandoned or ownerless properties situated within the
boundaries of the TRNC (after 1975) would be deemed property of the TRNC, and invoked her
rights under the European Convention for Human Rights (ECHR) as owner of the said property.
The ECtHR sided with the applicant and found she has not lost title to the property. 600 In
reaching its conclusion, the Grand Chamber took note of “any relevant rules of international
law applicable to the relations between parties”601 and referred to, inter alia, UNSC Res 541
(1983) and UNSC 550 (1984)602 that called for the international non-recognition of the TRNC,
to reach the conclusion that since the TRNC was not considered by the international community
to be a “State under international law” and that the Republic of Cyprus “has remained the sole
legitimate Government of Cyprus”, its legal acts – the TRNC Constitution – could not be
accorded any validity.603 In sum, the Grand Chamber did not accord any relevance to the de
facto situation in Northern Cyprus and only took into account international recognition.
Interestingly, the Grand Chamber did leave some room for interpretation by recalling the ICJ’s
‘Namibia exception’.604 Indeed, in his dissenting opinion, judge Baka continued on the idea
that not all legal acts can “be completely set to one side as devoid of all effect merely on the
basis of the international non-recognition”, and found that the ECtHR could have reasoned that
property disputes fell under this exception.605
Such application of the ‘Namibia exception’ at the regional level then occurred in the
preliminary stages of Cyprus v. Turkey, in which the ECtHR had to determine whether all local
remedies had been exhausted. This depended on whether the remedies system developed by the
TRNC had any legal effect. The Grand Chamber noted that “in situations similar to those arising
in the present case, the obligation to disregard acts of de facto entities is far from absolute. Life
goes on in the territory concerned for its inhabitants. That life must be made tolerable and be
protected by the de facto authorities” 606 . The Grand Chamber determined that the judicial
system of the TRNC, despite being established by a non-recognised state, should still be
accorded legal effect and served as local remedies that ought to be exhausted in order to bring
a valid claim before the ECHR. 607 In her dissenting opinion, however, judge Palm heavily
criticised the Court’s approach, claiming it “to be so misguided that it taints the judgment as a
599
Loizidou v Turkey, App. no 15318/89 (ECtHR, 18 December 1996).
ibid §47.
601
Article 31(3)c VCLT.
602
UNSC Res 541 (18 November 1983) Un Doc S/RES/541; UNSC Res 550 (11 May 1984) UN Doc S/RES/550.
603
Loizidou v Turkey, App. no 15318/89 (ECtHR, 18 December 1996), §44.
604
See supra p. 69 and following.
605
Loizidou v Turkey, App. no 15318/89 (ECtHR, 18 December 1996), Diss. Op. Judge Baka.
606
Cyprus v. Turkey, App. No 25781/94 (ECtHR, 10 May 2001), §96.
607
ibid §98.
600
72
whole”. 608 She finds that making the jurisdiction of the ECtHR dependent on such local
remedies installed by an unrecognised regime actually confers legality upon these decisions
and therefore implicitly legitimacy upon the regime itself – contrary to the international
community’s standpoint (and the UNSC resolutions to that effect) – and she urges for due
caution in according such legal effects. In a number of subsequent cases, the ECtHR discussed
the legality of acts of the TRNC, namely laws pertaining to detention609, criminal law610, and a
system of domestic remedies set up by the TRNC Parliament611, and considered that they could
all be deemed valid for the purpose of the ECHR.612
Moving to national practice, light can perhaps be shed on the so-called “Namibia exception”
and what precisely falls under that exception. The practice of the United Kingdom was set with
the case Luther v. Sagor.613 The plaintiffs in that case claimed they were still the legal owners
of a load of wood even after it had been sold by the Soviet government (following
nationalisation of the timber factory the plaintiffs owned in Russia). The plaintiffs claimed that
since the UK government had not recognised the Soviet government – the entity that had issued
the nationalisation decree - the act was not valid before British courts and the transaction null
and void. The question thus turns on the validity of the nationalisation decree – hence on
whether legal acts of unrecognised foreign governments can be accepted by domestic courts.614
Between the decision in this case by the lower court and the Court of Appeal however, the UK
recognised the Soviet government as the de facto government of the USSR. Since in UK
practice recognition is deemed to apply retroactively, the Soviet decree was considered valid.
This reasoning shows a degree of practicality and deference towards the effectiveness of a
regime. As of 1980 however, the UK has denounced a practice of recognition of governments
and hence the courts have to infer the status of the entity in question by examining the dealings
between the UK government and the entity.615 In the more recent case of Kibris Türk Hava
Yollari CTA Holidays v. Secretary of State for Transport, judge Williams took into account the
effective control exercised by the TRNC on the northern part of Cyprus.616 Nevertheless, he
concluded that “the court cannot take cognizance of a foreign juridical person if to do so would
involve the court acting inconsistently with the foreign policy or diplomatic stance of the
Government”.617 Only acts, which “could be regarded as regulating the day to day to day to day
affairs of the people within the territory in question”, could be accorded legal validity, and the
granting of a permit for direct flights between the UK and Northern Cyprus were not included
in such consideration.618
608
ibid (Partly dissenting opinion of Judge Palm, joined by Justices Jungwiert, Levits, Pantîru, Kovler and MarcusHelmons).
609
Foka v Turkey, App. no 28940/95 (ECtHR, 24 June 2008), §84.
610
Protopapa v Turkey, App. no 16084/90 (ECtHR, 24 February 2009), para 94.
611
Demopoulos and Others v Turkey, App. nos 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04,
19993/04, 21819/04 (ECtHR, 1 March 2010), para 94.
612
See for a full account: A. CULLEN AND S. WHEATLEY, “The human rights of individuals in de facto regimes
under the European Convention on Human Rights” (2013) 13 Human Rights Law Review, 691-728.
613
Luther v. Sagor [1921] 1 KB 456, UK King’s Bench Division, in DIXON & WILLIAMS (n 88) 165.
614
SHAW (n 25) 472.
615
ibid 480.
616
Kibris Türk Hava Yollari CTA Holidays v. Secretary of State for Transport [2009] EWHC 1918 (Admin), UK
QBD Administrative Court.
617
ibid §84.
618
ibid §90.
73
The practice of the United States centers around the executive, which issues binding
declarations as to what legal effect should be accorded to acts of unrecognised entities
(sometimes in the form of a ‘suggestion’ which leaves room for interpretation for the courts).619
Furthermore, the location of the affected property is taken into account, bestowing more
generously legal validity to acts that affect property inside the US in general.620
In sum, the general assessment that “an unrecognized state is not a juridical nullity”621 can hold
to be true over most jurisdictions, but there is definitely a nuance between common law
jurisdictions and continental law jurisdictions. The latter gives more weight to the effectiveness
of unrecognised entity to determine the validity of its legal acts: “[t]he only necessary and
sufficient condition for the application of the act in question is the effectiveness of the foreign
legal order (regardless of international recognition)”.622
619
SHAW (n 25) 485.
ibid. A full account of the practice and nuances exceeds the scope of this thesis but is given my SHAW in his
comprehensive work.
621
Kadic v Karadjic, 70 F. 3d 323, 244-45 (2nd Cir. 1995).
622
The delegate from Italy in International Law Association, Second (Interim) Report of the Committee on
Recognition/Non-Recognition in International Law (Washington Conference, 2014), p. 15, at http://www.ilahq.org/en/committees/index.cfm/cid/1032.
620
74
VI.
GENERAL CONCLUSION
For a more thorough conclusion on recognition of states, respectively governments, we refer
back to the closing sections of those chapters. The following general conclusions attempts to
discern the primary principles that govern the concept of recognition as a whole.
Recognition in international law has already been ambitiously covered by numerous scholars
and legal practitioners. The nature of a thesis does not provide the opportunity to exhaustively
portray all existing nuances and facets of such a vast theme. Rather, the ambition in this work
lies in the attempt to shed light on the aspects of the law that are most often subject to debate
and have most recently experience some form of evolution – ‘to illuminate the twilight’.
Originally, as avid as the international community was to have a decisive say in the recognition
of states (the constitutive doctrine), as strong was its aversion for recognition of governments.
(the Estrada doctrine comes to mind). These two conflicting approaches to recognition in
general have experienced two paradigm shifts since recognition was first analysed in depth.
Initially, they merged into a more all-inclusive conception for both states and governments as
‘effectiveness’ became the leading notion. The later evolution centers around the idea of
‘legitimacy’ – although the tables have not yet turned completely.
These developments in recognition theory fit perfectly within a wider context of globalisation
and the spearheading position of civil society that affects even the core norms of public
international law. The changes in recognition practice and the corresponding chrysalis of
doctrine inherently point towards a change in the conception of what the notions ‘state’ or
‘government’ encompass. One could say we are experiencing a real shift from traditional state
sovereignty to popular sovereignty, from ‘sovereign equality’623 to a ‘sovereign equality of “the
peoples of the United Nations”’ as embodied in the UN Charter.624
The question remains whether the success of legitimacy truly announces a decline in
effectiveness. In theory, where statehood used to be treated as a matter of fact (or, in other
words, effectiveness), the international community now accords great importance to the
circumstances in which states emerge and the ideals they preach to abide by. The concept of
legitimacy of governments on the other hand, while always present, was treated rather shabbily,
since (economic) stability not always necessitates a moral compass. However, since the voice
of ‘peoples’ – through a right to self-determination in the state context and a concept of
democratic legitimism in the context of governments – grows increasingly louder, the “morally
troubling and legally disruptive principle that might makes right”625 has indeed seen better days.
For recognition of governments, recent state practice favouring opposition groups that advocate
democracy and human rights, to the detriment of the ‘legitimacy’ of the sitting governments,
are testament to that. In the realm of recognition of states, the practice can be described as
leaning towards a ‘doctrinal third approach’, which demonstrates that notwithstanding how
effective a community might be, states secure the ‘last say’ by bestowing constitutive effects
only when certain (legitimate) standards have been met.
However, the scope of these emerging new principles must not be overrated. This thesis put
forward that the modern norms only supplement and do not substitute, at least not to a certain
623
Art. (1) UN Charter.
Preamble of the UN Charter (emphasis added).
625
ROTH, Governmental Illegitimacy in International Law (n. 11) 136.
624
75
extent. Statehood and governmental legitimacy cannot solely be based on fiction – a basic test
of effectiveness is always necessary. Furthermore, recognition – of both states and governments
- remains constrained by the principle of non-intervention. It is not because the emerging new
norm is one advocating for democracy and human rights that it unquestionably entitles states
to interfere in internal affairs where the traditional norms would not confer such a right. In fact,
the legal constraints to recognition are more reliable standards: the rules for non-recognition
bring stability where the discretionary power to recognise leaves uncertainty.
A clearer and more coherent legal framework to the law of recognition is to be recommended,
as the current state of the law leads to instability: both at the international level, due to the
complexities that arise for contested states and governments and the unpredictability of their
future status, as at the national level, due to the implications of such status for the rights of
individuals. When JESSUP, referring to the need for an “international government”626, advocated
for restraints to sovereignty, I read in such statement also a need for more ‘international
government through peoples’. The development of a new, more modern and more democratic
framework to the law of recognition fits in this idea.
Nevertheless, due to its delicate position between law and politics, recognition of states and
governments will never come to a complete standstill. This is neither viable nor desirable. It is
inevitable that the law of recognition, even if it is improved, will remain a topic of controversy.
Sovereignty might be the foundation of international law, but states are of course also the
fundaments of international relations and politics. Both will stay intertwined whether a more
lucid framework is developed or not.
– “That said, the existence of twilight does not refute the distinction between day and
night.”627
See Preface.
ROTH, “Secession, coups and the international rule of law: assessing the decline of the effective control
doctrine” (n 264) 440.
626
627
76
VII. BIBLIOGRAPHY
1. INTERNATIONAL TEXTS
1.1. Conventions







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

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
Convention for the Pacific Settlement of International Disputes, (18 October 1907) 2
AJIL Supp. 43 (1908)
Montevideo Convention on Rights and Duties of States (signed 26 December 1933,
entered into force 26 December 1934), 165 LNTS 19
United Nations Charter of 26 June 1945, 1 UNTS XVI (1945)
Constitution of the Food and Agriculture Organization (16 October 1945) 40 AJIL
Supp. 76
Constitution of the United Nations Educational, Scientific and Cultural Organization
(signed 16 November 1945, entered into force 4 November 1946), 4 UNTS 275
Articles of Agreement of the International Monetary Fund (27 December 1945) 2 UNTS
39
Constitution of the World Health Organisation (signed 22 July 1946, entered into force
7 July 1948), 14 UNTS 185
Charter of the Organisation of American States (signed 30 April 1948, entered into force
13 December 1951), 119 UNTS 3
Statute of the International Atomic Energy Agency (signed 23 October 1956, entered
into force 29 July 1957), 276 UNTS 3
Convention Establishing the World Intellectual Property Organisation(14 July 1967)
828 UNTS 3
International Covenant on Economic, Social and Cultural Rights (signed 16 December
1966, entered into force 3 January 1976), 993 UNTS 3
International Covenant on Civil and Political Rights (adopted 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171
Vienna Convention on Succession of States in Respect of Treaties (signed 23 August
1978, entered into force 6 November 1996), 1946 UNTS 3
Rome Statute of the International Criminal Court of 17 July 1998, 2187 UNTS 3 (1998.
1.2. Resolutions
(i) Resolutions of the United Nations Security Council








UNSC Res 216 (12 November 1965) Un Doc S/RES/216
UNSC Res 217 (20 November 1965) Un Doc S/RES/217
UNSC Res 276 (30 January 1970) Un Doc S/RES/276
UNSC Res 541 (18 November 1983) Un Doc S/RES/541
UNSC Res 550 (11 May 1984) UN Doc S/RES/550
UNSC Res 787 (16 November 1992) Un Doc S/RES/787
UNSC Res 1970 (16 February 2011) UN Doc S/RES/1970
UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973
77
(ii) Resolutions of the United Nations General Assembly


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




UNGA (Ad Hoc Political Committee), Recognition by the United Nations of the
representation of a Member State, Resolution 396 (V) (14 December 1950) UN Doc
A/RES/396(V)
UNGA ‘Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter of the United Nations’
Res 2625 (XXV) (24 October 1970) UN Doc A/RES/2625(XXV)
UNGA, Importance of the universal realization of the right of peoples to selfdetermination and of the speedy granting of independence to colonial countries and
peoples for the effective guarantee and observance of human rights, Res 37/43 (2
December 1982) UN Doc A/RES/37/43
UNGA, Question of Palestine, Res 43/177 (15 December 1988) UN Doc A/RES/43/177
UNGA, Admission of the Republic of Montenegro to membership in the United
Nations, Res 60/264 (28 June 2006) UN Doc A/RES/60/264
UNGA, Res A/66/360 (16 September 2011) UN Doc A/RES/66/1.A
UNGA Resolution, Status of Palestine in the United Nations, 67/19 (29 November
2012), UN Doc A/RES/67/19
UNGA, The Right of the Palestinian People to Self-Determination, Res 67/158 (20
December 2012), UN Doc A/RES/67/158
UNGA, Territorial Integrity of Ukraine, Res 68/262 (27 March 2014) UN Doc
A/RES/68/262
(iii) Other
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
78
ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, in
Report of the International Law Commission on the Work of its Fifty-third Session, UN
GAOR 56th Session, Supp. No. 10, UN Doc A/RES/56/10 (2001)
ILC, Report of the International Law Commission on the Work of its First Session 12
April 1949, UN GAOR 4th Session, Supp. No. 10 , UN Doc A/CN.4/13 (1949)
ILC, Sixth Report on Unilateral Acts by States (30 May 2003) UN Doc A/CN.4/534
(2003)
Institut de Droit International, “Resolution Concerning the Recognition of New States
and New Governments (October 1936)” (1936) 30(4) AJIL 185
Declaration by the European Union and its Member States on the Republic of South
Sudan’s independence, Brussels, 9 July 2011, 12679/1/11 REV 1, PRESSE 232, at
http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/123591.p
df
Conference on Yugoslavia Arbitration Commission Opinion No. 1 (29 November 1991)
31 ILM 1494 (1992); Opinion No. 3 (November 1991) 31 ILM 1499 (1992); Opinion
No. 4 (11 January 1992) 31 ILM 1501 (1992); Opinion No. 5 (11 January 1992) 31 ILM
1503; Opinion No. 8 (4 July 1992) 31 ILM 1521 (1993)
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European Community Declaration on the ‘Guidelines on the Recognition of New States
In Eastern Europe and in the Soviet Union’ (16 December 1991) 31 ILM 1485 (1992).
General Framework Agreement for Peace in Bosnia and Herzegovina, 35 ILM 75
(1996).
Dayton Agreement on Implementing the Federation of Bosnia and Herzegovina, 35
ILM 170 (1996).
Security Council Official Records (UNSCOR) 3rd Sess., 383rd meeting (2 December
1948) UN Doc S/PV.383.
ECOWAS, Protocol A/SP1/12/01 on Democracy and Good Governance (2001)
supplementary to the Protocol relating to the Mechanism For Conflict Prevention,
Management, Resolution, Peacekeeping and Security (December 2001), available at
http://www.internationaldemocracywatch.org/attachments/350_ECOWAS%20Protoco
l%20on%20Democracy%20and%20Good%20Governance.pdf.
International Law Association, First Report of the Recognition/Non-Recognition in
International Law Committee (Sofia Conference, 2012), at http://www.ilahq.org/en/committees/index.cfm/cid/1032.
International Law Association, Second (Interim) Report of the Recognition/NonRecognition in International Law Committee (Washington Conference, 2014), at
http://www.ila-hq.org/en/committees/index.cfm/cid/1032.
OAS Permanent Council, Support to the Democratic Government of Haiti,
OEA/ser.F/V.1 (3 October 1991) OAS Doc MRE/Res 1/91 (1991).
PACE, “The Consequences of the War between Georgia and Russia”, Resolution 1633
(2008) (2 October 2008), 35th Sitting.
European Parliament Resolution of 17 November 2011, containing the European
Parliament’s recommendations to the Council, the Commission and the EEAS on the
negotiations of the EU-Georgia Association Agreement (2011/2133(INI)).
European Council, Conclusions 20/21 March 2014 (Brussels, 21 March 2014, EUCO
7/1/14
REV
1)
<https://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/ec/141749.pdf
> accessed 14 June 2016
Letter dated 14 March 2011 from the Permanent Observer of the League of Arab States
to the United Nations to the President of the Security Council (15 March 2011) UN Doc
S/2011/137
Letter to the UN Secretary General, 19 February 2008, Un Doc. A/62/703-S/2008/111
79
2. JURISPRUDENCE
2.1. International and regional jurisprudence
(i) Permanent Court of International Justice and International Court of Justice
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80
Legal Status of Eastern Greenland (Denmark v. Norway) (Judgment) [1933] PCIJ (Ser.
A/B) No. 53, p. 22.
Nottebohm (Liechtenstein v. Guatemala) (Judgment, Second Phase), [1955] ICJ Rep 4.
North Sea Continental Shelf (Federal Republic of Germany v. Netherlands) (Judgment)
[1969] ICJ Rep 3.
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) Notwithstanding Security Council Resolution 276 (1970)
(Advisory Opinion) [1971] ICJ Rep 12.
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970)
(Advisory Opinion) [1971] ICJ Rep 16.
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970)
(Advisory Opinion, Sep. Op. Judge Dillard) [1971] ICJ Rep 138.
Frontier Dispute (Burkina Faso/Mali) (Judgment) [1986] ICJ Rep 554.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America) (Judgment) [1986] ICJ Rep 14.
East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90.
East Timor (Portugal v Australia) (Judgment, Diss. Op. Judge ad hoc Skubiszewski)
[1995] ICJ Rep 224.
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Preliminary
Objections) [1996] ICJ Rep 595.
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Preliminary
Objections, Diss. Op. Judge ad hoc Kreća) [1996] ICJ Rep 658.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Advisory Opinion) [2004] ICJ Rep 136.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Advisory Opinion, Separate Opinion of Judge Higgins) [2004] ICJ Rep 207.
Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403.
Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening)
(Judgment) [2012] ICJ Rep 99.
(ii) European Court of Human Rights
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Loizidou v Turkey, App. no 15318/89 (ECtHR, 18 December 1996).
Cyprus v. Turkey, App. No 25781/94 (ECtHR, 10 May 2001).
Ilaşcu and Others v Moldova and Russia App. No 48787/99 (ECtHR, 8 July 2004).
Foka v Turkey, App. no 28940/95 (ECtHR, 24 June 2008).
Protopapa v Turkey, App. no 16084/90 (ECtHR, 24 February 2009).
Demopoulos and Others v Turkey, App. nos 46113/99, 3843/02, 13751/02, 13466/03,
10200/04, 14163/04, 19993/04, 21819/04 (ECtHR, 1 March 2010).
Ivantoc and others v Moldova and Russia, App. No 23687/05 (ECtHR, 4 June 2012).
(iii) Other
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International Committee of Jurists, Report on the Legal Aspects of the Aaland Islands
Question, League of Nations O.J. (October 1920), Special Suppl. No. 3.
Tinoco Concessions Case (Great Britain v. Costa Rica) (1924) 18 AJIL 147.
Germano-Polish Mixed Arbitral Tribunal, Deutsche Continental Gas-Gesellschaft v.
Polish State, (1929) 5 ILR 11.
2.2. National jurisprudence
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Luther v. Sagor [1921] 1 KB 456, UK King’s Bench Division
The Arantzazu Mendi, [1939] A.C. 256 (H.L.) 264 (U.K.)
Asma Jilani v The Government of Punjab 1972 [1972] PLD DC 139
East Timor and others v Netherlands, Decision on admissibility, ILDC 2118 (NL 1980),
Netherlands, The Hague (District Court)
Italian Court of Cassation, 28 June 1985, Judgment n. 1981
Klinghoffer v. Achille Lauro [1991] 937 F.2D 44, 47 (2nd Cir.)
Somalia v Woodhouse Drake & Carey (Suisse) SA (The Mary) [1993] Q.B. 54 (QBD
(Comm))
Kadic v Karadjic [1995] 70 F. 3d 323, 244-45 (2nd Cir.)
Reference Re Succession of Quebec, 37 I.L.M. 1340 (Can. 1998)
Italian Court of Cassation (III sezione penale), 17 September 2004, case n. 49666
Kibris Türk Hava Yollari CTA Holidays v. Secretary of State for Transport [2009]
EWHC 1918 (Admin), UK QBD Administrative Court
British Arab Commercial Bank PLC v National Transitional Council of Libya [2011]
EWHC 2274 (Comm)
Zivotofsky ex rel. Zivotofsky v. Kerry [2015] 135 S.Ct. 2076
81
3. DOCTRINE
3.1. Textbooks
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82
BRIERLY J.L. & A. CLAPHAM, Brierly’s Law of Nations: An Introduction to the Role of
International Law in International Relations (7th edn, Oxford, OUP 2012) 576 p.
BROWNLIE I., “Recognition in theory and practice”, in R.ST.J. MACDONALD & D.
JOHNSTON (eds), The structure and process of international law: essays in legal
philosophy, doctrine, and theory (Dordrecht, Martinus Nijhoff Publishers 1983), 627641.
BROWNLIE I., Principles of public international law (7th edn, Oxford, Oxford University
Press 2008), 784 p.
CAPLAN R., Europe and the Recognition of New States in Yugoslavia (Cambridge, CUP
2005), 229 p.
CASSESE A., Self-Determination of Peoples: a Legal Reappraisal (CUP 1995) 396 p.
CHEN T., The International Law of Recognition (London, Stevens and Sons, 1951) 461
p.
CORTEN O., The Law Against War: The prohibition on the use of force in contemporary
international law (Oxford, Hart Publishing 2010), 569 p.
CRAWFORD J., The creation of states in international law (2nd edn, Oxford, Clarendon
Press 2006), lxxii + 870 p.
DIXON M. & WILLIAMS S., Cases and materials on international law (Oxford, Oxford
University Press 2010), lvi + 708 p.
DUGARD J., D.L. BETHLEHEM, M. DU PLESSIS & A. KATZ, International Law: A South
African Perspective (Landsdowne, South Africa: Juta, 2007), 582 p.
DUGARD J., Recognition and the United Nations (Cambridge, Grotius publ. 1987), xiv
+ 192 p.
FOX G.H., ‘Intervention by Invitation’, in M. WELLER (ed), The Oxford Handbook of
the Use of Force in International Law (Oxford, OUP 2015) 816-840.
FRANCK T.M., “Legitimacy and the democratic entitlement”, FOX G.H. and B.R. ROTH
(eds), Democratic Governance and International Law (Cambridge, Cambridge
University Press 2000), 585 p.
FRANCK T.M., “Opinion Directed at Question 2 of the Reference”, in BAYEFSKY A.
(ed.), Self-determination in International Law: Quebec and Lessons Learned
(Cambridge, Kluwer Law International 2000) 512 p.
GOWLLAND-DEBBAS V., Collective Responses to Illegal Acts in International Law:
United Nations action in the question of Southern Rhodesia (Dordrecht, Martinus
Nijhoff Publishers 1990), 753 p.
GRANT T.D., The recognition of states: law and practice in debate and evolution
(Westport (Conn.), Greenwood Press 1999), 257 p.
HENKIN L., PUGH R.C. & SCHACHTER O., International Law: Cases and Materials (2nd edn, Saint Paul
(Minn.), West Publ. co, 1993) 1152 p.
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JENNINGS R. & A. WATTS, Oppenheim's International Law: Peace (9th edn, Oxford,
Oxford University Press 2008), 554 p.
JESSUP P.C., A Modern Law of Nations: An Introduction, (Hamdon (Conn), Archon
Books 1968), 236 p.
KER-LINDSAY J., The Foreign Policy of Counter Secession: Preventing the Recognition
of Contested States (Oxford, OUP 2012) 215 p.
KLABBERS J., State practice regarding state succession and issues of recognition: the
pilot project of the Council of Europe (Den Haag, Kluwer Law International 1999), 521
p.
KREIJEN G., State Failure, Sovereignty and Effectiveness: Legal lessons from the
Decolonization of Sub-Saharan Africa (Leiden, Martinus Nijhoff Publishers 2004), 386
p.
LAUTERPACHT H., Recognition in International Law (Cheltenham, Elgar 2012) 442 p.
MENON P.K., The Law of recognition in international law: basic principles (New York,
Lewiston 1994), 278 p.
MURPHY S.D., “Democratic Legitimacy and the Recognition of States and
Governments”, in G.H. FOX and B.R. ROTH (eds.), Democratic Governance and
International Law (Cambridge, CUP 2000), p. 123-154.
OPPENHEIM L. & LAUTERPACHT H., International Law: a treatise. V. 1: Peace:, (6th
edn, London, Longmans Green 1947), 940 p.
PETERSON M.J., Recognition of Governments: Legal Doctrine and State Practice, 18151995 (Basingstoke, Macmillan Press 1997), ix + 295 p.
RAIČ D., Statehood and the law of self-determination (Leiden, Kluwer Law
International 2002), xviii + 515 p.
ROTH B., Governmental Illegitimacy in International Law (Oxford, Clarendon Press
1999), xxx + 439 p.
SHAW M.N., International Law (6th edn, Cambridge, Cambridge University Press 2008),
clxvi + 1542 p.
SKRK M., ‘Recognition of States and Its (Non-)Implication on State Succession: The
Case of Successor States in the Former Yugoslavia’, in M. MRAK (ed), Succession of
States (Martinus Nijhoff Publishers 1999), p. 7-32.
TALMON S., Recognition of Governments in International Law: With Particular
Reference to Governments in Exile (Oxford, Clarendon Press 1998), LXXII + 393 p.
VERHOEVEN J. & P. DE VISSCHER, La Reconnaissance Internationale dans la Pratique
Contemporaine: Les Relations Publiques Internationales (Paris, Pedone 1975), xi + 853
p.
3.2. Articles

AZARIA D., Oxford Reports on ILDC (29 June 2012), available
<http://opil.ouplaw.com/view/10.1093/law:ildc/1807uk11.case.1/law-ildc1807uk11?rskey=3iHnT9&result=1&prd=OPIL>
at
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84
BERLIN A.H., “Recognition as sanction: using recognition of new states to deter, punish,
and contain bad actors” (2009-2010) 31 J Int'l L, 531-591.
BUCHANAN A. & R. O. KEOHANE, “Precommitment Regimes for Intervention:
Supplementing the Security Council” (2011) 25 Ethics and International Affairs, 43.
CRAWFORD J., “The criteria for statehood in international law” (1976) 48 British
Yearbook of International Law 93-182.
CULLEN A. AND S. WHEATLEY, “The human rights of individuals in de facto regimes
under the European Convention on Human Rights” (2013) 13 Human Rights Law
Review, 691-728.
D’ASPREMONT J. & E. DE BRABANDERE, “The Complementary faces of legitimacy in
international law: the legitimacy of origin and the legitimacy of exercise” (2010-2011)
34 Fordham Int'l L.J. 190-235.
D’ASPREMONT J., “Legitimacy of governments and the age of democracy” (2005-2006)
38 NYU Journal of International Law and Politics 878-917.
D’ASPREMONT J., “Regulating Statehood: The Kosovo Status Settlement” (2007) 20
Leiden Journal of International Law 649-668.
DENZA E., “European Practice on the recognition of States” (2011) 36(3) European Law
Review, 321-338.
DUPONT P.-E., “Foreign Investment and the Status of Kosovo in International Law”
(2009) 10 J. World Investment & Trade 937-957.
EFEVWERHAN D.I., “Kosovo’s Chances of UN Membership: a Prognosis” (2012) 4
Goettingen Journal of International Law 93-130.
EGGERS A.K., “When is a State a State? The Case for Recognition of Somaliland”
(2007) 30(1) B.C. Int’l & Comp L. Rev, 211-222.
FOX G.H. & B. ROTH, “Democracy and International Law” (2001) 27 Review of
International Studies, 327-352.
GRANT T.D., “Defining Statehood: the Montevideo Convention and its Discontents”
(1999) 37 Columbia Journal of Transnational Law 403-458.
HILLGRUBER C., “The admission of new states to the international community” (1998)
9 EJIL, 491-509.
KELSEN H., “Recognition in International Law: Theoretical Observations” (1941) 35
AJIL 605-617.
KINGSBURY B., “Judicial determination of foreign “government” status” (1993) 109
Law Quarterly Review 377- 382.
KONTOROVICH E., “Israel/Palestine – the ICC’s Unchartered Territory” (2013) 11(5) J
of Intl Criminal Justice, 979-999.
LACHENMANN F., “Legal Positivism” (2011) in R. WOLFRUM, (ed) Max Planck
Encyclopedia of International Law (OUP 2015), <opil.ouplaw.com/home/EPIL>
LAUTERPACHT H., “Recognition of States in International Law” (1944) 53 The Yale Law
Journal 385- 458.
MALONE M. K., “The rights of newly emerging democratic states prior to international
recognition and the Serbo-Croatian conflict” (1992) 6 Temple International &
Comparative Law Journal 81-111.
MILANO E., “The non-recognition of Russia’s annexation of Crimea” (2014) Zoom Out
I QIL 35-55 <http://www.qil-qdi.org/wp-content/uploads/2014/05/CRIMEA_EnricoMilano_FINAL.pdf>
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PETERS A., “Statehood after 1989: ‘Effectivités’ between Legality and Virtuality”
(2010) 3 European Society of International Law (SSRN), 1-14.
RICH R., “Recognition of States: The Collapse of Yugoslavia and the Soviet Union”
(1993) 4(1) EJIL 36-65.
ROTH R., “Secession, coups and the international rule of law: assessing the decline of
the effective control doctrine” (2010) 1 Melb. J. Int'l L. 393-440.
RYNGAERT C. & S. SOBRIE, “Recognition of states: international law or realpolitik? The
practice of recognition in the wake of Kosovo, South Ossetia, and Abkhazia” (2011)
24(2) Leiden Journal of International Law 467-490.
SCHUIT A., “Recognition of Governments in International Law and the Recent Conflict
in Libya” (2012) 14 International Community Law Review 381-402.
SLOANE R., “The Changing Face of Recognition in International Law: A Case Study of
Tibet” (2002) 16 Emory International Law Review 107-186.
STOLL P.-T., “State Immunity” (2011) in R. WOLFRUM, (ed) Max Planck Encyclopedia
of International Law (OUP 2015), <opil.ouplaw.com/home/EPIL>
TAKI H., “Effectiveness” (2013), in R. WOLFRUM, (ed) Max Planck Encyclopedia of
International Law (OUP 2015) <opil.ouplaw.com/home/EPIL>
TALMON S., “Recognition of Governments: An Analysis of the New British Policy and
Practice” (1992) 63(1) BYBIL, 231-297.
TALMON S., “Recognition of the Libyan Transitional Council” (11 June 2011) 15(16)
ASIL
Insights
<https://asil.org/insights/volume/15/issue/16/recognition-libyantransitional-council>
THÜRER D. and T. BURRI, “Secession” (2009) in R. WOLFRUM, (ed) Max Planck
Encyclopedia of International Law (OUP 2015), <opil.ouplaw.com/home/EPIL>
VIDMAR J., “Explaining the legal effects of recognition” (2012) 61 International &
Comparative Law Quarterly 361-387.
VIDMAR J., “States, Governments, and Collective Recognition” (2014) 31 Chinese
(Taiwan) Yearbook of International Law and Affairs (SSRN), p. 14,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2482997.
VLAD I.-L., “Private Law Effects of the Non-Recognition of States’ Existence and
Territorial Changes” (2015) XXII(1) Lex et Scientia International Journal 82-92.
WARBRICK C., “British policy and the National Transitional Council of Libya” (2012)
61 International Comparative Law Quarterly 247-264.
WARBRICK C., “Recognition of States: Recent European Practice” in M.D. EVANS (ed),
Aspects of Statehood and Institutionalism in Contemporary Europe (Dartmouth 1997),
9-43.
WARBRICK C., “States and Recognition in International Law”, in M.D. EVANS, (ed),
International Law (2nd edn, Oxford, OUP 2006), 205-267.
WOLFRUM R., “Legitimacy in International Law”(1 March 2011), in R. Wolfrum (ed)
Max
Planck
Encyclopedia
of
International
Law
(OUP
2015)
<opil.ouplaw.com/home/EPIL>
WORSTER W.T., “Law, Politics, and the Conception of the State in State Recognition
Theory” (2009) 27 Boston University Law Journal 115-171.
WOUTERS J., B. DE MEESTER & C. RYNGAERT, “Democracy and International Law”
(June
2004)
Working
Paper
No
5
LIRGIAD
<https://www.law.kuleuven.be/iir/nl/onderzoek/wp/WPLirg5.pdf>
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3.3. Blog posts
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86
AKANDE D., “ICC Prosecutor Decides that He Can’t Decide on the Statehood of
Palestine. Is He Right?” (EJIL: Talk!, 5 April 2012) <http://www.ejiltalk.org/iccprosecutor-decides-that-he-cant-decide-on-the-statehood-of-palestine-is-he-right/>
AKANDE D., “Self Determination and the Syrian Conflict – Recognition of Syrian
Opposition as Sole Legitimate Representative of the Syrian People: What does this
Mean and What Implications Does it Have?” (EJIL: Talk!, 6 December 2012)
<www.ejiltalk.org/self-determination-and-the-syrian-conflict-recognition-of-syrianopposition-as-sole-legitimate-representative-of-the-syrian-people-what-does-thismean-and-what-implications-does-it-have/>
AKENROYE, A., “ECOWAS and the Recent Coups in West Africa: Which Way
Forward?”
(IPI
Global
Observatory,
8
May
2012)
https://theglobalobservatory.org/2012/05/ecowas-and-the-recent-coups-in-west-africawhich-way-forward/ accessed 14 June 2016
GIFFONI, M., Recognition of States and Governments in International Law (Fichas
Marra, 4 March 2010), https://fichasmarra.wordpress.com/2010/03/04/recognition-ofstates-and-governments-in-international-law/ accessed 14 June 2016
MACLACHLAN C., “Agora: Reflections on Zivotofsky v. Kerry: Speaking with One
Voice on the Recognition of States” (AJIL Unbound, 21 August 2015)
https://www.asil.org/blogs/agora-reflections-zivotofsky-v-kerry-speaking-one-voicerecognition-states#_ftnref39
ODENDHAL K., “National and International Legitimacy of Governments” (Vol. 4, Issue
5,
ESIL
Reflections,
20
July
2015)
p.
5
<http://www.esilsedi.eu/sites/default/files/ESIL%20Reflection%20ODENDAHL.pdf>
SCOBBIE I., “UK House of Commons calls for Palestine to be recognised as a state”
(EJIL: Talk!, 14 October 2014) <http://www.ejiltalk.org/the-uk-house-of-commonscalls-for-palestine-to-be-recognised-as-a-state/>
VERMEER Z., “Intervention with the Consent of a Deposed (but Legitimate)
Government? Playing the Sierra Leone Card” (EJIL: Talk!, 6 March 2014)
<www.ejiltalk.org/intervention-with-the-consent-of-a-deposed-but-legitimategovernment-playing-the-sierra-leone-card/>
WORSTER W.T., “Sovereignty: two Competing Theories of State Recognition
(Exploring
Geopolitics,
2010),
http://www.exploringgeopolitics.org/publication_worster_willliam_sovereignty_const
itutive_declatory_statehood_recognition_legal_view_international_law_court_justice_
montevideo_genocide_convention/
ZIMMERMAN A., “Palestine at the Gates of the Peace Palace: The long and windy road
towards Palestinian membership in the Permanent Court of Arbitration” (EJIL: Talk!, 5
April 2016) <http://www.ejiltalk.org/palestine-at-the-gates-of-the-peace-palace-thelong-and-windy-road-towards-palestinian-membership-in-the-permanent-court-ofarbitration/>
4. OTHERS
4.1. News
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BBC News, ‘Ukraine's Yanukovych asked for troops, Russia tells UN’ (4 March 2014)
http://www.bbc.com/news/world-europe-26427848 accessed 14 June 2016

BBC News, ‘Putin does not rule out granting Syria's Assad asylum’ (12 January 2016)
http://www.bbc.com/news/world-europe-35294890 accessed 14 June
Aljazeera News, ‘Sweden recognises state of Palestine’ (30 October 2014)
http://www.aljazeera.com/news/europe/2014/10/sweden-recognises-state-palestine2014103084649277571.html accessed 14 June 2016
Aljazeera News, ‘GCC recognises new Syrian opposition bloc’ (12 November 2012)
http://www.aljazeera.com/news/middleeast/2012/11/20121112175539534504.html
accessed 15 June 2016
BBC News, ‘Guide to the Syrian Opposition’ (17 October 2013)
http://www.bbc.com/news/world-middle-east-15798218 accessed 15 June 2016
NPR News, ‘Obama Recognizes Rebels As ‘Legitimate Representative’ of Syrian
People
(11
December
2011)
http://www.npr.org/sections/thetwoway/2012/12/11/167008761/obama-recognizes-rebels-as-legitimate-representativesof-syrian-people accessed 15 June 2016
The Guardian, ‘UK: Syrian opposition 'sole legitimate representative' of the people’ (20
November
2012)
https://www.theguardian.com/world/2012/nov/20/uk-syrianopposition-sole-legitimate-representative-people accessed 15 June 2016
RT News, ‘EU follows Italy’s move to recognize Syrian opposition coalition (19
November 2012) https://www.rt.com/news/syria-opposition-eu-representative-099/
accessed 15 June 2016
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4.2. Statements and Press Releases
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

European Political Cooperation Declaration on Yugoslavia (27 August 1991) EPC Press
Release, P.82/91.
Letter of Royal Ministry of Foreign Affairs Norway, ‘Recognition of the Republic of
South
Sudan’
(Oslo,
9
July
2011)
https://www.regjeringen.no/globalassets/upload/ud/vedlegg/brev/soersudan_anerkjenn
elsesbrev.pdf accessed 14 June 2016
Statement of United States President Barack Obama, ‘Recognition of the Republic of
South Sudan’ (Washington, DC, 9 July 2011) https://www.whitehouse.gov/the-pressoffice/2011/07/09/statement-president-barack-obama-recognition-republic-southsudan accessed 14 June 2016
EU Council Conclusions on Montenegro: 2737 External Relations Council meeting (12
June 2006), http://eu-un.europa.eu/eu-council-conclusions-on-montenegro-2737external-relations-council-meeting/ accessed 6 May 2016.
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88
Council of Europe, ‘The Republic of Montenegro Becomes 47th Council of Europe
Member
State’
(Strasbourg,
10
May
2007)
https://wcd.coe.int/ViewDoc.jsp?p=&id=1130883&BackColorInternet=DBDCF2&Ba
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<www.kosovothanksyou.com/>
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