Documente Academic
Documente Profesional
Documente Cultură
Recognition
of
States
Submitted to:
Dr. Gulam Yazdani
(Faculty of
Public International Law)
Submitted By:
Idrish Mohammed
Roll No: 13 BLW 0025
Semester: 4th
Year: 2nd
Batch: 2013-2018
Table of Contents
1. Introduction
3. Statehood
15
6. Existence of States
19
32
8. Conclusion
44
INTRODUCTION
Some definitions of international law can be found on the Web as
follows:
The body of laws governing relations between nations 1, International
law is the term commonly used for referring to the system of implicit and
explicit agreements that bind together nation-states in adherence to
recognized values and standards, differing from other legal systems in that
it concerns nations rather than private citizens. ... 2,
A complex network of principles, treaties, judicial decisions, customs,
practices, and writings of experts that are binding on States in their
mutual relations.3
The common point of the definitions is that, international law deals with
the states and states activities. Addition to the States and the States
activities international law has a wide range of interests, as Shaw indicates
1 wordnet.princeton.edu/perl/webwn,
2 Wikipedia, International Law, en.wikipedia.org/wiki/International_law
3 Political Geography Glossary, www.umsl.edu/~naumannj/geog
%202001%20glossaries/political%20geographyh/POLITICALL%20GEOGRAPHY
%20GLOSSARY.doc
4
international law,
4 M.N. Shaw, International Law, (6th ed., Cambridge University Press, Cambridge 2008)
25
I.
A. States
In addition to controlling territory, States have lawmaking and executive
functions. States have full legal capacity, that is, they have the ability to be
vested with rights and to incur obligations.
B. Insurgents
Insurgents are a destabilizing factor, which makes States reluctant to
accept them, unless they show some of the attributes of sovereignty (e.g.
control of a defined territory). Their existence is temporary; they either
prevail and become a full-fledged state, or fail and disappear.
II.
All new modern subjects of international law lack permanent and stable
control over a territory. They have limited legal capacity (do not have a
full spectrum of rights and obligations) and limited legal capacity to act
(i.e. to enforce their rights).
A. International Organizations
B. National Liberation Movements
C. Individuals
III. Conditions
for
Statehood
and
the
Role
of
Recognition
Unlike national systems, the international legal order lacks a set of
detailed rules regarding the creation of states. However, such rules can be
inferred from custom.
A. Conditions for Statehood
The Montevideo Convention of 1933 lays the traditional and most widely
accepted criteria of statehood in international law. It states The state as a
person of international law should possess the following qualifications:
(a) a permanent population; (b) a defined territory; (c) government; and
(d) capacity to enter into relations with the other states.
Even today, these conditions continue to be regarded as the fundamental
elements of statehood, but they are neither exhaustive nor immutable.
Other factors might be relevant such as self-determination and
recognition, but one thing is clear the relevant framework revolves
essentially around territorial effectiveness.
The need for defined territory focuses upon requirement for a particular
territorial base upon which to operate. Therefore, for this reason at least,
7
The capacity to enter into relations with other nations: States are not
the only international law subjects who have this capacity, but this
capacity is essential to statehood. Where this element is not present, there
cannot be a state. The essence of such capacity is independence; it is a
formal statement that the state is subject to no other sovereignty.
the legal capacity of the new state, is the new state actually created.
Criticism of constitutive theory: it contradicts the principle of
effectiveness; it is inconsistent with the principle of sovereign
equality of states; it is logically unsound since it would allow an
entity to be a state with respect to those states that have recognized
it, while lacking legal personality with respect to those that have
withheld recognition.
10
the new State. In such cases, the problem is to determine the premature
recognition is an intervention in the internal affairs of another state or is
an admissible recognition of a new state that has emerged or is emerging
as a result of secession.10 Recognitions of Bosnia-Herzegovina and
Croatia were the well-known examples of premature recognition in the
near past as both states had not an effective control on their whole parts
of territories at the time being recognised.
IMPLIED RECOGNITION
Recognition is about intention and may be expressed or implied. 11 To
understand how a State may recognise another State by implication it is
necessary to look into the some certain circumstances. Lauterpacht states
that, the establishing of diplomatic relations and maybe, to grant the
exequatur or signing a bilateral treaty includes extensive relations between
the two states justify the implication. A congratulation message to a new
State for obtaining sovereignty will bear recognition of that State, but
unofficial contacts do not have the same result, just like the informal
relations established between United States and Communist China in the
1960s and early 1970s.12
10
11 Brownlie, n 17 above, 91
12 Shaw, n 4 above, 463
12
It does not mean recognition when two states both signed a multilateral
treaty such as United Nations Charter. Israel and many Arab countries are
UN members at the present but it does not change Arab non-recognition
of the Israel State. On the other hand when a State affirms the
membership in the UN of an entity, needless to say that recognition
occurs. As an example, United Kingdom recognised the Former Yugoslav
Republic of Macedonia by supporting its membership in the UN.
In practice the implied recognition is not preferred since the states want
to have their control of recognition and in general they use a formal way
for it.
CONDITIONAL RECOGNITION
Conditional recognition means that to recognise an entity as a State only
when it fulfills some conditions. It was first seen in the Berlin Congress
of 1878, Great Britain, France, Italy and Germany marked the
recognition of Bulgaria, Serbia, Romania and Montenegro with the
condition that these countries would not impose any religious disabilities
on any of their subjects.
It may cause some political problems but the non-observance of the
condition would not invalidate the recognition. Since the law does not
attach value to any condition unless it depend upon agreements made by
the particular parties.
13
COLLECTIVE RECOGNITION
In 1971 the International Law Commission stated that collective
recognition means that States act collectively during the process of
receiving information of the situation, evaluating that information and
reaching a decision, and communicating that decision.13
This may be seen as a result of increased corporation between the States.
The idea of act collectively has been a subject of a debate since the
foundation of the League of Nations and the establishment of the
United Nations.14 However, the States preferred to keep the control of
recognition in their authorised bodies. As Shaw stated The most that
could be said is that membership of the United Nations constitutes
powerful evidence of statehood.
WITHDRAWAL OF RECOGNITION
Sometimes it is possible to withdrawn a granted recognition. Especially, it
is easier for the de facto recognition since the position is different with
the de facto recognition which includes an ambiguity for the future of the
entity. If the government of the entity loses the effective control on its
territory there will be no ground for recognition and it may be taken back.
On the other hand de jure recognition is more difficult to withdraw
13 Extract from the Yearbook of the International Law Commission:-1971, vol. II(2),
p.18
14 Shaw, n 4 above, 466
14
15
662, which characterised the Iraqi annexation of Kuwait null and void
and called on all states and institutions not to recognise the annexation.
C.
Effects of Recognition
Arbitration
17
18
20 Text adopted by the International Law Commission at its first session, in 1949,
21 M.D. Plessis, Recognition Of States & Government, University Of Kwazulu-Natal
Faculty Of Law International Law 2007(1),
http://www.library.und.ac.za/Recognition_states_governments.doc ,accessed on 07
January 2009
19
The Declaration stated that the Community and its members will
withhold recognition in cases of aggression.
There are situations where all the requirements for statehood a met, but a
state is not recognized as such by the majority of states. This happens
when there is a conflict between the traditional principle of effectiveness
and the modern international law trend of withholding legitimacy when a
situation, albeit effective, contravenes general values of the world
community.
Continuity and Termination of the Existence of States and
IV.
Recognition of Governments
A. Continuity and Termination of the Existence of States
Changes in government do not have an effect on the identity of States.
States are bound by international acts of prior governments. See Tinoco v.
Costa Rica.
However, changes in the territory of a State, may affect its legal
personality. Changes in the territory result from the following
occurrences:
- dissolution of a state (e.g. USSR, FSRY, Czechoslovakia)
- merger of one State with anther (e.g. in 1990 North and South
Yemen merged to form the Republic of Yemen)
21
the UN. In the case of dissolution, all resulting states must apply, unless a
state can claim to be a continuation of the old state (e.g. the Russia
successfully claimed to be a successor state to the USSR and needed not
apply anew for admission to the UN).
B. Recognition of Governments
Where a new government is established through normal, constitutional
processes, there is no question regarding the recognition of that
government. The new government is entitled to all the rights and
obligations under international law.
By contrast, when an entity comes to power through non-constitutional
means, it is not automatically accorded such rights and obligations. The
key issue for a State when deciding whether to recognize a new
government is whether that government is in de facto control of its state.
Sometimes this test is insufficient and States have taken other factors into
account (e.g. whether the new government is ready to honor the
international obligations of the predecessor, whether it is democratic,
whether it has come to power through aggression, and its political
nature).
Introduction
Representatives of the PLO, and of the Palestinian Interim SelfGovernment Authority established pursuant to the Interim Agreement,
have repeatedly threatened to unilaterally declare an independent
Palestinian state.1 Indeed, following the conclusion of the Camp David
peace summit, Palestinian leaders have re-emphasized their purported
right to declare statehood unilaterally. While the Central Council of the
PLO decided on September 10, 2000, to temporarily postpone this
declaration, it reasserted its inherent right to do so without prior
coordination or agreement with Israel. In the event of such a declaration,
states will be called upon to consider whether to recognize the Palestinian
entity as a sovereign state which is eligible for membership in the
international community.
The question of recognition of a Palestinian state involves complex legal
and policy issues. Here we will address the questions with which each
state will be confronted in the event of a Palestinian unilateral declaration
of statehood and examine whether the Palestinian entity, as a matter of
international law, may be recognized as a sovereign state. In particular, we
will focus on three fundamental questions:
1. Does the Palestinian entity satisfy the traditional criteria for
statehood?
24
25
tribunal would declare not only to constitute a wrong but probably also to
be in itself invalid.5
The criteria for statehood which must be satisfied before recognition can
be considered have been formulated in different ways. But the various
formulations share the common premise that independent and sovereign
governmental control are the sine qua non of statehood. Thus, Crawford
describes independence as "the central criterion of statehood." 6 Indeed, it
will be readily apparent that the basic attributes of statehood essentially
flow from this requirement.
The fundamental connection between independence and statehood was
clearly enunciated by Judge Huber in the Island of Palmas Case, in which
he declared that "independence in regard to a portion of the globe, is the
right to exercise therein, to the exclusion of any other State, the functions
of a State."7 Higgins has similarly affirmed that "traditional international
law has long demanded that before an entity can be acknowledged as a
state, it must possess independence and sovereignty." 8 Clearly, in the
absence of independence, of exclusive and sovereign control, a claim to
statehood cannot succeed.
International law has traditionally required that four separate criteria be
satisfied before the recognition of an entity as an independent sovereign
state can be considered:9
26
1.
2.
3.
The entity must have the capacity to freely engage in foreign relations.
related
to
the
notions
of
independence
and
Republic20 on
the
basis, inter
alia, that
independent
28
In the D.O.P., the parties agreed that the Palestinian Authority would only
have limited competence. Under Section B of the Agreed Minutes to the
D.O.P., it was stipulated that the Palestinian Authority's jurisdiction, as set
out in Article IV, would cover only "the agreed powers, responsibilities,
spheres and authorities transferred to it." Moreover, the Agreed Minutes
expressly provided that Israel would continue to exercise those powers
and responsibilities not transferred to the Council. 26
The blueprint for limited Palestinian autonomy set out in the D.O.P. was
implemented by the parties in the Israeli-Palestinian Interim Agreement
on the West Bank and Gaza Strip signed on September 28, 1995. This
document regulates the relations between the two sides and the
administration of the West Bank and Gaza Strip pending the outcome of
permanent status negotiations, and it carefully outlines the scope and
content of the Palestinian Authority's jurisdiction.
Several features of the Interim Agreement illustrate that the parties have
established a Palestinian self-government authority which does not
possess the independent, effective and sovereign governmental control
that is required to satisfy the definition of statehood:
In the first place, under the D.O.P. and the Interim Agreement, pending a
permanent status settlement, Israel remains the source of authority and
retains residuary jurisdiction in all spheres not specifically transferred to
the Palestinian Authority. Far from being sovereign or independent, the
Palestinian entity is in fact subject to the overarching residual authority of
the Israeli military government.
Article 1(1) of the Interim Agreement mirrors the provisions of the
D.O.P. regarding the limited competence of the Palestinian Authority and
the continuing jurisdiction of the Israeli military government:
Israel shall transfer powers and responsibilities as specified in this
Agreement from
the
Israeli
military
government
and
its
Civil
provisions
in
Article
1(5),27 Article
XVII(1)(b),28 Article
XVII(4),29 and Article XXXI(8)30 make it clear that the parties did not
establish an independent and sovereign governmental entity, but a limited
self-governing body.
This, of course, is not surprising. The intention of Israel and the
Palestinians in drafting the Interim Agreement was to create a Palestinian
self-governing authority with limited autonomy and responsibility in those
31
33
34
35
Thus, for example, the parties have agreed that Israel will continue to
hold a degree of decision-making power with respect to the grant of
admission into Palestinian areas and the conferral of permanent residency
status. In this sphere of responsibility, intimately associated with the
sovereign prerogative of states,43 Israel retains significant authority. Not
only is the Palestinian Authority's jurisdiction with regard to the grant of
permanent residency limited to specific categories of people, 44 but, in
accordance with Article 28(11) of Appendix 1 to the Civil Affairs Annex,
such status cannot be granted without "the prior approval of Israel."
Moreover, the Israeli and Palestinian sides agreed that visitors wishing to
enter the portions of the West Bank and Gaza Strip under Palestinian
control must obtain clearance from Israeli authorities, 45 and that Israel has
the right to deny entry to any person who is not a registered resident of
the West Bank or Gaza Strip.46
Within the areas in which the Palestinian Authority exercises its
jurisdiction, significant responsibilities with respect to internal security are
either shared or held exclusively by Israel. In addition to its exclusive
jurisdiction over external security and Israelis, 47Israel continues to be
responsible, inter alia, for safety and security in the sea off the Gaza Coast
(and may sail through the three maritime zones without restriction); 48 for
security at border crossings and terminals; 49 for security at Rachel's
Tomb;50 for internal security in Area B51 and the Mawasi Area in the Gaza
36
Strip;52 while Israel also retains overriding powers for security in the
"Yellow Area" of the Gaza Strip. 53 In addition, joint Israeli-Palestinian
patrols and mobile units operate throughout West Bank and Gaza Strip
territory under Palestinian control.54
The fact that the parties agreed to transfer only limited powers to the
Palestinian Authority is evident from countless articles of the Israel-PLO
agreements. All forty spheres of civil jurisdiction transferred to the
Palestinian Authority are specifically defined and limited, with some
degree of Israeli cooperation or approval often required. 55 In many
spheres of activity, the parties established joint Israeli-Palestinian
committees which are responsible for coordination and cooperation in
areas transferred to the Palestinian side. 56Further limitations are placed by
the agreements on the size, operations, and ammunition of the Palestinian
Police,57 on Palestinian economic policy,58 and on the movement of
vessels in the sea off the Gaza Coast.59
Importantly also, the legislative powers of the Palestinian Council are
strictly limited. Article XVIII of the Interim Agreement confirms the lack
of Palestinian sovereign governmental control by providing that:
Legislation which exceeds the jurisdiction of the Council or which is
otherwise inconsistent with the provisions of the DOP, this Agreement,
37
or of any agreement that may be reached between the two sides during
the interim period, shall have no effect and shall be void ab initio.
39
40
entity
satisfies
both
aspects
of
this
criterion
of
42
power to "secure the establishment of the Jewish national home" was not
subject to legal challenge. Indeed, the United Nations Special
Commission on Palestine subsequently concluded that the Palestinians
"have not been in possession of it [Palestine Mandate territory] as a
sovereign nation,"72 and that there were "no grounds for questioning the
validity of the Mandate for the reason advanced by the Arab states." 73
The Palestinian case for vested sovereignty is also not supported by
General Assembly Resolution 181. Indeed, it is somewhat surprising that
the Palestinians have sought to justify their claim for vested territorial title
by reference to this resolution. For decades the Arab states and the
Palestinians themselves repeatedly declared that the Partition Resolution
was legally invalid.74 Thus, Article 19 of the Palestinian National Charter
proclaimed that "the partition of Palestine in 1947 and the establishment
of Israel are entirely illegal." 75 Similarly, in arguing the Palestinian case,
jurist Henry Cattan states that "at no time was the partition resolution
accepted by the Palestinians or by the Arab states," 76 while the Seminar of
Arab Jurists on Palestine referred to the resolution as "absolutely null and
void."77
Resolution 181 cannot serve as a basis for Palestinian sovereignty because
it never had binding force. As a General Assembly resolution it could only
have the status of a recommendation. And while Israel was prepared to
uphold the resolution,78 it was the Arab rejection of the Assembly's
43
Palestinian entity is thus inconsistent with the view that the Palestinians
are vested with sovereignty over the territory in question.
Indeed, the Palestinians, as party to the D.O.P. and the Interim
Agreement, have in effect acknowledged that at present they are not in
sovereign possession of any territory. By affirming that the legal status of
the West Bank and Gaza Strip is to be resolved in permanent status
negotiations, these agreements reveal that both Israel and the Palestinians
recognized that the issue of sovereignty over this territory is yet to be
settled.84
Furthermore, as is evident from Article XXXI(8) of the Interim
Agreement, the transfer of limited authority to the Palestinian entity does
not involve any change to the legal status of West Bank and Gaza Strip
territory.85 Accordingly, while the Palestinian Authority has been
transferred several powers over portions of this territory, the territory
itself has not been transferred and its final status remains an issue for
negotiation.
The fact that the Israel-PLO agreements did not involve a transfer of title
to the Palestinian Authority is clear, inter alia, from the absence of
Palestinian jurisdiction over the airspace. As Brownlie explains, "airspace
superjacent to land territory...is in law part of state territory, and as a
consequence other states may only use such airspace for navigation or
45
other
purposes
with
the
agreement
of
the
territorial
with
other
states
is
an
essential
prerequisite
of
50
53
U.S. Restatement of the Law notes, the population must be "under the
control of its own government."102But, as highlighted above, while the
Palestinian Authority does exercise significant powers over Palestinian
residents, its jurisdiction cannot be regarded as independent or
comprehensive. Moreover, as the U.S. Court of Appeals has held, where
there are doubts as to the territorial scope of a putative state, its claim to
a permanent population is necessarily also in doubt. 103 The Palestinian
claim to statehood over an indeterminate territory thus makes it difficult
to clearly identify a population which meets the requirements of this
criterion of statehood.
54
Conclusion
The Palestinian entity does not appear to satisfy the traditional
criteria for statehood. As a matter of law, the Palestinian entity does
not have the capacity to function as an independent and sovereign
state, nor does it actually exercise such powers in practice. It does
not possess independent and effective governmental control; it does
not hold sovereign title over a clearly defined portion of territory;
and it lacks the competence to freely engage in foreign relations.
Moreover, any Palestinian attempt to unilaterally acquire the
attributes of
statehood in violation of
express Palestinian
implications
of
recognizing
unilaterally
declared
Palestinian state.
56
57
58
CONCLUSION
Recognition is one of the most difficult and complicated topics in
international law. It is complicated because it involves important political
results and legal effects both in international and municipal law. Political
assessments always effect the recognition decision. Where the States give
a decision about recognition, of course they will weigh the advantages
against the disadvantages of this decision. If it is looked into the some
cases relevant to recognition in international law, I think it can be
understood clearly, to grant recognition completely depends on political
considerations. In my point of view, recognition for a State means merely
to decide that, whether it is suitable for her needs or not.
There are basically two theories to explicate recognition; the constitutive
and the declaratory theory. The constitutive theory asserts that States and
governments do not legally exist until recognized by the international
community and the declaratory theory adopts that States and
governments gain in the international personality when they come
into existence. I think the declaratory theory is more conformable to
reason and parallel to the practice of international law and it is supported
by the Montevideo Convention on Rights and Duties of States. However,
I think it is very difficult to lay down a regulation on state activities, since
they are not stable. They may change time to time. Rules concerning
60
61