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Creation of States and recognition

International Law

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Mustafa Sherif
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13 views

Creation of States and recognition

International Law

Uploaded by

Mustafa Sherif
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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Creation of States and

Recognition
• States were the only subjects of international law till
1949, yet they remain the main legal person in that law.

• In Today’s lecture: What are the elements of a State?

• Montevideo convention on the rights and duties of


States. (1933)
“A state as a person of International law should possess
the following qualifications: a)A permanent population; b)
A defined territory; c)Government; d)Capacity to enter into
relations with other states. (Factual elements)
Territory

Land, Sea, space.

Should it be defined ??
-In the North Sea Continental Shelf cases (1969), the ICJ
held that there was:

“no rule that the land frontiers of a State must be fully


delimited and defined, and often in various places and for
long periods they are not”.

-What matters, instead, is that a State controls a


sufficiently identifiable core of territory.
Population
Nationality of the State.

Laws of Nationality lies within


the domestic jurisdiction of
States, in respect of
international law standards.
Sovereignty
1)The entity has a Government that is able to function effectively.

2)Independence in conducting its international relations.

3) A state does not cease to exist if it is temporarily deprived of an


effective government. Failed State is not a legal concept.
4) A state whose territory has been fully occupied by another
State in war time continues to exist.
Recognition of States
A Condition for the creation of
States???
• Recognition of States is different from the
recognition of the government.

- Recognition of states: Acknowledging that an entity


fulfills the statehood requirements

-Recognition of governments: Acknowledging that the


government in question is the one representing the
State in its external relations.
Recognition of States:
• Declaratory theory: A state exists once it satisfies the statehood
requirements.
The Entity is a state with all international rights and duties.
An obligation on States to treat it as such?

V.
• Constitutive theory: A State only exists upon recognition
Terra nullius land..... No rights under international law
Is there an obligation of non-recognition?
(Premature recognition)
• A State that has not fulfilled statehood requirements.

• Depends on whether the emergence of the state in question comprised a


violation of a rule of peremptory norms or not.
Article 41(2) of ARSIWA: No State shall recognize as lawful a situation
created by a serious breach of peremptory norms.

• Examples: Recognizing Dontesk and Luhansk as an independent State.

• Policy of non-recognition. (US-CHINA-TAIWAN)


The legal consequence of recognition:
• Recognition could be express or implied (diplomatic relations).

• Entering into treaties is not a sufficient indication of recognition.

• Recognition = no obligation to establish diplomatic relations.

• Severance of diplomatic relations does not mean de-


recognition.
Recognition of a Government:
• Change in governments (unconstitutionally).

• Policy of recognition (effective control vs. constitutionality) (not required


for studying purposes).

• Obligation of non-recognition:
- Security Council Resolution. (White regime in South Africa).
- Article 41(2) of ARSIWA: No State shall recognize as lawful a situation
created by a serious breach of peremptory norms.
De facto De jure recognition
recognition of a of a State/
state/ government government
(factual existence) (lawful existence)

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