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Table of contents
I.
Introduction...3
II.
III.
IV.
V.
Conclusion...11
VI.
Bibliography.13
Introduction
Recognition of states is not a matter governed by law, but a question of policy, so claimed
Hersch Lauterpacht1. Whether recognition is granted or withheld is at the discretion of the
recognising State as they are not legally bound to pursue this action. This research paper
will examine the question of whether politics is more influential than the law with regards to
statehood recognition, endeavouring to defend Lauterpachts claim.
In the second section, the paper will present the issue in its context, referring to the method
and reasoning for recognition. The third section will explore the rule of law which pertains to
recognition, examining the constitutive and declaratory theories of recognition; how
recognition is granted, withheld or established with conditions; legitimacy, effective
government and the pivotal role of the rule of self-determination. The fourth section will apply
the rule of law established in the previous section to determine whether politics or
international law are the key factor when States choose to recognise, with particular
reference to Palestine. The fifth section will offer a decisive conclusion by justifying
Lauterpachts claim using the evidence presented in the previous sections.
diplomatic in nature, and also because the act of recognition is seen as attributing
international personality to the State.2
According to noted jurist Lassa Oppenheim, States are the principal subjects of international
law.3 For an entity to be considered a State, it must fulfil the criteria established under Article
1 of the Montevideo Convention on the Rights and Duties of States 1933. However, this is
not tantamount to recognition, which is exercised unilaterally by the government of an
existing State, and accepting legal consequences of such acknowledgment.
However, recognition can be withheld (or granted with conditions) even if the State fulfils the
required statehood conditions under Article 1 of the Montevideo Convention; in the case of
East Germany, diplomatic recognition was withheld by West Germany and the Western
Allies, but was recognised by the Eastern Bloc comprising of its allies in Central and Eastern
Europe. The form of recognition is another critical issue as it determines whether or not a
State is legally recognised. De facto recognition is not legal recognition; it is provisional in its
Ti-Chiang Chen, The International Law of Recognition: With Special Reference to Practice in Great Britain and
the United States (1st, Praeger, 1951), p 13
3
ibid, p 14
4
DJ Harris, Cases and Materials on International Law (6th, Sweet & Maxwell, 2004) p 108
nature, and provided to a State which does not have sufficiently stable government although
the government must enjoy the majority support of its people to be afforded this form of
recognition. De jure recognition is legal recognition, given to a State which formally fulfils the
requirements under international law and is capable of undertaking responsibilities as a
member of the international community.
A final issue is membership into the United Nations (UN). When Bangladesh sought
admission into the UN, their claim was vetoed by China, a key ally of Pakistan; similarly, the
US, another ally of Pakistan, was one of the last nations to recognise Bangladesh. Even
Pakistans recognition of Bangladesh was politically driven under the 1972 Simla
Agreement Pakistan recognised the independence of Bangladesh in exchange for Pakistani
prisoner-of-wars.
John Cerone, 'Legal Implications of the UN General Assembly Vote to Accord Palestine the Status of Observer
State' (American Society of International Law 2012) (herein, Cerone)
This is further corroborated under Article 3 of the Montevideo Convention, which states that,
the political existence of a State is independent of recognition by the other States7,
highlighting that a State can continue to exist without recognition from the majority of the
international community.
Despite the political disintegration and the secession of Katanga and South Kasai, Congo
retained its status as a sovereign State, thus when Belgium launched a military intervention,
it was a violation of Congos national sovereignty and Belgian was ordered to remove troops
from the country.9This contradicts the judgment in the Aaland Islands case, where it was
determined that a new State will only come into existence once it is strong enough to assert
[itself] throughout the territories of the state without the assistance of foreign troops.10
In contrast to the Republic of Congo, Southern Rhodesia - a British territory which had
governed itself for 42 years when it declared itself as an independent sovereign state in
1965 was never recognised de jure as an independent State. This was due to the fact that
6
[1929] 5 ILR 11
Cerone,
8
James Crawford, The Creation of States in International Law (2nd, Oxford University Press, 2006) p 56
9
UNSC Res 143 (14 July 1960) UN Doc S/RES/143
10
(1920) League of Nations Official Journal Spec Supp 3,9
7
it was comprised of a white-dominated government, despite them being in the racial minority.
The UN Security Council Resolution 216 condemned the declaration of independence made
by a racist minority and called upon all States to refuse recognition of Southern Rhodesia. 11
The basis for the rejection of Southern Rhodesia as an independent State was that it
violated jus cogens norms of racial non-discrimination; it eventually lead to the development
of the International Covenant on Civil and Political Rights 1966, Article 1(1) of which states
that:
All peoples have the right to self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social,
and cultural development.12
The subsequent development of international law in regard to non-selfgoverning territories, as enshrined in the Charter of the United Nations, made
the principle of self-determination applicable to all of them.14
This was also a factor in the creation and eventual collective recognition of States following
the breakdown of the USSR. In the Declaration on the Guidelines on the Recognition of
New States in Eastern Europe and in the Soviet Union (Annex 1), it was noted that:
11
The Community and its Member States confirm their attachment to the
principles of the Helsinki Final Act and the Charter of Paris, in particular the
principle of self-determination.15
Aside from collective recognition, the Guidelines and the Declaration also attached
conditions for recognition, in addition to the four criteria for statehood creation under Article 1
of the Montevideo Convention. This included acceptance of the UN Charter, the Final Act of
Helsinki, and the Charter of Paris with regards to the rule of law, democracy and human
rights.
15
sovereignty or external sovereignty by which is meant that the State has over
it no other authority than that of international law.
19
Recognition and especially membership into the UN are the primary objectives of any
emerging State, and motivation for non-state entities to elevate their status. To be permitted
entry into the United Nations as a full member, an entity must be a State, and legally
recognised as such, in accordance with Article 4(1) of the UN Charter, which states that:
It should be noted that while Palestine was afforded de facto recognition, it is yet to be
granted de jure recognition; this can be derived from the UNs lack of officially recognising
Palestine as a State, which can be constituted by accepting Palestine as a full Member in
19
In a statement following the UNGA, Israels Prime Minister Benjamin Netanyahu stated that
the Palestinians must recognize the Jewish state before Israel can grant the new State
recognition.22 Netanyahu offers conditional recognition of Palestine provided that they cease
the conflict with Israel and recognise the bond between the people of Israel and the land of
Israel.23 It is evident that Netanyahus conditions are politically motivated in light of the
UNGAs decision on Palestines territorial claims which protects the right of the people of
Palestine to self-determination under Article 1(1) of the International Covenant on Civil and
Political Rights 1966. If, however, recognition of a Palestinian state is viewed as declaratory,
then there is an issue if Israel retains control over the occupied West Bank and Gaza Strip.
22
D Ariosto and M Pearson, U.N. approves Palestinian observer state bid CNN (New York 30 November
2012)
23
ibid
10
One of the most politically motivated actions according to Turkish Cypriots26 was the
adoption of United Nations Security Council Resolution 541. The resolution described the
attempt to create The Turkish Republic of Northern Cyprus after its declaration of
independence in 1983, as legally invalid, and called on all States to deny it recognition.27
However, despite being declared invalid by the UN and urged by its Member States to be
denied recognition, the Turkish Republic of Northern Cyprus continues to exist as a State
with a functional government, and recognised only by The Republic of Turkey.
Conclusion
The justification for Lauterpachts declaration on the nature of statehood recognition
originates from the notion of intent. States are not legally bound to recognise an emerging
State whether they choose to do so is at their discretion. In most circumstances,
recognition is a unilateral assertion, and the State granting the recognition will only elect this
24
Trk, p 70
Roland Rich, 'Recognition of States: The Collapse of Yugoslavia and the Soviet Union' (1993) 36 EJIL, p 52
26
1983 Declaration of TRNC and aftermath (Cypnet n.d.)
27
UNSC Res 541 (18 November 1983) UN Doc S/RES/541
25
11
course of action if they desire to have formal relations with the new State. Even in a situation
where collective recognition was instilled, such as the creation of States following the
disintegration of the USSR and also Yugoslavia, the Member States of the European
Community were not obligated to grant recognition.
If statehood recognition was an issue of intent, then the argument for its governance by law
is insubstantial. Even when a State fulfils the criteria for statehood under the four principles
of the Montevideo Convention, recognition can still be denied even though the State as a
political entity may exist, as evidenced by Northern Cyprus. A definitive illustration of politics
prevailing over the rule of law is that Palestine is recognised by more States than Israel, but
while the status of the formers statehood is still questioned more than 25 years after it
declared its independence, the legitimacy of Israels statehood has never been examined
following the partition in 1947.
12
Bibliography
1. Table of Cases
Aaland Islands Case (1920) League of Nations Official Journal Spec Supp 3,9
Austro-German Customs Union Case (Austria v. Germany) 1931 PCIJ Rep Series A/B No
41
Deutsche Continental Gas Gesellschaft v Polish State [1929] 5 ILR 11
Island of Palmas Case (1928) Reports of International Arbitral Awards Vol. 2, 829.
Western Sahara Case (Advisory Opinion) 1975 ICJ Rep. 12
3. Secondary Sources
1983 Declaration of TRNC and aftermath (Cypnet n.d.)
<http://www.cypnet.co.uk/ncyprus/history/trnc/> accessed 5 January 2014
Ariosto D and Pearson M, U.N. approves Palestinian observer state bid CNN (New York
30 November 2012) < http://edition.cnn.com/2012/11/29/world/meast/palestinian-unitednations/> accessed 29 December 2013.
Cerone John, 'Legal Implications of the UN General Assembly Vote to Accord Palestine the
Status of Observer State' (American Society of International Law 2012)
<http://www.asil.org/insights/volume/16/issue/37/legal-implications-un-general-assemblyvote-accord-palestine-status> accessed 3 January 2014
Chen TC, The International Law of Recognition: With Special Reference to Practice in Great
Britain and the United States (1st, Praeger, New York 1951) 16
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