Recognition of states is a matter of politics, not law.

Table of contents

I.

Introduction...3

II.

The issue with recognition....................................................................................3

III.

The rule of law in statehood recognition...5

IV.

Applying the law to Palestine..9

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.

The issue with recognition

Lauterpachts proclamation that statehood recognition is determined more by politics than
the law can be easily verified when the events of the latter half of the 20th century are taken
into examination. Recognition is a matter of pure intent, and whether an existing State
chooses to recognise a new State is entirely at the formers discretion. This is primarily due
to the fact that recognition indicates a readiness on the part of the recognising State to enter
into formal relations with a new State, although this does not necessarily have to be

Recognition in International Law (Reissue, Cambridge University Press 1947) p 1

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.

An entity can only be considered as a State in international law when it is formally

recognised as such by other States, following the constitutive school of recognition; or a
State can gain recognition once it has satisfied the four principles for statehood creation
under Article 1 of the Montevideo Convention, as per the declaratory school of recognition.
The prevailing opinion is that recognition is merely declaratory in its nature, and does not
officially create a new State although this issue itself is not concrete. In slight contrast to the
principal theory of declaratory recognition is the situation which led to Bangladeshs
recognition by India in 1971, even though Bangladesh had no independent, functional
government a principal criteria for statehood to avoid the establishment of puppet states.4

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.

The rule of law in statehood recognition

The Montevideo Convention on the Rights and Duties of States 1933 is a treaty which
codified the declarative theory of statehood as accepted as part of customary international
law. Under Article 1 of the Montevideo Convention, the state as a person of international law
should possess the following qualifications: a permanent population; a defined territory;
government; and capacity to enter into relation with other states.5 Under Article 7 of the
Montevideo Convention on the Rights and Duties of States, the recognition of a state may
be express or tacit. This is evidence that recognition of a State can be granted through
implied terms, an alternative to the constitutive school of statehood recognition whereby the
means of recognition is granted through expressed terms. This school of thought is
challenged in the Deutsche Continental Gas vs Polish State case where it was found that:

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)

Recognition of a State is not constitutive but merely declaratory. The State

exists by itself and the recognition is simply a declaration of its existence. 6

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.

However, the requirement for an independent, functional government is less stringent in

certain situations, as evidenced by the situation in Bangladesh in 1971. The criteria outlined
in the Convention are concerned with the principle of effectiveness, rather than legitimacy.
Legitimacy and self-determination however, can be offered as an alternative to
effectiveness, as in the Republic of Congo in 1960, which was created in circumstances
where anything less like effective government it would be hard to imagine8.

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

Self-determination is an additional criterion postulated by James Crawford for the creation of

states, an entity must not be created in violation of the right of self-determination, nor as a
result of an unlawful use of force.13 Furthermore, in the Advisory Opinion on the Western
Sahara case, the International Court of Justice determined that:

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

UNSC Res 216 (12 November 1965) UN Doc S/RES/216

International Covenant on Civil and Political Rights (1966) 999 UNTS 171
13
'The Creation of the State of Palestine: Too Much Too Soon' [1990] 1 EJIL, p 4
14
ICJ Reports 1975, p 12
12

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.

However, as previously mentioned, the principle of government effectiveness is not

permanent in its interpretation; Bosnia-Herzegovina was recognised by the European
Community as an independent State despite the political situation.16 On the other hand,
there are many instances of new States being denied recognition in spite of securing their
independence, such as Katanga in 1960.17 Recognition as an independent State is crucial
for any entity intending to fulfil the fourth principle of Article 1 of the Montevideo Convention
for possessing the capacity to enter into relations with other States. In the Island of Palmas
case, it was determined that sovereignty in the relations between States signifies
independence.18 This was further corroborated in the Austro-German Customs Union case,
where:

Independence as thus understood is really no more than the normal condition

of States according to international law. It may also be described as

15

(1992) 31 ILM p 1486

Danilo Trk, 'Recognition of States: A Comment' [1993] 66 EJIL, p 69 (herein, Trk)
17
Matthew Craven, 'Statehood, Self-Determination, and Recognition' in Malcolm D. Evans (eds), International
Law (2nd, Oxford University Press, 2010) p 225
18
(1928) Reports of International Arbitral Awards Vol. 2, 829, p.838
16

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:

Membership in the United Nations is open to all other peace-loving states

which accept the obligations contained in the present Charter.20

Applying the law to Palestine

On 29th November 2012, the United Nations General Assembly (UNGA) adopted Resolution
67/19 which, inter alia accord[ed] to Palestine non-member observer State status in the
United Nations.21 The resolution was approved by an overwhelming majority 138 states in
favour, which can be taken as a form of collective implied recognition. A significant outcome
of the Resolution was that it defined the territory of Palestine which was and remains to
this day a point of contention with Israel; one of the turning points was that the Resolution
declared Palestine as a State recognition of its fulfilment of the basic criteria for statehood
creation under Article 1 of the Montevideo Convention. This act can be taken as a
declaration of Palestinian statehood, under Article 7 of the Montevideo Convention, and by
referring to the judgment in the Deutsche Continental Gas vs Polish State case.

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

[1931] PCIJ Rep Series A/B No 41

United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI
21
UNGA Res 67/19 (29 November 2012) UN Doc A/RES/67/19
20

the organisation. Furthermore, if the constitutive theory of recognition is to be applied, then

Palestine can be considered a State because 134 States have recognised the State of
Palestine, and because it exists as a State under Article 3 of the Montevideo Convention.

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.

The principle of self-determination is one of the primary reasons why Bosnia-Herzegovina

became a State despite not fully satisfying the criteria for declaratory recognition. This is
imperative if a claim is made that the recognition of Palestine is declaratory in its nature.
Palestine does to some extent satisfy the requirements for independence - it partially fulfilled
the criteria for independence after its declaration of independence in 1988, confirming its
independence as per the ratio in the Island of Palmas and Austro-German Customs Union
cases; but Israels control of the occupied territories is problematic. However, the right to
self-determination of the Palestinian inhabitants of these occupied areas can be used as a
compelling argument in favour of Palestinian statehood, and subsequent recognition, citing
Bosnia-Herzegovina, and The Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) case.

22

D Ariosto and M Pearson, U.N. approves Palestinian observer state bid CNN (New York 30 November
2012)
23
ibid

10

A palpable validation of Lauterpachts assertion is the Declaration on the Guidelines on the

Recognition of New States in Eastern Europe and in the Soviet Union which attached
specific conditions that the new States had to accept before they could be recognised as
such. When the Arbitration Commission of the International Conference on Yugoslavia
delivered its Opinions on whether the States intending to emerge following the dissolution of
Yugoslavia had adhered to the Guideline and Declaration, most of the States were granted
recognition. The decision to delay Macedonias claim by the European Community is
noteworthy. Opinion No. 6 of the Arbitration Commission explicitly stated that Macedonia
satisfied both the Guidelines and the Declarations24; however Greek opposition to the usage
of the name Macedonia, which was supported by the European Community, delayed its
recognition.25

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

2. Treaties and Other International Law

Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in
the Soviet Union (1992) 31 ILM 1486
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered
into force 23 March 1976) 999 UNTS 171 (ICCPR)
United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at:
http://www.un.org/en/documents/charter/chapter1.shtml [accessed 5 January 2014]
UNGA Res 67/19 (29 November 2012) UN Doc A/RES/67/19
UNSC Res 143 (14 July 1960) UN Doc S/RES/143
UNSC Res 216 (12 November 1965) UN Doc S/RES/216
UNSC Res 541 (18 November 1983) UN Doc S/RES/541

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
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13

Craven M, 'Statehood, Self-Determination, and Recognition' in Malcolm D. Evans

(eds), International Law (2nd, Oxford University Press, Oxford 2010).
Crawford J, 'The Creation of the State of Palestine: Too Much Too Soon' [1990] EJIL 1, 4
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108
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14