Examining Various Cases in International Law regarding the matter of

Recognition of States and Governments

Overview

International society is in permanent transformation due to the changing in

political life1. As such, old states disappear and new states appear.
Furthermore, there are always new governments come to existence in a way
that contradict the declared constitutions of their states such as a government
comes after coup d'état2. Moreover, the international community experiences
a proliferation in the number of insurgencies and belligerents on some parts of
territories that hitherto under the control of the legitimate government 3.

These issues establish new realities and the query that recognition is focused
on concentrateson the level to which the legal consequences shall derive from
such events. In other words, when new reality happens such as new state,
government, insurgency and/or belligerence, other states either recognise or
do not recognise and in the both cases, legal consequences will take place on
international arena as well as in domestic laws of these states.

In its very essence, the act of recognition is derived from the political exigency
of the recognising state4. In other words, it is a discretionary political decision
of the recognising state and this political decision either creates reality with all
its national and international legal consequences as if the case in constitutive
theory of recognition, or it aims to flow legal consequences from an already
factual event as if the case in the declaratory theory of recognition 5.

After defining the domain, it is significant presenting a first draft structure of

the dissertation:

 Chapter 1: Introduction

1
James Crawford, The Creation of States in international law (2ndedn, Oxford, 2006) 75
2
Malcolm Shaw, International Law (6thedn, Cambridge University Press, New York 2008) 444
3
ibid
4
Roland Rich, ‘Recognition of states: the collapse of Yugoslavia and the Soviet Union’ (1993) 4 Eur. J.
Int'l L. 36.
5
Thomas Grant, The recognition of states: law and practice in debate and evolution(1stedn, Greenwood
Publishing Group, 1999) 83-84
  Chapter 2: Theoretical discussion about the legal consequences for
embracingdeclaratory theory or constitutive theory in cases of
recognition or non-recognition.
 Chapter 3: Various cases about recognition of states, governments, de
facto and de jure recognition in order to appoint which theory of
recognition is practically followed.
 Chapter 4: Analysing different types of recognition i.e. Premature,
implied, conditional, and collective ones.
 Chapter 5: Withdrawal of recognition
 Chapter 5: Conclusion

Summary of the Argument

This study will argue that the importance of recognition is derived from its
consequences in creating legal rules between the recognizing state and the
recognized entity either in domestic laws or international law. In other words,
recognition will not alternate the factual situations that there is new entity or
new authority that has an effective control of specific territory.

Accordingly, this study will prove that declaratory theory has more practical
and legal meaning when comparing with the constitutive theory.That is to say,
declaratory theory will create legal consequences after creation of new reality;
while constitutive theory tends to create reality and the legal consequence
accompanied with it6.

Indeed, accepting constitutive theory will result in insurmountable legal

difficulties as it aims to create reality and then flow legal consequences from
that reality. This study argues that if constitutive theory is adopted, each state
will tend to create realities that do reflect their political exigencies.This is
controversial because the political necessitiesvary amongst states and;
hence, the matter of creation new entity/or authority will be implemented
abusively by states.

6
Benjamin Farley, ‘Calling a State a State: Somaliland and international recognition’ (2010) 24 (2) Emory
International Law Review 792
Furthermore, accepting the constitutive theory of recognition will overthrow the
meaning of Article 1 of the 1933 Montevideo Convention on the Rights and
Duties of States which indicates that the existence of states rely on four
pillarsi.e. ‘(a) a permanent population; (b) a defined territory; (c) government;
and (d) capacity [of the new state] to enter into relations with other States’ 7. In
other words, according to the constitutive theory, the mere recognition is
sufficient for creating a new state; however, this is in stark difference when
comparing with the legal necessity of the aforementioned four conditions.

Furthermore, regarding the ability of the (new) state to enter into relationship
with other states, it can be seen that this condition asserts on the fact that the
new entity should be capable of entering new relations with other states
irrespective of the acceptance or non-acceptance of other states which enter
into relation with the new entity. For instance, even if no state enteredwith a
relationship with USA, this will not affect the willingness of the government of
USA to enter into relationship with other states. As such, the meaning of
capacity to enter into relationships means the capacity of the new state rather
than the willingness of other states.

Moreover, endorsing the constitutive theory will lead to legal and logic
controversy. This study will argue that not only the recognition will lead to flow
legal consequences but also the non-recognition will lead to legal
consequences. For example, Saudi Arabia does not recognise Israel;
however, this non-recognition has serious legal consequences. As such, if
Saudi company or person visited Israel, the Saudi Government will put them
to trail. This action comes as an outcome of the declaratory theory of
recognition rather than the constitutive theory. In further analysis, if the
constitutive theory is correct, the non-recognition act of Saudi Arabia means
that there is no actual entity called Israel; hence, it will not adjudicate its
citizens or companies who travel to Israel.

However, as Saudi Arabia adjudicates and prohibits its people not to travel to
Israel, it knows that this entity exists; yet, it will not recognize it in order to
avoidthe legal consequences of recognition.Indeed, no state can adjudicate
7
Montevideo Convention on the Rights and Duties of States,signed at, 26 December 1933, entered into
Force, 26 December 1934, 165 L.N.T.S. 21031. (hereinafter Montevideo Convention)
its people who travel to any other unrecognized entity if the constitutive theory
is adopted.

To conclude, this study will characteristically criticize the constitutive theory of

recognition and instead asset on the legal correctness of declaratory theory of
recognition.

Literature review

There are two approaches of analysis (constitutive and declaratory) relating

the legal effect of recognition on the putative entity 8. On the one hand,
According to the constitutive approach, recognition is a default criterion that
creates new state. That is to say, the sui generis entity only becomes a state
after the act of recognition by other states which grants it the legal personality
rather than the process by which a putative state got independence 9. Thus,
the creation of a state in the international community depends on the will of
the already existing states.

It might be argued that the logical grounds of the constitutive approach exist
when the facts that constitute statehood are questioned. At this point,
recognition would play constitutive role for the existence of the entity 10.
Indeed, the act of non-recognition in a new state means that there is “a
tangible evidence” for the opinion that the new entity was not created in a way
that legally matches the criteria of statehood 11.

On the other hand, according to the declaratory approach, the act of

recognition has no rule in creation the states and it is only announces what is
already existing situation. The traditional positivist doctrine embraces the
declaratory approach as it asserts on the supremacy of the state
accompanied with absence of guidance in the international community
regarding the constitutive role of recognition 12.
8
Hersch Lauterpacht, Recognition in international law (1stedn, Cambridge University Press, 1947) 38.
9
Farley (n6) 792.
10
Shaw (n2) 448.
11
East Timor and ors v Netherlands, Decision on admissibility, ILDC 2118 (NL 1980), (1992) 87 ILR 73,
74
12
Shaw (n2) 446
Practical evidences from in the 20 th century indicated that the declaratory
approach proved better practicality in comparative with constitutive theory. For
example, non-recognition of Arab states towards Israel and the non-
recognition of USA towards few communist states deprived neither Israel nor
communist countries from their powers and obligations under international
law13.

Furthermore, the political existence of any state is irrelevant to the recognition

of a state by other states even if the putative state was not recognised by any
state14. In its Opinion No.1, the Arbitration Commission envisaged by the
International Commission of Yugoslavia (1991) referred that the act of
recognition is a mere declaratory act and does not contribute to the existence
or disappearance of states15.

Also, virtually, an entity can continue operating as state "within the four walls
of their domestic (territorial) enclave" 16; and, the incapability of entering into
mutual relations with other states unless other states recognize expressly or
tacitly the putative state as a state in international community 17 will not grant
the new entity the right to breach international law such as committing an act
of aggression18.

13
ibid 447
14
See art. 9 (or art. 12 after amending the Charter in 1967) of the Charter of the Organisation of
American States 1948, “the political existence of the state is independent of recognition by other states.
Even before being recognised the state has the right to defend its integrity and independence”.
Organization of American States (OAS), Charter of the Organisation of American States, 30 April 1948,
entry into force: 13 December 1951 available at: http://www.refworld.org/docid/3ae6b3624.html
[accessed 20 March 2016].
15
Yugoslavia Peace Conference, Arbitration Commission, Arbitration Commission, Opinions, 1
(Succession to SFRY) [92 ILR 162] pp 162, 165. See also, The decision of the European Court of
Human Right as mentioned in Loizidou v. Turkey (preliminary Objections), Series A, No. 310, 1995, p.14
16
Johan Van der Vyver, ‘Sovereignty and human rights in constitutional and international law’ (1991) 5
Emory Int'L Rev 99
17
ibid, see also Montevideo Convention on the Rights and Duties of States (n5) art.7 which enshrines
that ‘the recognition of state may be express or tacit. The latter results from any act which implies the
intention of recognising the new state’
18
The non-recognition of the Arab states of Israel will not grant Israel the right to breach the roles of
non-aggression and non-intervention against these states. See Shaw (n2) 447. Indeed, this study
argues that respecting the rules of non-intervention and non-aggression are derived from customary
international law and hence all states are bound to these rules irrespective of the level of recognition of
each state. See, Corfu Channel Case (United Kingdom v. Albania); Assessment of Compensation
General List No 1 [1949] ICJ Reports 244 p202. As a result, this study considers that states do exist
without needing for recognition and these new states have rights and duties derived from customary
international law and consequently no need for any type of agreement (or recognition) to create rights
and duties for these new states under international law.
Indeed, the act of recognition is political decision and it is given for achieving
national interests through flowing legal consequences from the recognition
rather than creating new entity.

Bibliography

Crawford J, The Creation of States in international law (2ndedn, Oxford, 2006).

Farley B, ‘Calling a State a State: Somaliland and international recognition’

(2010) 24 (2) Emory International Law Review 788.

Grant T, The recognition of states: law and practice in debate and evolution
(1stedn, Greenwood Publishing Group, 1999).

Lauterpacht H, Recognition in international law (1stedn, Cambridge University

Press, 1947)

Rich R, ‘Recognition of states: the collapse of Yugoslavia and the Soviet

Union’ (1993) 4 Eur. J. Int'l L.

Shaw M, International Law (6thedn, Cambridge University Press, New York

2008).

List of Cases
Corfu Channel Case (United Kingdom v. Albania); Assessment of
Compensation General List No 1 [1949] ICJ Reports 244

Yugoslavia Peace Conference, Arbitration Commission, Arbitration

Commission, Opinions, 1 (Succession to SFRY) [92 ILR 162] pp 162, 165

East Timor and ors v Netherlands, Decision on admissibility, ILDC 2118 (NL
1980), (1992) 87 ILR 73, 74

Loizidou v. Turkey (preliminary Objections), Series A, No. 310, 1995, p.14

List of Declarations and conventions

Montevideo Convention on the Rights and Duties of States,signed at 26

December 1933, entered into force, 26 December 1934, 165 L.N.T.S. 21031

Organization of American States (OAS), Charter of the Organisation of

American States,signed at30 April 1948; entry into force: 13 December 1951,
available at: http://www.refworld.org/docid/3ae6b3624.html [accessed 20
March 2016].