The Continuation of the RepublikMaluku Selatan (RMS) under International Law

ExpertOpinion

Dr. Eric De Brabandere

University Principal

Lector

Grotius Centre for International Legal Studies | Universiteit Leiden

Preface 2

1 The State in International Law 2

2 The Acknowledgement of States under International Law 4

3 Occupation, effectivity and the RMS government in exile 6

A. Effectivity as a characteristic of the State and the impact of temporary absence

of effectivity on the (continuous) existence of RMS as a State 8

B. Influence of the occupation on the continuation of the RMS as a State 9

a. Temporary military occupation 9

b. Military occupation and annexation 11

C. (Effectivity of) Governments in Exile

11
Preface

I was asked to give an opinion about the question whether the Republic of the South-Moluccas
[Republik Maluku Selatan, hereinafter ‘RMS’] at present -anno 2011- as a State continues to exist
under International Law. I was not asked to address the question whether the RMS as a State
exists under International Law since 1950 on another earlier or later date, but solely on the
question whether the RMS at present as a State continues to exist. This means of course that the
RMS previously could be regarded as a State. In this framework it has to be established that the
Netherlands courts and Courts of Appeal in the past, explicitly or implicitly, have accepted that the
RMS is a State is under International Law, since the RMS was granted access to the Netherlands
Courts (see also infra sub 1 and 3). As a consequence of this jurisprudence, it is then also the point
of departure of this memo –without taking a standpoint - that the RMS as a State existed at the
time of the declaration of independence in 1950.1
I shall nevertheless firstly briefly elaborate on the formation of States and the criteria that
International Law sets with regard to this, because the distinction in terminology between the
existence of a State and the continuation of a State is of fundamental importance for a proper
understanding of the current status of the RMS (1). I shall thereafter address the
acknowledgement of States under International Law and the influence of acknowledgement on the
continuation of States (2). Subsequently I shall discuss the effectivity criterion (3), and in
particular the effectivity as a feature of the State and the impact of temporary absence of
effectivity on the (continuous) existence of the State. (A), the influence of the occupation on the
RMS as a State (B) and finally the effectivity of governments in exile (C).

1 The State in International Law

Traditionally a State under International Law is characterized by 1) a population,

2) a territory, 3) a government that exercises effective authority over the population and the
territory, and 4) the possibility to enter into international relations.2 The two latter criteria are the
–internal and external- application of the important concept ‘effectivity’ or effectivité, that is
regarded as the most important criterion regarding the emergence of new States.3 Once these
criteria have been met with one can regard an entity as a State under International Law. The
effectivity of the government and the other criteria are mostly investigated at the moment of the
existence of the State. In other words once these criteria for the existence of a State have been
met with, an entity is in fact regarded as a State, notwithstanding the possible (non)
acknowledgement of this entity by other States (see 2). In view of the fact that the criteria are
mostly investigated upon the initial existence of a State, this means that once an entity is regarded
under International Law as a State,

1 The legitimate formation of the RMS as a State, among others in view of the Netherlands
Jurisprudence, is acknowledged also by some authors in the legal literature. See for instance for a
confirmation of the position of the Netherlands Courts regarding the RMS as a State: Noelle
Higgins, Regulating the Use or Force in Wars or National Liberation: the Need for a New Regime. A
study of the South Moluccas and Aceh (Leiden / Boston: Martinus Nijhoff Publishers, 2010), pp.
170-171 and 190.
2 See among others James Crawford, The Creation of States in International Law’ (2nd Ed.)
(Oxford: Clarendon Press, 2006), p. 45 and ColinWarbrick, ‘States and Recognition in International
Law’, in M.D. Evans (ed.), Intenrational Law (2nd Edition) (Oxford: Oxford University Press, 2006),
p. 231;
3 James Crawford, The Creation of States in International Law’ (2nd Ed.) (Oxford: Clarendon Press,
2006), p. 56. However in the past various States have emerged that did not meet this criterion,
such as the
Democratic Republic Congo in 1960, because of which often argued that the criterion of effectivity
in practice does not weigh so strong as written in theory (see Ibid., p. 57 and Ian Brownlie,
Principles of Public International Law (7th Ed.) (Oxford: Oxford Press, 2008), p, 71).
the State cannot or can hardly lose this capacity, even when temporarily one of the criteria is not
met with (see 3).
These rules regarding the existence of a State are independent of the question whether an
entity has the right to declare itself independent. The latter is assessed under International Law
under various criteria, including the right on self determination of people(4). This issue will here
neither be treated in view of the fact, as stated, that the point of departure is that the RMS existed
as a State upon the declaration of independence in 1950.
Indeed, it has to be established, that regarding the RMS, various Netherlands Courts and
Appeal Courts in the past explicitly or implicitly have accepted that the RMS is a State under
International Law, since the RMS was granted access by the Netherlands courts, on the basis of its
international status as a legal person(5)
The Court of Amsterdam ruled on the2nd of November 1950 that “the Republiek Maloekoe
Selatan both according to the Laws of the Nations as according to the laws of the Netherlands
exists” (6). The Court referred among others to a resolution of the Netherlands Association for
International Law (NVIR) dd. 24th of June 1950, in which the NVIR argued that the RMS had the
right to declare itself independent and on the Netherlands Law of the 21st of December 1949 (‘Law
transfer of Sovereignty Indonesia / Wet Souvereiniteitsoverdracht Indonesië’) whereby, according
to the Court, the actual existence of the RMS was also acknowledged by the Netherlands, at least
implicitly(7). Upon appeal the Appeal Court of Amsterdam, however without declaring whether the
‘Wet Souvereiniteitsoverdracht Indonesië’ included that the actual existence of the RMS was also
acknowledged by the Netherlands, that “the non acknowledgement of [the RMS] by the
Netherlands Government in itself did not have to exclude that [the RMS] in fact (de facto) should
be regarded as an existing State and the Netherlands Courts […] shall have to decide
independently about [the] existence [of the RMS] as a State in this injunction procedure can be
assumed”(8) (see also infra sub 2). After an analysis of the facts, the Court of Appeal ruled that
the declaration of the RMS is a “permitted way or realization of the stated right of self
determination by or on behalf of that population [sic]” (9). The Court of Appeal also argued that
the authority of the RMS as a government “is sufficient in time, is sufficient in scope” and
“complied with the satisfactory demands of stability and effectivity, to be regarded as the authority
of an existing State”(10) The Court of Appeal subsequently argued that “also even if it should be
taken into account that the possibility, that the authority referred to can in the long run not be able
to resist the superior power of the Republic of Indonesia, this does not render an impediment to
assume in an injunction procedure on the aforementioned grounds [the] existence [of the RMS] as
an independent State beforehand and to therefore grant it the (legitima, Red.) persona standi in
judicio in that procedure, being in this case also no facts or circumstances have been shown that
[the RMS] should in the meantime have ceased to exist as a State”(11).

4 See among others James Crawford, The Creation of States in International Law’ (2nd Ed.)
(Oxford: Clarendon Press, 2006);
5 For a discussion of matters, see also Joe Verhoeven, ‘Relations internationales de droit privé et
l'absence de reconnaissance d'un état, d'un gouvernement ou d'une situation’, Recueil des cours,
Volume 192 (1985-III), pp. 66-67 and Pieter Jan Kuyper, ‘Recognition: Netherlands Theory and
State Practice’, in H.F. of Panhuys,W.P. Heere, J.W. Josephus Jitta Ko Swan Sik and A.M. Stuyt,
International Law in The Netherlands (Vol. I) (Alphen aan den Rijn : Sijthoff and Noordhoff, 1978),
pp. 391-392.
6 Arr.-Court Amsterdam (Injunction), RepoebliekMaloekoe Selatan t. N.V Koninklijke Pakketvaart
Maatschappij, 2 November 1950, Netherlands Jurisprudence 1950, No. 804, p. 1424.
7 Ibid., p. 1422.
8 Court of Appeal Amsterdam, N.V. Koninklijke PaketvaartMaatschappij t. the RepoubliekMaloekoe
Selatan, 8 February 1951, Netherlands Jurisprudence 1951, n° 129, p. 245.
9 Ibid., p. 248.
10 Ibid.
11 Ibid.
 Referring to this jurisprudence, the Council of Justice for New-Guinea has also assumed on
the 7th of March that “reasonably can be assumed that the R.M.S. has behaved during a certain
time in fact as an independent, autonomous and sovereign State then it also cannot be denied the
legitima persona standi in judicio”(12) and the Court of The Hague has ruled “that [the RMS] also
at present still, having a status as a legal person, should be accepted as a litigating party” (13).
This jurisprudence is however not the equivalent of an acknowledgement of the RMS by the
Netherlands, in view of the fact the acknowledgement of States is a prerogative of the executive
power (14) (cf. infra 3). However, from this Jurisprudence follows that the question that arises,
and that was asked to me, is not so much whether anno 2011 the RMS as a State exists on the
basis of the criteria that regulate the existence of a State or still whether the RMS had the right to
declare itself independent, or whether the RMS anno 2011 continues to exist as a State. The
question is in other words whether the RMS 1) in view of the fact the absence of international
acknowledgement has lost its character as a State, or whether 2) the RMS lacks the required
effectivity and therefore has “lost” its qualification as a State.

2 The Acknowledgement of States under International Law

The RMS has throughout its existence enjoyed little international acknowledgement (15). In the
current International Law international acknowledgement of an entity as a State is however
‘declaratory’, rather than ‘constitutive’ (16). The ‘declaratory theory’ of acknowledgement entails
that the acknowledgement of a State is solely a political act that is independent of the existence of
a State under International Law. The ‘constitutive theory’ on the other hand argues that a State
only exists as a State under International Law when it is acknowledged as such by other States
(17). The problem with the ‘constitutive theory’ is however that the acknowledgement – being a
political act – hardly ever or never is based on the whether or not existence of a State according to
the criteria set by International Law, but rather on the perception by the acknowledging State of
the (il)legitimacy or (ir)regularity of the emergence of the new State (18). So among others it has
to be established that the non-acknowledgement by the Netherlands of the RMS is not explicitly
founded on the non-existence of the RMS as a State, but rather on the, according to the
Netherlands Government, unlawfulness of the declaration of independence of the RMS, in particular
of the contradiction between the declaration of independence with the RTC- transfer agreement
and the idea that the RMS was not allowed to use the right on self determination to found a new
State (19).

12 Raad of Justitie for New-Guinea, RepubliekMaluku Selatan t. the Rechtspersoon New Guinea, 7
march 1952, Netherlands Jurisprudence 1953, n° 100, p. 162.
13 Arr.-Court ’s Gravenhage, RepubliekMaluku Selatan t. the Rechtspersoon New Guinea, 10
February 1954, Netherlands Jurisprudence 1954, n° 549, p. 1040.
14 Pieter Jan Kuyper, ‘Recognition: Netherlands Theory and State Practice’, in H.F. of Panhuys,W.P.
Heere,
J.W. Josephus Jitta Ko Swan Sik and A.M. Stuyt, International Law in The Netherlands (Vol. I)
(Alphen aan den Rijn : Sijthoff and Noordhoff, 1978), p. 387.
15 See Stefan Talmon, Recognition of Governments in International Law: With Particular Reference
to Governments in Exile (Oxford: Clarendon Press, 1998), p. 305-306.
16 See with regard to the Netherlands: Pieter Jan Kuyper, ‘Recognition: Netherlands Theory and
State Practice’,
in H.F. of Panhuys,W.P. Heere, J.W. Josephus Jitta Ko Swan Sik and A.M. Stuyt, International Law
in The Netherlands (Vol. I) (Alphen aan den Rijn : Sijthoff and Noordhoff, 1978), pp. 391-392.
17 Hersch Lauterpacht, Recognition in International Law (Cambridge, 1947), p. 55 and James
Crawford, The Creation of States in International Law’ (2nd Ed.) (Oxford: Clarendon Press, 2006),
p. 4.
18 Pieter H. Kooijmans, Internationaal publiekrecht in vogelvlucht (Deventer : Kluwer, 2000), p.
22.
19 See Regerings nota ‘The problem of theMoluccas minority in the Netherlands’, Tweede Kamer,
zitting 1977- 1978, 14 915, nrs. 1-2, pp. 31-33.
 For this reason in the current International Law the ‘declaratory theory’ is generally
accepted as the theory that reflects the practice of states regarding the existence of a State (20).
Hence can be argued that the existence of a State is an actual rather than a legal matter, that
therefore can be determined by objective data on the basis of the aforementioned criteria. The
(non) acknowledgement by other States has therefore no influence on the existence of a State
(21). Mutatis mutandis can then also be argued that the acknowledgement has no influence on the
continuation of a State (see infra sub 3).
Next to the acknowledgement as a State, States can also acknowledge the government of a State.
The acknowledgement of a government by another State means that the acknowledging State
declares that it regards the acknowledged government as the legitimate representative of the State
(22), and therefore that with the acknowledged government official relations can be started (23).
The acknowledgement of a government has, like with the acknowledgement of the existence of a
State, no influence on the objective existence of the government, but is rather a subjective and
relative declaration about this fact (24). By consequence, and also as it is the case upon the
acknowledgement of the existence of a State, the (non) acknowledgement of a government has no
influence whatsoever on the existence of a State or on the existence of a government as such (25).
It should be emphasised that the acknowledgement of the existence of a State (26) or the
acknowledgement of a government (27) by another State has in principle no influence on the
internal procedural status of that first State under the national laws. The state practice, in
particular the one of the Netherlands, teaches that national courts and appeal courts accept the
procedural capacity of States, and therefore their existence as a State, as such in a legal
procedure, notwithstanding the possible (non) acknowledgement of that State and/or

20 See among others P.H. Kooijmans, Internationaal publiekrecht in vogelvlucht (Deventer:

Kluwer, 2000), pp. 21- 22; James Crawford, The Creation of States in International Law’ (2nd Ed.)
(Oxford: Clarendon Press, 2006), pp. 26-27 and ColinWarbrick, ‘States and Recognition in
International Law’, inM.D. Evans (ed.), Intenrational Law (2nd Edition) (Oxford: Oxford University
Press, 2006), pp. 258-259.
21 James Crawford, The Creation of States in International Law’ (2nd Ed.) (Oxford: Clarendon
Press, 2006), p. 22.
22 See Jean d’Aspremont and Eric The Brabandere, ‘Legitimacy of Origin v. Legitimacy of Exercise:
The Complementary Faces of Legitimacy in International Law’, 43 FordhamInternational Law
Journal (2011).
23 Stefan Talmon, Recognition of Governments in International Law: With Particular Reference to
Governments in Exile (Oxford: Clarendon Press, 1998), p. 23.
24 Ibid., p. 30.
25 Cf. Aguilar-Amory and Royal Bank or Canada claims (Great Britain versus Costa Rica) [Tinoco
Arbitration] (18 October 1923), 1 RIAA (1924), 369-399, p. 381:
The non-recognition by other nations or a government claiming to be a national
personality, is usually appropriate evidence that it has not attained the independence and
control entitling it by international law to be classed as such. But when recognition vel non
or a government is by such nations determined by inquiry, not into its the facto sovereignty
and complete governmental control, but into its illegitimacy or irregularity or origin, their
non-recognition loses something or evidential weight on the issue with which those
applying the rules or international law are alone concerned. What is true of the non-
recognition of the United States in its bearing upon the existence of a de facto government
under Tinoco for thirty months is probably in a measure true of the non-recognition by her
Allies in the European War. Such non-recognition for any reason, however, cannot outweigh
the evidence disclosed by this record before me as to de the facto character of Tinoco's
government, according to the standard set by international law.

26 Joe Verhoeven, ‘Relations internationales de droit privé et l'absence de reconnaissance d'un

état, d'un gouvernement ou d'une situation’, Recueil des cours, Volume 192 (1985-III), pp. 191 et
s.
27 Stefan Talmon, Recognition of Governments in International Law: With Particular Reference to
Governments in Exile (Oxford: Clarendon Press, 1998), p. 30.
government by the government of the State where the procedure is before the court (28), in view
of the fact, as stated previously, the acknowledgement of States is a prerogative of the executive
power (29)
Contrary to most Anglo-Saxon States, including the United Kingdom and the United States,
where an acknowledgement of the government is required, the Netherlands Courts, followed
therein by the courts of other States (30), have developed a practice whereby they can
acknowledge an entity as a State, as well as the government that represents this State
legitimately, despite the absence of such an acknowledgement by the Netherlands Government
(31). The Netherlands Courts retains therefore the possibility to verify whether a State under the
national and International Law exists, or continues to exist (32). As stated, the Netherlands Courts
have for instance in the past accepted on more than one occasion that the RMS as a State could
appear before the Netherlands Courts (33). As argued by the Court of Appeal in Amsterdam, as
referred to above, “the non acknowledgement of [the RMS] by the Netherlands Government does
not [require] in itself to exclude that [the RMS] in fact (the facto) should be regarded as an
existing State and the Netherlands Courts […] shall have to decide independently over [the]
existence [of the RMS] as a State in this injunction procedure” (34). It is however important for
procedures under national law that the government (possibly in exile) (see infra (3) (C)) is
regarded as the legitimate government of the State, so that that government in a national
procedure can appear in the name of the State (35). This was seemingly also accepted by the
Netherlands Courts and Appeal Courts in the past regarding the RMS.

3 Occupation, effectivity and the RMS government in exile

The continuation of the RMS as a State is to be discussed mostly in the framework of the effectivity
of the RMS as a government. Effectivity is after all one of the basic criteria for the emergence of a
State and it should be checked what the impact of a possible temporary absence of effectivity is on
the (continuous) existence of the RMS as a State (A). Subsequently

28 Pieter Jan Kuyper, ‘Recognition: Netherlands Theory and State Practice’, in H.F. of Panhuys,W.P.
Heere,
J.W. Josephus Jitta Ko Swan Sik and A.M. Stuyt, International Law in The Netherlands (Vol. I)
(Alphen aan den Rijn : Sijthoff and Noordhoff, 1978), p. 388.
29 Ibid., p. 387.
30 See among others Court of Appeal of Brussels, Estado da India v. SA Kredietbank et
Verbruggen, 1966 II
Pasicrisie 19, and for a comment Revue belge the droit international 3 (1967), pp. pp. 565-566.
31 See Pieter Jan Kuyper, ‘Recognition: Netherlands Theory and State Practice’, in H.F. of
Panhuys,W.P. Heere, J.W. Josephus Jitta Ko Swan Sik and A.M. Stuyt, International Law in The
Netherlands (Vol. I) (Alphen aan den Rijn : Sijthoff and Noordhoff, 1978), p. 387; Joe Verhoeven,
‘Relations internationales de droit privé et l'absence de reconnaissance d'un état, d'un
gouvernement ou d'une situation’, Recueil des cours, Volume 192 (1985-III), pp. 66-67 ; Zaim M.
Nedjati, ‘Acts of Unrecognised Governments’, International and Comparative
Law Quarterly (1981), 30: 388-415 and D. Johnson, ‘Book review: The south Moluccas, Rebellious
Province of Occupied State, by J. C. Bouman and Others. Leyden: A. W. Sythoff. 1960’, 8
Netherlands International Law Review (1961), p. 69.
32 Pieter Jan Kuyper, ‘Recognition: Netherlands Theory and State Practice’, in H.F. of Panhuys,W.P.
Heere,
Josephus Jitta Ko Swan Sik and A.M. Stuyt, International Law in The Netherlands (Vol. I) (Alphen
aan den Rijn : Sijthoff and Noordhoff, 1978), p. 387.

33 See for a discussion Joe Verhoeven, ‘Relations internationales de droit privé et l'absence de
reconnaissance d'un état, d'un gouvernement ou d'une situation’, Recueil des cours, Volume 192
(1985-III), pp. 66-67; ZaimM.
Nedjati, ‘Acts or Unrecognised Governments’, International and Comparative Law Quarterly (1981),
30: 388- 415 and D. Johnson, ‘Book review: The south Moluccas, Rebellious Province or Occupied
State, by J. C. Bouman and Others. Leyden: A. W. Sythoff. 1960’, 8 Netherlands International Law
Review (1961), p. 69. 34 Court of Appeal Amsterdam, N.V. Koninklijke PaketvaartMaatschappij t.
the RepoubliekMaloekoe Selatan, 8 February 1951, Netherlands Jurisprudence 1951, n° 129, p.
245.
35 See Stefan Talmon, Recognition of Governments in International Law: With Particular Reference
to overnments in Exile (Oxford: Clarendon Press, 1998), p. 189-190.
It should be verified what the influence is of the occupation or annexation of the RMS on the
effectivity of the RMS and the continued existence of this as a State (B) and what is the effectivity
of a government in exile (C).

A. Effectivity as a feature of the State and the impact of temporary absence of

effectivity on the (continuous) existence of RMS as a State

As stated sub 1, the effectivity of government, both internally and externally is seen as one of the
basic criteria for the existence of a State under International Law. Again, this memo assumes that
the RMS as a State exists at least after the declaration of independence in 1950. Although States
are not static entities, there exists an assumption that once an entity exists as a State under
International Law, this will continue, notwithstanding disputes regarding the territory, a change in
the population, or yet a temporary (36) absence of the effectivity of a government (37) As argued
by Crawford: ‘... what matters principally is the historical continuity or the community the State
embodies, notwithstanding changes in its population, territory or system or government.(38)
Ziemele also argues: ‘Changes affecting the basic criteria or statehood such as territory, population
and government, separately or together, do not automatically affect the existence of a State unless
territory and/or population disappears.(39)
In other words, permanence is no criterion to evaluate the continuation of a State (40) A
State after all only ceases to exist under the current International Law (41) in two manners (42):

1. a conventional transfer of the territorial title, like transfer, incorporation or merger, by

means of an agreement and often also with permission of the population as an exercise of
the right on self determination, which is not applicable in the case of the RMS, or

2. a non-conventional transfer, like in an armed conflict and the subsequent occupation and
inclusion of the conquered State. This form of acquisition of a territorial title is however,
since the ban on the use of violence, in violation with international law (43) This rule is
furthermore

36 Thus among others so-called ‘failed states’, being States of which the government temporarily
loses the effective authority over territory, do not lose their status of ‘State’ (Daniel Thürer, ‘The
"failed State" and international law’, International Review or the Red Cross, No. 836 (1999), p.
752, online available on http://www.icrc.org/eng/resources/documents/misc/57jq6u.htm).
37 James Crawford, The Creation of States in International Law’ (2nd Ed.) (Oxford: Clarendon
Press, 2006), p. 667.
38 Ibid., p. 669.
39 Ineta Ziemele, ‘States, Extinction of’, in R.Wolfrum (ed.), Max Planck Encyclopedia of Public
International Law (Oxford: Oxford University Press, 2009) (online edition), para. 3.
40 Ian Brownlie, Principles of Public International Law (7th Ed.) (Oxford: Oxford Press, 2008), p.
75.
41What is different from the original acquisition of territory and therefore the emergence of a new
State (see James Crawford, The Creation of States in International Law’ (2nd Ed.) (Oxford:
Clarendon Press, 2006), p.
255 ; Pierre-Marie Dupuy, Droit International Public (5e Ed.) (Paris : Dalloz, 2000), p. 33 and
MalcolmN. Shaw,
International Law (6th Ed.) (Cambridge: Cambridge University Press, 2008), pp. 503 et s.).
42 Pierre-Marie Dupuy, Droit International Public (5e Ed.) (Paris : Dalloz, 2000), pp. 37-38 and
Malcolm N. Shaw, International Law (6th Ed.) (Cambridge: Cambridge University Press, 2008), pp.
208 and 501-502. 43 Ibid., p. 38 ; James Crawford, The Creation of States in International Law’
(2nd Ed.) (Oxford: Clarendon
Press, 2006), p. 131; Ian Brownlie, Principles of Public International Law (7th Ed.) (Oxford: Oxford
Press, 2008), p. 78 and Ineta Ziemele, ‘States, Extinction of’, in R. Wolfrum (ed.), Max Planck
Encyclopedia of Public International Law (Oxford: Oxford University Press, 2009) (online edition),
para. 3.
 generally acknowledged as a rule of jus cogens, from which States therefore cannot deviate
by agreement.

B. Influence of the occupation on the continuation of the RMS as a State

a. Temporarymilitary occupation

Since the introduction of the principal ban on the use of violence in the international relations,
among others recorded in Article 2 (4) of the UN-Charter, the rule applies that States may not
annexate by means of violence (a part of) the territory of other States (44) As a consequence
hereof, the occupation of (a part of the territory of) a State cannot lead to the acquisition of a
legitimate territorial title over that territory (45). The military occupation of a State has therefore
no influence of principle on the continuation of a State. Both the Forth Hague Convention of 1907
and the added Hague Regulation (46), and the Fourth Convention of Geneva regarding the
protection of civilians in war situations and the First Protocol thereto (47), provide that the
occupation of the territory does not lead to the transfer of the sovereignty. These rules are also
rules of international customary law. The Hague Reglement stipulates for instance that the
occupying force should be regarded as “administrator and usufructuary or public buildings, real
estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied
country. It must safeguard the capital or these properties, and administer them in accordance with
the rules or usufruct” (48)
The sovereignty of the occupied land remains in existence. Occupation after an armed conflict has
therefore no influence on the continuity of a State and does not lead to the extinction of the State
(49) Although the government may be in exile, or can just cease to exist because its powers have
been assumed by the occupying force – as was the case in the recent military occupation of Iraq-,
it is generally accepted that the powers of the State – usually exercised by the government– just
continue to exist, so that there is still an instance of a State (50) The powers of the State as well
as the effectivity of the government can be suspended during the occupation, but this does not
bring along a transfer of sovereignty or extinction of the State. This remains to exist till a peaceful
settlement of the conflict and the occupation is in place (51) The principle that the sovereignty of a
State under occupation will continue, but that the exercise of the commensurate powers are
“suspended”, is the logical consequence of the ban on acquisition of territory by the use of
violence.

44 Article 2 (4) Charter of the United Nations.

45 YoramDinstein, The International Law of Belligerent Occupation (Cambridge: Cambridge
University Press, 2009), p. 49.
46 Convention (IV) respecting the Laws and Customs ofWar on Land and its annex: Regulations
concerning the
Laws and Customs ofWar on Land, The Hague (18 October 1907), 187 CTS 227 (1907) [Hereafter
referred to as ‘the Hague Regulations’]. The rules concerning occupation are contained in articles
42-56 of the Hague Regulations or 1907, and in additional Protocol I or 1977
47 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection
of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3.
48 Art. 55 Hague Reglement.
49 James Crawford, The Creation of States in International Law’ (2nd Ed.) (Oxford: Clarendon
Press, 2006), pp. 73 and 688: ‘It is well established that belligerent occupation does not affect the
continuity or the State’.
50 See also Robert Kolb, Ius in bello, le droit international des conflits armés (Brussels: Bruylant,
2003), p. 191 and UK Ministry or Defence, The Manual or the Law of Armed Conflict (Oxford:
Oxford University Press, 2004), n° 11.25, p. 283.
51 James Crawford, The Creation of States in International Law’ (2nd Ed.) (Oxford: Clarendon
Press, 2006), p.
689.
 These rules are confirmed by the recent and less recent practice (52), even in case of
lengthy military occupation. The occupation of Germany after the Second World War has never
resulted in the extinction of the German State, despite the rule for many years by France, the
United Kingdom, the United States and the Soviet-Union (53) Moreover, at the split of Germany
into the FRG and GDR, both the facto or the jure acknowledged in 1973, it was generally accepted
that the FRD was the same State as pre-1945 Germany (54) The recent case of Iraq, that was the
subject of a military intervention, followed by an occupation of several years, also demonstrates
that a military occupation has no influence on the sovereignty or the continuation of a State. After
all never the sovereignty of Iraq, nor the continuation of that State, was put into question (55).
On these rules exist, as stated, two exceptions of principle: the voluntary cessation of the
territory and the so-called ‘debellatio’. The possibility for the conquered State to voluntarily
transfer the territory to the occupying state (56) assumes on the one hand an explicit agreement
between the governments of both States, and on the other hand that the right on self
determination of the population of the conquered State will be respected. The second exception,
‘debellatio,’ means that in case of total victory of a State in case of an armed conflict, the
conquering State can annexate the conquered territory, as a logical consequence of the right of
States to conquer territory via armed action (57) Together with the introduction of the ban to use
violence, it is generally accepted that ‘debellatio’ can no longer lead to acquiring a territorial title as
a consequence of the annexation of a territory by means of the use of violence, and subsequent
occupation and ‘debellatio’ (58) The concept is by consequence often viewed as obsolete (59). As
argued by Heintschel von Heinegg, “[it is] correct to neglect debellatio if it is viewed as a legal title
to territory. No use or force, whether justified or not, may any longer be considered a legitimate
means of acquiring foreign territory or of extinguishing another State. Therefore, even in cases of a
“total” victory, the presumption of the continuing existence of the vanquished State will prevail”
(60) The consequences of ‘debellatio’ are therefore, under the current International Law, relatively
identical to the rules that apply to military occupation (61)
A single author however argues that ‘debellatio’ theoretically may occur if the conquered State
ceases to exist after all after the military intervention or during

52 See Eyal Benvenisti, The International Law of Belligerent Occupation (Princeton / Oxford:
Princeton University Press, 1993).
53 James Crawford, The Creation of States in International Law’ (2nd Ed.) (Oxford: Clarendon
Press, 2006), p. 681.
54 Ibid., p. 683.
55 Eric De Brabandere, Post-conflict Administrations in International Law. International Territorial
Administration, Transitional Authority and Foreign Occupation in Theory and Practice
(Leiden:Martinus Nijhoff Publishers, 2009), p. 82.
56 See YoramDinstein, The International Law of Belligerent Occupation (Cambridge: Cambridge
University Press, 2009), p. 51.
57 Michael N. Schmitt, ‘Debellatio’, in R.Wolfrum (ed.), Max Planck Encyclopedia of Public
International Law
(Oxford: Oxford University Press, 2009) (online edition), para. 1 also available on
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1610012.
58 Ibid., paras. 11 and 16.
59 Ibid., paras. 11 and 16 and Melissa Patterson, ‘Who’s Got the Title? or, The Remnants of
Debellatio in Post- Invasion Iraq’, 47 Harvard International Law Journal (2006), p. 475 et s.
60Wolff Heintschel von Heinegg, ‘The Rule of Law in Conflict and Post-Conflict Situations: Factors
inWar to Peace Transitions’, 27 Harvard Journal of Law and Public Policy (2004), p. 862.
61 Ibid., para. 15.
the occupation (62). This assumes however not only that there is no government (in exile)
anymore (63), but also that the right on self determination of the population of the conquered
State is respected by for instance asking for the agreement of the population (64) It still however
does still concern an unlawful annexation by means of the use of violence, that in principle may not
be acknowledged by any other State (65

b. Military occupation and annexation

In case of a long term military occupation followed by an annexation or ursurpation of the occupied
territory of another State, possibly with the creation of a new government whether or not
independent by the occupying force, the annexated State also does not cease to exist (66) In these
cases prevails after all the principle ex injuria jus non oritur over the principle ex factis jus oritur
that is mostly applicable to the emergence of a new State (67) At the termination of such a long
term occupation or annexation one by consequence does not speak so much about the end of the
occupation, but rather of the ‘restoration’ of the State (68) These situations are governed by the
same aforementioned rules regarding the ban to use violence, together with the ban to annexate
hereby territories, and the rules regarding occupation.
The long term occupation, annexation and incorporation in the state structure of the Soviet Union
of the three Baltic States, Estonia, Latvia and Lithuania, in 1940, has for instance never resulted in
the extinction of those States and in the transfer of the territory of these to the former Soviet
Union (69). Firstly in 1940 it was not regarded that the Baltic States ceased to exist by the
occupation and the incorporation of these into the Soviet Union. Subsequently, at the end of the
occupation in 1991, the three Baltic States were not regarded as new independent States, but it
was generally accepted that these were restored in their sovereignty and effectivity (70). The
relevant treaties about diplomatic relations after 1991 speak therefore about the restoration, rather
than the creation of diplomatic relations (71). One of the reasons of this practice, that was followed
by most

62 YoramDinstein, The International Law of Belligerent Occupation (Cambridge: Cambridge

University Press, 2009), p. 50. See however Michael N. Schmitt, ‘Debellatio’, in R.Wolfrum (ed.),
Max Planck Encyclopedia or Public International Law (Oxford: Oxford University Press, 2009)
(online ethision), para. 17, also available
onhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1610012
63 Ibid., para. 4.
64 YoramDinstein, The International Law of Belligerent Occupation (Cambridge: Cambridge
University Press, 2009), pp. 50 and 51.
65 See among others J. Dugard, Recognition and the United Nations (Cambridge: Grotius, 1987),
pp. 130-131 and D. Turns, ‘The Stimson Doctrine of Non-Recognition: Its Historical Genesis and
Influence on Contemporary International Law’, 2 Chinese Journal of International Law 105 (2003),
p. 107.
66 James Crawford, The Creation of States in International Law’ (2nd Ed.) (Oxford: Clarendon
Press, 2006), p.
689.
67 Ibid., p. 702.
68 Ian Brownlie, Principles of Public International Law (7th Ed.) (Oxford: Oxford Press, 2008), pp.
80-81.
69 See: Ineta Ziemele, State Continuity and Nationality: The Baltic States and Russia,
(Leiden/Boston:Martinus
Nijhoff Publishers, 2005) and Lauri Mälksoo, Illegal Annexation and State Continuity: The Case of
the Incorporation of the Baltic States by the USSR (Leiden – Boston:Martinus Nijhoff Publishers,
2005).
70 Peter Of Elsuwege, ‘State Continuity and its Consequences: The Case of the Baltic States’, 16
Leiden Journal of International Law (2003), 378 and James Crawford, The Creation of States in
International Law’ (2nd Ed.) (Oxford: Clarendon Press, 2006), p. 690.
71 See: Agreement regarding the restoration of the diplomatic relations between the Kingdom of
Belgium and the Republic of Latvia, closed by the exchange of notes signed respectively in Riga
and in Brussels on 5th of September 1991, BS 4 April 1992. See Eric De Brabandere, ‘Succession of
States regarding bilateral (Double Tax) treaties”, 332 Tijdschrift for Fiscaal Recht [België] (2007)
1019-1028.
Western States, was that there was during the occupation a government in exile that, at least the
jure, remained the representative of those States (72).
Another example is the restoration by the allied in 1945 of various States annexated before
the Second World War, including Austria, Czecho-Slovakia and Albania. These States were after all
annexated by means of unlawful use of violence. Upon the termination of the occupation and
annexation these States were viewed as the same States as before the annexation and occupation;
the continuation of those States was therefore not put up for discussion upon the termination of
the occupation and annexation (73).
The post-1940 practice therefore learns that, in case of occupation and annexation by
means of the unlawful use of violence, a State in principle continues to exist (74). The question
remains of course how much time is required before a territorial title –the existence of a State-
extinguishes. In general it is accepted that in International Law no rules exist regarding the time
that would be required to decide upon the extinction of a State (75). Only when there is an explicit
agreement about the extinction of a State, as also is possible in case of occupation,(76) (see supra
A), or when there is a general acceptation of the situation by the international community one can
reach the decision that a State has ceased to exist (77) It is however unclear how this can be
established, in the absence of clear rules and practice in that regard.

C. (Effectivity of) Governments in Exile

The RMS has since 1966 a government in exile that operates from the Netherlands (78). The
International Law contains no comprehensive regulation regarding the existence or the
acknowledgement of governments in exile, mostly because the state practice in this regard is not
uniform (79). Each situation requires therefore a case-by-case analysis. Generally it is argued that
a government in exile can exist from one or more individuals that are residing on the territory of a
third State after they were forced to leave their home country as a consequence of a military
occupation and/or armed conflict (80). The main characteristic of a government in exile is therefore
that it can exercise no effective control over the territory of the State of which it is the government
in exile (81). Exactly for that reason governments in exile form an exception to the requirement
that a government can only be qualified as such if this exercises effective authority over a territory.
The temporary absence of the exercise of effective authority has however no influence on

72 Some diplomatic and consular representatives of the Baltic States in among others the United
States after all preserved: Peter Van Elsuwege, ‘State Continuity and its Consequences: The Case
of the Baltic States’, 16 Leiden Journal of International Law (2003), 377-388.
73 James Crawford, The Creation of States in International Law’ (2nd Ed.) (Oxford: Clarendon
Press, 2006), p. 702.
74 Ibid., p. 704.
75 Ineta Ziemele, ‘States, Extinction of’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public
International Law (Oxford: Oxford University Press, 2009) (online edition), para. 3.
76 Ibid., paras. 3-4.
77 James Crawford, The Creation of States in International Law’ (2nd Ed.) (Oxford: Clarendon
Press, 2006), p. 704 and Ineta Ziemele, ‘States, Extinction of’, in R.Wolfrum (ed.), Max Planck
Encyclopedia of Public International Law (Oxford: Oxford University Press, 2009) (online edition),
paras. 3-4.
78 Stefan Talmon, Recognition of Governments in International Law: With Particular Reference to
Governments
in Exile (Oxford: Clarendon Press, 1998), p. 305 and Noelle Higgins, Regulating the Use of Force in
Wars or National Liberation: the Need for a New Regime. A study of the South Moluccas and Aceh,
(Leiden / Boston: Martinus Nijhoff Publishers, 2010), p. 179.
79 Katrin Tiroch, ‘Governments in Exile’, in R.Wolfrum (ed.), Max Planck Encyclopedia of Public
International Law (Oxford: Oxford University Press, 2009) (online edition), para. 2.
80 Ibid., para. 2.
81 Ibid., para. 2.
the continuation of a State, even when, as explained supra a military occupation
or annexation, or yet an internal conflict, makes the de facto exercise powers impossible.
The existence of a government in exile fortifies the idea that the RMS as a State continue
to exist. That a government in exile has the authority to represent the State, among other before
the courts, is beyond doubt (82). The only question that arises in case of governments in exile is to
which extent the government in exile can be seen as the legitimate representative of the State (see
also supra 2) (83). Hereby plays the acknowledgement of the government in exile as a legitimate
representative of the occupied or annexated State by other States, including the State in which the
government in exile is residing, an important role (84) Acknowledgement is, as previously stated, a
political decision, and this is also the case for the acknowledgement of governments in exile (85).
It must be established that the position of the Host state, where the government in exile is
residing, is here of fundamental importance. The criterion is whether the Host state acknowledges
the government in exile as such, by letting that government for instance exercise certain powers as
a representative of the occupied or annexated State.
The existence of a government in exile also in principle does not depend on the
acknowledgement by other States. The fact that the RMS as a government in exile is not
acknowledged by the general international community as government in exile or as legitimate
representative of the State RMS, does not imply that the RMS as a State does no longer exists,
neither that the RMS government in exile is not the legitimate representative of the RMS. The only
consequence of this lack of international acknowledgement is that the status of government in exile
of the RMS cannot be held against third States (86)

Conclusion

This memo has taken as point of departure that regarding the RMS, various Netherlands Courts
and Appeal Courts in the past explicitly or implicitly have accepted that the RMS is a State under
International Law, since the RMS was granted access by Netherlands courts, on the basis of its
international status as a legal person. That the RMS has enjoyed internationally little
acknowledgement by other States has no influence on the existence of a State, neither on the
continuation of a State. The ‘declaratory theory’ of acknowledgement, that in the current
International Law is followed, after all means that the acknowledgement of a State is solely a
political act that is independent of the existence and continuation of a State under International
Law.
Although States are not static entities, there exists an assumption that once an entity as a
State exists under International Law, this continues to exist, notwithstanding among others a
temporary absence of the effectivity of a government. Although under some circumstances the
effectivity of a government can be curtailed, indeed this does not mean in principle that a State
ceases to exist. Firstly, since the introducing of the principle ban on the use of violence in the
international relations, among others laid down in Article 2 (4) of the UN-Charter, the rule applies
that States may not annexated by means of violence (a part of) the territory of other States.

82 Stefan Talmon, Recognition of Governments in International Law: With Particular Reference to

Governments in Exile (Oxford: Clarendon Press, 1998), p. 116.
83 Ibid., p. 116.
84 Ibid., p. 116.
85 Katrin Tiroch, ‘Governments in Exile’, in R.Wolfrum (ed.), Max Planck Encyclopedia of Public
International Law (Oxford: Oxford University Press, 2009) (online edition), para. 16.
86 James Crawford, The Creation of States in International Law’ (2nd Ed.) (Oxford: Clarendon
Press, 2006), p.
688.
As a consequence hereof, the occupation of (a part of the territory of) a State cannot lead to the
acquisition of a legitimate territorial title over that territory; the sovereignty of the occupied State
after all continues to exist, although the effective authority over the occupied State cannot be
exercised integrally. The occupation of the RMS has therefore in principle no influence on the
continuity of the State and does not lead automatically to the extinction of the RMS as a State.
Secondly, the so-called ‘debellatio’ – nowadays regarded as an obsolete concept in International
Law- leads no longer to the acquisition of a territorial title as a consequence of the annexation of a
territory by means of the use of violence, and subsequent occupation. Even in case of a long term
military occupation followed by an annexation or usurpation of the occupied territory of another
State, the Annexated State does not cease to exist. In these cases after all prevails the principle ex
injuria jus non oritur over the principle ex factis jus oritur, the use of violence cannot lead to the
annexation of the territory of other States. That the RMS government cannot exercise the full
authority over the territory, as a consequence of the occupation of the territory, therefore does not
imply that the RMS as a State ceases to exist. The existence of a government in exile furthermore
fortifies the idea that the RMS as a State continues to exist.