RECOGNITION OF

STATES AND
GOVERNMENTS
See Dugard and Study Guide
Recognition of states
• South Sudan-currently the “newest recognized state”

The newest internationally recognized country in the world is the

African country of South Sudan, which declared independence on July
9, 2011. In the following days, it became also the newest member of
the United Nations. So, how do new countries come into being?
HOW IS A “NEW” STATE CREATED?
FOUR TRADITIONAL REQUIREMENTS-(these are simple and
uncomplicated)
• The 4 requirements for being a recognised state were laid down in the
Montevideo Convention (1933), which provided that a state must
possess (a) a permanent population, (b) a defined territory, ( c) a
government, (d) and the capacity to conduct international relations.
• TAKE NOTE: after democratic elections in an existing state a new
government may be formed. The previous “state” remains as
recognized. HOWEVER: the new government may jeopardize, the
country’s STATEHOOD.
A new state must be recognized by the
international community and the United Nations
• 1. A new state must be implicitly or explicitly, recognised as a newly
established state and as a member of the international community.
• (a) Explicit recognition takes place when the recognising state issues
a statement indicating the newly established state is formally
recognised.
• (b) Implicit recognition takes place when a state enters into an
agreement with a newly established state.(“By implication”)
Matter of interest-STATES NOT
CURRENTLY RECOGNIZED BY THE
UN
• Kosovo.-Eastern Europe
• South Ossetia & Abkhazia.-Eastern Europe
• Nagorno-Karabakh.-Eastern Europe
• Transnistria or the Pridnestrovian Moldavian Republic.-Eastern Europe
• New Russia or the Union of People's Republics.(UKRAINE)
• The Turkish Republic of Northern Cyprus-Mediterranean Sea area.
• The Sahrawi Arab Democratic Republic. (North Africa)
• Taiwan or the Republic of China.-Asia
Recognition
• When new governments come into power: here recognition is only
relevant insofar the new government came to power
unconstitutionally or undemocratically. ( EG. by military coup d’état.)

• NB: Recognition is not a purely legal question, but is influenced by

many factors, and states are often guided by their respective
interests.
Recognition-EXTENDED CRITERIA and
COLLECTIVE RECOGNITION BY THE
UN
• Recent extended criteria for recognition: (a) is the new state truly independent
or a proxy for another state? (b) does the new state provide and protect human
rights, (c) Does the new state provide for democratic self determination.
• COLLECTIVE RECOGNITION
• Art 4 UN Charter
Membership in the United Nations is open to all other peace-loving states which
accept the obligations contained in the Charter and, in the judgment of the
Organization, are able and willing to carry out these obligations.
• The admission of any such state to membership in the United Nations will be
effected by a decision of the General Assembly upon the recommendation of
the Security Council.
Recognition
• Article 5
A Member of the United Nations against which preventive or enforcement
action has been taken by the Security Council may be suspended from the
exercise of the rights and privileges of membership by the General
Assembly upon the recommendation of the Security Council. The exercise
of these rights and privileges may be restored by the Security Council.
• Article 6
A Member of the United Nations which has persistently violated the
Principles contained in the present Charter may be expelled from the
Organization by the General Assembly upon the recommendation of the
Security Council.
Recognition
• THEREFORE :The UN plays an important role in the admission of new
states to the international community by the process of collective
recognition
• FURTHER RELEVANT FACTORS FOR UN RECOGNITION:•The
prohibition of aggression; the prohibition on the acquisition of
territory by means of force; the prohibition of systematic racial
discrimination and the suppression of human rights; and the
prohibition of the denial of self-determination for its citizens.
Recognition
• New governments: A new government can only absolve itself
from previous obligations in terms of international legal principles.
• Problems arise when the change is unconstitutional. The new
revolutionary government may only have uncertain control over its
territory; or it may be unwilling to comply with its obligations.
• Unrecognized States are a common name for State entities that, while
possessing all the signs of statehood (population, control over
territory, system of law and governance, de facto sovereignty), at the
same time do not have full or partial international diplomatic
recognition and thus cannot de jure act as a subject
Withdrawal from treaties
• A state may decide to withdraw from a treaty unilaterally. This is
also referred to as 'denunciation'. Treaties usually stipulate the
requirements to be fulfilled when withdrawing from a treaty. It may
for instance be necessary for the withdrawing state to notify the
other parties within a particular time limit.
Recognition
• As mentioned, when the change is unconstitutional, problems arise.
The new revolutionary government may have uncertain control over
its territory; or it may be unwilling to comply with its international
obligations; or it may be challenged by a rival claimant; or it may be
controlled by a foreign power; or it may have a poor human rights
record; or it may adhere to a different ideology.
• In these circumstances, other states will have to decide whether the
new government really represents the state or whether it is the type
of government with which they wish to do business.
Recognition
• According to Oppenheim: “A government which is in fact in control of the
country and which enjoys the habitual obedience of the bulk of the
population with a reasonable expectancy of permanence, can be said to
represent the state in question and as such to be deserving of recognition.”
• Effects of non recognition: only a state recognised by South Africa will have
locus standi in South African courts, or may plead immunity from the
jurisdiction of a South African court. More complicated is the legal position of
a citizen of a non-recognised state in legal matters before South African
courts. For instance, will the South African courts enforce a divorce decree
given by a court in a country which is not recognised by South Africa? Or, will
the nationalisation decrees of a foreign government not recognised by South
Africa be considered as an “act of state” by South African courts?
The “failed” state
• https://www.icrc.org/en/doc/resources/documents/article/other/57j
q6u.htm
• The "failed State" and international law
• The term “failed” State does not denote a precisely defined and
classifiable situation but serves rather as a broad label for a
phenomenon which can be interpreted in various ways.
The failed state
• Firstly, there is the geographical and territorial aspect, namely the fact
that “failed States” are essentially associated with internal and
endogenous problems.
• Secondly, there is the political aspect, namely the internal collapse of
law and order.
• Thirdly, there is the functional aspect, namely the absence of bodies
capable, on the one hand, of representing the State at the
international level and, on the other, of being influenced by the
outside world.
Failed state
• Failed states create an environment of (a) flourishing corruption and
negative growth rates, high crime rates, ineffective service delivery,
disrespect for the rule of law, (b)where honest economic activity
cannot flourish. The dynamics leading to and compounding state
failure are many and varied, including bureaucratic behaviour by
government.