Cag University Faculty of Economics and Administrative Sciences, International Relations

Introduction to International Law II I Recognition of States & Governments Instructor: Ast. Prof. Sami Doğru

Objectives Because of the introductory nature of this course, this presentation will only give a very general overview of basic terminology regarding recognition. We will not go into much detail. Recognition – Only in General Belligerent Communities & Insurgents State Succession (Universal & Partial)

Recognition – Only the Basics

The creation of states in international law International legal personality is highly valued of the achievment of statehood. How does a political entity become a state? Article 1, Montevideo Convention on the Rights and Duties of States (1933)

States Recognition we are looking for 4 fundamental requirements. Permanent Population Defined territory. Stable government Capacity to enter into relations with other states Recognition

How the Montevideo criteria work There is a link between legal independence and the government’s ability to control its; - Population and Territory. This issue cuts across the Montevideo criteria because it concerns the effectiveness of the government of the «aspirant State».

How the Montevideo criteria work The requirement of independence in the creation of new States presupposes that a government controls the population and territory of the aspirant State effectively. However, a lesser degree of effectivness will be tolerated by international law in certain situations The exercise of the right to self-determination for colonised peoples This right may remedy particular difficulties that an aspirant State would have had in satisfying the Montevideo criteria.

Recognition – Only the Basics Recognition: “the acknowledgment of the existence of a new state, or of a new government in an existing foreign state . . . coupled with an expression of willingness by the recognizing state to enter into relations with the recognized entity or government.” (pg. 145) In other words, recognition is when an existing state is willing to acknowledge that a new state exists and is willing to have relations with it.

Recognition – Only the Basics There are two competing theories on recognition: 1. The declaratory (açıklayıcı) theory: Recognition is no more than a formal acceptance of the existing facts. 2. The constitutive (kurucu) theory: Recognition is the act of recognition that creates the new state as an international legal person.

Recognition – Only the Basics The current approach Modern international law favours a modified declaratory theory of recognition. It appreciates that established States do exert a degree of influence when political entities are seeking to become States, if those aspirant States have difficulty in satisfying Montevideo criteria. This will be especially important in cases of secession and State dissolution. Consequently, recognition performs an evidential function in borderline cases.

Recognition – Only the Basics But unless an entity is accorded recognition as a state by a sufficiently large number of states, it cannot realistically claim to be a state with all the corresponding rights and obligations. For many years some states refused, for purely political reasons to do with the Cold War, to recognise either North or South Korea, North or South Vietnam or East or West Germany, although all satisfied the criteria for statehood. Their admission to the United Nations was therefore blocked.

Recognition – Only the Basics Recognition of states in international law States may choose to recognise a claim of statehood made by political entity. Recognition is one of the ways by which States address the issue of the creation of States in international law. International law lacks a centralised authority that has the power to determine whether a State has satisfied the test of statehood. One view is that States either grant or withold recognition of putative State on their own behalf and on behalf of international community.

Recognition – Only the Basics The purpose of recognition The purpose of recognition is to endow the new entity with capacity vis-a-vis the recognising State, to be a bearer of rights and duties under international law and participate in international relations on the footing of international law.

Recognition – Only the Basics Non-recognition: supervening illegality International law will not endorse claims of statehood that are made by political entities –even where they are effective- where this would result in the violation of peremptory norm (e.g.: - The right to self determination; - the prohibition on the use of force; - or the prohibition on racial discrimination).

Recognition – Only the Basics Recognition also involves legal consequences. “Granting recognition indicates the willingness of the recognizing state to accept the legal consequences of its act. . .” (pg. 145) This means that “recognition is a political act with legal consequences”. (pg. 145)

Recognition – Only the Basics Important Points about Recognition “Granting recognition is . . . a right of each existing individual state.” (pg 146) In other words, it is up to each state to decide whether or not it will recognize a new state.

Recognition – Only the Basics Important Points about Recognition Express vs. Implied Recognition Express – When a state formally recognizes the existence of a new state or government Implied(tacit)(zımni)– “[Occurs] when a government engages in an act, or establishes a contact or interaction, inconsistent with non-recognition.” (e.g.: - Sign a treaty without reservation - Establish diplomatic relations)

Recognition – Only the Basics Important Points about Recognition Recognition means “the recognizing government acknowledges the stability of the new government as well as its willingness to honor its obligations.” (pg. 163)

Recognition – Only the Basics Important Points about Recognition “the actual date on which a state grants recognition may not be the effective date of recognition. In other words, “a state may make recognition of either a state or a government retroactive to some past date, representing a judgment concerning effective control.” (pg. 163)

Recognition – Only the Basics Important Points about Recognition “The government of the new state now has the right to establish formal diplomatic relations under the rules of international law with other states that have granted recognition and enjoy the benefits of formal channels of diplomatic intercourse.” (pg 163)

Recognition – Only the Basics Important Points about Recognition “Recognition does not mean that a state must set up a diplomatic mission in the recognizing state.” “…breaking diplomatic ties as a form of protest does not mean withdrawal of recognition.”(pg. 163)

Recognition – Only the Basics Important Points about Recognition “Recognition permits a new government (or the government of a new state) access to the courts of the recognizing state.” (pg. 163) “changes in the form of a government or in its personnel do not affect the continuing existence of the state involved.” (pg. 161)

Recognition – Only the Basics Important Points about Recognition Regarding Unrecognized States “A non-recognized government does not have a right of access to the courts of states that have withheld recognition. Because it lacks international legal personality, an unrecognized government cannot initiate a suit in the courts of a country that has denied recognition.” (pg. 170)

Recognition – Only the Basics Important Points about Recognition Regarding Unrecognized States Regarding this last point, in practice, some exceptions have been made when there has been a fear of gross inequity involved. So, in other words, if a severe inequity would occur in a particular situation, then an exception might be made in this area.

Recognition – Only the Basics Recognition can remedy weaknesses in a claim to statehood. The right of self-determination may strengthen a claim to statehood. States may endorse such a claim by deciding to recognise the political entity.

Does the entity statisfy the Montevidoe cirteria? Test for statehood Does the entity statisfy the Montevidoe cirteria? Yes No Would creation of new state violate a premptory norm? Does right of self-determination apply? Yes No Yes No Does government exercise a degree of control? Entity cannot a state States under duty of non-recognation Yes No Entity entitled to become a state Entity cannot become a state

Statehood and UN membership UN memerbership creates a presumption in favour of statehood. It may confirm that an «aspirant State» has been accepted as a State by the international community of States. However, UN memebership is not constitutive of statehood. States have existed without being UN members (e.g. Switzerland did not become a full UN member until 2002

Statehood and UN membership Article 4, UN Charter (1945) (1) Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. (2) 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.

Palestine The State of Palestine, also known simply as Palestine, is a partially recognized state in the Middle East. Its independence was declared on 15 November 1988 by the Palestine Liberation Organization (PLO) in Algiers as a government-in-exile. The State of Palestine claims the West Bank and Gaza Strip, with eastern Jerusalem as the designated capital, while actually exercising partial control of those areas assumed in 1994 via the Palestinian Authority.

Palestine Most of the areas claimed by the State of Palestine have been occupied by Israel since 1967 in the aftermath of the Six-Day War. The Palestinian Authority applied for United Nations (UN) membership in 2011 and in 2012 was granted a non-member observer state status.

Palestine Many States have shown their willingness to recognise the existence of a Palastinian State even though the Palestinian authorities do not currently control the «population» and «territory» in question. It is widely acknowledged the Palestinian «people» possess the right of self-detemination in international law.

Recognition EC guidelines on the Recognition of New States in Eastern Europe and USSR (1991) Facts The EC adopted a common recognition policy regarding the former Soviet republics that wished to accede to statehood. The Gidelines were also applied to the former Yugoslav republics on the dissolution of Yugoslavia.

Recognition EC guidelines on the Recognition of New States in Eastern Europe and USSR (1991) Legal principle The Guidelines indicated that the fallowing requirement must be satisfied for recognition to be accorded to new State: - Respect for the rule of law, democracy and human rights; - Acceptance of disarmament/nuclear proliferation commitments; - Guarantees for ethnic minorities; - Accaptance of the peaceful resolution of disputes; - Commitment to renounce territorial claims against neighbouring States.

Relationship between statehood and recognition Recognition is not a criterion for statehood. However, the EC Guidelines apear to have added to the Montevideo criteria for the creation of new States. This has led some international lawyers to argue that new States must be democratic and observe human rights. Nevertheless, in practice, the additional criteria have not been treated as if they are binding as a matter of international law. Instead they illustrate the political nature of the act of regocnition.

Relationship between statehood and recognition It is importent to draw a distinction between the creation of a new State and the willigness of established States to recognise a new State. Recognition only confirms that a political entity has become a State. However, it is significant when that entity has difficulty in satisfying the Montevideo criteria (e.g. The people of a particular region are trying to secede from a State with the aim of creating a new State pursuant to right of self-determination)

Key Case Manchukuo (1931-1933) Concerning: the purpose of non-recognation Facts Japan invaded and annexed the northern Chinese province of Manchuria in 1931. It claimed to have established the new state of Manchukuo. Legal principle Before the UN Charter there is another treaty forbid the use of force: The Kellogg-Briand Pact (1928)

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