6. state, government, recognition According to the Montevideo convention on the Rights and Duties of State 1933 Article 1 States: The state as a person of international law should possess the following qualification. permanent population Defined territory Effective government Capacity to enter into relations with other states

6.1 Defined territory: Importance of state is the control of territory. Thus it establishaes the exclusive competence to take legal and factual measures within the territory and prohibiting foreign governments from exercising authority in the same area without consent. It is important to note that the concept of territory is defined by geographical areas seperated by borderlines area. It includes the airspace above above the land although there is a question as to the limit, the earth it, and the 12 miles of territorial sea adjcent to coast.

6.2 Population Permanent population is the criterion for consideration of statehood. Where the population is nomadic.e.g the Antarctica cannot be regarded as a state. There is the question of size of the population constitutes a state. For example the Vatican city in spite of small population it entertains diplomatic relations with many states, has concluded international agreements and joined international org but not UN member. However may state functions are performed by Italy.

6.3 Another question is who belongs to the permanent population of a state. Most states have multilateral composition defined by, ethnic, linguistic, historical, religion.

6.4 Effective government control. This is in two respects internal and external. Internally – the capacity to establish and maintain a legal order. Externally-the ability to act autonomously on the internationally dependent states. 1920 Finland was regarded as a state and was unable to perform functions wit6hout assistance of foreign troops.

6.5 State of Palestine 1988- Palestinian org was not a state due to lack of effective control over the claimed territory. However, it does not necessary mean that the failure of effective government as a result of civil war or other upheaval will suffice to say there is no state e.g Somalia or the occupation of European countries by Germany WW1.

6.6 Capacity to enter into relations with other state. Though contested as constitutive criterion. But Restatement of the American law institute notes that this quite important although there should be qualifications. An entity is not a state unless it has competence within its own constitutional system, to conduct international relations with other states, as well as the political and financial capabilities to do so.

6.7 The Montevideo convention suggests a different perspective in Article 3. “political existence of the state is independent of the recognition by other state. Even before recognition of the state has the right to defend its independence, to provide for its conservation and prosperity, and consequently to organise itself as it sees fit, to legislate upon its interest administer it services and to define the jurisdiction and competence of courts”

6.8 However, other authors would like to agree on additional factors on criteria for states such as self determination and recognition, but these are not generally regarded as constitutive elements for state. Normally recognition is evidence that the criterion has been met to some extent and it remains in most cases that recognition will not make any difference but only in borderline cases

6.9 For example recognition is important fo0r small states like Monaco and the Vatican city as it might be doubted whether the territory and population in such states were large enough to make a state in the face of international law.

6.10 Governments: A state cannot exist for long or at least cannot come into existence unless it has a government. However, a state need not to be confused/or be identified by government, the state’s international rights and obligations are affected by change of government.

6.11 In Tinoco Case RIAA 369. The new government of Costa Rica which replaced dictator Tinoco who had been acting in the name of Costa Rican had granted concession to British companies had invalidated bank notes. The Arbitrator held that Tinoco was in effective control of Costa Rica and that his acts were therefore binding to subsequent government and the fact his regime was unconstitutional under Costa Rican law and that it has not been recognised by several states including UK was irrelevant

6.12 Also post war governments in western Germany and Italy have paid compensation for the wrongs inflicted by Nazi and Fascist Regimes.

6.13 Recognition: means willingness to deal with a new state as a member of international community. Issues of recognition are difficult to comprehend in IL because there is a mixture of politics, international law and municipal law. The legal and political elements cannot be disentangled and when state grant or withhold recognition there are influenced more by political rather than legal considerations but the acts have a legal consequence.

6.14 Another issue that makes the subject contentious is that it deals with a variety of factual situations, territorial claims, belligerents/insurgents, national liberation movements., Foreign legislature and administrative acts. When a new state comes into being other states are confronted with the problem of deciding whether or not to recognise the new state.

6.15 According to the constitutive theory a state or government does not exist for the purpose of International law until it is recognized, thus recognition have a constitutive effect. Hence an entity is not a state in International LAW UNTILL IT IS RECOGNICED. This is opposed to declaratory theory were recognition does not have any effect, the existence of a state or a government in question is of pure fact and recognition is merely an acknowledgement of fact.

6.16 In our days recognition can sometimes have a constitutive effect although state practice is not always consistent. If the breach of International LAW IS COMMITED BY THE ESTABLISHMENT OF THE STAE OR GOVERNMANT THERE IS NO LEGAL EXISTAENCE UNTILL IT IS RECOGNISED.

6.17 It has been observed that the two theories are of little assistance in explaining the recognition or determining the position of non recognised entities in practice. Under declaratory theory, it is still a fact left to other states to decide whether an entity satisfies criteria of statehood. The declaratory theory leaves unresolved the difficult of who ultimately determines whether an entity meets the objective test of statehood as a state.

6.18 Recognition of another state does not lead to any obligation to establish full diplomatic relations or any other specific links with other state. This remains a matter of political discretion. Nor does the termination of diplomatic relations led to de-recognition.

6.19 Recognition of Government- allows a state to exercise great discretion when granting or withholding recognition especially when a new government comes into power in an existing state by violent means. Recognition is given to the head of state there is no problem of recognition if a revolution does no affect the head of state e.g a revolution in Greece 1967 overthrow the prime minister not a king.

6.20 A refusal to recognise is based on the belief that the new state or government is not in effective control of the territory.