CHAPTER 5: STATES

A. ELEMENTS OF STATEHOOD
i. Traditionally, States played an exclusive role in the development of international law
o International Legal Persons –entities/ persons capable of possessing int’l rights and duties under IL
and endowed with the capacity to take certain types if action on the int’l plane (i.e. making treaties)
o BUT today, NGOs and other international organizations are gaining increased influence
o Moreover, in a revolutionary step, an increasing amount of international law is becoming concerned
with individuals rather than State or organizations
ii. Traditional Requirements of Statehood: Article 1 of 1993 Montevideo Convention –
o Territory – No min to how large the territory must be; also ok if the state is annexed to a foreign
power; no requirement that territory be connected or contiguous
 It can still meet this requirement if a border is in dispute, as long as some territory is not in
dispute
 Ex. Israel in 1948; U.S. and Canada had a border dispute we only settled ten or twenty years
ago
o A permanent “people” / Population – no minimum population
o Government control over the population – this does not mean that there cant’ be a civil war
going on. But if there is anarchy, there’s no state. Note that no one talks about what kind of
government there has to be.
o Capacity to conduct foreign relations
 New York, for example, cannot conduct foreign relations
 Halberstam: Palestine doesn’t meet the requirements for statehood b/c the Chairman
represents Palestine only (even more pronounced now that Palestine parliament is
controlled by Hamas)
iii. Restatement requirement (§202): A state may not recognize another state that came into existence by
the threat or use of force in violation of the UN charter.
o Problem: there probably isn’t a state in the world that didn’t come into being as a result of
threat/use of force!
 What if it came into being by use of self-defense? Technically, a state coming into being by
use of self-defense is okay. However, then every country would argue it was using self-
defense, and this would lead to instability in int’l system.
iv. Benefits of statehood:
o Sovereignty over its territory (this is required to be a state)  extends beyond its land and internal
waters to the adjacent belt of sea (coastal waters, at most 12 miles in), the air space above it,
and the bed and subsoil beneath it
o Status as a legal person
o Capacity to join with other states to make international law
v. UN Membership
o The purpose of the UN is to get as many members as possible and create a universal organization
o UN Membership is NOT automatic
o Article 4 UN charter: 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.
 Admission is effected by a decision of the G.A. upon the recommendation of the Security
Council
o Some entities that fail to meet the criteria set forth in Article 4 have been recognized in exceptional
circumstances
o During the cold war, the US and soviet union managed to keep lots of states out of the UN through
their Veto power
  The situation was resolved when they allowed 10-15 states to come in at once, some which
were communist and some which were western-type governments
vi. Entities with Special Status
A. The state of the Vatican city and the Holy See - treated as 2 distinct legal persons
B. Palestine
o Palestinian Liberation Org – seeking creation of a Palestinian state since the six day war in
1967
o Resolutions of UN Gen Ass. have accorded observer status to the PLO and the capacity to
participate in Gen Assembly activities that are normally reserved for states.
o Nov 1988: PLO declared Palestine an independent state. Still not admitted to UN as a member
state, but over 100 countries ‘recognize it’ as a state
o Sep 1993 – Yitzhak Rabin said the Gov of Israel will recognize PLO as a rep of the Palestinian
people, when Arafat recognizes the right of state of Israel to exist in peace and security.

B. RECOGNITION OF STATEHOOD
i. Recognition = An authoritative statement issued by competent foreign policy decision-makers in a country,
whereby. the decision-makers signal the willingness of their state to treat with a new state or to accept that
consequences flow from a new situation
o Not an important factor today.
ii. Entities are recognized as “states” when -
o Break up of an existing state into a number of states
o Devolution or secession by part of a territory of an existing state
o Foreign control is exercised over affairs of a state, whether by treaty, unilateral imposition or
delegation of authority
o States merge or form a union
o Claims by constituent units of a union or federation to the attributes of statehood
o Territorial or non-territorial communities which have separate int’l status by virtue of
treaty/customary law
iii. Is recognition a requirement of Statehood? Two views:
o Declaratory – a State becomes a State by declaring itself as such; Recognition by other states is not
a requirement of statehood
 This is the adopted authority – Art 3 of Montevideo
o Constitutive – a State becomes a State ONLY when it is recognized as such by other States (the
other states, by their recognition, constitute or create the new state.)
o § 202 of the Restatement now says that a state may not recognize another state if it violates int’l law
 International law prohibits states from acquiring territory by the use of force.
 Restatement doesn’t say states have to refuse to recognize it; it just says they may not.
 That is, a state that acquires its territory may not be recognized by other states
iv. Prohibitions on recognizing statehood
o A duty NOT to recognize an entity as a new state may be applicable when an entity fails to satisfy
relevant criteria or when it came into existence in violation of fundamental principles of IL
o Ex: in 1965, British colony of Sothern Rhodesia unilaterally declared itself independent under a
white-dominated (apartheid-like) gov. Sec. Council declared that Rhodesia should not be recognized
as a state by an international organization b.c it is controlled by a “minority regime” that violates
the principles of self-determination. (held it Rhodesia’s statehood constituted a “threat to the
peace” b/c other states said they would attack them, even though S. Rhodesia at this point had not
committed a breach of the peace.) It later got independence from UK as Zimbabwe
v. Taiwan – One Country/Two Systems: problem of recognition of governments (not statehood)
o Republic of China (ROC) had authority over both mainland china and Taiwan
o Oct 1949 - Communist revolution  gov of People’s Republic of China (PRC) established on
mainland in Beijing and ROC retreated to Taiwan and continued to assert that it governed all of
China.
 o Taiwan is not recognized as a state, yet has a considerable economic presence internationally
 US recognized the PRC in 1979, yet continue to maintain unofficial relationships with Taiwan
through the 1970 Taiwan Relations Act. Taiwan retains commercial relations with the US
from the Taipei Economic and Cultural Representative Office (TECRO)
 2000: President Shiu-Bian of the Democratic Progressive Party (DPP) was elected in Taiwan
– he pledged not to declare independence unless the mainland attacked Taiwan

C. Principles of Self-Determination of “Peoples”

i. Concept of Self-Determination – one element in state formation concerns the will of the people in a
particular territory to determine whether they should be constituted as a state.
a. In 1945, UN charter embraced self-determination as a “principle.”
i. Art. 1, § 2 : “To develop friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples, and to take other appropriate
measures to strengthen universal peace”
1. UN charter doesn’t provide for a RIGHT to self-determination; it doesn’t include it as
a purpose either.
2. UN Gen Assembly passed numerous resolutions referring to right of self-
determination, but of course, these are not binding.
b. First half century of UN charter – applied to the decolonization of non-self governing territories
c. Treated as a principle of IL in treaty and non-treaty instruments  2 int’l conventions on human
rights
i. Legally binding documents that have been ratified by many states that provide for a right to
self-determination
 Art. 1 of Int’l Covenant and Civil and Political Rights
 Art. 1 of the Covenant of Economic, Social and Cultural Rights
d. “Peoples” are entitled to self-determination 
i. Who are peoples? Language, culture, ethnicity or religion that distinguish a group of
people
 Native Americans
 Curds in turkey/ curds in Iraq
 Chechnyans in Russia
e. Legal consequences of the construction of a wall in the occupied Palestinian territory (ICJ,
2004) – ct found that Israel’s constriction of a barrier enclosing portions of the West Bank with
Israel posed a risk of altering the demographic composition of “occupied Palestinian territory,” by
contributing to the departure of Palestinian pops from certain areas. That construction severely
impedes the exercise by the Palestinians of their right to self-determination, and is therefore a
breach of Israel’s oblig to respect that right.
f. Meaning of the “the right of self-determination of peoples” - (post cold-war, highly contested)

i. Most basic: an independent state

1. If we give all peoples this right, it could cause problems  You could have 1,000’s of
small independent states that are not viable and you would also be dismembering
existing states
2. Limitations on self-determination( Prof. Franck): Resolutions that say right of
self-det cant impair the territorial integrity or political unity of the state
a. Cant impair an existing state – Historically, this right was applied to former
colonies. (Yugoslavia)
ii. A right to join with another existing state and become part of a federation
iii. Free Participation in the political process

ii. Reference Re Secession of Quebec (S.C. of Canada, 1998)

Issue: Is there a right to self-determination under international law that would give the government of
Quebec the right to effect the secession of Quebec from Canada unilaterally?
 Held: No. Quebec people are not oppressed, they are not denied access to gov (they are represented in all
branches of canada’s gov)  they do not have the right under IL to secede unilaterally from Canada. They are
entitled to self-determination, but are not entitled to an independent state.
 Ct’s definition of self-determination - even if you are a ‘peoples’, you are entitled to independence
only if you don’t have internal self determination (i.e. cant vote or participate in the political process
in their country)
 There are propositions on which a IL allows parts of sovereign states the legal right to secede
unilaterally from the parent state:
1. Unilateral secession is not specifically prohibited, and what is not specifically prohibited is
inferentially permitted
2. Implied duty of states to recognize the legitimacy of secession brought about by the exercise
of the well-established IL right of “a people” to self-determination (this right is not a general
principle of IL)
 A “people” may include only a portion of an existing state  the definition is
hazy, but in this context, the “people’s” right to self-determination does not
ground a right to unilateral secession
 Scope of right to self-determination –
o Right to internal self-determination: a people’s pursuit of its political,
economic, social, and cultural development within the framework of an existing
state
o Right to external self-determination: arises only in the most extreme cases 
those under colonial rule or foreign occupation, some believe also applies when
a people is blocked from the meaningful exercise of its right to self-determination
internally, it is entitled to exercise it by secession.

D. RECOGNITION OF GOVERNMENTS –
i. This is NOT the same as recognizing a state. Each time a government changes, you don’t have to re-
recognize the government. A state may have diplomatic relations with an unrecognized government
ii. Issues of Foreign Gov’t Recognition
1. Ex: When a rebel insurgency defeats military forces an existing gov (i.e. when the Soviet Union
began in 1917 by overthrowing the Czar)
2. Ex: When an existing gov is toppled by a military coup, or when an existing gov refused to allow a
democratically elected opposition to assume control.  Foreign govs must decide which entity to
recognize.
iii. What difference does it make to not recognize a government?
1. Countries that don’t recognize them may not make treaties with them
2. If the US doesn’t recognize a foreign gov’t, that gov’t cannot sue in our US courts (i.e. Eastern Germany
wasn’t recognized for a while, so it couldn’t sue here on a business contract) -> Exception: National
Petrochemical co of Iran v M/T Stolt Sheaf
3. To get around the problem, some states developed 2 types of recognition (UK did this as well)
i. A de facto gov that is in fact controlling all or most of the country – de facto recognition means
they are the gov in fact but not legally the gov or should be the gov.
ii. A de jure gov that has a legit claim to governance but is either in exile or controls only a portion of
the country
iv. Recognition and the UN:
1. When there are 2 competing governments in one country, who gets the right to represent the country
in the UN? 2 views:
i. General Assembly view: appoints a Credentials Committee to have each representative of each
state present their credentials at each meeting  i.e. determine on a case-by-case basis, or make
political decisions
ii. Security Council: “The question at issue should be which of these 2 gov’s in fact is in a position
to employ the resources and direct the ppl of the state in fulfillment of the obligations
membership” (i.e. see who is in actual control of the state)
  The UN should accord the gov that is obeyed by the bulk of the population the right to
represent the State in the UN.
2. Conference on Security and Cooperation in Europe (CSCE), Document of the Moscow Meeting
on the Human Dimension (1991): right after the Soviet Union broke up; attempt at a coup; soviet
union insisted on inclusion of Par. 17.2
 Condemns forces that try to obtain power from a representative gov against the will of the
people as expressed in free and fair elections
 Participating states (17.2)“will support vigorously, in accordance with the UN charter, in
case of overthrow or attempted overthrow of a legit elected gov of a participating state by
undemocratic means, the legit organs of that state upholding human rights, democracy, and
the rule of law, recognizing in their common commitment to countering any attempt to curb
these basic values”
 This conference also issued the Helsinki Accords -- > states that the Western world
recognized the Soviet Union’s influence of the various countries in eastern Europe. This was
considered a great coup for soviet union.
 Basket 5: listed various human rights for gov’ts to give to their ppl
 Published this in the Pravda newspaper, and human rights activists started
Xeroxing it – the gov then banned that issue of the Pravda. This was supposedly the
end of the soviet union.
o Today, the int’l community doesn’t refuse to recognize govs just because their non-
democratic (I.e., China’s communist gov)
3. Effective control: measured by the degree to which gov commands the obedience of the people
within the state.
i. Majority of gov’ts rejected the effective control test as the criteria for choosing between rival govts
v. Various Doctrines: (p. 353-54)
1. Tobar Doctrine (1907): States of the Western Hemisphere should deny recognition to govs that come
to power pursuant to non-constitutional means. (in their OWN state)
i. named for Ecuador’s foreign minister
2. Brezhnev Doctrine: denied the legitimacy of any gov that ousted a socialist/communist government
i. Named for Soviet President Leonid Brezhnev
ii. At the time Hungary and Czech had tried to get out from Socialist governments.
3. Reagan Doctrine: favored support for insurgencies seeking to establish democratic gov’t against a
non-democratic regime. The US would use force to protect democratically elected governments.
(direct response to Brezhnev)

vi. Is recognition really necessary?

o Estrada Doctrine = recognition of the government is unnecessary once the state has been recognized.
The concept of recognition is insulting to other governments.
o Many countries have not abandoned the institution of recognition as a political tool
o US has moved to deemphasize the use of recognition in changes of foreign governments.
o In April 1980 UK announced a change in recognition policy – they will no longer afford
recognition to governments. They will recognize all States in accordance with common int’l
doctrine.

vii. Unrecognized Governments

1. Capacity of unrecognized governments to bind the state
i. Tinoco Claims Arbitration ( Great Britain v. Costa Rica, 1923) – William H. Taft
Facts: The Tinoco regime came to power in Costa Rica in 1917 by a coup and maintained control
for 3 years. It was not recognized by US and the UK. When Tinoco fell, the restored Costa Rican
gov nullified all contracts by Tinoco, including an oil concession to a British co.
o UK argued: Tinoco was the only gov in power when the liabilities were created and its acts
could not be repudiated
 o Costa Rica argued: Tinoco was not a recognized gov capable of entering contracts on the
state’s behalf. Also argued UK was estopped fro claiming that the Tinoco gov could confer
rights on British subjects b.c Britain itself did not recognize the gov’t.
Held: there is no estoppel b/c Great Britain, by non-recognition, did not dispute the de facto
existence of the Tinoco regime and b/c the successor gov’t had not been led by British non-
recognition to change its position.
2. Unrecognized Governments in Municipal law
i. Salimoff & Co v. Standard Oil of NY (Ct of App. Of NY 1933)
Facts: Salimoff (P) was the equitable owner of oil property that had been seized by a
nationalization decree and confiscated by the Soviet gov in Russia. When the soviet gov sold oil
extracted from that property to Standard Oil (D), Salimoff sought an accounting, alleging that the
confiscatory decrees by the unrecognized Soviet gov had no legal effect. The complaint was
dismissed and P appealed.
Rule: when no right of action is created at the place of wrong, no recovery in tort can be had
in any other state
 The US gov recognizes that the Soviet gov has functioned as a de facto gov since 1917,
riling within its borders. The courts cannot refuse to recognize a de facto gov merely
because the State dept has not recognized the Soviet gov as a de jure gov. Affirmed.
Note: Salimoff claimed that the Soviet gov was nothing more than a band of robbers and had no
legitimacy. The court asked the rhetorical Q whether Soviet Russia was a band of robbers or a
gov. Ct said “everyone knows it is a gov.”
ii. National Petrochemical co of Iran v M/T Stolt Sheaf (2d cir 1988)
Proc: a corp wholly owned by Iran sued as a plaintiff in a US fed court. District court dismissed
the claim on the ground that the US had never recognized the gov of the Islamic Republic of Iran
and that an entity owned by an unrecognized gov cannot bring suit in US courts. On appeal, US
gov urged the P be granted access to court.
Held: The absence of formal recognition does not necessarily result in a foreign gov being barred
from access to the US courts. Reversed the district court.
o 2 reasons for the holding:
o The practice of extending formal recognition to new gov’ts has altered  its no longer
always clear whether the US recognizes the foreign gov’t or not
o Since recognition is within the control of the state dept, and here they filed an amicus
brief asking to allow them to sue, the court allows them to sue
 The exec branch must have broad unfettered discretion in matters involving
sensitive, fast-changing foreign relationships.
E. Acquisition of Territory
i. Whether a state has title to territory, based on one of the following:
1. Title By Discovering Or Occupying Terra Nullius – how European countries acquired territory that
was unclaimed by any other sovereign recognized by European powers
2. Title By Military Conquest
 Before IL prohibited the use of force in int’l relations in Article 2(4), territorial changes often came
about through conquest.
o US has a lot of territory by conquest –After invading Mexico and occupying Mexico City in
the Mexican-American war in 1846-48, the US secured the territory that became AZ, CA, NV,
UT, CO.
 What is the basis of position that a state cannot acquire territory by the use of force?
o Declaration on Principles of IL Concerning Friendly Relations and Cooperation among
States in Accordance with The UN Charter (1970): every state must refrain from the
threat or use of force against the territory or political independence of another state. To do
is a violation of IL.
 Territory obtained from use of force is null and void b/c you cannot benefit from
your own illegal act
o Ex 1: Suppose state A attacks state B. State B defends itself and manages to get some
 territory from state A. is that acquisition illegal? (there is a split on this question)
 Counterargument: Art. 51 allows you to use force under the charter if youre acting in
self-defense. Since this is not an illegal act, then you should be able to keep the land.
o Ex 2: Security council’s resolution concerning Iraq’s attempted annexation of Kuwait
(1990): UN condemned Iraq’s invasion and occupation of Kuwait and demanded they
withdraw their forces. Decided the annexation of Kuwait has no legal validity.
 Since Kuwait took land legally (in self defense against Iraq) should they be able to
keep it?
 Argument of those who say “you cannot keep the territory” Iraq-kuwait example is
one of the few where its clear who the aggressor was. In many situations, both sides
argue they were acting in self-defense.
 Policy argument for why a victim state should be able to keep the territory  deter
countries from being aggressive/attacking others
 Counter: in most conflicts, most states would name the other as the aggressor, which
would undermine 2(4)
o Ex 3: 1967 War – Documentation that Egypt was the aggressor. Asked Jordan to join it in
the attack on Israel. Israel sent a note to Jordan telling them not to join Egypt and they will
not attack you. Jordan rejected that note. They had the war and Israel acquired territory.
 Israel argued since they were attacked and acted in self defense, they have a right to
the territory.
 Security Council Resolution 242 – Affirms that the fulfillment of Charter principles
requires the establishment of a just and lasting peace in the Middle East which
should include the application of both the following principles:
(i) Withdrawal of Israel armed forces from territories occupied in the recent
conflict
o does not require Israel to withdraw from all the territories. They felt
that should be the subject of negotiation  that’s why all Arab states
opposed this resolution.
(ii) Termination of all claims or states of belligerency and respect for and
acknowledgment of the sovereignty, territorial integrity and political
independence of every state in the area and their right to live in peace within
secure and recognized boundaries free from threats or acts of force
o If Israel is illegally holding the territories, then building settlements
would be illegal – if they are mandated territories, then both Israelis
and Arabs have the right to have settlements there
3. Title By Treaty Of Cessation
 A state can prove that it lawfully received it from a prior sovereign, either by purchase or as a
concession in exchange for some other benefit.
4. Title By State Succession
 A state can demonstrate that it ‘succeeded’ to the territory when the predecessor state dissolved or
disappeared, or when a new state broke way from an existing state.
5. Title Based On Longstanding Effective And Peaceful Possession (Prescription)
 One state obtains title to a certain territory and a second state then enters into the territory and
effectively and peacefully administers it got an extended period of time.