LAW 510

PROF MADYA ROHANI BINTI MD SHAH

FACULTY OF LAW

RECOGNITION OF STATE

LECTURE OUTLINE
1. Introduction
We have already briefly touched on the idea that states are at the centre of
international law. We must now turn to look more specifically at states: creation,
continuity, governments, and self-determination.
2. Acquisition of Statehood
 Traditionally, the Montevideo Convention on the Rights and Duties of States,
1933 is taken as laying down the distinctive criteria for according statehood to an
entity.
 See Dugard's discussion of these traditional criteria at pp 81 -90.
 These traditional criteria are not enough, however. As we shall see, political
factors and human rights now play a role in the creation and recognition of
states. Statehood is no longer seen simply as a fact. States do not exist simply
because the traditional criteria have been met.
 Specific legal obstacles exist to the attainment of statehood in modern
international law. By this is meant that a state will have to comply with certain
additional criteria before it will be recognised as a state by the international
community.
a) The entity will not acquire statehood where such status would violate a
specific mandatory decision of the Security Council
o For example, Rhodesia in 1965 declared its independence unilaterally.
However, the Security Council in Resolution 216 of 1965 stated that
Rhodesia's declaration was illegal, and members of the UN were mandated
not to recognise the new state of Rhodesia.
b) The entity will not acquire statehood where such status was acquired in
violation of the principle of the non-use of force under art 2(4) of the UN Charter
o For example, where a state is invaded by force and incorporated into the
territory of the invading state, the conquered state continues to exist in its old
form. For instance, Kuwait was invaded and absorbed into Iraq in 1991.
Kuwait retained its old status, and was not recognised as a new state under
Iraqi control. Likewise, where a new entity is created by the invading state, it
will not be accorded the status of a new state. In 1974 Turkey invaded
Northern Cyprus and attempted to set it up as a new state. It was not
recognised as such.
c) The entity will not acquire statehood where such status has emerged through a
policy of racism

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 o See Dugard's discussion of the TBVC states in the 2nd edition of his book at
pp 76 – 77
d) The entity will not acquire statehood where such status would violate the
principle of self-determination of peoples
o We will be focussing on various areas in the world where self-determination
has been relevant. In particular we will discuss the following:
The Western Sahara situation
See the Western Sahara Advisory Opinion ( Harris 115)
The Palestine situation
See Harris 225-226.
The Quebec situation
The Yugoslavia Crisis
See M Weller 'The International Response to the dissolution of the Socialist
Federal Republic of Yugoslavia' (1992) 86 AJIL 569; also see Harris Chapter 4
for extracts from the Badinter report.
3. Modes of According Recognition
There are two different theories as to the legal effect of recognition:
3.1 The Constitutive Theory
 The act of recognition alone bestows statehood (giving a new government
legal personality on the international plane (i.e. determines legal personality).
 Recognition is an additional requirement for statehood.
3.2 The Declaratory (or Evidentiary) Theory
 Statehood exists prior to and independent of recognition (the act of
recognition is simply a formal acknowledgement of an established factual
situation)
 Recognition has no separate legal effect.
 The declaratory theory is supported by most modern jurists
 Tinoco Arbitration (Great Britain v Costa Rica) suggests that recognition is
simply evidence that the relevant international law requirements have been
fulfilled.
 Moreover in practice states do in fact institute international legal claims
against unrecognized states or governments (e.g. in 1957 Britain claimed
compensation from the Taiwan Government which it did not recognize)
 States have considerable discretion when granting or withholding recognition
(practice reveals no duty to recognize other states)
 Recognition is normally an express act, but may, in some circumstances, be
implied from conduct
o The formal signing of a bilateral treaty between the recognized state and the
recognizing state
o The formal establishment of diplomatic relations between the recognized and
recognizing state;
o The issue of a consular exequatur by the admitting state for a consul of an
unrecognized state.

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 Admission to the UN is tantamount to recognition of the Member admitted as a
state since statehood is a requirement for admission to the UN
o Advisory opinion of the ICJ on Conditions of Membership in the United Nations
(1948) ICJ Rep
 International law requires recognizing states when they are exercising their
discretion of recognition, to acknowledge the claims of the de jure government
 Assistance to de facto government to resist the claims of de jure governments
would amount to intervention
4. The Effects of Recognition in Municipal Law
4.1 United Kingdom
 Under United Kingdom municipal law, recognition is constitutive
 Only a recognized state or government has locus standi in the UK courts
o City of Berne v Bank of England (1804) 32 ER 636.
 Only a recognized state or government (or its agents), may plead immunity from
suit. It cannot be sued without its consent.
o Luther v Sagor [1921] 3 KB 532 (CA),
o Arantzazu Mendi Case [1939] AC 256 (HL).
 Only the legislative, executive or judicial acts of a recognized state or
government will be given legal effect within the United Kingdom (although note
that the rule in Luther v Sager, has been softened through innovative
interpretations of the Executive Certificate)
o Luther v Sagor;
o Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] AC 855.
 Recognition once granted is retroactive
o Luther v Sagor [1921] 3 KB 532 (CA)
 Because recognition is a political act, it falls within the prerogative of the
executive
 An executive certificate from the foreign office is conclusive proof of recognition.
 The general doctrine adhered to by the UK is that it will accord recognition upon
evidence of effective control. However, there have been instances where
governments, which are in effective control of their countries, have not been
recognized.

SOURCE MATERIALS
 Shaw, M International Law 5th Edition (2002) Cambridge University Press,
Chapter 8
 Dugard, J International Law 3rd Edition (2005) Juta & Co Ltd, Chapter 5-7.
 Dugard, J International Law 2nd Edition (2000) Juta & Co Ltd, pp76-77.
 Harris, DJ Cases & Materials on International Law 5th Edition (1998) Sweet
& Maxwell, pp144-190.
 M Weller 'The International Response to the dissolution of the Socialist
Federal Republic of Yugoslavia' (1992) 86 AJIL 569

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  Sanders, ‘The Courts & Recognition of Foreign States & Govts’ (1975) 92
SALJ 165

CASES
 Western Sahara Advisory Opinion ICJ Rep 1975, p 12, (Harris 115)
 Tinoco Arbitration (Great Britain v Costa Rica) 1923 1 RIAA (Harris
p160)
Advisory opinion of the ICJ on Conditions of Membership in the United Nations
(1948) ICJ Rep

OUTCOMES
Acquisition of Statehood
 Describe & Explain the traditions criteria for according statehood
Analyse (with reference to factual situations) the specific legal obstacles
which exist to the attainment of statehood in modern international law

Modes of According Recognition

 Compare and contrast the two different theories as to the legal effect of
recognition
 Describe instances where recognition might be implied from a states conduct
 Explain the difference between de fact and de jure governments
The Effects of Recognition in Municipal Law
United Kingdom
 Discuss the effect of recognition under United Kingdom municipal law (cite case
authority in your analysis)
 Explain how one goes about determining whether the UK has recognized a
particular state
MALAYSIA
 Discuss the effect of recognition under Malaysia municipal law (cite case
authority in your analysis)
 What effect flows from Malaysia failure to recognize a particular state?