ELEMENTS OF INTERNATIONAL AND EU LAW - LECTURE 2 – 22/09/2020

What do we mean when IL is defined as a system of “Horizontal structure”?

All the institutions are equal, but there seems to be something more to be said. There’s not a particular
legislator aimed at interpreting. All individual are equals. There is no one supreme structure.
When we analyse any legal system, group of rules applicable to a given group of individuals. We should
look at three functions:
 Law creation
 Adjudication
 Enforcement
LAW CREATIONProcedure to create legal rules
 Positivist approach: we recognise and call a rule legal, created according to a given procedure
(prevailing approach in today’s society)
 Natural Law approach: you recognise a law because it’s rational, just, right and proper, according to
the will of god, in line with which nature is.

ADJUDICATIONThere has to be a way to ascertain whether rules are applicable and what the result of
application is. There has to be a judge, entrusted with the task to find the applicable rules and what they say
according to the final situation. You need to know what happens when rules are applied.

ENFORCEMENTPassage where laws are enforced (it has the word force in it, related to force, you need
it to make sure that the law is respected). You need the executive power to enforce the law. The idea of using
force might be dangerous, the regulated use of force is tricky (German name GewaltRegulated or
unregulated force).
Legal experience or legal world closer to your life, but if we applied these categories to IL, the result might
be different. When it comes to law creation, we don’t have a legislator in the International system, as it
happens in single states. Under IL, there’s no world parliament, not even (UN General Assembly, acts
adopted are almost non-binding).
There are a number of International Courts (ECHR, ICC, AfCHR, ACHR, ITLOS), some of them are
specialised, but in any case their jurisdiction is not binding on states, they can only adopt binding decisions if
their state accept their jurisdiction. Some of them decide upon cases dealing with different jurisdiction. The
fact remains that in all of this cases, jurisdiction is based on consent. In any form, if the state doesn’t accept
jurisdiction, there’s no decision by the court. Always based on consent. ILWe have a jurisdiction, but it’s
based on consent. That doesn’t happen under state law (if people are brought in front of a judge, they’re
bound to go there)
What happens under state law when it’s breached?Punishment (if dealing with a criminal offence),
sanctions or responsibilitiesIf you don’t pay, the fact remains that your responsibility can be enforced,
perhaps it might be a criminal offence, perhaps it’s not, you can be enforced, this is the legal system. What
happens if a state refuses to pay? Ex. if state A has a drilling installation and the oil is pollution the sea and
flow towards the coast of another state, State B would like to bring state A to the ICJ.
What would happen if state A wouldn’t pay? Self-helpCountermeasures or reprisals shall be adopted, if
there’s nothing state can do to make you comply on your obligations, so we suspend a treaty we have and it
has to be proportionate and not to breach HR or law of armed conflict, it doesn’t have to be in the same
sector of IL, I react by breaching another sector of IL but it has been made in reaction to a previous breach,
and it is proportionate. This is the way that obligations are enforced under IL, really different from the level
of the state. Huge debate on the effectiveness of IL, different from the usual scenario when we think of a
legal system.
ICC based on a treaty binding on the parties and states ratifying treaties, huge controversy.
Who are the entities to which are subjects of International Law applied?
Whether the fact of consent is also based on ICC?
ICCCreated in 2002, Statute entered into force in 2003, statute is a treaty regulating life, functioning of the
court. Being a treaty, there’s a general rule of IL, which is pacta tertii neque nocent nec prosunt (pacts are
only applicable to the parties). We don’t have any obligations in this kind. Pacts are only binding on the
parties.
Jurisdiction of the court is limited and based on two elements, crimes must have been committed on the
territory of a state party or the crime is within the jurisdictionWhether the crime has been committed on a
territory of a state party, Whether the state has committed a crime or Whether the crime has been committed
by an individual having the nationality of a state party. The problem is:
What if the national of a state party commits the crime on a territory of a state which is not a party,
notwithstanding the fact that a state is not a party?
What if an individual having the nationality of a state which is not a party commits the crime on the territory
of a state party? What if an individual is a member of a special force of the US?
What if a crime is committed in a country which is a party? The court has jurisdiction and the state has the
obligation to collaborate with the court, and to give the court to an individual. The national of a state non-
party is then under the jurisdiction of a court, the founding treaty of which state has not been ratified.
Non-state actorNot under the jurisdiction of the court. Court doesn’t have influence entities and
corporations, but only individuals. Practically, The CEO of a corporation can commit a crime, but not the
corporation itself. Why are there competing case
Rockollif a state lays claims on the tiny rock, a state has the rights on the water around it. Since Rockoll
doesn’t sustain Human Living, the state controlling Rockoll is only entitled only territorial water of 12 miles.
OkinotorishimaIf it can be called an island and sustain human living, you have 200 nautical miles,
exclusive rights of exploitation of resources around its nothingness at sea, if you show that there can be
human living, therefore there is an argument to take control on Okinotorishima. How effecting IL can be in
shaping state behaviour. What’s the use of claiming a rock? The use is to build a claim, all of that is because
of IL, behaviour of states considering IL.

SUBJECTS OF INTERNATIONAL LAW

The issue of subjects is related to legal personality, what does it mean you’re a subject of a legal system, you
have rights and duties in such legal system, rules of that legal system are qualifying you to have rights and
duties in a legal systemNatural person or legal person (within a society or a legal system). What it takes to
have a legal personality? there’s no customary rule of what a legal person is, who are the actors of
international law in an inductive manner, understand to whom they refer When we do, we call them
SUBJECTS, we try and describe what they want to regulate, almost all of the rules of IL are meant to
regulate the behaviour of states, the most important subject of IL are states
Primary subjects of IL, what are states? When can we call an entity a state?
Subjects An entity is a legal subject of IL when capable of possessing international rights and duties and
has the capacity to maintain its rights by bringing international claimsLegal personalityDefined by
observing rules of IL, which almost of them refer to states, primary subjects of IL. Apart from states there
are some other entities to which some of the rules refer, entities with a limited legal personality. The most
important other than states are:
a. Insurgents,
b. National liberation movements,
c. International organisations
d. Other subjects (Holy See, Transnational corporations)
Most of the rules refer to state, some of them to insurgents, national liberation movements, some of them to
international organisations. Debated cases.

STATES
States form the principal category of international legal persons. The generally accepted definition of a State
is provided in Article 1 of the 1933 Montevideo Convention on Rights and Duties of States, as an entity that
possesses:
a. A permanent population;
b. A defined territory;
c. Government;
 d. Capacity to enter into relations with other States The sum of these criteria reflects the effective
existence of a State.
However, “capacity” under section has legal as well as factual connotations. It may signify the factual
capacity of the entity that claims to be a State to establish relations with other States (not the intensity or
frequency of relations actually established), which is essentially the same as the existence of government that
can act accordingly. It may also run into the legal issues of independence of States or legality of their
creation. For the purposes of international law, a ‘State’ means an entity that functions through the organised
public authority and is not subjected to the authority of any other entity. Internal organisation and socio-
political orientation do not pertain to the essence of statehood. Whether an entity is a State depends on
whether it meets statehood criteria and is neither determined nor prejudiced by certain venues of
international cooperation that are available to some State-like entities.
A lot of thinking and important development has been related to the creation of limits to this sovereignty, a
lot is determining the limits of sovereignty. This is linked to International Environmental law, HR protection,
law of transboundary water coursesThe fact that a river is flowing on your territory and the source of the
river is on the state, you cannot stop water if it’s a trans bound river. The fact that these entities are sovereign
is fundamental.

TERRITORYThe physical or geographical area, separated by borders from other areas, over which a
State has sovereignty, i.e. the competence to exercise its exclusive authority within that territory and prohibit
foreign governments from exercising their authority there. The principal reason why the State has
sovereignty over any part of its territory is not that it needs to assure protection to foreign interests
represented in that territory, or that it actually and effectively controls the territory at the relevant point of
time, but because it legally owns that territory in line with conditions on which international law recognises
territorial sovereignty.
It must be able to subsist even if divorced from territorial possession, and the State in which the right to
territory is vested should nonetheless be able to recover possession of that of which it in fact has been
deprived. In other words, the territorial State is entitled to the integrity of its territory.
National and international jurisprudence is also clear that territorial sovereignty is not constituted by the
instances and patterns of the effective exercise of State authority. The rules for statehood do not necessarily
apply for depriving States thereof. The loss of effective control over part of its territory does not deprive the
State of the authority to exercise sovereign regulatory powers over that part of territory, and the State is
equally sovereign with regard to any part of its territory whether it effectively controls it or not. Moreover,
absolute certainty of borders is not required.
Ordinarily, State territory does not include protectorates and areas of dependency (but territories of colonial
empires did include colonial possessions). In some cases, States-parties to a treaty may choose to adopt a
special or extended meaning of ‘territory’, solely for the purpose of their mutual treaty relations and without
affecting the meaning of territory under general international law as an area of exclusive sovereignty.

POPULATIONThere are no fixed requirements as to the size of State population. Some States have very
small population. So-called micro-states have been admitted as equal members to the UN. Permanent
population refers to the State permanently having population, not necessarily to that population consisting of
those who reside permanently within that State’s territory. What is required is the existence of a permanent
population of individuals who owe allegiance and obedience to that State, i.e. nationals as well as non-
national residents who are subject to that State’s laws. The ethnic, linguistic or religious composition of the
State population is not crucial (even though this issue could arise as a matter of the rights of minorities and
indigenous peoples). The essential factor is, rather, the existence of a common national legal system to which
individuals and diverse groups are subjected.

GOVERNMENTA State cannot come into existence or exist for long, unless it has a government. The
existence of a government implies the capacity to autonomously establish and maintain a legal order. This
means that government should be able to function and exercise authority, not that all territory has to be under
its effective control. A State does not cease to exist when it is temporarily deprived of an effective
government as a result of civil war or similar upheavals.

The Concept Of Independence

“States come of age as soon as they attain independent and sovereign existence and become full members of
the international community.” The relation between sovereignty and independence can be analytically
challenging.
By contrast to independence, dependent status “necessarily implies a relation between a superior State
(suzerain, protector, etc.) and an inferior or subject State (vassal, protégé, etc.); the relation between the State
which can legally impose its will and the State which is legally compelled to submit to that will.” Dependent
States ordinarily have a limited capacity to enter into international relations, as they are in a subordinate
position in relation to another State. The category of dependent status does not include neutral States such as
Switzerland, which are under obligations (typically stipulated in treaties) not to enter into military alliances.
There may be cases where the internal legal order of a State is not yet validly disrupted, but the factually
secessionist entity or conquered territory does not obey that legal order. The mother-State’s legal order may
or may not recognise that change, as was held in relation to Rhodesia by the UK House of Lords. In such
cases, an entity aspiring to statehood is not independent in the eyes of international law.
The agreed grant of independence, devolution, secession or separation could in some cases take years or
decades, and some limited capacity to enter into international relations could be given to entities that undergo
that transition. However, until the domestic constitutional link is severed between the mother-State and
aspirant entity compatibly with the mother-State’s constitutional law, that aspirant entity is not a State. The
principal point of time for achieving independence in each case is when the mother-State irrevocably
commits itself to the severance of the public authority link with its particular territory and that territory thus
becomes independent.

Attainment of independence
Statehood begins with its creation and ends with its extinction. Conducted properly there is no rule of
international law that a State cannot give up its sovereignty.
An independent State becomes a dependent State only if it enters into a legal commitment to act under the
direction of, or to assign the management of its international relations to, another State. A mere political
alignment, strategic dependence, or being under another State’s influence as to the adoption of important
policy decisions, does not affect the legal independence of the State. Similarly, within integration such as in
the EU, a State may be restricted by the scope of international obligations, however extensive, but maintain
its independence intact. Independence of a State may be restricted, alienated or compromised unless there is
a treaty prohibition against doing so. Acts alienating independence are those that entail the alienation of
international capacities inherent in international personality, and thus either put an end to the existence of a
State or turn it into a dependent State.
By contrast, “the restrictions upon a State’s liberty, whether arising out of ordinary international law or
contractual engagements, do not as such in the least affect its independence. As long as these restrictions do
not place the State under the legal authority of another State, the former remains an independent State
however extensive and burdensome those obligations may be.
‘Protectorate’ and ‘suzerainty’ are terms describing the dependence of one State on another in the legal
sense, not normative terms that discretely produce ready-made implications. The scope and implications of
subordination depend on the arrangements made in particular cases.. Protectorates were generally a by-
product of the colonial period.

Legal requirements for statehood

Legal (as opposed to factual) requirements for statehood operate over and above the Montevideo Convention
criteria, requiring that the entity in question has the right, under international law, to own and administer the
relevant territory and require obedience from its population. In the absence of legal criteria, entities produced
through any factual transformation, internally or externally engineered, including through forcible
intervention to secure the break-up of existing States, would enable entities thus created to validly claim
statehood owing to their possession of territory, population and government.
Valid methods of creating a State include agreed and voluntary secession from a State, dissolution of a State,
unification or merger of States. Secession differs from dissolution when the original composite State ceases
to exist, and the maintenance and recognition of the new State’s independence does not encroach on any
State’s pre-existing right to territorial integrity. For example, Egypt and Syria merged into the United Arab
Republic and then separated with mutual consent. The unification of Yemen took place in 1990, with two
States merging the international personality of each of the predecessor States into a single State.56 The
unification of Germany took place on 3 October 1990.
There is no rule of international law which forbids secession from an existing State; nor is there any rule
which forbids the mother-State from crushing the secessionist movement. A secessionist entity has no
standing under international law and, correspondingly, secession produces no immediate consequences under
international law. The position is not that unilateral declaration of independence (UDI) is not prohibited and
is thus lawful, but that it is not prohibited because it never takes place within the realm of international law,
but instead within the domestic realm of States which is outside the regulatory sphere of international law. A
factually effective separation does not remove a secessionist entity from the legal realm of the mother-State.
For, if the effectiveness of secession alone could furnish the legal basis for the recognition of a secessionist
entity by third States, then the legal position would be that, contrary to the ICJ’s approach, UDIs and their
consequences are indeed regulated by international law. As international law does not confer separate status
or identity on the secessionist entity, nor does it take cognisance of declarations of independence issued by
such entities or accord any international legal effect to such declarations. As such, UDI forms neither the
basis for valid secession nor a valid step towards the State’s creation.

Public order Limits on state creation

Legal requirements of statehood involve the rights of States that own the territory over which a new State is
purported to be created or have to do with some fundamental illegality attending State creation (in modern
law the relevant standard is provided under rules of jus cogens). The creation of such entities is a nullity
under international law. Nullity for contradicting jus cogens applies both to the acquisition of territory and
the creation of States. In all these cases, the invalidity of titles as confirmed by UN organs is implementing
and declaratory of the jus cogens nullity, not their discretionary attitude. In some cases, legal requirements of
statehood can also reinforce the statehood claim of the relevant entity. Entities gaining independence in the
process of decolonisation could lay valid claim to statehood even if the ties with their colonial powers have
not formally come to an end.
An early example, or antecedent, is India, which was clearly treated as a State when admitted to the UN in
1945, even as its colonial ties with the UK had not yet been severed and the 1947 Indian Independence Act
still described India as a dominion. India joined the UN in 1945 but did not become independent until 1947,
and its membership remained the same.
The particular identity a State may claim could be owed to some factors operating over and above traditional
criteria of statehood, for States may “possess certain distinguishing features that differentiate one from
another”. The clarification of the State identity issue requires enquiry into the roots of State-creation and
could thus be consequential upon the initial legality of its creation, in line with statehood requirements.
Factors leading States to assert their identity with a previous State could include having the same name, bulk
of territory, or the same constitutional form, or, more plausibly, some legal link to an older (and now
defunct) State and the proof that it has survived legally even though it was treated as factually extinct.
The identity of a State does not derive from territory, population or government individually. State identity is
not disrupted, even if there is a change in boundaries or constitutional reform or revolution.

Recognition
Recognition can signify different things. Recognition by territorial State is essentially consent to secession
and thus a valid method of State creation. Recognition as a genuine problem arises with third State
recognition of States or aspirant entities, purporting to confer on them legitimacy that they do not otherwise
have. When granting or withholding recognition, States may be influenced more by political than by legal
considerations as to relations between recognising State and recognised entity, but legal consequences will
not always be the same as those sought by their political decisions. There is a distinction between the
recognition of a State and the recognition of a government. The recognition of a State is to suggest that, in
the opinion of the recognising State, the entity recognised fulfils the statehood requirements; and to manifest
a willingness to deal with the new State as a member of the international community. The recognition of a
government implies that the regime in question is deemed to represent the State in its external relations. The
recognition of a State can be accorded without also accepting that a particular regime is the government of
that State.
Two theories dominate with respect to the role to be played by recognition.
1. Constitutive theory,  Advanced in particular by Anzilotti and Kelsen, it claims that a State does
not exist for the purposes of international law until it is recognised by other States; recognition thus
has a constitutive effect in the sense that it is a necessary condition for the ‘constituting’ (that is,
establishment or creation) of the State concerned. The constitutive theory invites us to treat the
statehood criteria as insufficient to form a State and states that recognition serves either as an
alternative or an additional condition for the formation of the State. This is not an invitation that
could be accepted, for the view that recognition alone could have wide-ranging effects cannot be
sustained.
Main legal argument against the theoryPractical but also theoretical argument. If we accepted the
idea of Constitutive recognition, the logical progress would be a progressive creation of statehood,
and then they are recognised by states automatically. We cannot accept an interpretation of IL à la
carte, a state can be named so only for those who recognize it, but not for all, it is almost a state, that
creates a huge problem.
2. Declaratory theoryThe existence of a State or government is a question of pure fact, and
recognition merely acknowledges it. If an entity satisfies the requirements of a State objectively, it is
a State with all international rights and duties and other States are obliged to treat it as such.. The
declaratory theory claims more modest relevance for recognition and treats it as consequential on
statehood criteria.
For example, Northern Cyprus is not a state, because real control is on the Turkish authorities and
not on Northern Cyprus one. Recognition would make stronger claims, it’s undeniable that help
crystallise control. When you’re recognized, you’re stronger,. In situation of doubt, recognition has
an effect on sovereignty. statehood is subjectively examined. One thing is recognizing the entity as a
state, unless the situation changes dramatically you cannot withdraw, recognition of a state of fact
cannot be withdrawn. Better is a theory when statehood is objectively examined, you control the
territory in an effective way and the population within the exclusion of others and then recognition
will come, with territorial control then comes interaction, because states will have to get in touch,
control comes with interaction. Cases with interaction helps a lot.

If an entity does not fulfil the requirements for statehood, mere recognition will not make it a State, any more
than the lack of recognition will abolish a validly established statehood. The difference between State
creation requirements and recognition helps in clarifying the limits on the relevance and effect of
recognition. The value of each theory of recognition can be tested and better understood if we acknowledge
that recognition is not an element of, or precondition or requirement for, statehood of an entity that is being
or not being recognised as a State.
Recognition is not a law-making act, and its validity or opposability depends on its compatibility with
international law. More specifically, recognition can be legally faulty if it is premature, i.e. pre-empts the
valid emergence of a new State, as opposed to the emergence of an entity that claims to be a new State (for
instance in cases of secession attempts, including those leading to a longer period of civil war). Premature
recognition in such cases constitutes a violation of international law and of the rights of the mother-State.
Recognition can be used as political tool to legitimise intervention in the internal affairs of a State, right up
to a military intervention. Intervention by third States in support of the insurgents or similar entities is
prohibited.
On subsequent occasions, however, States have used (or abused) recognition as a means of showing support
for one side or the other in civil wars of a secessionary character; thus in 1968 a few States recognised Biafra
as an independent State after the tide of war had begun to turn against Biafra.
Recognition can also be legally faulty if it conflicts with a previously stated position and accepted
commitment. With regard to Kosovo, the legal value of recognitions by several States, above all those which
are deemed to be of high political importance, is doubtful.
An important distinction needs to be drawn between non-recognition as an obligation of all States applicable
in certain situations and not recognising as a policy of certain State(s) that they operate individually or
collectively. No State was under any general obligation not to extend recognition to the GDR, and none of
the recognitions granted to it could produce an internationally wrongful act.
Recognition of another State does not lead to any obligation to establish full diplomatic relations or any other
specific links with that State. Nor does the termination of diplomatic relations automatically lead to de-
recognition. Not being recognised as a State by other States is no bar to all kinds of relations. The fact that
the United States, which was in control of the unified command of the UN forces, refused to recognise North
Korea as a State – as well as the governments of China and North Korea – did not prevent the signing of an
armistice agreement ending the Korean War in 1953. The same holds true for the Paris Agreement of 27
January 1973, which North Vietnam signed with the US and South Vietnam, and which cannot be seen as
North Vietnam recognising the statehood of South Vietnam.

Legal effects of recognition in domestic law

If State A recognises State B, this usually entails that the courts of State A will apply the law of State B and
give effect to its sovereign acts. In the case of non-recognition, national courts will not accept the right of the
foreign State or government to sue or claim other rights of a governmental nature, but as regards private
parties (for example, whether non-recognition extends to the registration of births, deaths and marriages in
the foreign State), the situation varies. English and American courts originally had a tendency to completely
disregard the law and sovereign acts of a foreign State, unless that State was recognised by their
governments. However, changes in the United States and Britain then went in the direction whereby courts
could apply the law of a non-recognised entity if the executive confirmed that this was not harmful to the
foreign policies behind the non-recognition. On the international plane, as we saw, recognition is solely
about whether one State wants to deal with another State or entity; not an issue of the status of that entity but
of bilateral relations. On the domestic plane, however, judicial treatment of recognition could become that of
the sovereign existence of the State and effectively overlap with that of statehood.

Recognition of governments
Recognition of governments differs from that of States, but if a State legally continues despite foreign
occupation, and the government is in exile, recognition of that government may intersect with statehood
issues. The issue of recognition of governments arises when government changes unconstitutionally. The
United States at one time refused to recognise foreign governments simply because it disapproved of them.
For instance, President Wilson withheld recognition from Latin American regimes which had come to power
by unconstitutional means, such as Tinoco’s regime in Costa Rica. The United Kingdom, on the other hand,
usually recognised all governments which were in actual control of their territory, without necessarily
implying any approval of such governments. A more general theme underlying the recognition of
governments relates to the contrast between legitimacy of a government and the effectiveness of its
establishment.
Most importantly, however, a government’s status depends upon the domestic constitution and the
legitimacy it confers on it, not upon international recognition manifesting foreign States’ position.
Recognition cannot make up for lost legitimacy, for instance if a legitimate government is in exile or
embattled. In such cases, foreign States and their nationals act at their own risk when dealing with an
unconstitutional yet effective government. Furthermore, if international law were to confer decisive
relevance to the recognition of a government which is effectively but illegitimately established, then the
international legitimacy of the government would depend on a foreign source, foreign recognition, not the
State’s domestic constitution. This would compromise the independence of the State and justify interference
in its domestic affairs.
The Tobar doctrine, embodied in the 1907 and 1923 Treaties, placed emphasis on the constitutionality of a
government that is (not) being recognised. The Estrada Doctrine was announced by the Government of
Mexico afterwards. In 1930, the Secretary of Foreign Relations of Mexico declared that: “the Mexican
Government is issuing no declarations in the sense of grants of recognition, since that nation considers that
such course is an insulting practice.” The Estrada doctrine reflects the fact that the change of government in a
State is legally an internal matter, whether in conformity with the national constitution or not, and does not
concern international law or other States. At first sight, the Estrada Doctrine appears to contradict the entire
system of recognition of governments.
In practice, however, it merely substitutes implied recognition for express recognition; recognition is not
announced expressly but can be implied from the existence of diplomatic relations or other dealings with a
foreign government. In fact, implied recognition is a long-accepted practice. Most States which have adopted
the Estrada Doctrine in the past have not applied it consistently; sooner or later they succumb to the
temptation of announcing recognition of a foreign government, in order to demonstrate their support for it, or
in the hope of obtaining its goodwill.
Recognition of a governmentThe traditional theory of IL is based on effectiveness, not on legitimacy and
on the actual behaviour, only on control territory and exclusion of others, not on International Human rights
law, territorial control Practice of recognition of government (i.e. Venezuela: Guaidò has been recognized as
a legitimate president even if he doesn’t control a bunch of territories)
This trend is not coherent introducing issues of legitimacy is not coherent.
State controlSome people doesn’t accept that territorial control has been acquired through the use of force,
they claim cases where territorial control doesn’t come with recognition because it has been gained through
the use of force.

De jure and de facto recognition

The distinction between de jure and de facto recognition could be relevant in terms of recognition of both
States and governments. De facto recognition of a State or government means that an entity is recognised
owing to its factual existence or exercise of authority and control over a particular territory. De jure
recognition is recognition of the lawful existence of that government or State and, impliedly at least, refers to
the State’s ability to enjoy legal authority that States and governments ordinarily enjoy, and to the conduct of
those who brought that State or government about. There are a few examples of States being recognised de
facto.
In one version, ‘de jure recognition’ means recognition of a de jure government; the words de jure or de
facto describe the State or government, not the act of recognition. The terminology implies that a de facto
government does not have the same legal basis as a de jure government. This approach links the type of
recognition accorded to an entity to that entity’s legitimacy (under national or international law) and
emphasises the limits to which the discretion available to the recognising State is subjected. A distinction
might be drawn in terms of de facto recognition being about recognising factual reality, and de jure
recognition being about accepting the legitimacy of that entity. When recognition is granted by an express
statement, it should be treated as de jure recognition, unless the recognising State announces that it is
granting only de facto recognition. When recognition is not express, but implied in particular dealings with
the relevant entity, there may be uncertainty as to the intentions of the recognising State: did it intend to
grant de jure recognition, or did it intend to grant de facto recognition? While things not expressed should
not be easily imputed to a recognising State, the matter would ultimately depend on what the object of
recognition is deemed to be and what implications are endorsed. Recognition should only be deduced from
acts which clearly show an intention to that effect. The establishment of full diplomatic relations is probably
the only one unequivocal act from which full recognition can be inferred. It is not impossible that a professed
de facto recognition could effectively amount to de jure recognition, and the nature of underlying
transactions must be assessed alongside the stated policy. For instance, carrying on trade with the relevant
State under a pre-coup trade treaty would not entail recognition of an unlawfully established government.
With regard to statehood, the basic conclusion is that neither effective existence nor popular will or
democratic governance is the key to a valid claim to statehood. Instead, the validity of a claim to statehood
depends on whether the relevant entity has a right, under international law, to establish or maintain a State on
a particular territory to rule over a particular population. Recognition has more to do with political and legal
relations with a State than with its existence, apart from cases in which the duty of non-recognition operates
(premised upon the invalidity of State- creation in the first place). The domestic law practice also witnesses
the political use of the recognition tool which consists in the divergence of policies proclaimed in relation to
particular entities and the actual treatment given to them. In such contexts, State decisions in recognition
matters may be either in compliance or in breach of international law.