EXAMINING RECOGNITION OF STATES AND GOVERNMENTS: WHY THE

LEGITIMATE APPROACH OF RECOGNITION IS MORE COMPATIBLE WITH THE

RULES OF INTERNATIONAL LAW?

1
Abstract
This study examines the act of recognition of new states and governments under
international law. As such, it indicates that there are two approaches of recognition
i.e. declaratory and constitutive.

In order to identify the best applicable approach of recognition when dealing with
new governments, this study critically analyse legal issues such as state
sovereignty, agency theory, and status quo.

Furthermore, with regarding to the recognition of new governments which arrive to

power in extra-constitutional ways, this study examines three doctrines i.e. the
effective control approach, the legitimate approach and the automatic approach.

After that, this study argues that the legitimate approach is most appropriate
approach under international law as it is compatible with the purpose of the United
Nations in maintaining international peace and security.

Through all the study, an assertion on the supremacy of the right of self-
determination as jus cogen over other international legal rules has been highlighted.

2
Contents
Abstract.................................................................................................................................................2
Acknowledgement.................................................................................................................................3

3
Chapter One........................................................................................................................................6
1. Introduction..................................................................................................................................6
Chapter Two......................................................................................................................................11
2.1. The Relationship between Sovereignty and Recognition: Aspects of Sovereignty i.e.
Legal Sovereignty and the Jurisdiction and Control Sovereignty...............................................11
2.1.1. The relationship between state and government: Agency Theory.........................14
2.1.2. Understanding the law of statehood: the presumption of continuity of Status Quo
17
2.1.3. International law rules that decide whether the status quo should continue or
should be changed irrespective of Recognition........................................................................18
2.1.4. The Rule of Recognition in the Law of Statehood....................................................24
2.3. Recognition of States............................................................................................................26
2.3.1. Constitutive Theory........................................................................................................26
2.3.2. Declaratory Theory........................................................................................................27
2.3.3. Declaratory Theory as a General Rule and Constitutive Theory as a Special Rule
.....................................................................................................................................................29
2.3.4. Mixed Constitutive and Declaratory Theories............................................................33
2.4. Recognition of Governments...............................................................................................35
2.4.1. Tinoco Approach (Effective Control Approach)..........................................................36
2.4.2. Tobar Approach (the Legitimacy Approach)...............................................................38
2.4.3. Estrada Approach (the Automatic Approach).............................................................41
CHAPTER THREE...........................................................................................................................42
3. State Recognition vs. Government Recognition......................................................................42
3.1. The Recognition of states is irrelevant to the recognition of governments....................42
3.2. The Recognition of governments means necessarily recognising the states...............43
3.3. Recognising governments cannot be done without recognising states.........................44
CHAPTER FOUR..............................................................................................................................46
4. Identifying the Approach that is most Compatible with International Law............................46
4.1. Why Tobar Approach should be implemented?................................................................46
4.1.1. The act of recognition should respect jus cogens rules............................................46
4.1.2. Tobar Apprach as a necessity for preserving international peace and security....48
4.1.3. Examples about increasing the adoption of Tobar Approach..................................50
4.1.4. Tobar Approach is Necessary for International Law from Idealistic and Realistic
Point of View..............................................................................................................................51
4.2. Predicaments facing the adoption of Tobar Approach.....................................................51

4
 4.2.1. Swerving from legitimacy to illegitimacy.....................................................................51
4.2.2. The ways in which legitimate practices of a government can be checked.............52
4.2.3. Does democratic elected government constitute prerequisite condition for
legitimacy? And is there one conclusive definition of the concept of Democracy Itself? 53
CHAPTER FIVE................................................................................................................................54
5. Conclusion.....................................................................................................................................54
Bibliography.......................................................................................................................................57

5
Chapter One

1. Introduction
International community constitutes vivid environment in which new states and
governments appear and others go into oblivion 1. However, new governments might
come to the power in extra-constitutional ways, either militarily or non-militarily
means, that clash with principles enshrined by the avowed constitutions 2.
Furthermore, there may be a part of a territory in which both the legitimate
government and the new belligerents or insurgencies administrations claim
controlling over it. The appearance of these new realities triggers the question about
the legal importance of the reaction of existing countries to the new phenomena.
Legally important “reaction” might happen as “unilateral act” such as “recognition” 3.

Whether, or not, the new facts are valid or invalid according to the rules of
international law will delineate the legal effect of recognition which differ according to
two doctrines (i.e. declaratory and constitutive) 4. As such, recognition will be
perceived as declaratory when the new entity has a lawful claim to particular
territory. In other words, the lawful claim is not inured as to its validity by the
recognition of the claim by the existing states. Nevertheless, the act of recognition
constitutes “good evidence of the state of law” when the actual facts do not offer
sufficient validity for the claim of the new entity 5. This grants constitutive nature for
the act of recognition.

It might be argued that the act of recognition as being a unilateral act might be
subjected to political interests of the states without any consideration for the legal
facets of recognition6. However, an act of recognition that is not based on
1
James Crawford, The Creation of States in international law (2nd edn, Oxford, 2006) 75
2
ibid
3
Ian Brownlie, Principles of Public International law (6th edn, Oxford University Press, 2003) 85.
4
Jure Vidmar ‘Explaining the legal effects of recognition’ (2012) 61(2) International and Comparative Law
Quarterly 361.
5
Brownlie (n3) 85
6
William Worster , "Law, Politics, and the Conception of the State in State Recognition Theory" (2009) 27 (1)
Boston University International Law Journal 116; however, cf. Danilo Turk, "Recognition of States: a
comment" (1993) 4 European Journal of International Law 70.

6
international law and supported by the activity of the state would be merely
perceived as “a declaration of intent to commit a delict or, otherwise, to act ultra
vires”7. Therefore, the legal dimension of the act of recognition should be examined
thoughtfully and this in turn necessitates identifying which doctrine of recognition i.e.
declaratory or constitutive is more compatible with the rules of international law.
Examining the legal basis of the act of recognition requires examining the validity of
the actual facts regarding the putative states or governments.

This study will critically argue that the dominance of declaratory theory starts evading
in favour of the constitutive theory. This is because the changing in the concepts of
international law which has begun perceiving natural persons and groups as legal
persons under international law 8. This shifting in legal dealing with individuals and
groups from being objects to subjects has been manifested in the proliferation in the
international conventions that enshrine and buttress human rights of natural persons
as being inalienable, universal, and equal rights 9. Among these rights, the right to
self-determination represents a collective human right that belongs to the realm of
jus cogens rules and; hence, it must be considered as an integral part when doing
any international reaction towards any actual fact including the reaction called
recognition.

Thus, this study will argue that while the declaratory theory relies on the idea of
effective control as a cornerstone for demonstrating that there are actual facts and
they have to be recognised irrespective of the means followed to create them, the
constitutive theory flows from the idea of self-determination of people which
determines the legitimacy of ways in which the actual facts come to existence.

7
Brownlie (n3) 86
8
Recognizing individuals as subjects under international law means that international law recognizes these
individuals as legal persons. Accordingly, each individual possesses rights that are enforceable under
international law and has obligations to perform definite duties. Indeed, appointing the rights and duties of each
individual and offering this legal person the right to persecute or to be persecuted is circumscribed in international
law which mainly delineates the scope and essence of legal personality of state. See, Malcolm Shaw,
International Law (6th edn, Cambridge University Press, New York 2008),195. Indeed, engraving the legal
personality requires analysing specific concepts within the international law; inter alia, the status of the individual
and the capacity of the individual. The status of the individual may be determinative of specific rights and duties,
whereas capacity indicates to the ability of this person to enforce claims. Indeed, currently in international law,
individuals are recognized as international persons as can be noticed in the jus cogens of human rights. See,
Karen Parker, ‘Jus Cogens: Compelling the Law of Human Rights’ (1988) 12 Hastings Int'l & Comp. L. Rev. 411.
This development in the realm of international law represents an obvious departure from ‘The Object Theory of
the Individual in International Law’. See, George Manner, ‘The object theory of the individual in international law’
(1952) 46 (3) American Journal of International Law 428.
9
Henry Steiner and Philip Alston, and Ryan Goodman, International human rights in context: law, politics,
morals: text and materials (3rd edn., Oxford University Press, USA, 2008)151.

7
This gradual shifting from a neutral international community where new entities can
make itself completely fledged members in this community towards a more non-
neutral international society where being a member does require the permission of
other states echoes fading role of declaratory theory in favour of growing role of
constitutive one.

Indeed, this study will prove that the interventionist philosophy of the international
community is necessary for maintaining international peace and security as duly
mentioned in Article 1.1 of the United Charter 10 and; hence, embracing constitutive
theory has been adopted as necessity instead of being a mere theoretical alternative
for declaratory theory. Furthermore, the adoption of declaratory theory will lead to
clashes between the norms and scopes of international law.

In details, after the cold-war era, The Security Council has promulgated resolutions
under Chapter VII which considered factual issues such as lack of democracy and
breaches of human rights as threat to international peace and security 11. Thus, the
Security Council begins perceiving what has been considered for a long time as
domestic issues of states as international issues 12. In other words, rather than
accepting issues of democracy and human rights as domestic issues under Article
2(7) of the UN Charter which prohibits international intervention, the Security Council
has considered them as international issues that threaten international peace and
security if they were breached or dismissed 13. Examples include; inter alia, resolution
regarding 841 (1993) against coup d'etat and lack of democracy in Haiti and
resolution 794 (1992) about Somalia about issues such as human rights violations 14.

10
art. 1(1) of the UN Charter enshrines the purposes of the UN in; inter alia, “Maintain[ing] international peace
and security, and to that end: to take effective collective measures for the prevention and removal of threats to
the peace, and for the suppression of acts of aggression or other breaches of the peace,…and in conformity with
the principles of justice and international law”. See, See, United Nations, Charter of the United Nations, signed at
26 June 1945, entered into force 24 October 1945, 1 UNTS XVI. art.1(1).
11
In post-cold war era, the Security Council has embraced broader explanation for art.39 of the UN Charter when
determining acts that constitutes threat to the peace such as resolution 713 (1991) about Former Yugoslavia
regarding human rights violations UNSC Res 713 (25 September 1991) UN Doc S/RES/713; see also, Shaw (n8)
1237. Indeed, determining an act under art.39 of the UN Charter is an antecedent step for adopting measures
under Chapter VII of the UN Charter. see, Shaw (n8) 1236.
12
Shaw (n8) 1237
13
“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are
essentially within the domestic jurisdiction of any state”. See, United Nations, Charter of the United Nations (n10)
art. 2 (7).
14
UNSC Res 841 (16 June1993) UN Doc S/RES/841; UNSC Res 794 (3 December 1993) UN Doc S/RES/794.
This issue will be discussed in Subsections 2.4.2 and 4.1.3 of this study; see also, Dan Sarooshi, The United
Nations and the development of collective security: The delegation by the UN Security Council of its Chapter VII
Powers (1st edn., Oxford University Press, 1999), p.5.

8
Accordingly, based on these legal facts about increasing the non-neutral rule of
international community, a logical and legal consequence (entailment) appears:

although these states (i.e. Haiti and Somalia) are fully-fledged states in international
community, their political independence and territorial integrity were undermined
from the international community when they breaches roles of democracy and
human rights; then, it is a logical priory dismissing the allegations of any new entity
as being a member in international law when it is established on any role rather than
the roles of legitimacy and human rights. In other words, international society has
undermines the existence of well-established old entities; hence, it would, or even
must do, blog the existence of any new entity when its existence results in
threatening international peace and security.

In other words, logically, it cannot be imagined an international community with a

capacity that is merely neutral and declaratory at the moment of establishing new
entity in illegitimate ways and accepting the fact of an international community with a
capacity that is non-neutral and constitutive (ability to interfere and change) at any
moment a well-established old entity acts in illegitimate way.

Indeed, by following the aforementioned valid argument about the necessity of being
interventionist in determining the compatibility of new entities with international rules,
the acts of international community represented by the UN would be consistent in
dealing new entities in the same way of dealing with old entities 15.

Based on this logical analysis, the international community including all member
states should legally examine the legitimate role when dealing with new entities.
Adopting this legitimate role means recognising the international community as a
community with constitutive power, which aims to maintain international peace and
security, rather than declaratory one.

The route for fulfilling this research will be as follow:

15
In fact, the UN as an embodiment of the international community appears after the WWII eliminated the archaic
international community represented by the League of Nations which had established after the end of WWI. See,
Brett Leeds and Michaela Mattes, ‘Alliance politics during the Cold War: aberration, new world order, or
continuation of history?’ (2007) 24:3 Conflict Management and Peace Science 183.

9
Chapter Two examines legal issues regarding putative states and governments. In
details, subsection 2.1 introduces the two facets of sovereignty (i.e. legal sovereignty
and jurisdictional and control sovereignty) and the challenge of recognition when the
two facets do not lay under one administration. In order to tackle this matter,
subsection 2.1.1 examines the concept of agency between the state as a principal
and the government as an agent; furthermore, sub-section 2.1.2 highlights the
presumption of status quo when considering the law of statehood. This means that
the new entity is under obligation to prove its consistency with the international rules.
This is followed by subsection 2.1.3 which determines whether the status quo should
continue while discarding the new reality or it should be altered in a way that accepts
the new reality. Deciding the continuity or discontinuity of status quo depends on the
capacity of the putative state to fulfill the criteria for viable statehood and matching
the political consideration such as the right to self-determination as being jus cogen
rule. Subsection 2.1.4 delineates the role of recognition based on the analysis
provided by the aforementioned subsections.

In subsection 2.3 a detailed critical evaluation takes place about constitutive

doctrine, declaratory doctrine and the relations between them.

Regarding recognition of new governments, this study critically examines various

doctrines about the existence of new governments in extra-constitutional ways. As
such, subsection 2.3 follows scrupulous analysis about three doctrines: Tinoco
(effective control) doctrine, followed by Tobar (legitimacy) approach, and Estrada
(automatic) doctrine.

Chapter Three examines various relations between recognition of states and

recognition of governments in order to determine whether recognition of one of them
is relevant or irrelevant to the recognition of the other.

Chapter Four represents the main contribution of this study. In subsection 4.1, this
study focuses on why the Tobar doctrine should be implemented through arguing
that the act of recognition should consider jus cogen rules in order to maintain
international peace and security. In subsection 4.2, this study highlights various
predicaments facing the complete application of Tobar doctrine.

Finally, Chapter Five concludes previous chapters.

10
Chapter Two

2.1. The Relationship between Sovereignty and Recognition: Aspects of

Sovereignty i.e. Legal Sovereignty and the Jurisdiction and Control
Sovereignty.

Each country does its relations with other countries on the ground of specific
considerations about the legal status of those other countries 16. Generally speaking,
these considerations are uncontentious and tantamount to recognition of the status
quo: the relationships between Canada and Australia, for instance. To a lesser
extent; nevertheless, a country can adopt a situation that contests the existing order,
as it is the case when recognising a new country- for instance the Kosovo claimed
being a new state on a part of territory previously belong to Serbia and USA
endorsed this claim- or in another example a country can hold a situation that
negates a claim itself challenging the status quo as it is the case of Turkey Republic
of Northern Cyprus which went unrecognised by the UK. Recognition, consequently,
constitutes an act that aims to amend or re-assure the existing order 17.

Indeed, there are two legal facets to the process of recognition under international
law: firstly, the act of recognition might play a decisive role in shaping the legal
status of the new situation. For instance, a new entity might not be recognized as a
new state because, among other things, the other states negated recognising it. This
is the constitutive aspect of the recognition process 18. Secondly, the act of
recognition is coded under international law. Accordingly, international community is
occasionally constrained in its selections regarding the issue of recognition. In other
words, when new entity fulfils special conditions, there is no way but to recognise the
new entity as a state. This is the declaratory aspect of recognition 19.
16
Christian Hillgruber ‘The admission of new states to the international community’ (1998) 9.3 European Journal
of International Law 492.
17
ibid
18
Alexander Berlin ‘Recognition as sanction: Using international recognition of new states to deter, punish, and
contain bad actors’ (2009) 31 University of Pennsylvania Journal of International Law 555.
19
Shaw (n8) 446

11
These two facets are linked and could indulge into considerable tautness as
countries pursue through recognition to acknowledge a new sovereignty that
contests the legitimate status quo and; hence, it is probably at differences with their
international duties to another country or a bloc of countries whose privileges are
being amended by this adjustment20.

The context of the international law is wrapped up in the norms that delineate what is
a country and what is not a country 21. In understanding the international legal rules
regarding statehood and the importance of international legal rules for the matter of
recognition, a separation between two specific aspects of the concept sovereignty is
informative22.

Lauterpacht indicated that sovereignty has two main dimensions. It is implemented,

in a single meaning, to define "the right of ownership" that a country has on every
specific part of territory23. This might be indicated as "the legal sovereignty" 24. This
type of sovereignty might be connected to the "residual title of the owner of freehold
land which is let out on a long lease" 25. The term "sovereignty" is, nevertheless,
generally embraced, in its other sense, to indicate to "the jurisdiction and control" a
country exercises on its territory, irrespective of the question of "where ultimate title
to the territory may lie"26.

The aforementioned aspects of sovereignty echo two potential links that exist in
juridical person of the country between administration (i.e. jurisdiction and control)
over territory on the one hand and the idea of ownership on the other hand.

Occasionally, it is alleged that control over a territory is due to the fact that the
related territory is a part from the state that exercises its control 27. For considering
this result; nevertheless, there is a requirement to propose that the agent assuring
the privilege to administer territory fulfils so in a specific capability: as the title’s

20
Stefan Talmon, ‘The constitutive Versus the Declaratory Theory of Recognition: Tertium Non Datur?’ (2005) 75
(1) The British Year Book of International Law 101.
21
Thomas Biersteker and Cynthia Weber, State sovereignty as social construct (1st edn., Cambridge University
Press, 1996) 14.
22
ibid
23
Eli Lauterpacht, ‘The Contemporary Practice of the United Kingdom in the Field of International
Law—Survey and Comment’ (1956) 5 ICLQ 410.
24
ibid
25
ibid
26
ibid
27
ibid

12
holder with regarding to the territory. However, this preposition cannot be held. As
per Lauterpacht indicates with respect to the two usages of sovereignty, jurisdiction
and control sovereignty is to be exist in the exact hands as the legal sovereignty;
however, "there is no reason in law why it should be and often it is not" 28.

Occasionally, there is a difference between the state that administers a territory on

the one hand and the title over territory on the other hand. In other words, the state
that administers the territory is not the state that has the title over the territory 29.
Examples include the existence of USA, UK, and France in Germany after WWII,
and the existence of USA and UK in Iraq after 2003 war. In these examples, the title
exists in the hand of the sovereign state i.e. in Germany at the first example and Iraq
on the second example. However, the administration facet of sovereignty is under
USA, UK, France and USSR in case of Germany and under the UK and USA in case
of Germany. As such, the matter of territorial sovereignty is diverted between the
allegation of the owner (title holder) and the allegation of administer.

Consequently, the default position for understanding the legalities of recognition (or
non-recognition) is to examine what the purpose of that recognition (or non-
recognition) itself aims to be30. There is a need for examining scrupulously the legal
aspects relating to the claim of the new entity; otherwise, one is incapable of
determining completely the exact legal basis of recognition for the new entity 31.

In other words, there will be incapacity of determining the legality of the act of
recognition or non-recognition itself. For example, is the new state should be
recognised on the basis of legal sovereignty of specific territory or on the basis of
administration and control over specific territory or the new state should have both
types facets of sovereignty?

Therefore, before examining the act of recognition in cases that include diversion in
the two types of sovereignty, it is necessary to understand the following three points:
1- the relationship between the state and the government, 2- the laws of statehood,
and 3- the criteria that decide whether status quo should continue or not32.
28
ibid
29
Brownlie (n3) 107
30
Vidmar (n4) 361
31
ibid
32
Ralph Wilde, Andrew Cannon, and Elizabeth Wilmshurst, ‘Recognition of States: the Consequences of
Recognition or Non-Recognition in UK and International Law’. Chatham House’. Available on:

13
2.1.1. The relationship between state and government: Agency Theory
Separation between a state on the one hand and a government on the other hand is
important in order to comprehend various capabilities available to entities when
administer specific territory. The link between government and state is based on the
idea of agency under international law 33. As such, there is a principal (i.e. the state)
which has legal persona under international law and there is an agent (i.e. the
government), a non-legal person within the domain of international law, which acts
on behave of the principal34. Consequently, the acts of the agent shall be perceived
as the acts of the principal. Thus, rather than only identifying the entity that controls
on the ground, it is of legal necessity pinpointing the legal basis of this control and
the legal status of the related territory itself 35.

When a country administers its territory, this state relies on the idea of territorial
sovereignty36. The idea of territorial sovereignty exists either this administrating has
been done on a long term such as Japanese territory or tantamount to a shift in the
status quo, for instance the claim to title over the state of Kuwait after it was invaded
by Iraq37. Another example is the claim of Kosovo to be statehood in a territory that is
already constitutes an integral part of Serbia 38.

In the case, where there is shifting in the status quo, the legality of the territorial
sovereignty claiming would be questionable.

In the cases where the status quo is de-stabilised, it can be seen that in the
relationship between the principal (state) and the agent (government) is complicated
as there are; sometimes, two agents with each one of them allege to be the
representative of the state as it is the case of Syria between Syrian Regime and
Syrian Interim Government or the case of Iraq and Kuwait when the Iraqi

https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Law/040210il.pdf
accessed on 27 June 2016. p.2
33
Angelo Sereni ‘Agency in International Law’ (1940) 34(4) ASIL 638.
34
ibid
35
ibid
36
Brownlie (n3)106
37
Khadduri and Ghareeb indicated that Iraq proclaimed a “historical claim” to the territory of Kuwait.
See, Majid Khadduri, and Edmund Ghareeb, War in the Gulf, 1990-91: the Iraq-Kuwait conflict and its
implications (1st edn., Oxford University Press, 2001),6.
38
Cedric Ryngaert, and Sven Sobrie ‘Recognition of states: International law or realpolitik? The
practice of recognition in the wake of Kosovo, South Ossetia, and Abkhazia’ (2011) 24.2 Leiden
journal of international law 468.

14
government (invader) and the Kuwaiti Government (ousted) were both claiming legal
sovereignty over the same territory (i.e. Kuwaiti Territory) 39.

Indeed, the main outcome of examining the theory of agency is to understand that
the relation between state and sovereignty is a relationship between a principal and
sovereignty and; hence, according to the agency theory, the relationship between
the government (agent) and the territorial sovereignty should be considered. This is
because the fact that principal, from a logic and legal point of view, can only practice
its capacity over a territory through particular agent.

As such, through accepting the agency theory, it can be said that government as an
agent can proclaim a title over specific territory and; therefore, it can sell a specific
territory as it is the case of Alaska where Russian government sold it to USA 40.
Furthermore, the government as an agent can exercise the jurisdiction and control
over a territory on behave of the principal.

Based on previous discussion, in order to solve the issue of recognition (non-

recognition) under the rules of international law, distinguishing between matters such
as de facto agent characterised by an effective control over the territory, or being a
mere de jure agent characterised by uncertain effective control shall be considered 41.
Indeed, the nature of the agent would determine the nature of the recognition itself
whether it is declaratory or constitutive and whether it is de facto or de jure 42. In
details,

The de facto recognition takes place when there is a doubt regarding the viability of
the government on the long term, while the de jure recognition takes place when the
level of governmental effective control is permanent and deeply ingrained without the
existence of legal causes detracting from this as it is the case of subservience to a
foreign authority43. As such, it can be seen that the de facto agents are ‘effectively
transformed into a state’s government by the actions of other governments” which

39
Khadduri and Ghareeb (n37) 108.
40
Frank Golder ‘The Purchase of Alaska’ (1920) 25 (3) The American Historical Review 411.
41
Van Essen defines de facto regime as a ‘is an entity which exercises at least some effective […] authority over
a territory within a state’. See, Jonte Van Essen, "De Facto Regimes in International Law." (2012) 28(74)
Merkourios 32.
42
ibid, 40
43
ibid, 41

15
manifests an overt constitutive rule of recognition 44. However, in de jure agent, the
agent does exist earlier to the act of recognition and recognition is only a ‘formal
acknowledgement or admission of an already existing fact’ 45.

formal acknowledgement or admission of an already existing fact

De facto recognition implied a hesitant valuation of the circumstances, a position of

wait and see, to be followed by de jure recognition when the uncertainties are
satisfactorily shrouded to a level that is formally accepted 46. For example, in the 1921
the UK made de facto recognition of the USSR and then it succeeded by de jure
recognition. Likewise, the UK made de facto recognition of the Italian forces that
conquered Ethiopia and after two years this recognition tended to be a de jure one 47.

Another reverse attitude is embraced in situations of civil wars wherever the

delineation between de facto recognition and de jure recognition is sometimes
implement to demonstrate the discrepancy between factual and legal sovereignty.
For instance, at the times of Spanish Civil War, the main position of the UK
government was de jure recognition for the republicans. However, after the military
achievements of the forces of Franco, which was the opposite site in the Spanish
Civil War, the UK extended a de facto recognition of this side as General Franco
starts gaining control over the Spanish territory 48.

Thus, the nature of agent (government) whether it is a de facto or de jure agent will
identify the nature of the recognition whether it is constitutive in the former or
declaratory in the later. Also, a de facto recognition has constitutive rule while the de
jure recognition has a declaratory rule.

44
In de facto regimes, the recognition is constitutive because ‘an entity’s very legal existence as part of the
international system is “constituted” by the recognition of the other entities making up that system’. ibid, 44-5
45
P K Menon, The law of recognition in international law: basic principles (1st edn., Edwin Mellen Press, 1994)18.
46
Shaw (n8) 460
47
ibid
48
it is worth noting the legal consequences in the case of de jure recognition are far meaningful when comparing
to the de facto recognition. For instance, in Haile Selassie v. Cable Wireless Ltd. (No.2) 1939, it is discerned that
the de jure recognition will enable the recognised government to get the right to claim the property on the territory
of the new entity. Furthermore, in de jure recognition, the exchange of diplomatic relations takes which not
adopted in case of de facto recognition. See, Shaw (n8) 460

16
2.1.2. Understanding the law of statehood: the presumption of continuity of
Status Quo
Generally speaking, in international law, sustaining the status quo is preferable over
the new changes. In the words of Crawford, there is a difference concerning the
creation of a new country from one side and the existence or disappearance of an
established country on the other side49. When comparing between the two sides it
can be seen that “generally, the presumption favours the continuity and disfavours
the extinction of an established State”50. This supposition of continuousness is
embraced, for example, in determining the legal situation of Somaliland. That is to
say, the constant overall international recognition of Somaliland as a part of Somalia
relied on the supposition of continuousness 51.

Indeed, with regarding to the issue of statehood commonly and the title to territory
specifically, the assumption of continuousness is presupposed. Hence, in case of
appearance of a new state or discarding a title over a territory, the burden of proof
will be on the side that claims the new position 52.

In every assumed position, a duality exists between the presumption of status quo
and the lack of presumption regarding alternation in the status quo. In simple term,
on the one side, there is original state that claims the title to the territory and, on the
other side, there is new entity that declares itself as a new state or an entity that
makes an acquisition of a part of a territory from an original state.

2.1.3. International law rules that decide whether the status quo should
continue or should be changed irrespective of Recognition

2.1.3.1. The Viability Criteria

From the previous discussion, in order to identify the side that has the legal
justification under international law, it is necessary to consider the criteria of
statehood under international law: a permanent population that exists in a defined

49
Crawford (n1) 51.
50
ibid 701
51
Dimitrios Lalos, ‘Between Statehood and Somalia: Reflections of Somaliland Statehood’ (2011) 10 Washington
University Global Studies Law Review 806.
52
ibid 789

17
territory under the rule of an government in a way that constitutes an independent
state that can enter into international relations with other states 53.

Regarding the requirement of having a government, Wilde, Cannon and Wilmshurst

indicate that the government should be effective. By effective, they elucidate that the
government should have the power to exercise effective control over its territory 54.
Thus, according to Wilde, Cannon and Wilmshurst, when the government is
ineffective, the existence of state will be uncertain and this; in turn, will trigger legal
queries regarding the issue of recognition of the new entity itself 55. For instance,
regarding the declaration of independence that enshrines by Kosovo, there was a
problem i.e. the Kosovo government. There was an international interference in the
governmental operations under the auspices of the United Nation through the UN
Resolution 1244 (1999) which asserts that Kosovo is in fact a part of the state of
Serbia56.

However, this study argues that Article 1 of Montevideo Convention enshrines that
there is a requirement for a mere “government” irrespective of the idea of being an
effective government57. Furthermore, Article 3 of Montevideo Convention indicates
that the state has the right to preserve its integrity and political independence, and
achieve preservation and prosperity58. In the persuasion for achieving these aims,
the government has the right to set all types of legislative, executive, and judicial
rules in order to organise itself 59. Nevertheless, the entitlement to right is different
from the efficiency in practicing this right. This issue is mentioned in Article 4 of
Montevideo Convention which overtly declared that:

“The rights of each [state] do not depend upon the power which it possesses to
assure its exercise, but upon the simple fact of its existence as a person under
international law”60.

53
The Montevideo Convention outlines the characteristics of a state in the international community. According to
art. 1, Statehood under the Montevideo Convention consists of four elements: ‘(a) a permanent population; (b) a
defined territory; (c) government; and (d) capacity to enter into relations with the other States’. Convention on
Rights and Duties of States adopted by the Seventh International Conference of American States, Dec. 26, 1933,
49 Stat. 3097, 3100, 165 LNTS 20, 25 (1936)) [hereinafter― Montevideo Convention].
54
Wilde, Cannon and Wilmshurst (n32) 5.
55
ibid
56
UNSC Res 1244 (10 June 1999) UN Doc S/RES/1244.
57
Montevideo Convention (n53) art.1
58
ibid, art.3.
59
ibid
60
ibid, art.4.

18
As such, according to the logic of Montevideo Convention, the existence of state is
irrelevant from the necessity of having effective control which is a mere mirror for the
idea of the jurisdiction and control’s aspect of sovereignty. In other words, without
coercive power which is impeded in jurisdiction and control’s aspect of sovereignty,
the idea of effective control cannot be achieved; yet, the state still does exist as a
person under international law.

Thus, through a legal argument based on Articles 1, 3, and 4 of Montevideo

Convention, it can be seen that having an effective government is not an essence
requirement for establishing a state. Hence, the issue of recognition, as a declaratory
procedure61, is irrelevant to the issue of having an effective control over the territory.

This issue is important as when indicating to the Lauterpacht interpreting the

meaning of territorial sovereignty into the meaning of ownership of the title and the
jurisdiction and control, it can be seen that being sovereignty according to
Montevideo Convention means “posses”; inter alia, a defined territory as duly
mentioned in Article 162. Furthermore, this possession grants the new state all rights
that mentioned in Article 3 of Montevideo Convention to act “as it sees fit” 63. The
capacity of state to practice its rights is irrelevant to the capacity of the state to fulfil
these rights as mentioned in Article 4 of Montevideo Convention.

61
Montevideo Convention (n53) art.6 enshrines that “The recognition of a state merely signifies that the state
which recognizes [new entity as a state] accepts the personality of the other with all the rights and duties
determined by international law. Recognition is unconditional and irrevocable”. This connotes that recognition is
declaratory and directed only to the new entity that fulfils qualifications mentioned under art.1 of the Montevideo
Convention.
62
Regarding the meaning of possession, The U.S. Supreme Court has said that "there is no word more
ambiguous in its meaning than possession" (National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S. Ct. 209, 58
L. Ed. 504 [1914]) available on: http://legal-dictionary.thefreedictionary.com/possession accessed on 25 August
2016. Furthermore, the legal dictionary indicates that possession and ownership might be exist in one person or
might exist in two different persons. Furthermore, it refers that there are ‘myriad distinctions between possession
and ownership, and the many nuances of possession, are complicated even for attorneys and judges. To avoid
confusion over exactly what is meant by possession, the word is frequently modified by adding a term describing
the type of possession (…)”. ibid, art. 1 of Montevideo Convention enshrines that state “should possess a
qualification”. This study argues that possession means ownership and not effective control. In details, In 18th
century, Legitimism theory considered that the monarchy owns the territory and it did not consider the issue of
effective control. In 19th century, the Contiguity theory “did not hold effective control to be a prerequisite to
sovereignty over a given territory”. Furthermore, in the begging of 20th century, civilised states tended to extend
their sovereignty to all new terra nullius areas such as North and South Pole “on the basis of contiguity”. Thus,
nation states tended to “extent sovereignty without actually effective state presence”. Thus, it can be seen that
prior to the Montevideo Convention, the relationship between states and territory was an ownership relation
rather than an effective control relation. Accordingly, the meaning of word “possess” in art.1 of the 1933
Montevideo Convention indicates to ownership and not to effective control. See, Thomas Grant "Defining
statehood: The Montevideo Convention and its discontents" (1998) 37 CJTL 420, 421 and 425.
63
Montivedio Convention (n47) art.3.

19
Hence, based on this critical analysis, it can be suggested that Montevideo
Convention recognises sovereignty (state) as an ownership of a territory in
comparison with Lauterpacht understanding of the sovereignty. Furthermore,
Montevideo Convention dismisses the idea of Wilde, Cannon and Wilmshurst in
perceiving new states as having effective government.

However, interestingly, this study argues, in a further analysis, that Montevideo

Convention’s conditions of being a state as mentioned in Article 1 will lead to absurd
result in the realm of international law based on logic called reductio ad absurdum64.
In details, presuming a state without having an effective government means that the
new state is not having coercive power to fulfil its obligations and protecting its rights
under international law. In legal terms, a state with ineffective government means a
sovereignty that lacks the control over its territory.

Thus, there will be an entity, with only a title to the ownership 65, where the laws
cannot be enforced either to protect the preservation and prosperity of the state or to
protect the rights of other states. As laws emanates from the state itself (Article 3 of
Montevideo Convention), this means that the existence of legal rules relies on the
presence of a state itself.

However, as there is no coercive power (control over territory), which is necessary

for the conservation and prosperity of the state itself 66, the status quo will change 67.
This is because the fact that coercive power creates and preserves the status quo
(integrity, independence, conservation and prosperity of a state as mentioned in
Article 3 of Montevideo Convention) and after existing the state, the laws will flow. In

64
reductio ad absurdum is a way of demonstrate the falsity of a premise by proving that its logical result is absurd
or contradictory. Indeed, this logic is embraced by international fora as it is the case in Appeal Chamber
regarding Tadi’c Case. See, Christopher Greenwood, ‘International Humanitarian Law and the Tadic Case’
(1996) 7 Eur. J. Int'l L.  273.
65
Control the territory infers the ability to enforce the laws. This cannot be done without some kind of coercive
power. Having a level of coercive power is irrelevant to the title to ownership. In its very essence, all rights and
obligations flow from the might, while rights cannot necessarily lead to having the might. Anthony d'Amato ‘Is
International Law Really Law’ (1984) 79 Nw. UL Rev. 1294.
66
Montevideo Convention (n53) art. 3
67
Status quo means keeping the existence of a state. This can be done through saving its integrity,
independence, conservation and prosperity (art.3). “Consequently”, for the purpose of achieving these aims, the
state has the right to “organise itself as it sees fit”. See art.3 of the 1933 Montevideo Convention. As the state
has non-effective government; hence, it will not be able to “organise itself as it sees fit”. Hence, it will not be able
to save status quo. Accordingly, all laws promulgated by non-effective government are impotent and meaningless
when there is no coercive controlling power over the territory.

20
the words of Thomas Hobbes, there must be some coercive power as an antecedent
step, then the names of just and unjust (laws) can exist 68.

Thus, presuming a state without having an effective government will reverse Thomas
Hobbes understanding. Furthermore, laws will have no meaning as having legal
rules without the ability to be enforced will make them impotent rules.

Consequently, even rules related to the international law, including the laws of
ownership (ownership to the title) will be meaningless. Thus, having a state with
effective government that has control over the territory is an antecedent step for
generating all types of right and wrong, just and unjust over this specific territory. To
sum, based on logic of reductio ad absurdum, Wilde, Cannon and Wilmshurst
criterion of having an effective government will be considered, while Montevideo
Convention understanding shall be dismissed.

2.1.3.1. The Political considerations

They are standards relate to specific political aims; inter alia, the principle of self-
determination and the principle of legal using of military force 69. These
considerations are important because the mere consideration of the aforementioned
statehood criteria (defined population, certain territory, government, and the ability to
enter into relations with other states) would not be able to alter the status quo unless
embracing the political considerations surrounding the related situation 70.

The principle of self-determination

Regarding self-determination, each group of people has the right to self-
determination. This collective right is enshrined in Article 1(1) of the International
Covenant on Civil and Political Rights (hereinafter ICCPR) as follow:

“all peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development” 71.

68
Thomas Hobbes, Leviathan, ch. XV, 3 (Edwin Curley ed., Hackett Publ’g Co. 1994) (1668). See also, Claire
Finkelstein, ‘Hobbes and the Internal Point of View’ (2006) 75 Fordham L. Rev 1214.
69
Jure Vidmar ‘Territorial integrity and the law of statehood’ (2013) 44 George Washington International Law
Review 704.
70
Wilde, Cannon, and Wilmshurst (n32) 6

21
Thus, determining political status of a group of people might be in the form of
declaring a new state. Furthermore, Article 1 (3) of the ICCPR assert that the
existing states “shall promote the realization of the right of self-determination, and
shall respect that right (…)”72.

In principal, a group of people may declare itself as a new state irrespective of

deficiency in some viability criteria i.e. the inability of its government to deliver
political, economic, and judicial services to its people as it is the case in some third
world countries after the WWII 73. For instance, the Democratic Republic of Congo 74.

However, there are a number of caveats that should be considered when examining
the collective right to self-determination.

Firstly, from a prima facie point of view all states should respect and promote the
decision of any group when practicing its right to self-determination in any way even
it results in creating a new entity. However, this respect and promotion of practicing
this collective right should be done “in conformity with the provisions of the Charter of
the United Nations” as mentioned in Article 1(3) of the ICCPR 75. As a result, if
practicing the right to self-determination leads to breaching the principles and
purposes mentioned in Articles 1 and 2 of the UN Charter, other member states to
the ICCPR will neither respect nor promote the practicing of this collective right.

Interestingly, in more details, if a group of people who are nationals of an already

state want to practice their collective right of self-determination, the original state
(represented by the government as discussed in the agency theory in subsection
2.1.1), might perceive the act of self-determination as a threat to its territorial integrity
as duly mentioned in Article 2 (4) of the UN Charter 76. Thus, a contradiction appears
between the people right to self-determination and the state right to territorial

71
See, International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), at 52, U.N. Doc. A/6316
(1966), entered into force Mar. 23, 1976. art.1(1) Furthermore, under Article 1(3) of the ICCPR, ― ‘[t]he States
Parties to the present Covenant, including those having responsibility for the administration of Non-Self-
Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect
that right (…)’ibid.
72
ibid, art. 1 (3).
73
Robert Jackson, Quasi-States: Sovereignty, International Relations and the Third World (1st edn, Cambridge
University Press, 1990) 30.
74
Theodore Trefon, ‘Public service provision in a failed state: looking beyond predation in the Democratic
Republic of Congo’ (2009) 36 (119) Review of African Political Economy 9.
75
ICCPR (n71 ) art.1 (3)
76
United Nations, Charter of the United Nations, (n10) art.2(4)

22
integrity which mentioned in Article 2 (4) 77. However, the inalienable right of self-
determination, which is a genuine and fundamental human right, derogates the
states right of territorial integrity, which can be expressed as a responsibility between
states towards each other.

Remarkably, according to Article 3 of Montevideo Convention, the original state has

the right for saving its integrity in any way that it sees fit. As such, the original state
can, practically and legally, issued legal rules that confined the self-determination of
the right of a group of people who are living on its territory. These legal rules might
be for the benefit of other groups of people who are citizens of the original state and
living on the same territory. Hence, through relying on Article 3 of Montevideo
Convention, the original state can legally counter the right of self-determination in
independence and declaring a new state for specific secessionist group through
protecting the right of self-determination of other groups in keeping the integrity of
the state. Indeed, in pursuing to achieve preservation and prosperity, the original
state has no “limitation than the exercise of the rights of other states according to
international law”78.

Secondly, sometimes, the existence of a new state might undermines the right of
self-determination of other existing group of people. In this case, although the new
entity fulfils the standard criteria of statehood, the declaration of new statehood goes
invalid. For instance, the Rhodesian state that is established on the apartheid rule
was invalid because of breaching the self-determination right 79.

Military force Consideration

Regarding the use of military force, the illegal implementation of the military force
which leads to establish new entity or to obliterate the existence of an already
existing state will not lead to change the status quo. For instance, the Israeli
occupation for Golan Heights after the 1967 and the UN Resolution 242 that urges
Israel to secede from this Syrian territory 80. This is because the fact that a military

77
Michael Reisman, ‘Coercion and Self-Determination: Construing Charter Article 2 (4)’ (1984) 78(3) The
American Journal of International Law 642.
78
Montevideo Convention (n53) art.3
79
Lalos (n51) 802
80
UNSC Res 242 (22November 1967) UN Doc S/RES/242.

23
act against another state will be perceived as a breach to the peace 81. Consequently,
all consequences of the military force shall be void.

2.1.4. The Rule of Recognition in the Law of Statehood

Generally speaking, the recognition (or non-recognition) regarding the establishment
of a new entity or keeping the status quo of an existing state is only declaratory 82.
That is to say, the normal situation is to implement the aforementioned criteria i.e.
statehood standard criteria and the political considerations, without taking into
consideration the view of other countries regarding this issue of recognition.

Nevertheless, the constitutive rule of recognition seems logic in extreme situations.

In details, it has the capacity of pushing situations more in supporting of specific
fallout towards which the existing criteria are indicating however which itself is not
getting by adopting them lonely83.

As such, if there is a claim of a new state, however this new entity is lacking the
viability criteria as mentioned previously, the constitutive role of recognition of its
claim to statehood might be vital to change the legal position into the favour of new
state. In other words, this recognition is specifically important taken the presumption
discussed previously which stressed on the continuation of the status quo i.e. a
presumption is not in favour of new entity 84.

The constitutive rule of recognition cannot be effective unless it is done by

considerable number of states, since the constitutive impact is relied on the common
idea that international law is created, and changed, merely when pinpointing a
common trend amongst the vast majority of states 85. That is to say, it should be
detected, consequently, a substantial recognition by countries commonly, ideally,
though not inevitably, evident through a resolution by the UN to accept the new claim
as a new country, something which assumes statehood 86. A main example is the

81
Examples about breaches to the peace include; inter alia, UNSC Res 1501 (25 JUNE 1950) UN Doc
S/RES/1501 which the Security Council condemned the invasion of North Korea to South Korea; UNSC Res 502
(3 April 1982) UN Doc S/RES/502 in which Security Council condemned the Argentinean invasion of Falkland
Islands; UNSC Res 660 (2 August 1990) UN Doc S/RES/660 in which the Security Council condemned the Iraqi
invasion of Kuwait.
82
Alison Eggers, ‘When is a State a State-The Case for Recognition of Somaliland’ (2007) 30 Boston College
International and Comparative Law Review 214.
83
William Thomas Worster (n6) 133 and 134.
84
Crawford (n1) 701
85
Peggy Hoyle, ‘Somaliland: Passing the statehood test’ (2000) 8.3 IBRU Boundary and Security Bulletin 82.
86
ibid

24
difference between Bosnia and Herzegovina which has been accepted as a member
in the UN and Somaliland which was not accepted 87.

Regarding the constitutive rule of recognition in the case of political considerations,

things might be more complicated. More specifically, the case in which there is a
constitutive recognition with new entity as a state and this new entity did not fulfil the
right of self-determination. In this case, because the issue of self-determination is
classified as jus cogen right and; hence, the act of recognition cannot derogate it 88.
Consequently, the number of recognised states will not be able to change the status
quo when there is no self-determination. This was the case in Rhodesia 89.
Interestingly, in the future, this study considers that this situation between the
constitutive rule of recognition and the right of self-determination might be on the
table of discussion when considering self-determination for the peoples of Palestine,
Western Sahara, Bask, and Tibet.

To sum, these are the main broad theoretical lines from which the act of recognition
should be viewed. In the following section, a discussion will be held regarding the
distinction between declaratory approach of recognition and constitutive approach of
recognition.

2.3. Recognition of States

The nature of recognition is perceived differently according to two approaches i.e.
constitutive theory and declaratory theory90.

2.3.1. Constitutive Theory

According to the constitutive theory, the act of recognition leads to establish new
state and confers a persona to the new entity irrespective of the way in which the

87
Dapo Akande, (7 August 2013) ‘The Importance of Legal Criteria for Statehood: A Response to Jure Vidmar’
EJIL, Available on http://www.ejiltalk.org/the-importance-of-legal-criteria-for-statehood-a-response-to-jure-vidmar/
accessed on 25 August 2016. Another example that likes Somaliland is the Turkey Republic of Northern Cyprus
which was only recognised by Turkey. See, Suzanne Palmer, ‘The Turkish Republic of Northern Cyprus: Should
the United States Recognize it as an Independent State’ (1986) 4 BU Int'l LJ 423.
88
See; for example, African Charter on Human and Peoples‘ Rights, OAU Doc. CAB/LEG/67/3 Rev. 5 (1982),
entered into force Oct. 21, 1986. Under Article 20(1) of the African Charter, ― [a] ‘peoples … shall have the
unquestionable and inalienable right to self-determination’. It continues by emphasizing that accordingly all
peoples ―shall freely determine their political status and shall pursue their economic and social development
according to the policy they have freely chosen’.
89
Lalos (n51) 802
90
Crawford (n1)12

25
state gained its independence 91. Accordingly, the putative state is created on the
international arena as completely accepted person under international law due to the
act of consent and recognition of the old exiting states. Interestingly, accepting
constitutive doctrine means that the non-recognised state will have no retina of
obligations and rights under international law 92. In a more analysis, it can have no
sovereignty93.
As such, even if the new entity claimed and proved both a title to the ownership of a
territory and the jurisdiction and control over the same territory, the new entity shall
not be perceived as a state because it lacks the constitutive act of recognition.
A legal ramification would be envisaged when a so called state were recognised by a
limited number of already existing states, while goes unrecognised by other states 94.
In this case, the issue of partial legal personality would take place and this issue is
not recognised under international law which enshrines that states either exist with
legal personality or does not exist at all 95. As such, a new entity that lacks the
recognition of being a state will not subject to the international obligations and;
consequently, be unconfined with these obligations under international law 96. As
such, the any situation that connects between this new entity and a state that
refused to recognise this new entity shall be considered a situation between a non-
state actor and a state.
Another legal criticism based on Holmes’ logic when accepting the constitutive
theory97. As there is no opportunity to claim and really impose recognition from other
states, the new entity has no right to be accepted as a state. The lack of a legal
basis (i.e. the ability to enforce the right to be recognised), repudiates a putative
entity to be preserved as a state.

2.3.2. Declaratory Theory

It generally perceives the act of recognition in different way which is more compatible
with international practical realities98. It considers that the act of recognition is only an
acceptance of already existing states with an existing factual situation at present.
91
ibid19
92
Thomas Grant, The recognition of states: law and practice in debate and evolution (1st edn. Greenwood
Publishing Group, 1999)3 and 4
93
Brownlie said that sovereignty is a retina of rights and obligations. Brownlie (n3) 105.
94
Grant (n92) 2, 3 and 4.
95
ibid
96
ibid
97
Oliver Holmes, ‘The path of the law’ 110 (5) Harvard Law Review 991.
98
Crawford (n1) 21

26
That is to say, the putative state will obtain capability as duly mentioned in
international law not because of the consent of the already existing states; rather,
because fulfilling statehood’s criteria 99. In other words, the state will be established
by its own circumstances rather than waiting to the process of recognition to be
occurred by others100. This approach derives its existence from the Westphalian
positivist orientation which asserts on the issue of supremacy of the state and the
concomitant absence of any regulation within the society of nations 101.
This positivist doctrine is echoed in Article 3 of the 1933 Montevideo Convention
which enshrined that “The political existence of the state is independent of
recognition by the other states” 102. Indeed, for the declaratory theorists 103, it is
essential to assert on the real position that does exist on the ground and to abate the
powers of other existing state to give international persona104.
However, the declaratory theory can be criticised on different levels i.e. theoretically,
practically, legally and logically as follow:
Theoretically, the declaratory approach might face the case in which legal
sovereignty aspect is belonging to a government and the adjudication and control
aspect of sovereignty is belonging to another government 105. Thus, the objective test
(mentioned in Article 1 of Montevideo Convention) of being statehood is not available
for any entity; hence, virtually, the existing states cannot declare their recognition of
the new entity106. Nevertheless, general practices of existing states connotes that
the existing states recognise at least one government as being responsible for
specific territory107.
Practically, even if an aspirant statal entity fulfilled the objective criteria, there is no
duty under international law that asserts an effective obligatory recognition by other
states. Thus, although a state might be created, it cannot do international relations
with other states within the realm of international law. This means that the new state
99
The decision of the European Court of Human Right as mentioned in Loizidou v. Turkey (preliminary
Objections), Series A, No. 310, 1995, p.14
100
Benjamin Farley, ‘Calling a State a State: Somaliland and international recognition’ (2010) 24 (2) Emory
International Law Review 792.
101
The modern international system is generally identified as being come to existence with the Peace of
Westphalia of 1648. See, Douglas Howland and Luise White, The state of sovereignty: territories, laws,
populations (Vol. 3. Indiana University Press, 2009) 3.
102
Montevideo Convention (n53) Art.3 of
103
e.g. Hans Kelsen, ‘Recognition in international law: theoretical observations’ (1941) 35 Am. J. Int'l L. 605.
104
ibid
105
Government as an agent for the principal (the state).
106
See footnote 61 in this study regarding an explanation about art.6 of the Montevideo Convention.
107
Such as the case of Bosnia and Herzegovina.

27
is practically out the international community. This will adversely impact on its very
existence as a state due to the fact that although the new entity is capable of
entering into relations with other states (a part from the objective test), other states
refute entering with relations with the new entity. Practically, this means that the new
state cannot enter into a relation with other state.
Logically, the “capacity to enter into relations” mentioned in Article 1 of the
Montevideo Convention does require a relation which in turn requires two sides. As
there is an aspirant statal entity that has the will and the capacity to enter into
relations; however, there is no state exists in the international community to establish
this relation. Hence, the concept of relationship itself is unattainable.
In other words, aspirant statal entity exists on a territory where it cannot make
relations with other states and therefore the aspirant statal entity failed in meeting
one of the conditions mentioned in Article 1 of Montevideo Convention.
Therefore, logically, the concept of declaratory recognition starts playing a
constitutive rule in the reality. In principal, the constitutive rule of the declaratory
recognition is not appear when some states recognised the new entity; however, this
constitutive nature of the so called declaratory recognition appears when presuming
that no state in international community did recognised the aspirant statal entity.
Indeed, based on Hegelian second law of dialectic, the quantitative changes in the
number of states that did not recognise the aspirant statal entity will change the
nature of recognition from being a declaratory to be constitutive when there is no
recognition at all108.

Legally, the declaratory theory reflects an idealistic view. As, theoretically, the new
entity does not require recognition to be exist as a state; however, practically, it will
not enjoy privileges in international community without recognition. Furthermore,
another legal facet is that because of the non-availability of remedies, the recognition
cannot be effectively forced. Hence, the putative entity has no right to be perceived
as a state.

108
This is the second law of dialectic of phase transition indicates that “The law of the passage of quantitative
changes into qualitative changes can also be applied to the process of social change and class conflict”. See,
Robert Carneiro, "The transition from quantity to quality: A neglected causal mechanism in accounting for social
evolution." (2000) 97 (23) Proceedings of the National Academy of Sciences 12926.

28
2.3.3. Declaratory Theory as a General Rule and Constitutive Theory as a
Special Rule
Generally speaking, while constitutive approach is the main approach in 19 th century,
declaratory approach is the prevailing one in 20 th Century109.
Practical evidences during the 20 th century are not clear-cut; nevertheless, they do
indicate to declaratory doctrine as more favourite and practical than constitutive
doctrine110.
Countries, which for specific causes, refused to recognise new countries as it is the
case between Arab states and Israel and USA and some communist countries,
seldom resulted in preventing the new state from enjoying its rights and fulfilling its
duties under international law 111. Furthermore, these new states are bounded by the
obligations and rights under international law even if the act of recognition has not
been conferred for basically political causes 112.
For instance, in the domain of Israel of not being recognised by some Arab states;
yet, Israel will still be bound by international law regarding the matters of abstaining
from doing an act of aggression and the rules of non-intervention. This issue has
been embraced by the Security Council resolution 573 (1985) 113. In 1985, the
headquarters of Palestinian Liberation Organisation which was located in Tunisia
became under an Israeli air strike. Tunisia complained for the Security Council which
demanded, under resolution 573 (1985), ceasing the Israeli act of aggression against
Tunisia. Accordingly, Israel, which confessed responsibility for the attack after it took
place, has duties towards states (Tunisia) which does not recognise the state of
Israel. Thus, it can be deduced that, Tunisia expects from the unrecognised state of
Israel to behave within the norms of international law. Explicitly, this example reflects
the declaratory theory.

If the requirements of being statehood under international law are fulfilled by a state
and; yet, the state is still unrecognised this will not prohibit enjoying its rights and
doing its duties. For instance, Article 9 of the 1948 Bogota Convention indicates,
regarding the basic obligations and rights of states, that the political presence of a
109
Crawford (n1) 15.
110
ibid
111
N. Mugerwa, 'subjects of international law' in manual of international law in (ed. Max Sørensen) Manual of
public international law (1st edn.,St. Martin's Press, 1968) 247, 269
112
ibid
113
See, UNSC Res 573 (1 October 1985) UN Doc S/RES/573.

29
country is irrelevant of the act of recognition by other existing countries 114.
Consequently, the new country has the inherent right of self-defence in order to
preserve its political independence and territorial integrity even before any act of
recognition takes place115. Furthermore, in its resolution on the act of recognition of
aspirant statal entities in 1936, the Institut de Droit International asserts that the
presence of the putative countries, with all legal ramifications linked with that
presence, is irrelevance to the denial of one or more countries to recognise 116.

In the post-World War One era, the courts of the new countries of Central and
Eastern Europe indicated that their countries come to existence not because the
Treaty of Versailles but due to their declaration of independence 117. For example, in
Deutsche Continental Gas-Gesellschaft v. Polish State, the forum referred that the
act of recognition with the Polish state in the Versailles Treaty is only declaratory as
the Polish state is existed without the need for recognition 118. Moreover, the 1991
Arbitration Commission about previous Yugoslavia indicated that the presence or
non-existence of a country is a matter of fact and that the impacts of the act of
recognition by other countries are merely declaratory 119.
Nevertheless, the constitutive approach is not completely abandoned of total
support. This is obvious in special cases i.e. the new entity is created by
unconstitutional means or due to military invasion 120. As a general phenomenon, the
putative entity or government shall be uncertain and insecure and only in this case
the act of recognition constitutes an essential role.

At all circumstances, the act of recognition by a country will tantamount to be a

declaration by that country on the way in which it assesses the circumstance of the
putative state and such an assessment will be compulsory upon it 121. That is to say, it
will not have the capacity to refute later the factual event it has recognised, except,

114
Organization of American States (OAS), Charter of the Organisation of American States, signed 30 April 1948,
entered into force 13 December 1951. Available at: at: http://www.refworld.org/docid/3ae6b3624.html [accessed
23 May2016]
115
ibid
116
39 Annuaire de L’Institut de Droit International, 1936, p.300
117
Shaw (n8) 448
118
Deutsche Continental Gas-Gesellschaft v. Polish State (1929) 5 AD, p.11
119
The International Conference about Yugoslavia established the Yugoslavian Arbitration Commission in 1991.
See, 92 ILR, pp. 162 and 165.
120
Farley (n100) 794
121
Philip Brown ‘The legal effects of recognition’ (1950) 44(4) The American Journal of International Law 617.

30
when situations fundamentally change and shift as time passes. In this meaning, the
recognition can be perceived as constitutive 122. In fact, Opinion 8 of the Arbitration
Commission regarding former Yugoslavia indicated that whereas the act of
recognition is declarative, such act, in addition to being a member within international
organisations, allows witness to these states’ conviction that the political unit so
recognised is factual and accords on it specific duties and rights under the rules of
international law123.

Conversely, the reality of non-recognition of a new entity as a state by very

substantial number of states will create the basis for tangible signal for the opinion
that such a sui generis entity has not created its compatibility with the requirements
demanded for establishing statehood 124. Moreover, the constitutive interpretation
relies on additional issue i.e. the behaviour of considerable number of countries
whereby a non-recognised government or state could not claim the powers available
to a recognised government or state in front of the domestic forum 125. This indicates
that the recognition infers a unique legal impact by which a new government or new
state would enjoy enforceable privileges under domestic forum that it would not have
enjoyed in the period before recognition 126.
This hypothetical controversy is of an importance in that it indicates to the way in
which recognition works and asserts the effect of countries on the development of
rules of international law. While the constitutive approach swings towards
international community, the declaratory approach bends towards the state 127.

In a number of events, the constitutive theory were sought to be implemented 128. For
instance, Lauterpacht indicated that once the requirements mentioned by
international law for establishing statehood have been met, an obligation on the
existing states to accord recognition takes place 129. The reason behinds this duty is

122
ibid
123
92 ILR 199 and 201.
124
Democratic Republic of Timor v. State of the Netherlands (1980) 87 ILR 73 and 74
125
Shaw (n8) 471
126
Cyprus vs. Turkey, European Court of Human Rights, [Judgement] 10 May 2001. paras. 60 and 61
127
Shaw (n8)
128
See dissednding opinion of Judge Al-Khasawneh in Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J.
Reports 2007, p.43
129
Hersch Lauterpacht, Recognition in international law ( Vol. 3. Cambridge University Press, 2012). 24, 55, 76
and 77.

31
the non-availability of one central international authority within the context of
international law to evaluate and confer legal personality 130. Accordingly, it is the
responsibility of the other existing states to do this obligation on behalf of the
international law and international community. This function has two characters i.e.
(1) declaratory as this operation is built on particular unambiguous facts as the new
political unit meets the conditions of statehood; (2) constitutive as this operation
represents a consent by the recognising country of the specific community as a
political unit having all the privileges and duties that are integral in statehood. Prior to
the recognition, the entity that aims to be recognised as a state will merely have such
privileges and obligations as have been plainly allowed to it 131.

According to Shaw, the Lauterpacht approach is an excellent vision to resolve the

legal factors in one coherent doctrine. This approach admits the realities of aspirant
statal entities and governments’ formations through various means either legal or
illegal and aims to integrate this to the supremacy of the rules of international law 132.
Nevertheless, the Lauterpacht approach discards the political facets impeded in the
act of recognition133. In other words, in reality, the recognition is implemented,
according to political exigencies, as a tool for supporting or non-supporting of
specific new government or new entity 134. In fact, when there is an obligation to
accord recognition, is it possible for the new entity to request this recognition from
other existing states where these states are reluctant towards conferring
recognition? As such, if the new entity had the ability to demand other states to
recognise it, a possibility would have emerged in which non-state actor with as yet
no privileges or obligations imposing privileges against existing states that do not
recognised the new entity as a state.

130
Kenneth Abbott and Duncan Snidal "Hard and soft law in international governance"(2000) 54 (3) International
organization 426. They indicate that ‘Even ‘‘hard’’ international law falls short of this standard: international
regimes do not even attempt to establish legal obligations centrally enforceable against states’.
131
Nico Krisch ‘International law in times of hegemony: unequal power and the shaping of the international legal
order’ (2005) 16 (3) European Journal of International Law 386.
132
Shaw (n8) 450
133
Farley (n100) 792
134
David Rai, Statehood and the law of self-determination (Vol. 43, Martinus Nijhoff Publishers, 2002), 3. Rai
indicated that ‘[I]t has been suggested that the recognition of the new States which were formed within the
boundaries of the former Yugoslavia and the former Soviet Union must mainly be explained in terms of politics. In
other words, the creation and recognition of these new States should be seen to have taken place mainly outside
the domain of international law.’

32
However, According to Shaw, the general practice of states indicates that the
doctrine of Lauterpacht has not been embraced 135. The vast majority of the existing
states indicate that there is a tendency to accord recognition; yet, this recognition
does not established on the legal obligation to do it, as historical tangible evidences
with indication to a number of communist states and Israel 136. This situation was
endorsed in the Arbitration Commission of the former Yugoslavia in its Opinion
No.10 in which the act of recognition is perceived as a discretionary behaviour that
existing countries may follow when they select and in a way of their selecting,
subject merely to acquiescence with the obligations of public international law 137.

2.3.4. Mixed Constitutive and Declaratory Theories

Factual behaviour results in a middle situation between the two approaches 138. As
such, there are two points. Firstly, when a state recognises another state, this means
that the recognising state indicates to the recognised state as being constituted after
fulfilling minimum provisions that establish the default position in creating a state
according to the rules of international law. Secondly, the act of recognition is deeply
political and is conferred on a case by case basis for only political purposes 139.
This issue was highlighted by the USA in the Security Council while meetings on the
issues of Middle East in 1948. In details, they indicated that it is strongly
inappropriate for state to recognise that any state could investigate the issue of
sovereignty of the USA in its exercising of “the high political act of recognition of the
de facto status of a state”140. In fact, the USA further indicated that there was no legal
authority that can judge the legitimacy of the act i.e. recognition promulgated by the
USA. Thus, the American side in the Security Council concluded that the act of
recognition is to be adopted as a sign of political consent 141.
However, the UK is generally inclined to recognise a state when convincing that the
authorities in the putative entity have fulfilled the basic requirements as duly

135
Shaw (n8) 450
136
Crawford (1) 5
137
92 ILR 206-8
138
Johan Van der Vyver, ‘Sovereignty and human rights in constitutional and international law’ (1991) 5 Emory
Int'L Rev.  321.
139
Grant (n92) 83-84
140
Shaw (n 8) 447.
141
ibid

33
mentioned in international law and, significantly, the authorities in the new entity
have an effective control over its territory 142.
The difference between the USA and the UK towards the matter of recognition is that
USA is stricter than the UK in asserting that each existing country has the complete
right in using recognition in case of de facto state. However, the UK asserts that the
act of recognition shall be done in any case the putative state is created according to
international law and with an effective control over territory. The similarity between
the USA and the UK is that both countries assert on having the reality of a de facto
state and then issuing their recognition which is necessary for the putative state to
be accepted as fully-fledged member in international community.
As can be seen, there is a mixed between constitutive and declaratory theory. As
such, for a given de facto state, the act of recognition characters the putative entity
as a state under international law. This constitutes an indication of consent on the
state’s new political position by international community. In other words, without
recognition, the putative state will be a state internally but not externally 143. A better
understanding of the mixed nature of constitutive and declaratory theories can be by
the words of Farley who quoted from Lauterpacht (1948) that
‘Though political communities . . . can without recognition continue to operate as
states within the four walls of their domestic (territorial) enclave, they cannot enter
into relations with any other state unless that other state expressly, or by putting up
with such relations, impliedly recognize[s] that political community as a subject of
international law’144.

To conclude, establishing a clear cut line between the two theories of recognition in
order to embrace one theory and discard the other one is proved to be impractical in
international community. That is to say, adopting one theory would not enable
understanding various cases regarding the issue of recognition towards aspirant
statal entities. Furthermore, the legal bases of each theory can be refuted as this
study argued.

142
Lauterpacht (123) 6.
143
Farley (n100) 792.
144
ibid

34
2.4. Recognition of Governments
Recognition of new governments is relatively dissimilar from recognition of putative
states. As such, when there is a focusing on the issue of statehood, the factual
circumstances will be scrutinized in terms of the accepted criteria 145. However, in
case of government recognition, recognition of governments will be decisive when
the new government is formed in extra-constitutional 146 or in cases where there is a
de facto government or administration that has an effective control on only a part of
the territory of a state147.
Recognition means that the recognising state consents two points i.e.

Recognition of a government infers two issues; namely, the recognised government

is believed to have fulfilled the prerequisite conditions, and the recognising state will
deal with the recognised government under international law as being the governing
authority of the country and consent the common legal repercussions of such
capacity in terms of rights and immunities within the domestic legal order.

Due to the importance of legal ramifications that are derived from recognition in
matters of acceptance regarding the related factual considerations and acceptance
regarding the resulting legal ramifications 148, various approaches have envisaged to
examine the act of recognition when a new government appears in extra-
constitutional manner. This study considers three Approaches for examining the
recognition of governments i.e. Tinoco Approach, Tobar Approach, and Estrada
Approach.

2.4.1. Tinoco Approach (Effective Control Approach)

145
Montevideo Convention (n53) art1.
146
Ian Brownlie, ‘Recognition in theory and practice’ (1983) 53.1 British Yearbook of International Law 197.
147
Kofi Kufuor, ‘OAU and the Recognition of Governments in Africa: Analyzing Its Practice and Proposals for the
Future’ (2002) 17.2 Am. U. Int'l L. Rev. 369.
148
ibid

35
When the new government effectively control the state, and this effective control is
expected to endure, the new government does exist and the act of recognition is
declaratory149.
The Tinoco Arbitration presents a good instance of the idea of effective control. In
details, the Government of Tinoco arrived to power in Costa Rica after doing coup
d'état and established a repressive militaristic unconstitutional regime. This
government went unrecognised by some states such as the United State and United
Kingdom as being illegitimate.
In the year 1919, the Government of Tinoco was overthrown and the new
administration disavowed specific duties which the overthrown government of Tinoco
had towards the nationals of the UK. This begs the question of whether, or not, the
obligations created during the era of Tinoco will oblige the successor government of
Juan Bautista Quirós.
The only Arbitrator in this case, who is called Taft, 150 discerned that as the Tinoco
administration had had an effective control on the territory, it was valid government
irrelevance to the reality that some states, including the UK, did not recognise it 151.

Thus, it can be seen that although the non-recognition of the USA and the UK with
the government of Tinoco, the Arbitrator considered that their recognition did not
change or overturn the actual fact that Tinoco government had had an effective
control over its territory. This means that act of non-recognition due to the lack of
legitimacy in the origin of the Tinoco government did not change the evidential
weight of effective control. In fact, this is a clear example about the declaratory
approach of recognition.
However, in case where there is uncertainty regarding the effectivity of control over a
territory, the rule of recognition gets much constitutive. This issue was deduced from
the statement of Taft who indicated that:

149
Shaw (n8) 455
150
1 RIAA 380
151
See Convention Between the British Government and the Government of Costa Rica for the Submission to
Arbitration of Certain Claims Against the Government of Costa Rica, Jan. 12, 1922, 1 REP. IN'T'L. ARB.
AWARDS 371, 381. The decision suggested that a de facto government should be recognized if it 'maintains a
peaceful administration, with the acquiescence of the people for a substantial period of time...". As can be seen,
there is no requirement on the new government for having a constitutional legitimacy as a prior step for getting
recognition. This differs from Tobar Approach as will be discussed later in this dissertation.

36
“The non-recognition … is usually appropriate evidence that [the new government]
has not attained the independence and control entitling it by international law to be
classed as such”152.
Thus, logically, when a state recognised government that does not effectively control
its territory, the act of recognition shall play a constitutive rule. Thus, in Tinoco
approach, the recognition has declaratory rule when the effective control is beyond
reasonable doubt, while it has constitutive role when the effective control is disputed.

Indeed, although the political exigency that plays significant rule in recognising or not
recognising new administrations which lacks constitutional legitimacy, the approach
of effective control of territory imposes a factual reality in which recognition should
not be denied.

The UK did accept this approach and declared that the recognition of the
government takes place when the government enjoys an effective control. By
effective control, the UK meant that the new government has: (i) the effective control
should be reasonably continuous, (ii) people should have obedience to the new
government, and (iii) the effective control should be on higher portion of the territory
of the putative state153. This approach of the UK government explains the recognition
of the communist Chinese government and the Communist Hungarian government
after the failure of the uprising154.
Nevertheless, this attitude, which is based on political realism, could not be
perceived as a consistent trend in the UK policy of recognition because the UK
refused, for a number of years, recognising the governments of North Korea 155, and
Democratic Republic of Germany which had effective control 156.

152
1 RIAA 380.
153
Colin Warbrick, ‘The New British Policy on Recognition of Governments’ (1981) 30.03 International and
Comparative Law Quarterly 568.
154
Ingrid Detter, The law of war (3rd edn., Routledge, 2013) 20.
155
Alina Kaczorowska-Ireland, Public international law (5th edn., Routledge, 2015) 224.
156
A V Lowe, and Colin Warbrick ‘Recognition of States’ (1992) 41(2) International and Comparative Law
Quarterly 473.

37
 Indeed, whether, or not, there is a tendency for extending the act of recognition, the
effective control should be examined as a significant milestone. Furthermore, this
effective control should more likely to continue and it should be sound established 157.

To sum, the approach of effective control is a signal of the significance of the realistic
character of any position. As such, in those situations, where the recognition is
denied because of the unsuitable origins of the novel administrations, the fact of
being un-recognised will have less effect than when recognition is declined due to
the lack of effective control. As can be seen, regarding the matter of recognition, the
Arbitrator decision in Tinoco case was a mixture between declaratory and
constitutive approaches. In details, the recognition can be perceived as constitutive
when de facto realistic situations did not prevail i.e. the new government has no
effective control; however in other cases, recognition is considered as declaratory
when there is an effective control158.

2.4.2. Tobar Approach (the Legitimacy Approach)

Beside the doctrine of effective control that is perceived as the most adopted
approach for the recognition of governments, there is the theory of legitimacy or what
is called Tobar Approach 159. This theory suggests that the new administration that
comes to the authority in non-constitutional means shall not be recognised unless
the people accept this authority 160. The origin of this theory is traced to the USA
policy of recognition in the governments of Central America. The Central American
Nations aim to keep a level of stability in the region of Panama Canal 161. A recent
application for this theory can be traced in the case of Haiti. In details, The UN
supported the efforts for restoration of the democratic elected President Jean
Bertrand Aristede to power after coup d'état against his constitutional regime. As
157
However, the decisive role of political considerations stays presence in the matter of recognition of
government. Shaw (n8) 457-8.
158
Kaczorowska-Ireland (n155) 212
159
This doctrine, called the Tobar Doctrine, labelled for Carlos R. Tobar, a former foreign minister of Ecuador
presented a standard of collective recognition. For exploring the origins of this doctrine see, Donald Dozer,
Recognition in Contemporary Inter-Anierican Relations, (1966) 8 Journal International American Studies 318 and
321.
160
See generally Conference on Security and Co-operation in Europe: Document of the Copenhagen Meeting of
the Conference of the Human Dimension, 29 I.L.M. 1305-21 (1990) [hereinafter Copenhagen Document] (laying
out the participating States' commitment and recognition of democracy and political pluralism).
161
Additional Treaty to the Treaty of Peace Concluded at the Central American Conference, Dec. 20, 1907, S.
Treaty Doc. No. 357 (1776-1909) (rejecting any government that comes into power through a coup d'etat or a
revolution against the recognized government).

38
such, resolution 841 (1993) indicates that the new government should have
legitimate origin in the constitution as an antecedent condition for recognition 162.

This theory can be criticised as it would lead to non-recognition for all governments
that comes due to coup d'état or revolution and this non-recognition might contradict
with the factual conditions on the ground. Moreover, the connecting between the act
of recognition and the government being accepted with people means connecting
between legitimacy and democracy163. This link might be inaccurate due to the lack
in defining the meaning of democracy; for example, central democracy such as
China or representative democracy such as USA. Furthermore, this theory did not
identified whether a qualified government might be perceived as legitimate. 164

Smith indicates that, in the 21st century, the policy of the USA in international
relations relied on the presumption that democracy is the best likeable and legal type
of government. Consequently, the USA is under legal, moral, and political obligation
to disseminate its philosophy about the virtues of democratic regimes all over the
world. This Wilsonism has continued after Versailles treaty in 1919 and can be trace
in the policies of Bush I and Clinton administrations as well as in the statement of
Bush II at the eve of Iraq invasion in 2003 165.

However, the American logic reflects an American policy towards dealing with other
governments according to American exigencies and not being in a genuine reliance
on the rules of international law about recognition 166. This is because the fact that
legitimate approach dismisses the factual situation on the ground and relies mainly
on the constitutive role of recognition167.

Thus, according to Shaw, the recognising state should embrace the legitimate
approach of recognition as a mere “political qualification” and not as a legal
162
UNSC Res 841 (16 June1993) UN Doc S/RES/841.
163
Bo Rothstein, ‘Creating political legitimacy electoral democracy versus quality of government’ (2009) 53(3)
American Behavioral Scientist 311.
164
ibid
165
Tony Smith, America's Mission: The United States And The Worldwide Struggle For Democracy In The
Twentieth Century, (1st edn., Princeton University Press, 1994) 85; see also, Full text: George Bush's address on
the start of war start of war (20 March 2003). Available on:
https://www.theguardian.com/world/2003/mar/20/iraq.georgebush accessed on 28 August 2016.
166
Ryngaert and Sobrie (n38) 482.
167
ibid

39
requirement168. Indeed, this political qualification appears in international conferences
and international organisations recommendations when dealing with new
governments. As such, the 1990 Conference on Security and Co-operation in
Europe stressed on the commitment of states in recognising democratic regimes
which do reflect political pluralism169.

Furthermore, the UN has referred to importance of democratically elected

governments for achieving peace and prosperity. In a report from the Secretary-
General Kofi Annan to the Security Council about the causes of conflict in Africa, it
was referred that democratic regimes which are legally elected by the majority of the
people is
“a very hopeful trend for Africa's future because in the absence of genuinely
democratic institutions contending interests are likely to seek to settle their
differences through conflict rather than through accommodation” 170.
To sum, the legitimate doctrine relies mainly on the political exigencies of the
existing states and; hence, it can be perceived as being a constitutive type of
recognition171.

2.4.3. Estrada Approach (the Automatic Approach)

This theory introduced by Estrada the foreign minister of Mexico. It suggests an
automatic recognition of all new governments under any condition. This doctrine is
based purely on the declaratory theory of recognition as it focuses on the actual
situation irrespective of any political considerations from the recognising states 172.
This doctrine aims to delineate an obvious criterion for recognition under all
conditions discarding political necessities of a country and; hence, it is unrealistic
doctrine, especially when there are clashing governments 173. In details, unlike the
Tobar Approach, the automatic doctrine did not consider the issue of effective control

168
Shaw (n8) 457.
169
Copenhagen Document (n160)
170
UNGA, The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa;
Text Presented To the United Nations Security Council by The Secretary-General, UN Doc A/52/871-S/1998/318
(1998) at 312-45.
171
Vidmar (n69) 734
172
Edward McWhinney, Self-determination of peoples and plural-ethnic states in contemporary international law:
failed states, nation-building and the alternative, federal option (1st edn., Martinus Nijhoff Publishers 2007) 24.
173
ibid

40
which is necessary for considering a new government as an effective and realistic
agent for the state. Thus, for automatic doctrine, a new government shall be
recognised even if did not have effective control over the territory. This might conflict
with an already existing government that has an effective control over the territory.

Moreover, this doctrine is disapproved as it reduces the delineation between keeping

the diplomatic relations on the one hand and recognition on the other hand 174. The
differentiation between recognising a government and establishing a mere diplomatic
relation with it appears when a new government arrived to power by unconstitutional
means175. This issue was highlighted by the USA in 1977 through asserting that the
practice of the USA government is not to recognise the unconstitutional government;
rather, the USA government will only aim to establish diplomatic relations with the
new administrations. This step would only reveals an inclination on American side to
perform its activities with other governments directly 176.
Indeed, based on previous criticisms, automatic doctrine is the least approach
adopted in comparison with other types of recognition of governments.

CHAPTER THREE

3. State Recognition vs. Government Recognition

The recognition of a state will directly influence its legal personality under
international law either by creating a state (constitutive theory) or by acknowledging
an already existing state (declaratory). However, the recognition of a government
impacts the position of the new administrative without effecting the position of the
state. Nevertheless, away from the simplification view in dividing the recognition
between states and governments, this study will argue that the relationship between
the two recognitions is intermingled due to the fact that the sovereignty of state
cannot be practiced without an agent (government); furthermore, practically, more

174
Warbrick (n153) 584.
175
M Peterson, ‘Recognition of governments should not be abolished’ (1983) 77 American Society of
International Law 31.
176
Christina Eckes, ‘The reflexive relationship between internal and external sovereignty’ (2013). UNIVERSITY
COLLEGE DUBLIN. p. 24.

41
than one administration can allege being an agent of one principal (state);
furthermore, logically, each one of the two types of sovereignty can be practiced by
two different agents177.
There are three points shall be considered in this section in order to examine the
relationship between the two types of recognition: 1- the recognition of states is
irrelevant to the recognition of governments, 2- the recognition of governments
means necessarily recognising the states, 3- recognising governments cannot be
done without recognising states.

3.1. The Recognition of states is irrelevant to the recognition of governments

The analogy is this: The principal is the country, whereas there are consecutive
different agents. While governments may come and go, the state remains. Once the
recognition is given to a state, the recognition cannot be withdrawn. Recognition of a
government may be lawfully withheld or withdrawn. For example, Saudi Arabia and
the United Arab Emirates withdrew their recognition to Afghanistan Taliban
government when it refused to surrender Osama bin Laden in the aftermath of the
events of September 11, 2001 178. Any change, coup d'état or overthrown of the
government will not impact the legal personality as a state itself under international
law179. Thus, if the new government is gone unrecognised, the state will still bound to
its obligations. However, the practical problem appears regarding the issue of
diplomatic relations180. In other words, if there is non-recognition for a new
administration, the non-recognising states will not create mutual diplomatic relations
with the new administration and hence a challenge appear when trying to enforce
international rights and duties181.

177
See subsections 2.1 and 2.1.1. of this study.
178
Shaw (n8) 445 and 454
179
Roland Rich, ‘Recognition of states: the collapse of Yugoslavia and the Soviet Union’ (1993) 4 Eur. J. Int'l L.
36.
180
Warbrick (n153)584.
181
ibid

42
3.2. The Recognition of governments means necessarily recognising the
states
The act of recognition of state and government might occur at the same time. Two
recognitions happen at the same time. For instance, the USA and the UK recognised
Israel when they accept the de facto Israeli government182. Indeed, the act of
recognition of the new government infers logically recognition of the state;
nevertheless the versa verse is not acceptable.

However, this policy of not according recognition to governments in a way that differs
from countries does not resolve all challenges as it diverts the recognition from being
formal to deal informally183. Determining the level of informality in dealing relies on
the level of effective control that the unconstitutional governments are able to
exercise on its territory and the probability to continue to do this effective control 184.
Thus, the act of recognition of government is abandoned; however, the criterion for
informal dealing with such unconstitutional administrations is principally the exact as
the Tobar criterion for the recognition of the new government.

Furthermore, a major controversy in this logic (the recognition of a government

means necessarily recognising the state) is that the criteria for establishing
statehood might not be ready at the time of recognising the de facto government. As
such, the existence of a de facto government is only a one criterion in the creation of
state. Thus, when considering the act of recognition of a de facto government as an
indication for the recognition of a state, this overtly means that the act of recognition
of governments implies that there is a new state. Hence, the act of recognition of a
de facto government constitutively creates a state. This creation is compatible with
the constitutive approach rather than with declaratory approach.
Moreover, assuming the existence of state from a mere recognition of a de facto
government represents the most extreme type of the constitutive theory. When
considering a mere de facto government means that a state does already exist
without considering the existence of defined territory and defined population, it is not

182
M. Whiteman, Digest of International Law ( Vol II, Washington D.C., U.S. Government Printing Office, 1963-
1973) 168.
183
ibid
184
Lauterpacht (n23 )270

43
irrational proposing that the actions of the recognising states (their act of recognition)
are derived purely from their political and national interests.

3.3. Recognising governments cannot be done without recognising states

This means that if the state is unrecognised, the governments will go unrecognised.
This is compatible with the decision of the UK of not recognising new governments
as separate from countries185. The logic behinds this decision is that recognition will
be interpreted as an approval, a view that used to be embarrassing in general terms
such as the governments that infringe human rights. Indeed, the trend of non-
recognising government in a way that distinct from states has been impeded in the
civil law states followed by the common law countries 186. However, this trend can be
controversial in cases when the recognition of states itself is premature. In this case,
the recognition of states itself is not obvious187.

In details, precipitate (premature) recognition of states is usually a challenge and

ambiguous separation line between considering an act of recognition of a putative
state as a suitable step and considering the act of recognition as being a mere
intervention in the internal affairs of another country 188. The importance of this
dividing line appears in cases where there is a new entity that is emerging as a
consequence of secession189. For instance, the Nigerian Government rejected the
act of recognition that has been done by a number of states regarding the entity
called Biafra190. Rather, the Nigerian Government considered this recognition as a
mere intervention in domestic affairs of another country 191.

As a result, it is of legal necessity for the recognising state trying to weigh

thoughtfully the actual condition and the level to which the criteria of statehood have
been satisfied. Accordingly, it can be seen that the whole process of recognising a

185
Rose Symmons, ‘United Kingdom Abolition of Recognition of Governments: A Rose by Another Name?’
(1981) Public Law 249.
186
Civil law countries include; inter alia, France and Belgium; while common law countries include; inter alia,
Canada and Australia.
187
Rai (n) 152
188
Vidmar (n69) 743
189
David Ijalaye, ‘Was" Biafra" at Any Time a State in International Law?’ (1971) 65 AJIL 51.
190
ibid
191
John Stremlau, The international politics of the Nigerian civil war, 1967-1970 (1st edn., Princeton University
Press, 1977), 127.

44
state is relying on the perception of reality 192. For instance, in 11/01/1992, the
Arbitration Commission of the former Yugoslavia in No.5 indicated that Croatia did
not fulfil the criteria for recognition that are mentioned in the 1991 Guidelines of the
European Community193. In details, the Arbitration referred that Croatia embraced
Constitutional Act did not completely include the rules related to the protection of
Human Rights and the rights of the minorities. However, after four days of the
Arbitration Commission, the European Community recognised Croatia as a state in
194
15 /01/1992 . As a result, this recognition cannot be referred to in any way rather
than being a premature. Furthermore, Intellectuals such as Mullerson argued that the
act of recognition issued from European Community regarding Croatia was
precipitate or premature195. This is because the fact that Croatia at that time did not
have an effective control over large parts of its territory 196. Moreover, both the
recognition of the European Community and USA with Bosnia and Herzegovina in
1992 was perceived as a premature recognition 197. Indeed, as the recognition of
Croatia, which effectively controlled 2/3 of its territory, is perceived as a premature,
from a prima facie point of view, it is logically considering the recognition of Bosnia
and Herzegovina, which effectively controlled less than ½ of its territory as
premature.

Accordingly, the premature in recognising states and the following recognition of the
governments would result in a situation in which the recognised government cannot
effectively control its territory. This is not compatible with the Tinoco Approach which
stresses on the idea of effective control. Furthermore, the pre-matured recognised
government might not properly protect the minority rights and human rights. This
means that the recognition of the government did not follow the legitimacy approach
(Tobar Approach). Moreover, the automatic recognition of new government following
a premature recognition of state might be unrealistic as there might be more than
one government. Hence, the Estrada Approach (the Automatic Approach) cannot be

192
Farley (n100) 792.
193
Matthew Craven, ‘The European Community Arbitration Commission on Yugoslavia’ (1996) 66(1) The British
Year Book of International Law 333
194
Ryngaert and Sobrie (n38) 474-5
195
Rein Mullerson, International law, rights and politics: developments in Eastern Europe and the CIS (1st edn.,
London, 1994), 130.
196
Ryngaert and Sobrie (n38) 472
197
Rich (n..) 36.

45
implemented properly as the existence of a number of contested governments for
one state is a caveat for applying Estrada Approach.

Indeed, when the recognition of state is not obvious in itself, the recognition of
governments becomes untenable under international law.

CHAPTER FOUR

4. Identifying the Approach that is most Compatible with International Law.

This study will argue that Tobar Approach is consistent with norms of international
law. Then, it will highlight some predicaments regarding the adoption of Tobar
Approach.

4.1. Why Tobar Approach should be implemented?

4.1.1. The act of recognition should respect jus cogens rules

Identifying the best approach of recognition requires understanding the importance
of jus cogen rules and its ability to derogate any other legal action. In chapter one of
this study, it was argued that the right to self-determination is a decisive factor in the
process of creating states198.

Under international law, in the case of dismissing this jus cogen principle, the act of
recognition of new entity will not be legitimated. As can be seen, the rule of self-
determination principle was decisive in determining the legality of recognition
towards new states. Hence, it is a logical priori considering that in any act of
recognition of new governments, the principle of self-determination should be
respected. This is because the fact that when a state is created in a way that is not
compatible with the self determination of its citizens, this connotes that the new
government in the new state does not represent the people of that state.

198
See also, McWhinney (n172) 24

46
In other words, the people of the new state did not determine (democratically elect)
by themselves the government. Hence, any act of recognition of the new government
shall be perceived as illegal as it opposes self-determination principle which is a
collective human right. Thus, even if the new government proved an effective control
over its territory, this effective control will not be enough under international law to
legitimate any act of recognition towards the new government.

Indeed, by following logic of reductio ad absurdum, if a mere effective control is

enough to get legal recognition for the new government from other countries, a
government that is imposed on the people and practice an effective control will go
recognised. An example about this type of governments is Vichy Government in
France which created by Nazi Germany. Indeed, this is an absurd illegal result under
international law because it legalises the idea of occupation and mandate.

Practically, the UK dismissed the principle of effective control in favour of the

principle of the legitimate government when it recognised the de Gaulle Government
which was located in exile i.e. the UK territory199.

In other words, at minimum, the de Gaulle Government did not have the same level
of effective control that Vichy had in France during the Nazi Occupation to France
(1940-1944). However, the de Gaulle Government had the legitimacy from French
people and; hence, it was recognised by the UK, USA, and USSR. Interestingly, in
1959, the De Gaulle government re-affirmed on the importance of the principle of
self-determination for Algerian people200.

Consequently, this paper argues that Tobar Approach (the legitimate approach)
respects self-determination principle and; consequently, it is in harmony with the
rules of international law. Hence, it can be seen that only an elected democratic
government will go recognised. In other words, if there is a non-elected non
democratic government, this means that the people of the related country did not
have a say in their government; accordingly, the principle of self-determination did
not respected. Thus, any recognition of a non-democratic government will be

199
Stefan Talmon, Recognition of governments in international law: with particular reference to governments in
exile (1st edn., Oxford University Press, 1998) 113.
200
Stefan Talmon, ‘Who is a legitimate government in exile? Towards normative criteria for governmental
legitimacy in international law’ (1999) The Reality of International Law: Essays in Honour of Ian Brownlie 510
footnote 50.

47
illegitimate as this recognition derogates self-determination right and this derogation
is unacceptable as discussed.

4.1.2. Tobar Apprach as a necessity for preserving international peace and

security
Tobar Approach considers the right of people in every state including the right of
self-determination. Hence, it prioritises jus cogens rules irrespective of the matter of
effective control which considers the ability of the new administration to effectively
control its territory even it supressed its people.

Indeed, this is compatible with the rules of international law which consider people as
subjects under international law who have inalienable universal and equal rights
irrespective of their states. This differs from the old view of international law which
considers peoples as objects who derive their existence from the existence of their
states. Furthermore, international community, through a series of the Security
Council resolutions, has perceived violations of human rights as a threat to
international law and security 201. Thus, international community considers breaches
of human rights from well-established governments as a threat to international peace
and security and impose sanctions under Articles 41 and 42 of the UN Charter which
might obliterate the existence of these governments. In other words, determination a
situation under Chapter VII of the Security Council will lead to pierce the right of
states under Article 2 (4) of the UN Charter. Accordingly, the international
community, represented by its executive body i.e. the Security Council, does act as a
collective security system to protect human rights and democracy even if it
undermines the independence and territorial integrity of its member state which does
not respect human rights and democracy202.

Interestingly, the international community, from a prima facie point of view, should
not recognise any new administration that breaches human rights or arrives to power
in non-democratic ways. Thus, the recognition done by existing states of any new

201
Examples about Security Council resoloutions that considered civil wars and the breaches of human rights
include; inter alia, UNSC Res 788 (19 November 1992) UN Doc S/RES/788 regarding Liberia; UNSC Res 955 (8
November 1994) UN Doc S/RES/955 regarding Rwanda. See also, footnotes 11 and 14 of this study.
202
Eugenia López-Jacoiste ‘The UN collective security system and its relationship with economic sanctions and
human rights’ (2010) 14 Max Planck Yearbook UN Law 279.

48
administration that arrives to power in non-democratic ways and does breach human
rights should be void, legally.

Because, obviously, if existing states recognise new administration which does not
respect what the international community, represented by the UN, considers as a
threat to international peace and security 203, this will trigger collective security actions
under Chapter VII of the UN Charter204.

Thus, discarding the Tobar Approach will establish a situation in which new
administration, which effectively control its territory, breaches the rules of human
rights and underestimate democracy in a way that constitutes threat to international
and peace as duly mentioned in the Security Council resolutions about already
existing regimes205. Logically, this is an absurd result because the international
community will not accept new administration that threatens its international peace
and security as duly mentioned in Article 1.1 of the UN Charter.

This absurd result comes only when presuming the matter of effective control as
determination for recognition and discarding the illegitimate doctrine. Thus, based on
this reductio ad absurdum logic, this study shall consider Tobar Approach as the
main criterion for recognising new governments.

4.1.3. Examples about increasing the adoption of Tobar Approach

Tinoco Approach argues that constitutional legitimacy of a government is not a
condition for recognition206; however, recent and past practice of states indicates that
the rights of the non-elected governments have never been completely
recognized207.

203
See footnotes 11 and 14 of this study.
204
United Nations, Charter of the United Nations (n10) arts 41 and 42.
205
UNSC Res 841 (16 June1993) UN Doc S/RES/841; UNSC Res 794 (3 December 1993) UN Doc S/RES/794;
and UNSC Res 713 (25 September 1991) UN Doc S/RES/713.
206
This is explained in the Tinoco Arbitration. It was argued that a de facto government should be recognized if it
‘maintains a peaceful administration, with the acquiescence of the people for a substantial period of time’ and
should not have to follow the previous constitution. See, Convention between the British Government and the
Government of Cost Rica for the Submission to Arbitration of Certain Claims Against the Government of Costa
Rica (n138) 381.
207
See section 2.4.2 in this paper about Tobar Approach. See also, John Wiseman, The new struggle for
democracy in Africa (1st edn., Ashgate Publishing, 1996) 8.

49
As such, the 1990 Conference on Security and Co-operation in Europe's support for
democracy gave an example of countries obligating themselves to vigorously work
towards maintaining and defencing the liberal elected governments 208. Furthermore,
Dozer indicated that such governments denounce recognition to extra-constitutional
regimes209.

Moreover, the United Nations’ supporting for the restoration of Jean Bertrand
Aristede to power in Haiti after ousting his constitutional administration by the military
junta is another signal of the reality that constitutional legitimacy is evolving as a
significant pre-condition for conferring recognition 210.

A prominent example about the increasing rule of legitimate approach is the case of
Sierra Leone. In 1997, after ousting the democratically elected government of
President Tejan Kabbah, the Organization of African Unity refused recognising the
new government established by the Armed Forces Revolutionary Council ("AFRC")
as a de facto government for the state of Sierra Leone. The act of non-recognition
based on the fact that President Tejan Kabbah was elected after landslide victory
through democratic polls211. This new policy followed by the Organization of African
Unity of not recognising the administrations come to power in illegitimate means
differ from the old view of recognition which does not perceived non-democratic
regimes as a raison d'Etre for non-recognition within the African context 212.

4.1.4. Tobar Approach is Necessary for International Law from Idealistic and
Realistic Point of View.
Although it is argued that there is higher level of idealism in the Tobar doctrine in
comparative with Tinoco doctrine which can be perceived mainly as realistic one 213,
the idealism impeded in the legitimate approach is necessary for developing the

208
ibid footnote 80
209
Dozer (n159) 321
210
UNSC Res 841 (1993). This resolution gave an indication about the United Nation's stance on the illegal de
facto regime in Haiti and the goal in restoring democracy in Haiti by returning the legitimately elected President,
Jean-Bertrand Aristide.
211
Kufuor (n147) 388
212
Letitia Lawson, ‘External democracy promotion in Africa: Another false start?’ (1999) 37(1) Journal of
Commonwealth & Comparative Politics 1.
213
Robert Sloane "The Changing Face of Recognition in International Law: A Case Study of Tibet" (2002) 16
Emory International Law Review 124.

50
rules of international law into a position where political exigencies should not, and
may be cannot, derogate legal rules.

Furthermore, based on the reductio ad absurdum logic for explaining legal points,
this study explained that international community has practical necessity of
considering Tobar approach. This practical necessity revolves around saving its
international peace and security. Hence, this study considers the legitimate doctrine
should be followed in order to counter realistic threats to international peace and
security. Thus, the legitimate approach is both idealistic and realistic approach.

4.2. Predicaments facing the adoption of Tobar Approach

There are three main issues that facing the applicability of Tobar Approach i.e.
government arrived to the power legitimately then starts deviating towards
illegitimacy, the ways in which legitimate practices of a government can be checked,
and determining the meaning of democracy itself 214.

4.2.1. Swerving from legitimacy to illegitimacy

This case appears when democratically elected government turns gradually into a
non-elected non-democratic government215. It is noticeable that the legitimacy
approach has argued against the illiberal democracies that aim to consolidate its
position in the power. The case of illiberal democracy takes place where an elected
democratic government continuously dismisses the constitutional parameters of their
powers and, as a result, breach basic human rights on its territory 216. At this point, a
question shall arouse regarding the legitimacy of the government itself. In other
words, the potentiality of moving from liberal elected government towards illiberal
government constitutes a problem for the logic of the legitimate Approach (Tobar
Approach) in recognition.

There are a number of evidences in which a government retracted from democracy

to authoritarian illiberal government. A major example is the Nazi Germany in which

214
Kufuor (n147) 393.
215
William Shirer, The rise and fall of the Third Reich: a history of Nazi Germany (3rd edn., Random House,
1991)117-150 and 188.
216
Kufuor (n147) 395.

51
Hitler had arrived to be the Chancellor through a democratic process; then, the Nazi
government began purging the opposition systematically 217.

There is a necessity to examine the way in which the legitimate Approach of

governmental recognition will deal in this situation. This requires knowing the general
practices and principles that are followed by any democratic elected government.
Knowing these practices will help identifying whether the government swerved from
legitimacy to illegitimacy.

4.2.2. The ways in which legitimate practices of a government can be checked.

A democratic elected government is a government that has been created as a
consequence of a free and democratic election; furthermore, the elected government
is a government that respects human rights of its citizens 218.

Moreover, according to the Organization of African Unity, democratically elected

government applies a number of practices such as the embracing of a democratic
constitution, implementing the legislative and constitutional rules, supporting the
pluralism in political spectrum, and asserting on the decisive role of the civil society,
valuing the democratic governmental transition with an obvious role of the
opposition, and finally stressing on the statutory recognition of human rights 219.

Furthermore, the African Charter on Human and Peoples' Rights implicitly refers that
in order to be recognised as a legitimate government; the regime must enjoy a
consistent record regarding decisions of its national forum 220. In addition, the
government should prove its commitment to the respect of human rights.
Accordingly, for instance, it is not enough to be a member state in the African
Charter on Human and Peoples' Rights, rather, the government that claims
legitimacy from the Organization of African Unity should consistently complied with
the values and principles mentioned in the Declaration of this Organisation 221.
217
Shirer (n215) 117 and 150. See also, Andrea Kendall-Taylor & Erica Frantz, ‘Mimicking democracy to prolong
autocracies’ (2015) 37 (4) The Washington Quarterly 71. Kendall-Taylor and Frantz indicate that Turkey under
Erdogan leadership might constitute another interesting example about swerving from democracy to dictatorship.
218
Adam Przeworski, and Susan Stokes, Democracy, accountability, and representation (Vol. 2, Cambridge
University Press, 1999) 279.
219
Declaration of The Framework For An OAU Response To Unconstitutional Changes of Government. A-
lG/DECL.5 (XXXVI) (July 2000). It rejects any unconstitutional change of government in OAU states) paras. 3-4
220
African Charter on Human and Peoples‘ Rights (n88).
221
ibid

52
This consistent compliance should be reported periodically to the African
Commission on Human and People Rights 222. Moreover, the government should
agree in bona fides the determinations of the aforementioned Commission with
respecting to communications filed before it. Also, the international community
should assert that the government did not prevent access to human rights fact
finding mission by the United Nation223.

These principles, in general and in details regarding African states, provide a check
list for detecting whether, or not, a government is diverting from the democratic
principles towards the authoritarianism. This paves the way for withdraw the
recognition of already recognised governments when there is no respectful for the
will of its citizens.

4.2.3. Does democratic elected government constitute prerequisite condition

for legitimacy? And is there one conclusive definition of the concept of
Democracy Itself?
Strictly speaking, the concept of legitimacy does not require democracy and during
the long history of humanity, many legitimate regimes have appeared without
democratic mandate from the population and “democracy” proved to be “just a
moment” in history as argued by Kaplan 224. However, this study considers the
American understanding for the legitimacy i.e. democracy is antecedent step for
legitimacy.

Regarding the different types of democracy, it might be inferred that the international
community cannot behave robustly on the act of recognition towards democratic
regimes225. This is because the fact that a considerable number of the UN member
states have had non-representative type of democracy as it is the case of China and
all communist states226.

222
ibid
223
ibid
224
Robert Kaplan, The Coming Anarchy: Shattering the Dreams of The Post Cold War (1st edn, Vintage Books,
New York, 2001)59.
225
Nancy Fraser, ‘Rethinking recognition’ (2000) 3 New left review 107.
226
Democratic centralism identifies the principles of internal organization used by Leninist political parties.
According to Lenin, it represents “Freedom of discussion, unity of action”. See, Vladimir Lenin, "Report on the
Unity Congress of the RSDLP" (1906). Available on:
http://intersci.ss.uci.edu/wiki/eBooks/Russia/BOOKS/Lenin/The%20Congress%20Summed%20Up
%201906%20%20Lenin.pdf accessed on 9 September 2016. p.5

53
Indeed, though this argument might not be wrong, it is a true that there are some
indications about the emerging of representative democracies in international
community such as Madagascar and Benin 227. These countries can promote
democratic regimes through encouraging the non-recognition of regimes that oust
elected governments.

To sum, based on logic and legal argument and based on practical evidences, this
study considers Tobar approach is more compatible with the rules of international
law in comparative with Tinoco approach.

CHAPTER FIVE

5. Conclusion
This study indicated that there are two contested doctrines of recognition i.e.
declaratory and constitutive when recognising new states and entities. Determining
the appropriateness of each doctrine of recognition requires understanding the legal
bases necessary for creating new states and new governments.

As such, regarding recognition of states, it examined three concepts (i.e.

sovereignty, agency theory and status quo) as an antecedent step for understanding
the role and scope of recognition.

Regarding recognition of states, it analysed the concept of state sovereignty and

indicated that sovereignty has two facets i.e. legal sovereignty which reflects the
ownership to title and jurisdictional and control sovereignty which reflects the control
over particular territory. Accordingly, the act of recognition should identify whether
the recognising state does recognise an entity that has two facets of sovereignty or
one of them.

In order to examine this legal issue, this study considered the importance of
examining agency theory between states and governments, the principle of status
quo and the laws of statehood.

227
See Kufuor (n72) 400

54
Regarding Agency theory, this study explained that while states are principals,
governments are agents. Therefore, as a state has two facets of sovereignty and
each facet differs in its scope from the other, it can be seen cases where there are
two agents for one principal. Thus, the recognising states should identify to which
agent the recognition is promulgated.

Pinpointing which agent has the right under international law to be recognised
requires understanding the status quo.

Regarding status quo, this study showed that preserving status quo of the
international community represents the common accepted situation from a legal
point of view. Accordingly, each new entity should prove that it does not change the
status quo in a way that breaches international law. Likewise, recognition of a new
entity represents the will of the recognising state to change the status quo; hence,
the burden of proof is on the recognising state in proofing that it did not deviates from
the roles of international law.

Nevertheless, this study referred that changing status quo is legal when the new
entity fulfils the requirements of being statehood according to Article 1 of the 1933
Montevideo Convention and the political criteria i.e. the right to self-determination
and avoiding the adoption of military force illegitimately.

As such, this study concluded that examining the legality and scope of state
recognition requires understanding sovereignty facets, agency theory, status quo,
the laws of statehood, and the political consideration regarding the new entity.

Thus, any recognition that is issued after fulfilling the criteria of statehood and
political consideration will be considered as declaratory as the new entity does
change the status quo according to the roles of international law.

However, when a new entity fell short from fulfilling the required criteria for being
statehood, the recognition of other states will be perceived as constitutive in order to
legalise the changes in the status quo. In other words, the act of recognition should
be constitutive in order to support actual facts that could not alone change the status
quo, legally. Hence, there is requirement for substantial number of recognising states
in order to give the recognition its constitutive meaning.

55
Regarding the recognition of governments, this study explained that if new
administrations did arrive to the power in extra-constitutional methods, there are
three doctrines to evaluate whether the new administrations should be recognised or
not. These methods are Tinoco doctrine, Tobar doctrine and Estrada doctrine.

The Tinoco doctrine assures that a new administration is considered as government

when it has effective control over considerable parts of the territory of states. Thus,
any recognition of new administration which has effective control will be perceived as
declaratory. Furthermore, this study indicated that in cases when the level of
effective control is uncertain, the act of recognition towards a new administration will
have constitutive effect; therefore, there is a requirement for issuing recognition from
considerable number of states in order to balance the lack of actual facts regarding
the uncertainty of effective control.

The Tobar Approach suggests that new administration shall be recognised as a

government when it arrives to the power in legitimate way. This means arriving to the
power through democratically elected process which reflects, in its essence, the right
to self-determination of the people. Principally, this approach is compatible with the
rules of international law as it respects the rules of human rights; however, the
democratically elected government might not have an effective control over its
territory. Accordingly, the act of recognition is constitutive in order to create this new
government.

This study showed that the Estrada approach is unrealistic as it requires an

automatic declaratory recognition of all new administrations even if they do not
effectively control the territory or/ and they do not arrive to the power democratically.
As a result, adoption this doctrine might end in having clashes between different
contested administrations accompanied with allegations of international interfering in
the domestic issues of states.

After discussing various doctrines, this study argued that Tobar Approach is the
approach that is mostly compatible with the rules of international law. It showed that
Tobar Approach does recognise the sensitivity of human rights and the issue of
democracy for maintaining international peace and security through showing a

56
number of occasions in which the Security Council has interfered under Chapter VII
for preserving democracy and human rights in order to restore and maintain
international peace and security. Indeed by supporting Tobar Approach, through
connecting between maintaining international peace and security on the one hand
and preserving and protecting the issues of human rights and democracy on the one
hand, the contribution of this study does exist.

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64