[PUBLIC INTERNATIONAL LAW]

pp

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

2021-2022

FINAL-DRAFT

PUBLIC INTERNATIONAL LAW

“States and International Organization”

SUBMITTED BY : UNDER THE GUIDANCE OF:

Nisha Singh DR. Abdullah Nasir

ROLL NO :190101099 ASSISTANT PROFESSOR(LAW)

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

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TABLE OF CONTENTS

Contents

TABLE OF CONTENTS 1
ACKNOWLEDGEMENT 2
States and International Organization 3
States 3
The doctrine of Recognition – Creation of Statehood 4
Recognition of a States 5
Recognition of a government 6
Recognition practice as per the USA 7
International Organization(IO) 7
Meaning and Nature 7
Historical Development of International organisation 8
Conclusion 9
References 10
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ACKNOWLEDGEMENT

Though this research project initially came up as just one submission for the end of the
semester, I am very happy to acknowledge that a substantial amount of research has gone into
the making of the same. Here I should acknowledge the guidance extended by Dr. Abdullah
Nasir, Assistant Professor of Law at Dr. Ram Manohar Lohiya National Law University,
Lucknow without which this research project wouldn’t have been possible.

I would also like to thank Dr. Madhu Limaye Library, Dr. Ram Manohar Lohiya National Law
University, Lucknow which provided me with the required support both in the form of books
and online databases which has been of immense value to this project. In the course of this
project, I have also reproduced various parts of published and non-published researches which
have been duly cited. I would here also like to thank the authors of the same.

Thank you,
Nisha Singh
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There are ‘sources’ available from which the rules of international law may be extracted and
analyzed. According to Lawrence, if we take the source of law which has all the authority
required to give it binding force, then in respect of International Law there is one source of law
and that is the consent of Nations. This consent may be either tacit (custom) or express (treaties).

Major sources which form the conventional source of International law includes the International
Convention and Treaties. Sources of International Law can be bifurcated into primary and
secondary sources which are explained below.

States and International Organization

International Law is a system of rights and duties given to a legal system so that they can
exercise them at a global level. There are different International bodies that are subject to
possession of such rights under customary law and therefore also have the privilege of bringing
any claim if there is a violation of their rights.

The determination of the personality of these bodies depends mainly upon the nature and extent
of particular rights and duties. With the evolution of International law, it is necessary to
determine the inter-relationship between these bodies and their capacity to enforce claims as per
their rights and duties. These bodies may include states, international organizations, regional
organizations, non-governmental organizations, and individuals.

The State States have international legal personality to the fullest extent. They constitute
one of the most important international organizations as they form the primary center for the
collection of the social activities of civilization.

The doctrine of Recognition – Creation of Statehood

Recognition of the state is an International Concept wherein a new state or an existing state is
given a formal a of being a member of the International community. According to Article 1 of
the Montevideo Convention on the Rights and Duties of States, 1933 and Oppenheim, the entity
of a state can be created if it possesses the following characteristics:

1. Defined Territory
2. Population
3. Government
4. Capacity to enter into a relationship with another state
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However, there is no set pattern recognized so far which forms a particular base for the
recognition of statehood as per the above criteria. Such provisions are neither exhaustive nor
immutable. Recognition of a statehood grants certain privileges in the form of rights, duties, and
immunities which include the authority to enter into a foreign relation with another state, became
a part of a treaty, the right to undergo succession and become a member of the United Nations.
There are two theories on recognition which are:

Declaratory Theory

The theory was propounded by eminent jurists such as Fisher and Brierly, under this theory the
independence of a new state does not take into account its acceptance by other states. The theory
has been given in Article 3 of the Montevideo Convention where it recognizes the existence of a
new state does not depend upon the mind of the existing state’s consent.

Consecutive Theory

Oppenheim proposed this theory wherein it stated that for a state to be considered as an
International entity, it is necessary for it to be recognized by other sovereign states so that it can
enjoy its rights and duties. The theory does not propose the non-existence of a state rather it
places an emphasis on acceptance by other states for a state to enjoy their exclusive rights.

Recognition of a States
There are two modes of recognition of states which are as follows:

DE FACTO RECOGNITION DE JURE RECOGNITION

It is the Provisional and factual recognition of

It is the legal recognition of statehood by existing states
statehood

It forms the primary step before de Jure It can be granted either with or without grant of de facto
Recognition of the state recognition

It is revocable, conditional or non-conditional

It is non-revocable and non-conditional in nature
in nature

They cannot undergo state succession and They can undergo state succession and therefore enjoy full
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therefore do not enjoy full diplomatic

diplomatic immunity
immunity

Its recognition is granted when there is the Its recognition is granted when the state fulfils all the
fulfilment of the essential conditions of essential condition of states along with sufficient control
statehood. and permanency

When a state is recognized, there are two ways by which it can be declared which is:

Express Recognition

Expressed Recognition is done through an official notification or declaration by an existing state

recognising the presence of a newly formed state. This category usually recognizes a de jure
form of recognition unless provided otherwise by the recognizing state in the declaration for
considering it under any other form.

Implied Recognition

The action of an existing act done impliedly which indicates acceptance to a new act as an
International person is considered as a form of Implied Recognition. There can be several
implied actions for instances speeches, declarations etc. It depends on a case-by-case basis.

Recognition of a government
The criteria laid down for recognition of a government is different from that of recognition of a
state. In case of a newly formed government, it is necessary to check the constitutionality of the
government to ensure a valid recognition of the same. When a new state comes into existence it
becomes necessary to check the structure of the new government to ensure international
standards are being followed.

Following criteria needs to be checked for recognizing a newly formed government:

1. Sufficient control and power by the government over its population.

2. The capacity of the new government to fulfil its international obligations and duties.

There are various theories which have been accepted for recognizing the government but the
most prominent amongst them is the so-called doctrine of legitimacy, it was initially used by the
United States in relation to Central America, but the theory declined gradually.
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Recognition practice as per the USA

In the USA only a recognized state can sue, there are a line of legal precedents on the practice of
recognition by the USA, for instance in the Salimoff case the terms of the certificate tended to
encourage the court to regard the Soviet government as a recognized government, on the other
hand, in the case of the Maret the tone of the executive’s statement on the Soviet Republic of
Estonia was decidedly hostile to any notion of recognition or enforcement of its decrees.

In 1977, the United States declared that instead of focusing on the change in the government,
they should try to establish the need for diplomatic relations and if the administration is willing
to involve and conduct business with other governments.

Therefore, the US prefers to initiate diplomatic relations to recognize the government. It has been
observed that the United States typically avoids taking the lead in recognition, waiting for the
domestic politics to play out or for regional bodies like the Organization of American States to
resolve the crisis before deciding whether to confer legitimacy on the new government. In the
case of Honduras, for instance, the United States followed the lead of other Latin American
countries in deeming Zelaya’s ouster illegitimate.

International Organization(IO)
Meaning and Nature
The International Community is an amalgamation of various voices and opinions, therefore with
the growing need for international cooperation and to ensure peace in this community
International Organization have emerged. An international organization has been defined as a
form of co-operation of sovereign states based on multilateral international organizations and
comprising of a relatively stable range of participants, the fundamental feature of which is the
existence of permanent organs with definite competences and powers acting for the carrying out
of common aims.

The essential elements which describe International organization include:

1. Multilateral International agreement

2. Individual Personality of the Institution
3. Permanent organs carrying out its Function

International Organizations are usually created amongst states or by their duly authorized
representatives, however, there is no uniform rule on the same, states sometimes create legal
entity based on a treaty though are there to enforce and uphold the principles of a treaty such as
European Court of Human Rights but they are not considered as International Organisations.
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An international organisation may come into existence by the formation of a treaty or through an
existing organisation granting certain powers for forming an international organisation. UNICEF
is an International organisation which was formed by the United Nations General Assembly. 

Historical Development of International organisation

The development of IO can be traced from the need for establishing the psychological notion of
world government. It was only in the 19th-century major IO’s emerged before that there were
smaller councils like the Hanseatic League or the Swiss Confederation and the United Provinces
of the Netherlands etc.

Embassies establishing bilateral needs were not sufficient and adequate to solve problems that
arose between more than two states, there was a need to find a way so that interest of all the
states can be represented so an International conference of all the representatives from several
states was organized which came to be known as the principal originator IO namely Peace of
Westphalia in 1648, which ended the thirty-year religious conflict of Central Europe and
formally established the modern secular nation-state arrangement of European politics.

Till the first world war, the major issues were sought through conferences, for instance, in  1815
congress of Vienna marked the first systematic attempt to regulate international affairs by means
of regular international conferences.

Due to several inconsistencies in the ad-hoc nature of these conferences, because they were only
state-specific in nature and could only be called upon by the initiative of the interested states,
international NGOs and public international unions like the International Committee of Red
Cross and the inter-governmental associations emerged during the 19th Century for efficient
functioning of vital arteries of communication such as the Rhine and Danube rivers.

With the continuous evolution of the society, it was noticed that an efficient body of IO can be
established, and the League of Nations was the first international organization which was
designed not just to organization operation between states in areas which some have referred to
as ‘low politics’, such as transport and communication, or the more mundane aspects. However,
after World War II, the league of the nation was disbanded due to its inefficiency and the United
Nations was founded in 1919.

Conclusion
International law has emerged through various sources which have been codified in Article 38 of
the ICJ statute which identifies customs, treaties and general principles as formal sources of
International Law. However, the Judicial decision is given by the world court also acts as
advisory opinions in guiding the development of International law.
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Various philosophers and juristic theorists have enlightened the philosophy of  International law
through their theories and principles as well. International Law helps in Identifying states as an
entity of the world community through various modes so as to provide them with rights and
duties. To ensure peace and order amongst the nation-states, International Organisation plays a
major role in increasing cooperation and upholding the international law which has emerged
from various sources.

References
1. Bowett’s International Institutions, pp. 6–9.
2. El Erian, ‘Legal Organization’, p. 58.
3. https://chilot.blog/wp-content/uploads/2011/06/international-organizations.pdf
4. https://foreignpolicy.com/2010/04/13/how-does-the-u-s-decide-which-governments-to-
recognize/
5. 145 F.2d 431 (1944); 12 AD, p. 29. 
6. The Sources of International Law’ (Lawteacher.net, October 2019)
<https://www.lawteacher.net/free-law-essays/international-law/the-sources-of-international-
law.php?vref=1> accessed 27 October 2019.
7. Available
at: https://www.academia.edu/27871613/PUBLIC_INTERNATIONAL_LAW_LECTURE_N
OTES
8. Sources of International law In the light of Article 38 of the International Court of Justice
By Shagufta Oma.
9. The Sources of International Law’ (Lawteacher.net, October 2019)
<https://www.lawteacher.net/free-law-essays/international-law/the-sources-of-international-
law.php?vref=1> accessed 27 October 2019.