1.

Chapters 4 to 7 of the reference book attaching to a certain state of affairs by virtue of certain
rules or practices. And the declaratory theorist’s equation
2. Article 1, Montevideo Convention on the Rights
of fact with law also obscures the possibility that the
and Duties of States
creation of States might be regulated by rules predicated
Article 1 on other fundamental principles - a possibility that, as we
The state as a person of international law should possess shall see, now exists as a matter of international law.
the following qualifications:
• Estrada Doctrine
a. a permanent population;
b. a defined territory; The doctrine that recognition of a government should be
c. government; and based on its de facto existence, rather than on its
d. capacity to enter into relations with the other legitimacy. It is named after Don Genero Estrada, the
states. Mexican Secretary of Foreign Affairs who in 1930 ordered
that Mexican diplomats should issue no declarations that
amounted to a grant of recognition: he felt that this was an
3. Theories of Statehood/Recognition
insulting practice and offended against the sovereignty of
• Constitutive Theory of Statehood other nations. In 1980 the UK, USA, and many other states
adopted the Estrada doctrine. Compare Tobar doctrine.
In constitutive theory, an entity must gain formal or Estrada Doctrine, precept formulated in a 27 September
implied recognition by other states to become a state. 1930 note sent by Mexican foreign minister Genaro
According to constitutive theory, the existence of a state Estrada to Mexican diplomatic representatives throughout
begins with recognition by at least one other state. The the world. Recent revolutions in Argentina, Bolivia, Peru,
constitutive theory, although it draws attention to the and Central America had presented the Mexican
need for cognition, or identification, of the subjects of government with the question of recognizing a number of
international law, and leaves open the possibility of de facto regimes. Given Mexico's problems in obtaining
considering relevant legal principles not based on ‘fact’, diplomatic recognition from the United States and other
incorrectly identifies that cognition with diplomatic powers during its own revolutionary period, it was
recognition, and fails to consider the possibility that understandable that the Mexican government would be
identification of new subjects may be achieved in sympathetic to the plight of other revolutionary
accordance with general rules or principles rather than on governments. Accordingly, Estrada asserted that Mexico
an ad hoc, discretionary basis. would "not make any declarations regarding recognition
• Declarative Theory of Statehood because it considers that such a policy is an insulting
practice which, in addition to offending the sovereignty of
In declarative theory, recognition by other states is not other nations, places them in a position of having their
necessary. According to declarative theory, a state internal affairs judged by other governments." The Estrada
becomes a person in international law if it has a defined Doctrine was received enthusiastically by many Latin
territory, a government, a permanent population, and the Americans who felt that the region had been unfairly
capacity to enter into relations with other states. In the discriminated against by the great powers through the
declaratory theory of statehood, an entity becomes a state selective application of de jure recognition. With the
as soon as it meets the minimal criteria for statehood. exception of the Franco regime in Spain, Mexico has been
Therefore, recognition by other states is purely remarkably consistent over the years in adhering to the
“declaratory”. Neither theory of recognition satisfactorily Estrada Doctrine.
explains modern practice. The declaratory theory assumes
that territorial entities can readily, by virtue of their mere • Wilson/Tobar Doctrine
existence, be classified as having one particular legal It precludes recognition of any government established by
status: it thus, in a way, confuses ‘fact’ with ‘law’. For, even revolutionary means until constitutional reorganization by
if effectiveness is the dominant principle, it must free election of representatives. The Tobar Doctrine
nonetheless be a legal principle. A State is not a fact in the asserted that any government that came to power through
sense that a chair is a fact; it is a fact in the sense in which unconstitutional means should not be recognized. 7 The
it may be said a treaty is a fact: that is, a legal status update of the treaty in 1923 made more specific
requirements as to who could be eligible to serve as leader
in the case of an unconstitutional change of government.
In a 15 March 1907 letter to the Bolivian consul in Brussels,
Carlos R. Tobar, a former Ecuadorian foreign minister,
affirmed that "The American republics … ought to
intervene indirectly in the internal dissensions of the
republics of the continent. Such intervention might consist,
at the least, in the denial of recognition to de factor
governments springing from revolution against the
constitutional order." In December 1907 representatives of
the Central American nations, meeting in Washington,
D.C., officially incorporated Tobar's de jure recognition
policy into the 1907 Washington Treaties. At the request of
Costa Rica more stringent de jure recognition provisions
were written into the 1923 Washington Treaties. A
succession of isthmian recognition crises, however,
convinced many Central Americans that strict adherence to
the Tobar Doctrine was not in their best interests. In 1932
Costa Rica and El Salvador, dissatisfied with the existing
recognition policy, denounced the 1923 Washington
Treaties. Efforts to resurrent the Tobar Doctrine at the
1934 Central American Conference were unsuccessful.
• Stimson Doctrine
In public international law, the doctrine that an aggressor
cannot acquire territory by conquest alone. This Doctrine
stated that the United States would not recognize any
treaty or agreement between Japan and China that
violated U.S. rights or agreements to which the United
States subscribed. This doctrine of non-recognition proved
incredibly ineffectual in the face of on-going Japanese
aggression and expansion. Japan had been expanding its
influence in Manchuria for years, and now it formally
controlled the territory. Moreover, after its successful
conquest of Manchuria, the Japanese attacked the city of
Shanghai in 1932. As Shanghai was home to the largest
international settlements in China, the sudden invasion
threatened foreign concessions as well. Stimson responded
to this development by declaring that as a result of
Japanese violation of the Nine Power Treaty, the United
States would no longer consider itself bound by the naval
limitations agreements. This meant a potential new naval
arms race in the Pacific that would inevitably draw in the
Japanese, but it did not change the situation in Manchuria.
The Stimson Doctrine is the policy of nonrecognition of
states created as a result of aggression. The policy was
implemented by the United States federal government,
enunciated in a note of January 7, 1932, to the Empire of
Japan and the Republic of China, of non-recognition of
international territorial changes that were executed by
force. The doctrine was an application of the principle of ex
injuria jus non oritur. While some analysts have applied the
doctrine in opposition to governments established by
revolution, this usage is not widespread, and its invocation
usually involves treaty violations.
Article 4, United Nations Charter
Article 4
Membership in the United Nations is open to all other
peace-loving states which accept the obligations contained
in the present Charter and, in the judgment of the
Organization, are able and willing to carry out these
obligations.
The admission of any such state to membership in the
United Nations will be effected by a decision of the General
Assembly upon the recommendation of the Security
Council.
Article 32, United Nations Charter
Article 32
Any Member of the United Nations which is not a member
of the Security Council or any state which is not a Member
of the United Nations, if it is a party to a dispute under
consideration by the Security Council, shall be invited to
participate, without vote, in the discussion relating to the
dispute. The Security Council shall lay down such
conditions as it deems just for the participation of a state
which is not a Member of the United Nations.
Article 35 (2), United Nations Charter
Article 35
Any Member of the United Nations may bring any dispute,
or any situation of the nature referred to in Article 34, to
the attention of the Security Council or of the General
Assembly.
A state which is not a Member of the United Nations may
bring to the attention of the Security Council or of the
General Assembly any dispute to which it is a party if it
accepts in advance, for the purposes of the dispute, the
obligations of pacific settlement provided in the present
Charter.
The proceedings of the General Assembly in respect of 4.
matters brought to its attention under this Article will be
subject to the provisions of Articles 11 and 12.
Article 93 (2), United Nations Charter
Article 93
All Members of the United Nations are ipso facto parties to
the Statute of the International Court of Justice.
A state which is not a Member of the United Nations may
become a party to the Statute of the International Court of
Justice on conditions to be determined in each case by the 11.
General Assembly upon the recommendation of the
Security Council.
Article 34, Statute of the International Court of Justice
CHAPTER II
COMPETENCE OF THE COURT
Article 34
1. Only states may be parties in cases before the Court.
2. The Court, subject to and in conformity with its Rules,
may request of public international organizations
information relevant to cases before it, and shall receive
such information presented by such organizations on their
own initiative.
3. Whenever the construction of the constituent
instrument of a public international organization or of an
international convention adopted thereunder is in
question in a case before the Court, the Registrar shall so
notify the public international organization concerned and
shall communicate to it copies of all the written
proceedings.
Read and digest the following cases:
1. Barcelona Traction, Light and Power Company UPJ has become a rule of wider application, notably in
Case (1970)
2. Mejoff v. Director of Prisons, 90 PHIL 70 (1950)
3. Reparations for Injuries Suffered in the Service of
the UN (1949)
Island of Palmas Case
5. Western Sahara Case (1975)
6. Eastern Greenland Case 1933
7. SS Lotus Case (France v. Turkey)
8. Case Concerning Sovereignty over Pulau Ligitan
and Sipadan (Indonesia v. Malaysia 2002)
9. Eritrea v. Yemen, (1998)
10. Preah Vihear Temple Case (Cambodia v. Thailand
1962)
Frontier Dispute Case (Burkina Faso v. Mali 1986)
12. Libya v. Chad (1994)
13. El Salvador v. Honduras, with Nicaragua
intervening (1992)
Competence to bring an international claim is, for those
possessing it, the capacity to resort to the customary
methods recognized by international law for the
establishment, the preservation and the settlement of
claims. Among these methods may be mentioned protest,
request for an enquiry, negotiation, and request for
submission to an arbitral tribunal or to the Court in so far
as this may be authorized by the Statute. This capacity
certainly belongs to the State ; a State can bring an
international claim against another State. Such a claim
takes the form of a claim between two political entitit.5,
equal in law, similar [p178] in form, and both the direct
subjects of international law. It is dealt with by means of
negotiation, and cannot, in the present state of the law as
to international jurisdiction, be submitted to a tribunal,
except with the consent of the States concerned.
uti possidetis juris
uti possidetis juris (UPJ) is a principle of customary
international law that serves to preserve the boundaries of
colonies emerging as States. Originally applied to establish
the boundaries of decolonized territories in Latin America,
Africa. The policy behind the principle has been explained
by the International Court of Justice in the Frontier Dispute
(Burkina Faso/Mali) Case:
[UPJ is a] general principle, which is logically connected
with the phenomenon of the obtaining of independence,
Island of Las Palmas case
wherever it occurs. It's obvious purpose is to prevent the
independence and stability of new States being Territorial sovereignty, as has already been said, involves
endangered by fratricidal struggles provoked by the the exclusive right to display the activities of a State. This
challenging of frontiers following the withdrawal of the right has as corollary a duty: the obligation to protect
administering power…Its purpose, at the time of the within the territory the rights of other States, in particular
achievement of independence by the former Spanish their right to integrity and inviolability in peace and in war,
colonies of America, was to scotch any designs which non- together with the rights which each State may claim for its
American colonizing powers might have on regions which nationals in foreign territory. Without manifesting its
had been assigned by the former metropolitan State to territorial sovereignty in a manner corresponding to
one division or another, but which were still uninhabited or circumstances, the State cannot fulfil this duty. Territorial
unexplored. sovereignty cannot limit itself to its negative side, i.e. to
excluding the activities of other States; for it serves to
divide between nations the space upon which human
Self determination (international law) activities are employed, in order to assure them at all
points the minimum of protection of which international
Self-determination denotes the legal right of people to
law is the guardian. Manifestations of territorial
decide their own destiny in the international order. Self-
sovereignty assume, it is true, different forms, according to
determination is a core principle of international law,
conditions of time and place. Although continuous in
arising from customary international law, but also
principle, sovereignty cannot be exercised in fact at every
recognized as a general principle of law, and enshrined in a
moment on every point of a territory. The intermittence
number of international treaties. For instance, self-
and discontinuity compatible with the maintenance of the
determination is protected in the United Nations Charter
right necessarily differ according as inhabited or
and the International Covenant on Civil and Political Rights
uninhabited regions are involved, or regions enclosed
as a right of “all peoples.” The scope and purpose of the
within territories in which sovereignty is incontestably
principle of self-determination has evolved significantly in
displayed or again regions accessible from, for instance,
the 20th century. In the early 1900’s, international support
the high seas.
grew for the right of all people to self-determination. This
led to successful secessionist movements during and after
WWI, WWII and laid the groundwork for decolonization in
Two Aspects of the Territorial Principle
the 1960s. Contemporary notions of self-determination
The territorial principle has two aspects
usually distinguish between “internal” and “external” self-
• Subjective aspect
determination, suggesting that "self-determination" exists
• Objective aspect
on a spectrum. Internal self-determination may refer to
various political and social rights; by contrast, external self-
determination refers to full legal independence/secession Under the subjective aspect of territorial jurisdiction, a
for the given 'people' from the larger politico-legal state.sovereign is recognized as having the power to adopt
criminal laws that apply to crimes that are physically
committed within his territorial borders. So, for example,
French Rule and English Rule the United Kingdom can adopt a statute that makes it a
crime for anyone to commit an act of murder within its
If the foreign vessel is a merchant vessel, there are two
borders and the subjective aspect of the territorial
rules as to jurisdiction, namely: (1) French rule is that
principle would recognize the power of the United
crimes committed on board are not triable in our country
Kingdom to enact such a statue.
unless those affect the peace and security of our country,
and (2) English rule is that crimes are triable unless such Under the objective aspect of territorial jurisdiction, a
crimes affect merely the internal management of the sovereign is recognized as having the power to adopt a
vessel. The English rule is followed in our jurisdiction. criminal law that applies to crimes that take effect within
its borders even if the perpetrator performs the act
outside of its borders. The Internet and the wave of
cybercrime which the Internet has fostered have made the
objective aspect of the territorial principle increasingly
important.