Statehood and the Law of Self-Determination (Developments in International Law, V. 43) (Developments in International Law, V. 43)

Statehood and the Law of Self-Determination Developments in International Law VOLUME 43 Statehood and the Law of Se...

Author: David Raic

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Statehood and the Law of Self-Determination

Developments in International Law VOLUME 43

Statehood and the Law of Self-Determination

David Raic

Kluwer Law International The Hague / London / New York

A C.I.P. Catalogue record for this book is available from the Library of Congress.

ISBN 90-411-1890-X(HB)

Published by Kluwer Law International, P.O. Box 85889, 2508 CN The Hague, The Netherlands. Sold and distributed in North, Central and South America by Kluwer Law International, 101 Philip Drive, Norwell, MA 02061, U.S.A. [email protected] In all other countries, sold and distributed by Kluwer Law International, Distribution Centre, P.O. Box 322, 3300 AH Dordrecht, The Netherlands.

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Printed in the Netherlands

Table of Contents

Table of Abbreviations Acknowledgements

INTRODUCTION

xiii xix

1

PART I: STATEHOOD CHAPTER 1 THE CONCEPTS OF 'SUBJECT OF LAW' AND 'PERSONALITY' IN INTERNATIONAL LAW § 1. Introduction § 2. The meaning of 'subject of international law' and 'international personality' § 3. Conclusion

CHAPTER 2

9 10 18

THE STATE AS AN INTERNATIONAL LEGAL PERSON

§ 1. Introduction § 2. The notion of the State § 2.1. The State as a political and social organization § 2.2. The State as a legal concept under international law: legal personality, attributes and legal criteria for statehood § 2.3. Sovereignty § 3. Recognition of States and the acquisition of international personality §3.1. The constitutive theory § 3.2. The declaratory theory § 4. The theories on recognition revisited § 4.1. Evaluation of the constitutive theory

19 20

21 25 28 29 32 33 33

vi

Table of Contents

§ 4.2. Evaluation of the declaratory theory § 5. Collective, implied, constitutive and obligatory recognition of statehood and admission to membership in the United Nations § 6. Conclusions

CHAPTER 3

39 48

THE TRADITIONAL CRITERIA FOR STATEHOOD AND THE CONCEPT OF EFFECTIVENESS

§ 1. Introduction § 2. Statehood and the notion of effectiveness in international law § 2.1. Raison d'être and function of effectiveness § 2.1.1. Absence of a central organ with general powers of attribution and enforcement of rights and obligations § 2.1.2. Legal order § 2.1.3. Legal security § 2.2. Legal effects of effectiveness § 2.3. The meaning of effectiveness in the context of the formation of States § 3. The traditional criteria for statehood §3.1. Permanent population § 3.2. Defined territory § 3.3. Government § 3.4. The capacity to enter into relations with other States § 3.5. Independence § 3.5.1. Formal independence § 3.5.2. Actual independence § 4. Recognition and the traditional criteria for statehood § 5. Retroactivity of recognition of statehood §6. The moment of the commencement of statehood § 7. Conclusions

CHAPTER 4

38

49 50 50

50 52 53 53 57 58 58 59 62 73 74 76 78 82 83 85 86

THE OBLIGATION OF NON-RECOGNITION AND ADDITIONAL CRITERIA FOR STATEHOOD BASED ON LEGALITY

§ 1. Introduction § 2. The prohibition of premature recognition § 2.1. No recognition without 'permissive' recognition?

89 92 93

Table of Contents 5 2.2.

vii

Non-fulfilment of the traditional criteria for statehood and recognition 95 § 2.2.1. Colonialism and state formation through national liberation wars: the requirement of effective government and the operation of the right of self-determination 95 (a) Algeria 96 (b) Guinea Bissau 98 (c) Angola 99 (d) The Congo 100 § 2.2.2. The formation of States and ineffective government in the post-colonial era 101 § 2.3. Observations 101 § 3. The meaning of the doctrine of obligatory non-recognition 105 § 4. The origin and development of the doctrine of obligatory non-recognition in practice 113 § 5. State practice in the field of non-recognition of claims to statehood 116 § 5.1. The era of the League of Nations 116 § 5.2. The era of the United Nations 122 § 5.2.1. Violation of the prohibition of the use of force, in particular the prohibition of aggression 122 § 5.2.2. Violation of the right of peoples to self-determination 128 (a) The case of Southern Rhodesia 128 (b) The South African Homeland territories 134 § 5.2.3. Violation of the prohibition of systematic racial discrimination including the prohibition of Apartheid 140 § 6. The character of the legal norms involved 141 §7. The legal basis of the obligation of non-recognition 150 § 8. Modern criteria for statehood based on legality 151 § 9. Limits to the obligation of non-recognition 158 § 10. Non-recognition and the European Community Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union 165 §11. Conclusions and observations 167

viii

Table of Contents

PART II: SELF-DETERMINATION CHAPTER 5

THE EMERGENCE AND DEVELOPMENT OF THE PRINCIPLE OF SELF-DETERMINATION: FROM THE AMERICAN AND FRENCH REVOLUTIONS TO THE ERA OF DECOLONIZATION

§ 1. Introduction § 2. Political and philosophical foundations § 2.1. The American and French Revolutions: democratic political theory § 2.2. Nationalism § 3. From a political principle to a legal right § 3.1. Woodrow Wilson and 'Wilsonian self-determination' § 3.2. Vladimir Ilyich Lenin and self-determination § 3.3. Self-determination in the aftermath of World War I § 3.3.1. Versailles § 3.3.2. The League of Nations § 3.3.3. National self-determination as a gift § 3.4. The United Nations and decolonization § 3.4.1. The liberation of colonial peoples and territories: towards a right of selfdetermination § 3.4.2. The subject of the right of self-determination and the principle of territorial integrity § 3.4.3. Implementation and legal status of self-determination § 3.4.4. Decolonization and statehood § 4. Reflections and conclusions: raison d'être and core meaning of political self-determination

CHAPTER 6

171 172 172 176 177 177 184 188 188 193 196 199

199 206 210 219 220

THE POST-COLONIAL ERA: INTERNAL AND EXTERNAL SELF-DETERMINATION

§ 1. Introduction § 2. Self-determination beyond decolonization § 2.1. The continuing character of self-determination and its internal dimension § 2.2. The meaning of internal self-determination and its surplus value § 3. The subject of internal self-determination

226 227 228 237 242

Table of Contents

§ 4. § 5. § 6. § 7.

§ 3.1. The territorial definition: the entire population of existing States § 3.2. The 'ethnic' definition: subgroups within existing States § 3.3. Minorities Internal self-determination as a right under international law The right of external self-determination: meaning and exercise The principles of territorial integrity and uti possidetis Conclusions and observations

CHAPTER 7

ix

244 247 265 272 289 293 305

SECESSION

§ 1. Introduction § 2. Theoretical approaches to a right of secession § 3. Acknowledgment of a right of secession § 3.1. Recognition of a right of secession under national law or approval by the central government § 3.2. International instruments, doctrine and judicial decisions § 3.2.1. International instruments § 3.2.2. Doctrine § 3.2.3. Judicial decisions and opinions § 3.2.4. Observations § 3.3. Successful secessions and international practice § 3.3.1. Bangladesh § 3.3.2. Croatia (a) History (b) Secession and/or dissolution of the SFRY? (c) Entitlement to unilateral secession? § 3.3.3. Acknowledgement of the existence of a qualified right of unilateral secession under international law § 4. Cumulative criteria for a right of unilateral secession § 4.1. Minority-people § 4.2. Territorial bond § 4.3. A direct or indirect violation of the right of internal self-determination

308 309 313 313 316 316 324 328 332 332 335 342 342 356 361

362 366 366 367 367

x

Table of Contents

§ 4.4. Exhaustion of all effective judicial remedies and realistic political arrangements for the purpose of realizing the right of internal self-determination § 4.4.1. The catalytic agent: widespread and serious violations of individual human rights § 5. Unsuccessful unilateral secessions: the cases of the Chechen Republic of Ichkeria, the Republic of Abkhazia and the Republic of Serbian Krajina § 5.1. The Chechen Republic of Ichkeria § 5.2. The Republic of Abkhazia § 5.3. The Republic of Serbian Krajina § 6. Conclusion: the norms of territorial integrity and secession revisited

370 372

372 373 379 386 394

PART III: STATEHOOD AND SELF-DETERMINATION CHAPTER 8

THE FORMATION OF STATES AND THE OPERATION OF THE LAW OF SELF-DETERMINATION

§ 1. Introduction § 2. Recognition of statehood despite the existence of an ineffective government: modern state practice and the role of the right of self-determination § 2.1. The cases of Georgia and Moldova § 2.1.1. The Republic of Georgia § 2.1.2. The Republic of Moldova § 2.2. Observations § 2.3. External self-determination and the statehood criterion of 'government': juridical and empirical statehood § 2.4. The special case of the Republic of BosniaHerzegovina § 3. The law of self-determination and the criteria for statehood: the unlawful proclamation of independence § 3.1. The prohibition of abuse of the right of selfdetermination: the requirement of fulfilment of the conditions of the qualified right of secession § 3.2. Respect for the right of internal self-determination of peoples

401

402 402 402 405 406

408 414 418

419 423

Table of Contents § 4. The proper subject of the right of unilateral secession as a criterion for statehood § 5. The formation of States, self-determination and recognition § 6. Conclusions

xi

425 426 437

PRECIS § 1. The formation of States, traditional criteria for statehood and recognition § 2. The obligation of non-recognition of statehood: the introduction of the notion of legality in the law of statehood and additional criteria for statehood § 3. The law of self-determination § 4. Statehood and self-determination § 5. The modern law of statehood

Bibliography Table and Index of Cases Index

439

441 443 449 451

453 481 485

This page intentionally left blank

Table of Abbreviations

Add. African JICL Am. U. Int'l L. Rev.

Ann. AJIL AFDI APSR AP App(s). Art(s). ASIL Aust. YIL Blaustein and Flanz (Eds.),

CONSTITUTIONS Buchheit, SECESSION

Addendum African Journal of International and Comparative Law American University International Law Review Annex(es) American Journal of International Law Annuaire Français de Droit International American Political Science Review The Associated Press Appendi(x, ces) Article(s) The American Society of International Law Australian Yearbook of International Law A.P. Blaustein and G.H. Flanz (Eds.),

CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, multiple vols. L.C. Buchheit, SECESSION, THE LEGITIMACY

OF SELF-DETERMINATION, 1978 B. Univ. ILJ Brownlie, PRINCIPLES

Boston University International Law Journal I. Brownlie, PRINCIPLES OF PUBLIC

INTERNATIONAL LAW, 1998 BYIL Case W. Res. JIL Cassese, SELFDETERMINATION cert.

Chen, RECOGNITION CERD

British Yearbook of International Law Case Western Reserve Journal of International Law A. Cassese, SELF-DETERMINATION OF

PEOPLES, A LEGAL REAPPRAISAL, 1995 certiorari T.C. Chen, THE INTERNATIONAL LAW OF RECOGNITION, (L.C. Green, Ed.), 1951 Committee on the Elimination of Racial Discrimination

xiv


cf. ch (s). cmt. Colum. J. Transnat'l L. Colum. L. Rev Comm. Cornell ILJ Crawford, CREATION

OF STATES CoE CSCE Daito Bunka Univ. Bull. De Visscher,

EFFECTIVITÉS

Doc. Dugard, RECOGNITION Duke JCIL EC EC Guidelines

ECHR ECHR Ybk. ECOSOC Ed(s). ed. e.g. Emory Int'l L. Rev. ff.EC Rep. EJIL EPIL et al. et seq.

compare chapter(s) comment Columbia Journal of Transnational Law Columbia Law Review Committee Cornell International Law Journal J. Crawford, THE CREATION OF

STATES IN INTERNATIONAL LAW, 1979 Council of Europe Conference on Security and Co-operation in Europe Daito Bunka University Bulletin C. De Visscher, LES EFFECTIVITÉS

DU DROIT INTERNATIONAL PUBLIC, 1967 Document J. Dugard, RECOGNITION AND THE

UNITED NATIONS, 1987 Duke Journal of Comparative and International Law European Communities Guidelines on the Recognition of New States in on Recognition Eastern Europe and the Soviet Union, adopted by the member States of the European Community on 16 December 1991 European Convention on Human Rights Yearbook of the European Convention on Human Rights Economic and Social Council Editor(s) edition example given Emory International Law Review and following European Court Reports European Journal of International Law Encyclopedia of Public International Law and others and following


F. Finnish YIL FLN Fordham L. Rev. Friendly Relations Declaration

FRY Ga. J. Int'l & Comp. L. GAOR Gowlland-Debbas,

xv

Federal Reporter Finnish Yearbook of International Law Front Liberation Nationale Fordham Law Review Declaration on Principles of International Law Concerning Friendly Relations and CoOperation Among States in Accordance With the Charter of the United Nations (General Assembly Resolution 2625 (XXV), 1970) Federal Republic of Yugoslavia (Serbia and Montenegro) Georgia Journal of International and Comparative Law General Assembly Official Records V. Gowlland-Debbas, COLLECTIVE RESPONSES

THE QUESTION OF SOUTHERN RHODESIA

TO ILLEGAL ACTS IN INTERNATIONAL LAW: UNITED NATIONS ACTION IN THE QUESTION OF SOUTHERN RHODESIA, 1990

Hague Y.B. Int'l L. Harv. ILJ HDZ HR

Hague Yearbook of International Law Harvard International Law Journal Croatian Democratic Union Hague Recueil (Recueil des Cours de 1'Académic de Droit International de La Haye) Human Rights Committee Human Rights Quarterly International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice Reports of Judgments, Advisory Opinions and Orders of the International Court of Justice International and Comparative Law Quarterly the same that is International Herald Tribune Indian Journal of International Law International Law Commission

HRC HRQ ICCPR ICESCR

ICJ ICJ Rep. ICLQ id.

i.e. IHT Indian JIL ILC

xvi


ILC Ybk. ILM ILR Int. Aff. Israel L. Rev. IYHR JIA JNA JO Lauterpacht,

RECOGNITION Law & Contemp. Probs. LQR LJIL LN LNOJ LNTS Marek, IDENTITY

Yearbook of the International Law Commission International Legal Materials International Law Reports International Affairs Israel Law Review Israeli Yearbook of Human Rights Journal of International Affairs Yugoslav National Army Journal Officiel H. Lauterpacht, RECOGNITION IN

INTERNATIONAL LAW, 1947. Law and Contemporary Problems Law Quarterly Review Leiden Journal of International Law League of Nations League of Nations Official Journal League of Nations Treaty Series K. Marek, IDENTITY AND CONTINUITY

OF STATES IN PUBLIC INTERNATIONAL LAW, 1954 Mich. JIL Mod. L. Rev. Montevideo Convention mtg. NATO New Engl. L. Rev. NILR n(n). Nord. JIL Notre Dame L. Rev. No(s). NQHR NYIL NYT OAS OAU ONUC

Michigan Journal of International Law Modern Law Review Montevideo Convention on Rights and Duties of States of 1933 meeting North Atlantic Treaty Organization New England Law Review Netherlands International Law Review footnote(s) Nordic Journal of International Law Notre Dame Law Review Number(s) Netherlands Quarterly of Human Rights Netherlands Yearbook of International Law New York Times Organization of American States Organization of African Unity Opération des Nations Unies au Congo


OPPENHEIM'S INT'L LAW

xvii

OPPENHEIM'S INTERNATIONAL LAW,

RGDIP RIA s(s). SCOR sess. SFRY

Vol. I, Peace, (R. Jennings and A. Watts Eds.), 1992 Organization on Security and Co-operation in Europe African Independence Party of Guinea and the Cape Verde Islands Paragraph(s) Proceedings of the American Society of International Law Permanent Court of International Justice Publications of the Permanent Court of International Justice, Series A, B and C Statement by the President of the Security Council Resolution(s) Revised Revue de Droit International, de Sciences Diplomatiques et Politiques (The International Law Review) Revue Général de Droit International Public Review of International Affairs section(s) Security Council Official Records session Socialist Federal Republic of Yugoslavia

Shaw, INTERNATIONAL

M.N. Shaw, INTERNATIONAL LAW, 1997

OSCE PAIGC Para(s). PASIL PCIJ PCIJ Ser. PRST Res (s). Rev. RDISDP

LAW SRBH Stanford JIL STL Rev. Supp. Syr. JIL & Com.

Temple ICLJ Trans. TRNC UDI UHLR

The Socialist Republic of Bosnia-Herzegovina Stanford Journal of International Law Suffolk Transnational Law Review Supplement Syracuse Journal of International Law and Commerce Temple International and Comparative Law Journal Translated Turkish Republic of Northern Cyprus Unilateral declaration of independence University of Hawaii Law Review

xviii


UN UNESCO UNCIO UNDP UNFICYP UNTS UNRIAA

US USLW v.

Va. JIL Vand. J. Transnat'l L Vol(s). WEU Wis. ILJ Yale LJ ZaöRV

United Nations United Nations Educational, Scientific and Cultural Organization United Nations Conference on International Organisation United Nations Development Programme United Nations Force in Cyprus United Nations Treaty Series United Nations Reports of International Arbitral Awards United States Law Reports (Supreme Court) United States Law Week against Virginia Journal of International Law Vanderbilt Journal of Transnational Law Volume(s) West European Union Wisconsin International Law Journal Yale Law Journal Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

Acknowledgements

This book was written as a thesis for the Doctorate of Laws, Leiden University. I am most grateful, first of all, to my supervisor, Professor Peter Kooijmans. Throughout my working at this study he allowed me to make use of his wisdom while at the same time affording inspiration and freedom. He never permitted his demanding task as a Judge at the International Court of Justice to stand in the way of discussing my thesis with me for many hours. I also wish to express my profound gratitude to Professor John Dugard, who acted as referent. I benefited very much from his wise suggestions and advice. The process of writing a thesis cannot be gone through without the support of many people. This book is no exception to that rule. I thank my mother, Amy Raic-van Es, and my sister, Romana Raic, both of whom, despite so many difficulties, have always kept faith in me as well as in the fact that this work would be completed. I thank my late father Mise Raic, who motivated me to interpret the facts of life as objectively as possible. I thank Stella Zerbo for her love, warmth, patience and impatience. I thank Marianne Jonker for supporting me and this project for so many years. I am fully aware that this was not an easy task. Special thanks are owed to René Lefeber, without whom this work would never have seen the light of the day in its present form and with whom I have discussed almost every issue in it. I also, and in particular, wish to thank Mrs. A. Broekers-Knol, Head of the Moot Court Department of Leiden University, who believed in my scientific skills and realized the funds for the research. I thank Niels Blokker for his advice and inspiration. I thank Guido Biessen who always tried to (and eventually did) convince me that I could cut a few pages or sections (if possible a chapter) and who always kept on motivating me to finish the work. The Hague, May 2002 DR


Introduction

Standing on the moon, watching the earth from a different perspective, one sees water and land, and, if one would take a closer look, one might see mountains, rivers, forests and deserts. If one would get even closer to the surface of the earth, one would be able to distinguish cities, lakes and roads. One would, however, search in vain if one would wish to identify a 'State'. The reason is obvious: the State is primarily a legal concept, that is to say, it is a fictitious concept, created by man for certain purposes. From the perspective of international law it is therefore relevant to know exactly what kind of entities qualify as a State and, in particular, when they do so. As has been observed by one scholar: [g]enerally, international lawyers proceeded from the assumption that since the end of the decolonization process the surface of the globe was covered by a given number of entities which almost all bore the characteristics of a sovereign State. In this respect, with the exception of small corrections here and there, history seemed to have come to its irreversible end. The distribution of the land surface of the earth not only between any States, but between the currently existing States was considered more or less final.

The dissolution of the Soviet Union and Czechoslovakia as well as the violent disintegration of the Socialist Federal Republic of Yugoslavia have disproved this assumption, however. The communities of the new entities which have sprung up from the aforementioned States have achieved that for which they were striving, eventually, namely the establishment of a State. A growing number of communities within existing States are attempting, by pacific or by violent means, to attain the same goal. To legitimize their claim they refer to the right of self-determination of peoples - and especially to a 'right of unilateral secession' which is claimed to be encompassed by the aforementioned right. In this context, one may refer to the declarations of independence of, or the aspirations to secession of, amongst others, Transdniestr and the Republic of Gagauzia (of Moldova), Abkhazia (of Georgia), Kosovo (of the Federal

1.

C. Tomuschat, Self-Determination in a Post-Colonial World, in: C. Tomuschat (Ed.), MODERN

LAW OF SELF-DETERMINATION, 1993, p. 1, at p. 5.

2

Introduction

Republic of Yugoslavia), the Turkish Republic of Northern Cyprus (of Cyprus), Chechnya (of the Russian Federation), the Republic of Serbian Krajina (of Croatia), the Serb Republic of Bosnia-Herzegovina (of Bosnia-Herzegovina) and Somaliland (of Somalia). Although several of these entities existed, or still do exist, as completely effective territorial entities, none of them have been recognized as a State by the international community. The striving of communities for statehood is, of course, an old phenomenon. For instance, against the background of nationalism, the Versailles peace settlement led to the (re-)birth of numerous States in Europe. To that effect, Butler observes, the Versailles Treaties have been described as the "balkanisation of Europe".2 But there were others, apart from the nationalities who were allowed to establish their own State, who favoured the peace settlement and considered it right and inevitable.3 Whether or not one agrees with this conclusion, the same forces of national feeling have certainly not ceased to operate, nor have they become weaker in the course of the twentieth and twenty-first century. Indeed, to speak with Cobban, "[w]e may approve them, or we may condemn them, but we cannot ignore them".4 For an international lawyer at least, the challenge is thus to find out whether international law contains rules and principles regulating these forces and their outcomes. The problem of the right of self-determination, particularly in the postcolonial era, is formed in essence by the fact that this right can have a tense relationship with the principle of state sovereignty. The right of a State to having its territorial integrity respected, is a corollary of State sovereignty. On the basis of this principle, States possess the right to uphold their borders if these are threatened either from the outside or from the inside. On the other hand, the right of self-determination was, in the aftermath of World War I and during the period of decolonization at least, primarily seen as a concept which could justify the separation of a part of the territory of an existing State for the purpose of establishing a new State. Thus, the right of self-determination is at least potentially aimed at territorial change. Consequently, the aspiration of communities within existing States to the creation of their own State on the basis of an alleged right of self-determination, and the attempts of the parent States to preserve their territorial status quo, is the source of the majority of conflicts with which the international community finds itself confronted almost daily. It is sometimes argued that these claims to self-determination as well as the situations which arise as a result of an alleged exercise of that right, must 2. 3. 4.

H. Butler, THE LOST PEACE, 1941, p. 124. Id. A. Cobban, THE NATION STATE AND NATIONAL SELF-DETERMINATION, 1969, p. 21.

Introduction

3

simply be ignored, that these matters are not regulated by international law or that they are unsuitable for legal regulation. In addition, it 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.5 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. These situations and these contentions thus raise the following question: does international law contain any rules and principles on the basis of which the formation and recognition of some entities, and the ignoring and non-recognition of others, can be explained? In the light of the aforementioned developments, the main question of this study is: when does an entity qualify as a State under international law, and what, if any, is the role of the law of self-determination in the process of the formation of States in international law? This question raises a number of sub-questions: does international law contain objective, that is, legal, criteria for statehood on the basis of which it is possible to determine whether or not an entity qualifies as a State? What is the role of (non-)recognition in the creation of States? Is the formation of a State solely a 'matter of fact' or is it (also) a 'matter of law'? That is to say, does the law of statehood contain rules barring the acquisition of statehood of a territorial entity if the said entity has been established in violation of international law? What is the role of the right of self-determination in this regard? If self-determination may justify and legitimize the formation of a State, in what instances does such a justification and legitimation exist? And what is the legal status of an entity if it has been established without such a legal basis? This last question is intimately related to another one: does a right of unilateral secession exist in the post-colonial era? If so, when does it exist and who is the holder of such a right? How does this right relate to the principle of territorial integrity, and how does it relate to the principle of uti possidetis? Finally, if a right to unilateral secession does exist under certain circumstances (that is, under certain conditions), what is the legal status of an entity which is created whilst the conditions for the existence of a right to unilateral secession were not (yet) satisfied? To this end, this study is divided into three parts. Part I, entitled 'Statehood', consists of four chapters. This part will focus primarily on the concept of 'State' in international law, first from the perspective of the more or less generally accepted law of statehood, and thereafter in the light of additional

5.

See, e.g., R.G.C, Thomas, Self-Determination and International Recognition Policy: An Alternative Interpretation of Why Yugoslavia Disintegrated, World Affairs, Vol. 160, 1997, p. 17.

4

Introduction

criteria for statehood which may be suggested on the basis of modern state practice. In that respect, some basic legal concepts, such as 'subject of international law' and 'personality', will be examined in Chapter 1. Chapter 2 addresses the general characteristics and attributes of statehood, as well as the role of recognition in the process of the formation of States. Chapter 3 analyses the content and status of the so-called 'traditional' criteria for statehood, which are factual criteria based on the pre-condition of effectiveness. Some suggested additional criteria for statehood which are based on legality rather than effectiveness are discussed in Chapter 4, against the background of the doctrine of non-recognition of illegal acts and situations. It will be seen that a number of question relating to statehood and the status of certain entities remain unanswered on the basis of the discussion as it has developed thus far. It is submitted that these questions may be answered from the perspective of the law of self-determination. Part II of the study, entitled 'Self-Determination', consists of three chapters focusing on the rules and principles of the law of self-determination. Chapter 5 charts the development of the concept of self-determination from its first international appearance during World War I up to and until its role in the context of decolonization. This analysis leads to a formulation of the raison d'être and main objective of the principle of self-determination insofar as this may be deduced from the development of the concept in the said period. In Chapter 6, the analysis of the law of self-determination is taken a step further. In this Chapter, the question of whether or not the right of self-determination extends beyond decolonization and if so, in what form is examined. In this respect both the 'internal' and the 'external' aspect of the right of selfdetermination will be addressed. Also, the legal status of (internal and external) self-determination in the post-colonial era is analysed, as well as the (potential) holder of that right. It will be shown that the right of self-determination does extend beyond the colonial context as a continuing right, primarily in the form of 'internal' self-determination. However, in certain aspects external selfdetermination is also a continuing right, in the sense that the entire population of a State is always free to choose integration in, or association with, another existing State. The exercise of the external aspect of self-determination leads to a change in the external boundaries of a State. It has been suggested that the right of self-determination, particularly in its 'external' form, conflicts outright with two other principles of international law: the principle of territorial integrity and the principle of uti possidetis. The content of these two principles as well as their relation to the right of self-determination is addressed in the final part of Chapter 6. The question of the existence of a right of unilateral secession is dealt with in Chapter 7 on the basis of a number of case

Introduction

5

studies, including the birth of Bangladesh, the crisis in the former Yugoslavia and attempts at secession within the territory of the former Soviet Union. Part III is entitled 'Statehood and Self-Determination' and consists of Chapter 8. The purpose of this Chapter is to identify the precise role of the law of self-determination in the process of the formation of States under contemporary international law. In the Precis, the conclusions reached in the previous chapters will be used to formulate the applicable rules and principles of the modern law of statehood.


Part I Statehood


Chapter 1

The Concepts of 'Subject of Law' and 'Personality' in International Law

§ 1.

INTRODUCTION

The belief that a separate and independent political existence within a territorially defined unit ('statehood') was the ultimate, only and therefore necessary guarantee for the effective protection, maintenance and development of the collective identity of a community and the human rights of its members, as well as for the progressive development of the common good of that community, can be traced back to the early beginnings of social and political organization of individual human beings. Whether or not this belief is correct is beyond the scope of this study. It is, however, difficult to deny that this belief underlies many of today's intraState conflicts. Often, the communities which are involved in these conflicts are not satisfied with anything less than separate statehood as a solution to the conflict. In those cases, justifiable or no, statehood is made indistinguishable from the idea of being one's own master, that is, of greater apparent control over one's own affairs. This idea is subsequently linked to the belief that forming part of a State would by definition result in a politically, legally, socially, culturally and/or economically subordinate and, therefore, inferior position in comparison to being a separate and independent political entity in the form of a State. In short, the communities involved in many of today's intra-State conflicts claim the right to govern themselves and repudiate the right of an 'alien' people to determine for them their political fate and future. It is therefore not surprising that in an increasing number of today's cases of secession, these communities seek to justify their quest for separate statehood on the basis of a supposed universal right of peoples to self-determination. Although, arguably, some collectivities have attained a certain degree of international legal status, they are not States, nor do they possess the rights which are enjoyed by States under international law. This issue is thus related to the concepts of 'subject of law' and 'personality' in international law.

10

Chapter 1

Accordingly, before such questions as what is a 'State' and how does a 'State' become a 'subject of international law', can be addressed in the subsequent chapters, it is necessary first to examine the meaning of the notions of 'subject of law' and 'personality'.

§ 2.

THE MEANING OF 'SUBJECT OF INTERNATIONAL LAW' AND 'INTERNATIONAL PERSONALITY'

The concepts 'subject of international law' and 'international (legal) personality' are used widely in legal doctrine. However, the definition of these concepts is not devoid of controversy and confusion. In most national legal systems subjects of law are those entities who are the bearers of legal rights and/or who are subjected to legal duties. While it is not possible to make a priori qualifications about who is a subject of a system of law and who is not - because that might differ from system to system individual human beings on the one hand, and organizations and groups of human beings on the other, are considered subjects of most national legal systems. In addition to the notion of subject of law most national legal systems also recognize the notion of 'personality' and in that respect differentiate between a natural person and a legal person. In the legal system of most countries, the status of 'natural person' refers to an individual human being who possesses - in addition to the rights common to all other individual human beings under the legal system - the competence to make a claim on his or her behalf before a judicial or quasijudicial institution for the purpose of enforcing his or her right(s). Generally, an essential factor for this competence is the (presumed) ability to have and to be able to express a mature will.1 The latter ability is also determinative for the other aspect of 'personality', namely accountability: a natural person can be held directly accountable for his or her acts under national law. Thus, the competence to bring a claim and accountability for one's own actions are two sides of the same coin: 'personality'. The same features apply with respect to the 'legal person' or 'corporate person', which term refers to an organization or group of human beings (for instance, a municipality, a company or a foundation), which possesses the competence under national law to bring before a national court or tribunal a claim on behalf of the organization or group as such, in cases when the rights 1.

See also A. Meijknecht, TOWARDS INTERNATIONAL PERSONALITY: THE POSITION OF

MINORITIES AND INDIGENOUS PEOPLES IN INTERNATIONAL LAW, 2001, p. 39.

'Subject of Law' and 'Personality' in International Law

11

of the organization or group of human beings as such have been violated. In addition, as in the case of natural persons, a legal person is an entity which can be held directly accountable for its acts. It is clear that the legal person is a legal fiction. It is seen as a separate entity with a will of its own. In that respect it has organs and representatives representing the will and the interests of the legal person. But the personal will of the persons constituting these organs and representing the group is legally irrelevant. In other words, the legal person has a personality and will separate from the individual personality and will of its members. It follows that under national law natural or legal persons are normally always subjects of law, but subjects of law are not necessarily either a natural or a legal person. Because it is common to most national legal systems to distinguish between a subject of law and (natural/legal) personality it is surprising that in international legal doctrine a 'subject of international law' is often equated with an 'international person' or even with an 'international legal person'.2 Several writers, while equating a subject of international law and an international (legal) person, define a subject of international law as an entity capable of possessing international rights and duties, and having the capacity to maintain its rights by bringing international claims.3 In this respect two critical remarks must be made. First, the term 'capacity' or 'capability' is unfortunate, and leads to unnecessary confusion. Any individual human being or aggregate of human beings (whether it is a State, a company, a non-governmental organization, a national minority or a soccer club) presumably has the capacity to bear rights and duties under international law.4 But it is equally true that not all aggregates of human beings do bear rights and duties under international law. Therefore, the existence of a capacity to bear rights and duties is not as such conclusive evidence for the existence of the legal status of 'subject of international law'. Secondly, it cannot be maintained that an entity can only be considered a subject of international law if, and only if, this entity possesses the right to 2.

3.

See, e.g., OPPENHEIM'slNT'L LAW, p. 119 ("[a]n international person is one who possesses legal personality in international law, meaning one who is a subject of international law [...]"); P. Malanczuk, AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW, 1997, p. 91; B. Cheng, Introduction to Subjects of International Law, in: M. Bedjaoui (Ed.), INTERNATIONAL LAW: ACHIEVEMENTS AND PROSPECTS, 1991, p. 23, at p. 24; J.H.W. Verzijl, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE, Part II, 1969, p. 3. See Verzijl, id., at pp. 3-4; Brownlie, PRINCIPLES, p. 57. But see I. Seidl-Hohenveldern and G. Loibl, DAS RECHT DER INTERNATIONALEN ORGANISATIONEN EINSCHIESSLICHDER SUPRANATIONALEN GEMEINSCHAFTEN, 1991, p. 35.

4.

Reference re Secession of Quebec, Supreme Court of Canada, ILM, Vol. 37, p. 1340, at p. 1367 (para. 106); Crawford, CREATION OF STATES, p. 25.

12

Chapter 1

make an international claim for the purpose of enforcing its rights.5 This conclusion is supported by the observations of the International Court of Justice in the Reparations for Injuries Suffered in the Service of the United Nations case6 - the leading case concerning personality under international law. In this case the International Court of Justice was asked to give an Advisory Opinion with respect to the question whether the United Nations had the capacity to bring an international claim against a non-Member State of the Organization. The Court was thus forced to analyze the concept of 'personality' in international law. In doing so the Court did not limit its observations to the status of the United Nations. After having stated that the questions which the Court was asked to address related to the "capacity to bring an international claim", the Court observed that it was therefore necessary to define that 'capacity' first: [c]ompetence 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 presentation 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 [...].' The Court continued by stating that the question was thus centred around the fact "whether the Charter has given the Organization such a position that it possesses, in regard to its Members, rights which it is entitled to ask them to respect. In other words, does the Organization possess international personality?" After it had stated that the exercise by the United Nations of functions, rights, duties and responsibilities could only be explained on the basis of the possession of a large measure of international personality, the Court came to the conclusion that the Organization is an international person. But, the Court noted, [t]hat is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State.

5.

6. 7. 8.

Cf. Verzijl, supra note 2, at p. 3 ("[t]he true test of 'personality' in a given legal order would seem to be not whether an individual or composite entity derives rights from that order, but whether he or it is in a position to pursue or/and enforce them within it"). Advisory Opinion, ICJ Rep. 1949, p. 174 (hereinafter 'Reparations for Injuries case'). As regards the international personality of the European Community, see European Court of Justice, Case 22/70 Commission v. Council (ERTA case), EC Rep. 1971, p. 263. Reparations for Injuries case, supra note 6, at p. 177.


13

[...] What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.

The use of the word 'and' in the final part of the last sentence is significant. In effect, it is submitted, the Court thereby distinguished between 'a subject of international law' and an 'international (legal) person' and thus followed the common distinction made in national legal systems between the two concepts. It must therefore be concluded that a subject of international law is any entity which bears rights and/or duties under international law.10 This does not mean, however, that such an entity is an international person. According to the Court's remarks an international (natural or legal) person is any subject of international law that - in addition to other rights under international law - has the capacity or right to make an international claim. Moreover, it must be noted, under international law such an entity can normally 11 be held directly accountable for its acts.12 The validity of the distinction between the quality of subject of international law and international personality is also implicitly affirmed in the Case Concerning East Timor.13 In that case, the International Court of Justice held

9. Id., at p. 178 (emphasis added). 10. See also R. Ranjeva, Peoples and National Liberation Movements, in: Bedjaoui (Ed.), supra note 2, pp. 101-112, at p. 102 ("subjects of law are not entities possessing a personality but entities possessing a right"); C.N. Okeke, CONTROVERSIAL SUBJECTS OF CONTEMPORARY INTERNATIONAL LAW: AN EXAMINATION OF THE NEW ENTITIES OF INTERNATIONAL LAW AND THEIR TREATY-MAKING CAPACITY, 1973, p. 9; J. Spiropolous, L'INDIVIDU EN DROIT INTERNATIONAL, 1928, p. 32. 11. The matter is less complex with regard to States and individuals than with regard to international governmental organizations. If an international organization has a legal personality distinct from that of the member States, and functions which in the hands of member States may create responsibility, it is in principle reasonable to impute responsibility to the organization. See WHO Regional Office case, ICJ Rep. 1980, p. 73. The main problem arises concerning the determination of whether the act has been committed by or on behalf of the international organization or by or on behalf of a member State. The law in this field is still undeveloped and note must be taken of each specific set of circumstances. Brownlie, PRINCIPLES, p. 686. See, generally, C. Eagleton, International Organisation and the Law of Responsibility, HR, Vol. 76, 1950 I, p. 319; H. Schermers and N.M. Blokker, INTERNATIONAL INSTITUTIONAL, 1995, pp. 1166 et seq.; R.A. Lawson, HET EVRM EN DE EUROPESE GEMEENSCHAPPEN, 1999. 12. Brownlie, PRINCIPLES, pp. 435, 584-585 ("[i]nternational responsibility is commonly considered in relation to states as the normal subjects of the law, but it is in essence a broader question inseparable from that of legal personality in all its forms [...]. The individual does not bear normal responsibility for breaches of obligations imposed by the customary law of nations because most of these obligations can only rest on states and governments [...]. Yet there is no rule that the individual cannot have some degree of legal personality, and he has such personality for certain purposes"). See also H.Kelsen, PRINCIPLES OF INTERNATIONAL LAW, 1966, pp. 194220. 13. Case Concerning East Timor, (Portugal v. Australia), Judgment, ICJ Rep. 1995, p. 90, at p. 102. See also Reference re Secession of Quebec, supra note 4, at p. 1369 ("[w]hile international law generally regulates the conduct of nation states, it does, in some specific circumstances, also

14

Chapter 1

that peoples, not States or other entities, possess a right of self-determination. Although the Court noted that the entitlement to respect for this right has an erga omnes character, it did not wish to go so far as to conclude that the possession of a right erga omnes entitles a people as such to bring an international claim when its right of self-determination has been violated.14 The Court thus confirmed that the absence of the possibility to make an international claim does not preclude an entity like a people from being the bearer of an international legal right. In short, this means that such an entity is a subject of international law, but not however an international person.15 Consequently, insofar as the distinction between 'subject of law' and 'personality' is concerned, there does not seem to be any essential difference between national law and international law, nor is there a valid reason why there should be. The equation (and hence, the confusion) of the two concepts, as well as the assertion that an entity, to be a subject of international law, must have the right to make an international claim, is closely bound up with the whole concept of international law itself, as the traditional view on international law maintains that international law must be defined as law which is applicable to relations between States only.16 States (or groups of States) are therefore said

recognize the 'rights' of entities other than nation states - such as the right of a people to selfdetermination" (emphasis in original)). 14. See also Human Rights Committee, Ominayak and the Lubicon Lake Band v. Canada, Communication No. 167/1984 (26 March 1990), UN Doc. A/45/40 (1990), where the Committee did not question the existence of a right of peoples to self-determination (because that right is explicitly mentioned in Article 1 of the ICCPR). However, notwithstanding the existence of this right under the ICCPR, the Committee observed that peoples as such cannot, under the Optional Protocol of the ICCPR, make an international claim, because the Optional Protocol provides for a procedure under which only individuals can claim that their individual rights have been violated. 15. In this respect the question arises as to the enforcement of legal rights which must be respected erga omnes in cases where the holder of the right lacks all legal means to enforce his or her right. In such a case the legal position and legal competences of third States to bring an international claim on behalf of the direct holder of the right or to enforce that right otherwise becomes important. This matter is, however, beyond the scope of this study. See ILC Draft Articles on Responsibility of States for International Wrongful Acts, adopted by the Drafting Committee on second reading, UN Doc. A/CN.4/L.602/Rev.l, 26 July 2001, Arts. 48 and 54. And see, e.g., B. Simma, Does the UN Charter Provide an Adequate Legal Basis for Individual or Collective Responses to Violations of Obligations Erga Omnes?, in: J. Delbrück (Ed.), THE FUTURE OF INTERNATIONAL LAW ENFORCEMENT: NEW SCENARIOS-NEW LAW?, 1993, p. 125; B. Simma, From Bilateralism to Community Interest in International Law, HR, 1994 VI, p. 229; A. de Hoogh,

OBLIGATIONS ERGA OMNES AND INTERNATIONAL CRIMES, 1996; R. Lefeber and D. Raic, Frontiers of International Law, Part One: the Chechen People, LJIL, Vol. 9 , 1996, p. 1. See also the Dissenting Opinion of Judge Weeramantry, East Timor case, supra note 13, at pp. 142-223. 16. In this respect, the 'traditional' view formed, so to speak, a breaking point with respect to the classical Law of Nations which did recognize both States and non-State entities (in particular individuals) as subjects of that law.


15

to be the sole subjects of international law.17 According to this positivistic view, in situations in which entities other than States (but within the jurisdiction of States) derive benefits under international law, such benefits are enjoyed not by virtue of a right which the entity itself holds under international law, but by reason of a right appertaining to the State which exercises jurisdiction over the entity.18 Indeed, when one proceeds from the assumption that the State is the exclusive subject of international law, there is no need for a distinction between a subject of international law and an international (legal) person, because it is beyond doubt that the State is both subject and person par excellence under international law. This traditional view, however, has been challenged strongly. Quite correctly, it has been pointed out by several scholars who reject this view that it is not based upon practice but upon erroneous premises regarding the nature of international law. Frederick Dunn qualifies the traditional approach as a highly misleading "legal fossil" and a "remnant of legal animism". And according to Lauterpacht [t]here is no rule of international law which precludes individuals and bodies other than states from acquiring directly rights under customary or conventional international law and, to that extent, becoming subjects of the law of nations. Modern writers refute the classical view as being outdated as well.

Moreover,

17. See, e.g., D. Anzilotti, COURS DE DROIT INTERNATIONAL, 1929, p. 134; J. de Louter, HET STELLIG VOLKENRECHT, 1910, p. 11. And see R. Higgins, Conceptual Thinking About the Individual in International Law, in: R. Falk et al. (Eds.), INTERNATIONAL LAW, A CONTEMPORARY PERSPECTIVE, 1985, p. 476, at p. 478 (summarizing this view as follows: "under the existing rules of international law there is no evidence that individuals are permitted to be bearers of duties and responsibilities. They are like 'boundaries', or 'rivers', or 'territory' or any of the other chapter headings found in the traditional textbooks"). 18. P.K. Menon, The Subjects of Modern International Law, Hague Y.B. Int'l L., Vol. 3, 1990, p. 30, at p. 61. 19. F.S. Dunn, The International Rights of Individuals, PASIL, 1941, p. 14. 20. H. Lauterpacht, The Subjects of the Law of Nations, LQR, 1947, p. 438, at p. 444. 21. See, e.g., Crawford, CREATION OF STATES, p. 25; Okeke, supra note 10, at pp. 9-19; Y. Dinstein, International Criminal Law, IYHR, Vol. 5, 1975, p. 55; L. Henkin, International Law: Politics, Values and Functions, HR, 1989 IV, p. 9, at pp. 34-35; Menon, supra note 18, at pp. 32, 85; P.H. Kooijmans, The Security Council and Non-State Entities as Partiesto Conflicts, in: K. Wellens (Ed.),

INTERNATIONAL LAW:THEORY AND PRACTICE, p. 333, at p. 338; B.Broms, Subjects: Entitlement in the International Legal System, in: R.St.J. Macdonald and

D.M. Johnston (Eds.), THE

STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY, DOCTRINE AND THEORY, 1983, p. 383, at pp. 418-419; D.P. O'Connell, INTERNATIONAL LAW, 1970, p. 83. Higgins, supra note 17, at p. 478 ("[t]hese views - and the reasoning on which they are based - carry with them so many assumptions that, in disagreeing with them, it is hard to know where to begin"). It is hard to find any modern legal author advocating the traditional view proper. It would seem that the problem is not longer centred around the question of whether non State-entities can be international persons, but around the questions of whether

16

Chapter 1

in the aforementioned Reparation for Injuries case the Court, after having noted that "the State is the direct subject of international law", observed [t]he subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community.

It follows that the status of 'subject of international law' does not mean that an entity has to be a State, nor that it must possess all the rights of States under general international law, including the right to make an international claim. Any other view would mean that the legal concept of 'subject of international law' is inflexible. This position was explicitly rejected by the International Court of Justice in the Reparation for Injuries case.23 Moreover, as has been pointed out by Cheng: [i]t is important to bear in mind, in the light of legal history and comparative law, that this capacity of being able to bear rights and duties under a legal system is not a status that is pre-ordained. On whom it is conferred depends on each individual legal system and those who make its laws.24

As international life develops and international relations become more complex, new subjects of international law are recognized. This may be a result of, for example, transboundary problems that need a cooperative rather than an individualistic approach by the existing States and/or the need for (additional) regulation of the conduct of (new) entities that assert themselves upon the international plane (either by imposing obligations on or conferring rights to them). From a law of inter-State relations at a time when States were the principal if not sole subjects of international law, international law has developed into a law that aims at regulating the conduct of all members of international society.25 Among these members one will find entities that bear rights and duties under international law but do not (yet) possess international personality, or

an international person is always an international legal person, and whether an international person must be equated with a subject of international law. As has been stated above, both questions must be answered in the negative. 22. Supra note 6, at p. 177. See also P.H. Kooijmans, Provisional Measures of the UN Security Council, in:E.Denters and N. Schrijver (Eds.), REFLECTIONSON INTERNATIONAL LAW FR()M THE LOW COUNTRIES, 1998, p. 289, at p. 295. 23. Supra note 6, at p. 178. 24. Cheng, supra note 2, at p. 24. 25. Ranjeva, supra note 10, at p. 102.


17

possess it only to a limited extent, such as, for instance, under a specific treaty regime. The fact that the traditional view is rejected in doctrine as well as in practice is not surprising, because "there is something offensive to reason that international law addresses itself only to States, leaving human beings who compose them [...] to fulfill no more significant role in the legal process than stocks and shares and ships".26 There is no rule of international law that precludes non-State entities from having their rights under international law respected, solely on the basis of the fact that these entities do not possess a right to enforce these rights on the international plane. As was observed above, a lack of personal capacity is not particular to international law. In most national legal systems there are certain entities that lack standing to bring actions. In most countries minors and persons under wardship are deemed to lack the ability to have and express a mature will, and are thus not considered as natural persons under law. But this does not mean that they are without rights or duties. The extent of their rights might be limited, especially rights affecting legal relations with others, but they are without question subjects, and not objects of law.27 In general, the lack of international legal remedies for violations of international rights of non-State entities may be the result of, on the one hand, the unwillingness of the parent-State to provide the entities within its jurisdiction with the right to make an international claim on their own, or, on the other, the unwillingness of the international community of States to create (legal) mechanisms for the enforcement of certain rights. The absence of enforcement mechanisms in certain fields of international law results in the fact that some entities cannot bring a claim before, for instance, an international tribunal for the purpose of enforcing and safeguarding a right the respect for which that same international law does entitle them to. This position is unfortunate, but does not annul the existence of the relevant legal right, for the existence of a legal right and the entitlement to respect for that right does not necessarily need to be accompanied by a competence to enforce said right on the international plane (or on the national plane, for that matter).28

26. O'Connell, supra note 21, at p. 83. 27. Meijknecht, supra note 1, at p. 39. See also Menon, supra note 18, at pp. 84-85. 28. P.H. Kooijmans, Zelfbeschikkingsrecht: Naar een Nieuwe Interpretatie?, in: N. Sybesma-Knol and J. van Bellingen (Eds.), NAAR EEN NIEUWE INTERPRETATIE VAN HET RECHT OP ZELFBESCHIKKING, 1995, p. 157, at pp. 159-160.

18

§ 3.

Chapter 1

CONCLUSION

It has been seen that, in addition to States, international law recognizes other subjects of law, such as 'peoples', as well as other international persons, such as international organizations and individual human beings. From a legal point of view, those entities bearing rights and/or duties under international law but lacking the capacity to make an international claim if their rights have been violated, are obviously in a more vulnerable position than States and other international persons. Although it has been suggested that 'peoples' are entitled to secede unilaterally from the parent State if they lack any (national and international) judicial and/or other realistic remedies to enforce or realize their right of self-determination within that State,29 this does not, of course, detract from the fact that 'peoples' have a completely different legal position under international law than States. For, notwithstanding other subjects and international persons, the State is still the principal subject and person in international law. The next Chapter addresses the legal notion of the State, its characteristics and the role of recognition in the acquisition of its legal personality under international law.

29. See Chapter 7, infra.

Chapter 2

The State as an International Legal Person

§ 1.

INTRODUCTION

If the State is a legal concept in international law, objective, that is, legal criteria on the basis of which it would be possible (for, for instance, any judicial body) to determine whether an entity is State or not must also exist. Although the traditional and modern criteria for statehood are dealt with in more detail in the subsequent chapters,1 a number of preliminary issues related to the legal notion of the 'State' as well as to the question of whether or not an entity is a State under international law will be dealt with in this Chapter. As was observed in the previous Chapter, it is generally accepted that the State is the principal legal person on the international scene. Therefore, in Section 2 it will be examined if, and to what extent, this characteristic might be helpful in identifying the 'State' as a legal notion under international law. Also, attention will be given to certain general and exclusive attributes of statehood since that may be useful for understanding the legal notion of statehood. In addition, because States are considered to be sovereign entities under international law, this distinct characteristic of States will also be explored briefly in this Section. The normal procedure by which existing States declare that they regard an entity as a State is through individual recognition. In that respect it has been suggested that the very act of recognition attributes international personality to the recognized State, which means that, according to this view, a State does not exist in international law unless it has been recognized by the already existing States. Thus, this point does not only concern the determinative character of recognition but also, and even primarily, the question of how international personality is acquired by an entity claiming statehood. The latter question forms the core of the analysis in Sections 3 and 4. Section 3 outlines the main propositions of the two principal theories regarding the recognition

1.

For the traditional criteria for statehood see Chapter 3, infra. The modern criteria for statehood are discussed in Chapters 4 and 8, infra.

20

Chapter 2

of States: the constitutive theory and the declaratory theory. In Section 4, the two theories will be examined on their merits. Against the background of the legal character and legal effect of recognition that still leaves another point that must be addressed. It has been suggested by some scholars that the admission of an entity to membership in a universal international organization which is open for States only (such as the United Nations), amounts to the recognition of the statehood of the entity concerned. In other words, it is maintained that in such cases admission as a member implies collective recognition of statehood. In addition, it is argued that such collective recognition may have a constitutive character. The correctness of this proposition will be examined in Section 5. Finally, in Section 6, some conclusions will be drawn.

§ 2.

THE NOTION OF THE STATE

§ 2.1.

The State as a political and social organization

The term 'State' appeared rather late in human history.2 Only at the turn of the fifteenth century, the term began to be used in a sense that may be compared to its contemporary use. Throughout the ages, States have been changing their appearance and structure, reflecting a great variety of forms and substance. Nonetheless, as a form of social and political organization of individual human beings and aggregates of human beings, the State was, from the outset, a rationalized abstraction. In the words of Brierly: [t]he truth is that states are not persons, however convenient it may be to personify them; they are merely institutions, that is to say organizations which men establish among themselves for certain objects, of which the most fundamental is a system of order within which the activities of their common life can be carried on.

2. 3.

P.L. Weinacht, STAAT, STUDIEN ZUR BEDEUTUNGSGESCHICHTE DES WORTES VON DEN ANFÄNGEN BIS INS 19. JAHRHUNDERT, 1968. J.L. Brierly, THE LAW OF NATIONS: AN INTRODUCTION TO THE INTERNATIONAL LAW OF PEACE, 1963, pp. 54-55 and 126 (emphasis in original); R.B. Bilder, Perspectives on Sovereignty in the Current Context: An American Viewpoint, Canada-United States Law Journal, Vol. 20, 1994, p. 9, at p. 15: "[a]fter all, the state, like any system of political organization or governance, is just a tool - a social invention we have devised to help us to coexist and achieve our common purposes". Admittedly, the view that the State is a man-made institution intended to serve the common interests of the human beings composing it, was not always followed, as is evidenced by Hegel's theory which - by separating the community ("die bürgerliche Gesellschaft") from the State - led to the exaltation of the State. The State became an end in itself. However, the progressive development of international law, and human rights law in particular, have, to a certain extent, contributed to the 'revival' of the original purpose of the State. See, generally, W.M. Reisman, Sovereignty and Human Rights in Contemporary International Law, AJIL, Vol.


21

Indeed, States are institutions and, more specifically, they are territorially defined institutions of authority. 4 In the context of this study, there is no need to enter into the philosophical discussion concerning the possible distinguishing elements between the State as a political and social organization and other political or social organizations. Nor is it necessary to deal with the question of whether the State is the ultimate and most effective form of social and political organization for the realization of the interests of its citizens and the protection of their rights. For this study it is relevant, however, to address the question how the 'State' is defined in international law. In other words, what are the legal characteristics of the entity which is qualified as a 'State'? The next Section deals with that question. § 2.2.

The State as a legal concept under international law: legal personality, attributes and legal criteria for statehood

An important aspect of the 1648 Peace of Westphalia was that, in accordance with the marking of the advent of the system of .sovereign States, it was recognized that States were equal legal persons under international law.5 What, however, is meant by the notion 'legal personality' in this context? On the basis of expediency, national as well as international law established the legal or 'corporate' person. History shows that, in an attempt to realize different objects and interests, individual human beings decide to cooperate when they realize that they cannot accomplish some or all of these objects and interests on their own. Where the cooperation needed concerns a limited number of individuals, it may be possible to keep one's legal individuality as regards the outside world intact. This becomes impossible, however, when the level of cooperation concerns hundreds of thousands or even millions of individuals, as is the case with composite entities like States. As an organization of human beings, the State would be a useless and unworkable entity in law if it would be necessary for each and every individual composing the State to be obliged to sign any contract concluded with another State. In order to be able to act in law as an organization of individual human beings and groups - that is to say, as a singular entity - international law maintains the concept of legal personality and qualifies the State as a legal

4. 5.

84, 1990, p. 866. P.H. Kooijmans, INTERNATIONAAL PUBLIEKRECHT IN VOGELVLUCHT, 2000, p. 20. See, generally, L. Gross, The Peace of Westphalia (1648-1948), in: L. Gross (Ed.), INTERNATIONAL LAW IN THE TWENTIETH CENTURY, 1969, p. 25; A. De Zayas, Peace of Westphalia, EPIL, Vol. 7, 1984, p. 536.

22

Chapter 2

person. The 'realness' of legal personality formed the core of the discussion between the so-called 'realists' and 'fictionalists' regarding the question whether legal persons as such can have rights and duties under international law. In essence, both schools of thought aimed at describing 'personality' for the purpose of isolating the notion from other ideas and notions. The 'realists', like Anzilotti, maintained that the State was a separate person for and under international law, and as such possessed legal personality. According to them "the State was legally distinguishable from the human beings composing the State, because its organic composition separated it from them in fact".6 Moreover, the State had to be considered 'real' in the sense that it was a juristic entity which could be identified, and distinguished, from other 'real' entities, on the basis of facts. The State as a person in law was not a metaphysical body, but a living organism, a personification of personality. This view formed the basis for the thesis that only States or entities comparable to States could be international persons. The 'fictionalists', led by Kelsen, rejected the doctrine that only States, and not individuals, are the subjects of international law. They argued that law is essentially the regulation of human conduct regardless of whether it concerns national or international law. According to the 'fictionalists' law can impose duties and responsibilities or confer rights on human beings only. Therefore, it is to men that the norms of international law apply and it is thus concluded that, ultimately, the subject of international law must be the human being. Consequently, the State as a legal entity is no more than a legal fiction, which cannot be distinguished legally from the individual human beings composing it.7 Thus, under international law, the legal personality of the State could not be considered to be 'real'. In sum, the 'fictionalists' assert that while a norm of international law may be directly addressed to the State as an entity, this norm is in fact indirectly addressed to individuals in their capacity of organs of the State, because only individuals are 'real' and capable of possessing rights and obligations under any system of law. The debate between the 'realists' and the 'fictionalists' is, however, misdirected because, it is submitted, both schools of thought fail to acknowledge that international law does not define its actors on the basis of 'realness' or 'unrealness'. Many legal concepts in international law have to be considered

6. 7.

D.P. O'Connell, INTERNATIONAL LAW, Vol. 1, 1970, p. 81. Kelsen speaks of "an auxiliary concept of juristic thinking, an instrument of legal theory, the purpose of which is to simplify the description of legal phenomena". H. Kelsen, PRINCIPLES

OF INTERNATIONAL LAW, 1966, p. 181.


23

'unreal' - they constitute legal fictions. In fact, law itself is an intellectual construct. International law (and indeed any other system of law) defines its subjects on the basis of legal rules. These legal rules refer to physical persons and legal concepts alike. Thus, whether or not an individual human being or an organization of human beings is regarded as a subject of international law depends on the existing legal rules identifying the individual or the organization as subjects of the law. And, indeed, according to these rules, and on the basis of expediency, the State as such has a distinct legal position under international law. Thus, in general, the State has to be treated in international law as a subject separate from the individuals comprising it, that is, as a legal construct: a legal person. However, whereas the possession of legal personality is necessary evidence of statehood it is not sufficient evidence of that legal status, because other entities are recognized as legal persons under international law as well. In its Advisory Opinion in the Reparations for Injuries case, the International Court of Justice made it clear that an essential difference exists between the State as an international legal person and other international legal persons like international organizations. Although the Court concluded that the United Nations is an international person, it emphasized that this legal status does not mean that the United Nations is a State. The latter, according to the Court, possesses "the totality of international rights and duties recognized by international law",9 which means that the State possesses full or unlimited international legal personality.10 It follows that other international (legal) persons not constituting States possess a relatively limited amount of international rights and duties only and are therefore generally referred to as entities which possess limited international personality. However, it must be noted that the term 'totality' is relative, as it does not refer to a fixed or static situation but rather comprises a flexible number of international rights and duties. Therefore, the concept of 'full' or 'unlimited' international personality does not signify the totality of international rights and duties which all States have, but the totality of international rights and duties which all States may, under international law, have."

8. 9. 10. 11.

See also Y. Dinstein, International Criminal Law, IYHR, Vol. 5, 1975, p. 55, at p. 56. ICJ Rep. 1949, p. 174, at p. 180. Kooijmans, supra note 4, at p. 32. Cf. Crawford, CREATION OF STATES, p. 27 (discussing this distinction in the light of the concept of sovereignty). Moreover, strictly speaking the expression "totality of international rights and duties recognized by international law" is inaccurate because it suggests that States may be the bearer of rights which they cannot enjoy because of their very nature of being States, for which human rights may serve as a pertinent example. See also M. Rama-Montaldo, International Legal Personality and Implied Powers of International Organizations, BYIL, 1970, p. III, at p. 138.

24

Chapter 2

As has been observed by Crawford, it is possible to distinguish certain general and exclusive attributes of a State as a full international legal person. These attributes are responsible for the special position of the State under customary international law and in legal terms constitute the hard core of the concept of statehood:12 -

[i]n principle, States have plenary competence to perform acts, make treaties and so on in the international sphere; - in principle States are exclusively competent with respect to their internal affairs; - in principle States are not subject to compulsory international process, jurisdiction, or settlement, unless they consent, either in specific cases or generally, to such exercise; - States are formally regarded in international law as 'equal'.13

However, because these characteristics are applicable only if an entity is already a State, they must be regarded as consequences of statehood rather than constitutive elements of it. Therefore, the principal question what conditions must be met before an entity can be considered a State in the sense of international law has not yet been answered. The most authoritative description of the constitutive elements of statehood is contained in Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States.14 It is generally agreed that Article 1 of the Montevideo Convention lays down the so-called 'traditional' criteria for statehood. These criteria are: a permanent population, a defined territory, a government, and the capacity to enter into relations with other States.15 The meaning and content of these criteria will be discussed in Chapter 3. According to traditional international law an entity which would satisfy these factual criteria would qualify as a State. However, in Chapters 4 and 8 it will be argued that in addition to these factual criteria for statehood, contemporary international law recognizes the existence of yet other, so-called 'modern' criteria for statehood which are based not on effectiveness but on the lawfulness of the process as

12. Crawford, CREATION OF STATES, p. 32 (footnotes omitted). 13. In this respect a distinction must be made between equality in law and equality in fact. As there are considerable differences between States with respect to, for instance, their economic or military strength, it is clear that this attribute refers to the quality of being equal in law. 14. Inter-American Convention on the Rights and Duties of States, LNTS, Vol. 165, p. 19 (hereinafter 'Montevideo Convention'). 15. Article 1 of the Montevideo Convention is often regarded as a general codification of already existing international customary law. In that respect, note that as early as 1868, in the United States case of Texas v. White, it was stated that "[a] State, [...] is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed". See US, Vol 74, 1868, p. 700.


25

a result of which this factual reality came into being. In sum, an entity thus needs to satisfy certain criteria before it becomes a State in international law, that is, a sovereign territorial entity. There is general agreement that statehood and 'sovereignty' are inseparable phenomena. But what is meant by the notion of 'sovereignty' in this context? § 2.3.

Sovereignty

Although a relatively modern concept of Western political thought, the notion of 'sovereignty' as elaborated by Jean Bodin 16 created a stir amongst students of international relations and international law. Since the notion has been, and still remains filled with many different, sometimes even mythological contents, 'sovereignty' is an ambiguous term. 17 In the Corfu Channel case, Judge Alvarez pointed out that [b]y sovereignty, we understand the whole body of rules and attributes which a state possesses in its territory, to the exclusion of all other states, and also in its relations with other states.

Or, as observed by Crawford: [i]n its most common modern usage, sovereignty is the term for the 'totality of international rights and duties recognized by international law' as residing in an independent territorial unit - the State.19

These descriptions refer to the State's attributes - many of which are indeed commonly described by the term 'sovereignty'.20 In fact, what these descriptions correctly suggest, is that, under international law, the content of the term 'sovereignty' denotes the totality of competences attributed to the State by the international legal system, that is, the State's status of full international legal 16. J. Bodin, LES SIX LlVRES DE LA RÉPUBLIQUE, 1576, esp. Livre I, chs. 8, 9 and 10. 17. See E. Lauterpacht, Sovereignty - Myth or Reality?, Int. Aff, Vol. 73, 1997, p. 137, at p. 137. On the diversity of the phenomenon see, e.g., L. Wildhaber, Sovereignty and International Law, in: R.St.J. Macdonald and D.M. Johnston (Eds.), THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY, DOCTRINE AND THEORY, 1983, p. 425. See also Brierly, supra note 3, at pp. 7-16, 45-49. For a critical view, see L. Henkin, That 'S Word: Sovereignty, and Globalization, and Human Rights et cetera, Fordham L. Rev., Vol. 68, 1999, p. 1. 18. Individual Opinion by Judge Alvarez, Corfu Channel case (UKv. Albania), Judgment, ICJ Rep. 1949, p. 39, at p. 43. 19. Crawford, CREATION OF STATES, p. 26 (referring to the Reparations for Injuries case). See also Brierly, supra note 3, at p. 47; C. Waldock, General Course on International Law, HR, 1962 II, p. 5, at p. 157. 20. Bilder, supra note 3, at p. 12.

26

Chapter 2

person.21 The term 'sovereignty' is, as Crawford observes "a brief term for the State's attribute of more-or-less plenary competence".22 At this point it must be noted that this is not the only meaning of sovereignty that is commonly used in international legal discourse. In the Island of Palmas case Judge Huber referred to another meaning. "Sovereignty between States", Huber observed, "signifies independence".23 And independence has been defined as no more than the normal condition of States according to international law; it may also be described as sovereignty (suprema potestas) or external sovereignty, by which is meant that the State has over it no other authority than that of international law. 24

The essence of these remarks is that, in addition to the meaning of sovereignty as a concept which denotes the State's totality of competences under international law, sovereignty also has another meaning, namely that States are the highest authorities on earth (suprema potestas). That is, the State's totality of competences is not derived from any other earthly authority. 25 Or, as has been expressed by Bartolus de Saxaferrato, "these entities are universitates quae non recognoscent superiorum", entities which do not require a higher authority. 26 This status of 'highest authority' does not mean, however, that a State is absolutely free to act, but rather that a State is free to act within the limits set by international law. These limits include respect for the competences of other States.27 The legal relationship between States on the international plane is 21. See also Brownlie, PRINCIPLES, p. 106. And see, e.g., Principle I of the CSCE Helsinki Final Act ("[t]he participating States will respect each other's sovereign equality as well as the rights inherent in and encompassed by its sovereignty, including in particular the right of every State to juridical equality, to territorial integrity and to freedom and political independence"), ILM, Vol. 14, 1975, p. 1292. 22. Crawford, CREATION OF STATES, p. 27. 23. Island of Palmas case (Netherlands v. USA), Permanent Court of Arbitration, RIAA, Vol. II, p. 829, at p. 838. 24. Individual Opinion of Judge Anzilotti, Customs Regime Between Germany and Austria, Advisory Opinion, PCIJ, Series A/B, No. 41, 1931, p. 57. 25. See, e.g., Kooijmans, supra note 4, at p. 2. 26. Quoted in: P.H. Kooijmans, THE DOCTRINE OF THE LEGAL EQUALITY OF STATES, 1964, p. 54. 27. See O. Schachter, Sovereignty - Then and Now, in: R.St.J. Macdonald (Ed.), ESSAYS IN HONOUR OF WANG TIEYA, 1994, p. 671, at pp. 675-679; M. Lachs, The Development and General Trends of International Law in Our Times, HR, 1980 IV, p. 13, at pp. 29-41 passim. See also Article 14 of the Draft Declaration on Rights and Duties of States adopted by the ILC in 1949, ILC Ybk., 1949, p. 286, at p. 287 ("[e]very state has the duty to conduct its relations with other states in accordance with international law and with the principle that the sovereignty of each state is subject to international law"). Also the 'founding father' of the doctrine of sovereignty, Jean Bodin, considered sovereignty (in its external dimension) as being subject to law. Referring to the sovereignty of the Prince he observed: "[t]ous les Princes de la terre sont subiects aux lois


27

characterized by the fact that no State has supreme legal power and authority over other States, that is, their international legal relationship is characterized by their equality and autonomy. 29 Therefore, in this context, one must not confuse 'sovereignty' with the question which organ or entity is the plenipotentiary within the domestic plane. For, on the international plane, legal equality excludes legal supremacy. Another source of confusion is engendered by the fact that the term 'independence' is often used as a synonym for state sovereignty, ' whereas the word 'independence' is also employed to describe a criterion for statehood and vice versa: However, if only for reasons of juridical clarity, it must be deemed preferable to use the term 'independence' as a requirement for the acquisition of statehood, and sovereignty as the legal incident. In sum, when one refers to a State as a 'sovereign' entity, one in fact alludes to a full international legal person, that is to say, to an entity which possesses statehood. It has therefore correctly been observed that "[n]o further legal consequences attach to sovereignty than attach to statehood itself ". This study will deal with the question of when an entity qualifies as a State as well as with the question whether, and if so when, a 'people' is entitled to establish a State. Throughout this study the term 'State' is used to refer to a territorial entity which possesses full international legal personality or statehood. In other words, in this study we will be concerned with the State as a sovereign entity, as opposed to entities also called 'States', but within a specific context, such as parts of federal States (which may or may not be called 'sovereign' under domestic constitutional law), or entities labelled States for specific de Dieu, et de nature, et à plusieurs loix humaines communes à tous peuples". Bodin, supra note 16, Livre I, ch. 8, p. 131. 28. OPPENHEIM'S INT'L LAW, pp. 122 and 125. 29. Id. See also M.R. Fowler and J.M. Bunck, LAW, POWER AND THE SOVEREIGN STATE, 1995, p. 47. 30. Sovereignty at the domestic plane concerns the question of internal supremacy. For a discussion of this meaning of sovereignty, see Bodin, supra note 16; T. Hobbes, LEVIATHAN, 1651. For a modern, albeit less stringent, endorsement of this meaning of sovereignty, see H. Bull, THE

ANARCHICAL SOCIETY, 1977, pp. 8-9; F.H. Hinsley, SOVEREIGNTY, 1966, p. 26. Cf. also L.

31.

32. 33. 34.

Henkin, The Mythology of Sovereignty, in: Macdonald (Ed.), supra note 27, p. 351, at p. 352, who maintains that the only relevant stage upon which 'sovereignty' plays, or ought to play, a role is the national stage, and that 'sovereignty' as applied to States in their external relations is a mistake. See, e.g., L.F.L. Oppenheim, INTERNATIONAL LAW, 1955, pp. 118-119 ("[s]overeignty is supreme authority, an authority which is independent of any other earthly authority [...] independent all round, within and without the borders of the country"). See also Judge Huber's remark in the Island of Palmas case, supra note 23. On 'independence' as a criterion for statehood, see Chapter 3, Section 3.5., infra. Brownlie, PRINCIPLES, p. 76; Crawford, CREATION OF STATES, p. 71. Crawford, id, at p. 27.

28

Chapter 2

purposes, like the former Soviet Republics of Byelorussia and Ukraine which were original members of the United Nations for political reasons only.35 Although the State is, in summary, a political and social organizational form which possesses full international personality, this does not say anything about how this legal status is acquired by the entity concerned. The discussion about the acquisition of international legal personality of the State lies at the heart of the debate between the adherents of the constitutive and the declaratory theories on the recognition of States, to which we will now turn.

§ 3.

RECOGNITION OF STATES AND THE ACQUISITION OF INTERNATIONAL PERSONALITY

There is nothing to prevent the makers of international law from establishing a legal rule which holds that a certain entity, upon certain conditions having been met, automatically enjoys international personality "without any further formality, procedure or action from any quarter whatsoever".36 But the opposite thesis can be held as equally true. There is nothing to prevent the establishment of a legal rule that a certain entity, notwithstanding the fulfilment of certain conditions, needs to be recognized before enjoying international personality. As far as the legal nature and effect of recognition of States is concerned, it is exactly these two unreconcilable positions which divide the adherents of the declaratory and constitutive theory on recognition. To a large extent, the two positions mentioned above reflect the points of view of the declaratory and constitutive school, respectively. Although one may get the impression that this 'great debate' divides the international community each and every time an entity claims statehood, in the vast majority of cases recognition does not involve any problems. In most cases, the existence of a State is not questioned and recognition is granted as a matter of course without any discussion concerning whether recognition has attributed international personality to the recognized entity. The universal recognition of the statehood of both the Slovak Republic and the Czech Republic after the 'velvet' dissolution of Czechoslovakia in 1993 may serve as an example. 35. For a discussion of the international legal position of these republics see, e.g., H. Aufricht, Principles and Practices of Recognition by International Organizations, AJIL, Vol. 43, 1949, p. 679, at pp. 695-698; B. Broms, Subjects: Entitlement in the International Legal System, in: Macdonald and Johnston (Eds.), supra note 17, p. 383, at pp. 387-389. 36. B. Cheng, Introduction to Subjects of International Law, in: M. Bedjaoui (Ed.), INTERNATIONAL

LAW: ACHIEVEMENTS AND PROSPECTS, 1991, p. 23, at p. 35. 37. See Chapter 6, Section 5, infra.


29

However, the discussion about the legal nature and effect of recognition is of particular relevance in certain situations, as in the case of premature recognition, that is, when recognition is granted while certain criteria for statehood have not (yet) been met by the recognized entity. The legal effect of recognition is equally relevant for situations in which an entity clearly meets the criteria for statehood but is not recognized at all, is recognized only by some States or is recognized only after a substantial period has lapsed. Finally, the legal nature of recognition is significant with respect to the right to selfdetermination of peoples. Whether a new State is created as a result of devolution, integration, dissolution, or secession, it is submitted that, in principle, in all of these cases, self-determination forms the legitimizing principle for the creation of the new State. If, as will be shown later in this study, the right of self-determination entitles a 'people' - under certain circumstances - to establish a State unilaterally, that is, without the approval of the parent State, this entitlement would be seriously compromised, if not effectively eliminated, if recognition would be regarded as mandatory for the international personality of the proclaimed State, and no recognition is granted. § 3.1.

The constitutive theory

The essence of the constitutive theory on the recognition of States is formulated by Oppenheim in the following way: [i]nternational Law does not say that a State is not in existence as long as it is not recognized, but it takes no notice of it before its recognition. Through recognition only and exclusively a State becomes an International Person and a subject of International Law.

Historically, the constitutive theory is older than the declaratory theory. The theory can be traced back to the ideas of Hegel who reduced legal positivism to State voluntarism and who emphasized the absolute sovereignty of the State.39 Because, according to the constitutivists, States cannot be bound to obey 38.

39.

L.F.L. Oppenheim, INTERNATIONAL LAW, Vol. I, (1st ed.), 1905, p. 110; id., (2nd ed.), 1912, p. 117; id., (3rd ed.), 1920, p. 135. The first sentence is omitted in the 7th and 8rh ed. (at p. 122 and p. 126, respectively). See also G. Schwartzenberger and E.D. Brown, A MANUAL OF INTERNATIONAL LAW, 1976, p. 58 ("[t]he normal method for a new State to acquire international personality is to obtain recognition from existing States"). And see OPPENHEIM'S INT'L LAW, p. 130 ("when certain conditions of fact [...] are shown to exist [...] recognition is accordingly declaratory of those facts [but] it is also constitutive of the rights and duties of the recognised community in its relations with the recognising State"). See G.W.F. Hegel, ENZYKLOPÄDIE DER PHILOSOHISCHEN WlSSENSCHAFTEN IM GRUNDRISSE:

ZUM GEBRAUCH SEINER VORLESUNGEN, 1870, para. 331.

30

Chapter 2

international law in a relationship without their prior consent, the act of recognition, as an exclusive competence of existing States, must be seen as an expression of consent to observe the rules of international law with regard to the recognized State. Recognition thus attributes rights and duties to the recognized State, thereby creating the latter's international personality. It is therefore important to note that even the most ardent supporters of this view do not claim that recognition creates the State as is often suggested,40 since the State must, by way of necessity, exist prior to recognition.41 What is claimed, however, is that the act of recognition endows the already existing State with international personality. Thus, a distinction is made between a State and an international person. That is to say, before recognition the State is deemed to exist as a fact, but not under international law vis-a-vis existing States.42 The constitutivists maintain that because international law is a primitive legal system without a central institution which is competent to determine whether the criteria for statehood are met, the existing States have to fulfill this function by way of the act of recognition. Recognition is thus (necessarily) determinative with respect to the existence of a State, but only with respect to the recognizing State. Most constitutivists state that recognition may only be granted when the customary international law criteria for statehood are met. Otherwise recognition is premature and a violation of the principle of non-

40. See, e.g., Shaw, INTERNATIONAL LAW, p. 296. 41. See, e.g., Oppenheim, (1st ed.), supra note 38, at pp. 109-110 ("[a] State is, and becomes, an International Person through recognition only and exclusively [...]. There is no doubt that statehood itself is independent of recognition"); id., (8th ed.), supra note 31, at p. 261 ("a State acquires international personality through its recognition as a member [of the international community]") (emphasis added); H. Kelsen, Recognition in International Law, Theoretical Observations, AJIL, Vol. 35, 1941, p. 605, at pp. 605 and 608; G. Jellinek, DIE LEHRE VON DEN STAATENVERBINDUNGEN, 1882, pp. 92-99; F. von Liszt, DAS VÖLKERRECHT, 1925, p. 9. And although Lauterpacht was not an adherent of the orthodox constitutive view he maintained that "recognition is constitutive in the meaning that it is decisive for the creation of the international personality of the State and of the rights normally associated with it [...]. A State may exist as a physical fact. But it is a physical fact which is of no relevance for the commencement of particular international rights and duties until by recognition - and by nothing else - it has been lifted into the sphere of law". Lauterpacht, RECOGNITION, p. 75 (emphasis added). The fact that recognition presupposes the existence of a State is, for obvious reasons which will be explained below, also forwarded by adherents of the declaratory school. See, e.g., P.K. Menon, Some Aspects of the Law of Recognition, Part I: Theories of Recognition, RDISDP, 1989, No. 1, p. 161; A. James, SOVEREIGN STATEHOOD: THE BASIS OF INTERNATIONAL SOCIETY, 1986, p. 147; Cuculla Arbitration, Cuculla (US) v. Mexico, 1876, reprinted in: J.B. Moore (Ed.), INTERNATIONAL ARBITRATIONS, Vol. 3, p. 2873, at pp. 2876-2877 ("[r]ecognition is based upon pre-existing fact; does not create the fact. If it does not exist, the recognition is falsified"). 42. In Kelsen's words: "[o]nly [the State's] legal existence, its existence as judged by international law, not its 'natural' existence, is of importance in the province of international law". Kelsen, supra note 41, at p. 608. 43. Kelsen, id., at pp. 606-607; Lauterpacht, RECOGNITION, p. 55.


31

intervention. Recognition is therefore "a matter of law", while the formation of a State is considered to be "a matter of fact". This also means that [a]s soon as recognition is given, the new State's territory is recognized as the territory of a subject of International Law, and it matters not how this territory is acquired before the recognition.45

Because all existing States are considered to be sovereign and legally equal, recognition of a State by an existing State, although determinative and final with respect to the fulfilment of the criteria for statehood, cannot, by definition, bind other existing States. A recognized State only possesses international personality quoad the recognizing State.46 As Kelsen put it "a State exists legally only in its relations to other States. There is no such thing as absolute existence " .47 Some adherents of the constitutive theory have proposed adjustments to the orthodox constitutive view. For instance, Lauterpacht maintained that there was an international legal obligation for States to recognize an entity which claimed statehood when the conditions for statehood were met. In that way, he sought to neutralize the criticism with regard to the relative legal existence of a recognized State.48 His view did not, however, find many supporters, nor was it thought to be in conformity with state practice.49 Others put forward the argument that recognition is declaratory of an existing fact, but constitutive in nature.50 This argument tries to overcome the criticism with respect to the existence of a legal vacuum prior to recognition by stating that recognition marks the beginning of the effective enjoyment of international rights and duties of a recognized State. In fact, however, the argument leads to the acceptance of the declaratory theory.

See, e.g., Lauterpacht, id., at pp. 7-9; Oppenheim, (8th ed.), supra note 31, at p. 128. Oppenheim, id., at p. 544. OPPENHEIM'S INT'L LAW, pp. 129-130. Kelsen, supra note 41, at p. 609. Lauterpacht, RECOGNITION, pp. 12-24, 73-75. See, e.g., Waldock, supra note 19, at p. 154. Moreover, Marek has correctly pointed out that "[a] theory which makes recognition obligatory in conformity with the objective facts of a State's existence defeats its own premise, since it ceases to be constitutive and in fact becomes declaratory however it may be described". Marek, IDENTITY, .p. 137. But see Section 5, infra, of this Chapter, for a modern version of the Lauterpacht doctrine. See also Chapter 8, Section 5, infra. 50. See, e.g., OPPENHEIM'S INT'L LAW, p. 133. Cf. also Lauterpacht, RECOGNITION, pp. 75-77 (where he forwards a variant of this argument in the context of his theory of the obligation of recognition).

44. 45. 46. 47. 48. 49.

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Chapter 2

§ 3.2.

The declaratory theory

The declaratory theory, as formulated in its traditional form by, for instance, Vattel, Moore, Brierly, and Chen, holds that the State's existence as an international legal person is independent of its recognition by existing States. Thus, when an entity satisfies the traditional criteria for statehood under customary international law, that is as soon as it exists as a fact, this entity is a State in the sense of international law. As Chen observes, "whenever a State in fact exists, it is at once subject to international law, independently of the wills of other States".51 International personality thus acquired has erga omnes effect, or, in other words, it shall be considered effective vis-a-vis all existing and future States and other subjects of international law. According to the declaratory theory, recognition is merely a formal acknowledgement of an already existing fact. Recognition simply declares "as a fact something which has hitherto been uncertain",52 and it expresses the intention of the recognizing State that it is willing to enter into relations with the recognized State. But even prior to recognition, the State possesses all the rights and duties which customary international law normally attaches to statehood. As stated by Brierly: [t]he better view is that the granting of recognition to a new State is not a 'constitutive' act; it does not bring into legal existence a State which did not exist before. A State may exist without being recognized, and if it does exist in fact, then, whether or not it has been formally recognized by other States, it has a right to be treated as a State.

Therefore, in this manner, the declaratory theory removes at least some of the difficulties associated with the constitutive theory, such as the relative character of statehood and (consequently) the existence of a legal vacuum prior to the act of recognition. Furthermore, recognition must necessarily have a retroactive effect. The act of recognition is assumed to date back to the commencement of the State's existence, that is, when the criteria for statehood were satisfied. Otherwise, recognition would still be determinative for the moment of birth of the State as an international person and that would lead to the acceptance of the 51. 52. 53. 54.

Chen, RECOGNITION, p. 14. Brierly, supra note 3, at p. 139. Id. See also Kooijmans, supra note 4, at p. 22; Shaw, INTERNATIONAL LAW, p. 303. Brierly, supra note 3, at p. 139 (emphasis in original). See also, e.g., Brownlie, PRINCIPLES, pp. 88-89; Shaw, id. at p. 298; J.M. Ruda, Recognition of States and Governments, in: Bedjaoui (Ed.), supra note 36, p. 449, at p. 454. 55. Chen, RECOGNITION, pp. 177-178.


33

constitutive theory. It is true, the declaratists observe, that a State that has not been recognized experiences difficulties in exercising and enforcing its rights, but this is entirely different from the assertion that a State does not possess international rights (and duties) vis-a-vis non-recognizing States.56 O'Connell states this as follows: non-recognition cannot touch the question of objective international personality, it merely implies a refusal to give effect to some of the consequences of it.57

And in the words of Chen: [i]t has been argued that in the absence of international relations, an international right, lacking means of enforcement, is abstract, like a ghost elusive to the grasp. In reply, it may be said that every system of law admits of certain types of rights not immediately enforceable. These may be 'imperfect rights', but they are none the less legal rights.58

It must be noted, however, that with respect to certain issues the declaratory theory and the constitutive theory do not conflict. For instance, the traditional declaratory view holds that, in principle, the existence of a State as an international person is independent of the legality of its creation, and that recognition "where the material conditions for statehood are absent" is unlawful/'" These views, as was seen above, are shared by the adherents of the orthodox constitutive theory.

§ 4.

THE THEORIES ON RECOGNITION REVISITED

§ 4.1.

Evaluation of the constitutive theory

It is often stated that the constitutive theory leads to substantial difficulties and legal curiosities, because, for instance, a new State is an international person with respect to recognizing States but not with respect to other States that have not (yet) recognized the new State. In addition, it has often been observed that it is unacceptable and astonishing that an unrecognized State would have no rights under international law and that consequently, for instance, its territory could lawfully be annexed by any State not recognizing it. There is no doubt 56. 57. 58. 59. 60.

Id., at p. 34. O'Connell, supra note 6, at p. 84. Chen, RECOGNITION, p. 34 (footnotes omitted). But see id., at pp. 8-9. Id., at p. 54.

34

Chapter 2

that these arguments are valid, but if they are intended as proof of the inaccuracy of the constitutive theory they must fail, for they are merely concerned with undesired effects which arise once the constitutive theory is applied. Indeed, some practical consequences of a theory may be absurd, but absurdity as such is not conclusive evidence for establishing the inaccuracy of a theory. There are, however, a number of arguments which do relate to the inaccuracy of the constitutive theory. For instance, from a legal point of view it is in comprehensible that a State may exist outside international law. As has been observed "a State is not a fact in the sense that a chair is a fact, it is a fact in the sense in which it may be said a treaty is a fact: that is, a legal status attaching to a certain state of affairs by virtue of certain rules".61 Indeed, there is, in law, no substance in the assertion that an entity is a State unless we attach to the fact of statehood rights and competencies, within the internal or international sphere, which international law is ready to recognize. Thus, it seems irrelevant to predicate that a community is a State unless such existence is treated as implying legal consequences.62 Secondly, the act of recognition by States has been compared by Kelsen with the function of a court under national law. A factual situation is only theft, Kelsen asserts, if a court which is competent to interpret the facts and capable of applying the law has pronounced that the relevant facts correspond to the description of theft under the applicable law. In other words, a situation is theft from the moment that is has been identified as such by a competent organ onwards. In the absence of the existence of a central organ or institution which is competent to determine with certainty and finality whether a State exists under international law, this function is fulfilled by States through the act of recognition. In doing so, States fulfill a function somewhat comparable to the one of a judge under national law.63 Kelsen's thesis is, however, inaccurate. Theft is not theft from the moment the court pronounces its judgment, but from the moment that the factual situation corresponded to the description of theft under national law, that is, from the moment the act was committed. The judgment of the court does not create the illegality of the act. It is merely declaratory of an already existing illegal situation.64 Thus, even though it is already seriously questionable to compare recognition with a judicial determination, insofar as this is done, this must lead to the conclusion that recognition is declaratory of a situation already 61. Crawford, CREATION OF STATES, p. 4. 62. Lauterpacht, RECOGNITION, p. 39. 63. Kelsen, supra note 41, at p. 606. 64. See also Chen, RECOGNITION, p. 48.


35

existing in legal terms. A third point of critique concerns the following. States, the constitutivists argue, exist legally only in their relations to other States. Furthermore, it is stated that the act of recognition, which is a legal act in the sense that it is intended to create legal consequences, can be performed by States only, because it is an exclusive right of States.65 Therefore, if an 'old', that is, an existing State, recognizes a new State, it is incomprehensible that the new State is required to recognize the 'old' State as well for international law to become fully applicable to the relations between the two States.66 After all, if this should be necessary, this would mean that the 'old' State was not legally in existence with regard to the new State until the latter's recognition of the former. But if this were to hold true, and if the constitutive theory were to be applied consistently, it would mean that the 'old' State would not legally be able to perform a legal act vis-a-vis the new State unless and until the latter has recognized the former. But in order to be able to do that, the new State must possess international personality. In sum, this argumentation leads to a vicious circle and is therefore another reason why the constitutive theory must be rejected. Fourthly, according to Oppenheim and others recognition may be given formally, or implicitly by, for instance, exchanging diplomatic envoys or concluding a treaty.' However, if the virtue of recognition is to endow the new State with the right to, inter alia, make a treaty, and if the making of a treaty itself implies recognition, we are, again, in an endless circle and recognition has no legal effect. In addition, the argument that international law lacks a central institution competent to determine the subjects of international law, resulting in this competence being decentralized through the individual recognition by existing States, fails to appreciate that there is nothing determinative and conclusive with respect to the fulfilment of the criteria for statehood if each State may come to a different conclusion. 68 Moreover, the fact that the grant of recognition is said to reflect the individual opinion of the recognizing State that the new State has satisfied the criteria for statehood, which opinion is both determinative and final, cannot be brought into conformity with the statement that a premature grant of recognition is illegal, because the former position in fact excludes the possibility 65. This is apart from the fact, as agreed to by both constituvists and declaratists, that States may delegate this power to an international organization. 66. See Kelsen, supra note 41, at p. 609, To the same effect, see D. Anzilotti, COURS DE DROIT INTERNATIONAL, 1929, pp. 160 et seq.; R., Knubben,DlE SUBJEKTE DES VÖLKERRECHTS, 1928, pp. 317 et seq. 67. Oppenheim, (8'h ed.), supra note 31, at pp. 147-148. 68. Crawford, CREATION OF STATES, p. 18; Brierly, supra note 3, at p. 319.

36

Chapter 2

that the illegality can be determined objectively. Another fundamental point of criticism relates to the fact that the constitutive theory conflicts with the doctrine of self-determination insofar as the right of self-determination encompasses the right to create a State. As will be seen later in this study, situations, such as colonialism,69 exist wherein it is generally accepted that the collectivity concerned ('a people') is entitled to establish its own State. However, in most cases where independence is achieved against the wishes of the parent State (or colonial power), it is very likely that at least this parent State will withhold the recognition of the new entity's statehood. Therefore, if recognition would be considered constitutive for the international personality of the State in question little, if anything, would remain of the right to self-determination of peoples. This cannot be assumed in the light of the fundamental position of this right in international law.70 Finally, the fact that the theory is not in conformity with state practice must lead to a decisive rejection of the orthodox constitutive position. In this respect reference can be made to, for instance, Articles 3 and 6 of the Montevideo Convention, Articles 12 and 13 of the Charter of the Organization of American States of 1948 as amended in 1967,72 several statements by States, as well as several practical examples which clearly contradict the constitutive theory.73 Furthermore, the constitutive theory is rejected and the declaratory 69. See Chapter 5, infra. 70. For the discussion of the content, scope and status of the right of self-determination, see Chapters 5, 6 and 7, infra. 71. Article 3 states: "[t]he political existence of a State is independent of recognition by other States. Even before recognition, the State has the right to defend its .integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts". Article 6: [t]he recognition of a State merely signifies that the State which recognizes it accepts the personality of the other with all the rights and duties determined by international law". 72. Article 12 is a repetition of Article 3 of the Montevideo Convention. Article 13 states: "[r]ecognition implies that the State granting it accepts the personality of the new State, with all the rights and duties that international law prescribes for the two States". 73. For instance, the British government demanded compensation from Israel when Jewish airmen shot down British aeroplanes over Egypt in January 1949 when at that time the United Kingdom had not recognized Israel as a State. See Brierly, supra note 3, at p. 139. Another example is formed by the fact that several Arab States claimed repeatedly that Israel had violated the Charter of the United Nations when they explicitly refused to recognize Israel's statehood. See also the examples given by D.J. Harris, CASES AND MATERIALS ON INTERNATIONAL LAW, 1991, p. 140, n. 60. A recent example is formed by the former Yugoslav Republic of Macedonia (FYROM). On 2 May 1992 the member States of the EC declared that "[t]hey are willing to recognize that State as a sovereign and independent State, within its existing borders, and under a name that can be accepted by all parties concerned" (emphasis added). EPC Informal Meeting of Ministers for Foreign Affairs, Declaration on the Former Yugoslav Republic of Macedonia, Guimaraes, 1-2 May 1992, EPC Press Release 53/92. Still another recent example concerns the Federal Republic of Yugoslavia (Serbia and Montenegro). The State was established in 1992, but recognition was granted only in the course of 1996. However, there was general agreement that


37

theory is supported in a number of (quasi-) judicial decisions and opinions, such as, for instance, Opinion 10 of the Arbitration Commission of the International Conference on Yugoslavia,74 the Deutsche Continental GasGesellschaft v. Polish State case, as well as a decision by the European Commission on Human Rights. ' In addition, several decisions by national courts have rejected the constitutive theory.77

74.

75.

76. 77.

the FRY was a State under international law, that is, a full international legal person, despite the absence of recognition. See, e.g., Committee of Senior Officials of the CSCE, Declaration Concerning the Need for Undertaking Urgent and Immediate Steps With Respect to Yugoslavia, 20 May 1992, RIA, Vol. XLIII, 1992, p. 22; Resolution 1/6-Ex on the Situation in Bosnia and Herzegovina, adopted at the 6th Extraordinary Session of the Islamic Conference of Foreign Ministers, 1-2 Dec. 1992; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Federal Republic of Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 Apr. 1993, ICJ Rep. 1993, p. 11; The Prosecutor v. Dusko Tadic, Case IT-94-1-A, Judgment, 15 July 1999, paras. 146-162. The Tinoco Concessions Arbitration is sometimes referred to as a principal example of the application of the declaratory theory on the recognition of States. This is, however, not correct. In this case, the Tribunal referred to the declaratory theory in relation to the non-recognized government of the already recognized State of Costa Rica. See Tinoco Concessions Arbitration, RIAA i, 1923, p. 369, at p. 381. Grant has argued that the fact that the Turkish Republic of Northern Cyprus (TRNC) has "continued to enjoy freedom from external aggression" despite the universal (except for Turkey) non-recognition of its statehood, is supportive of the validity of the declaratory theory. See T.D. Grant, THE RECOGNITION OF STATES, 1999, p. 21. However, this argument cannot seriously be maintained. It is generally agreed that the TRNC is not a State and, therefore, it is clear that - even assuming that statehood as such is a guarantee for peaceful coexistence - the northern part of the island has enjoyed "freedom from external aggression" because the international community considers it to be an integral part of an existing State: the Republic of Cyprus. See, e.g., European Parliament resolution on Cyprus's application for membership of the European Union and the state of negotiations, 4 Oct. 2000, Preamble, Para. A ("whereas the Republic of Cyprus [...] the only State entitled to represent the island as a whole, has made considerable economic advances even though the richest part of its territory has been occupied for 26 years by Turkey [...]"). And see Chapter 4, Section 5.2.1., infra. The Commission stated: "recognition is not a prerequisite for the foundation of a State and is purely declaratory in its impact". ILM, Vol. 31, 1992, pp. 1525-1526, at p. 1526. See also Opinion 1, ILM, Vol. 31, 1992, pp. 1494-1496, at p. 1495. ILR, Vol. 5, No. 5, 1929, p. 11, at p. 15 ("[...] according to the opinion rightly admitted by the great majority of writers on international law, the recognition of a State is not constitutive but merely declaratory. The State exists by itself (par lui-même) and the recognition is nothing else than a declaration of this existence". Cyprus v. Turkey, ECHR Ybk., Vol. 18, 1975, p. 82, at pp. 112-116; Cyprus v. Turkey, ECHR Ybk., Vol. 21, 1978, p. 100, at pp. 224-230. Examples of decisions by American courts are given by J.L. Kunz, Critical Remarks on Lauterpacht's Recognition in International Law, AJIL, Vol. 44, 1950, p. 713, at p. 717. The Canadian Supreme Court rejected the constitutive theory in Reference re Secession of Quebec, ILM, Vol. 37, p. 1340, at p. 1374 (but the Court noted that the viability of a State depends, as a practical manner, upon recognition by other States). For a rejection of the constitutive theory by Dutch courts see Republic of the South Moluccas v. Netherlands New Guinea, District Court, The Hague, 10 Feb. 1954, ILR, Vol. 21, 1954, p. 48; NV Koninklijke Paketvaart Mn, v. de Repoeblik Maloekoe Selatan, Supreme Court, Amsterdam, 8 Feb. 1951; De Democratische Republiek Oost-Timor/'Fretilin' e.a. v. de Staat der Nederlanden, District Court, The Hague, 21 Feb. 1980.

38 § 4.2.

Chapter 2 Evaluation of the declaratory theory

It has already been observed that the declaratory theory seems to correspond best with customary international law in the field of the recognition of States. However, a major point of criticism with respect to the orthodox declaratory theory concerns the argument that "[i]f a State exists in fact, it must exist in law". In other words, the theory assumes that the mere factual situation, which is a result of the fulfilment of the criteria for statehood would lead ipso facto to international personality, which is incorrect. For, international personality is not the result of the mere existence of a factual situation. It is the result of the existence of an international legal rule which requires the existence of certain facts78 for the attribution of international personality to that factual situation. As observed by Lauterpacht, "[l]egal personality is a creature of law, not of nature".79 Thus, a State is not an international person because it satisfies the criteria for statehood, but because international law attributes full international personality to such a factual situation. Furthermore, under contemporary international law, the formation of a State in the sense of international law, that is, as an international legal person, is not only "a matter of fact" but also a matter of law. The orthodox declaratory theory, by emphasizing effectiveness as the only relevant legal concept in the field of the creation of States, excludes the applicability of other international norms and principles to this process. However, as will be seen later in this study, even if an entity satisfies all the traditional criteria for statehood and therefore exists as an effective entity, if this effective situation has been realized in violation of a fundamental international legal rule such a violation bars the acquisition of statehood. Another point of criticism relates to the thesis that recognition can never have constitutive effects. However, when recognition is granted to an entity created as a result of secession which does not satisfy the criteria for statehood, this unlawful act of recognition nevertheless obliges the recognizing State to treat the recognized entity as a State, which is unmistakably a constitutive 78. It will be shown later that international law requires that these facts are in themselves not contrary to fundamental rules of international law. See Chapters 4 and 8, infra. 79. Lauterpacht, RECOGNITION, p. 428. 80. See Chapter 4, Section 8; and Chapter 8, Section 3, infra. 81. See also Crawford, CREATION OF STATES, p. 24. As a result of the recognition and on the basis of the principle of good faith the recognized entity may rely on its specific legal status vis-a-vis the recognizing State, and by that it comes into being as a relatively existing 'State'-entity (that is, in relation to the recognizing State only). And see Schwarzenberger and Brown, supra note 38, at p. 56 ("the rules of good faith may create an estoppel and preclude a subject of international law from asserting that it has not recognised another entity as a subject of international law"). An example is formed by the recognition of the TRNC by Turkey. See


39

effect of recognition. Finally, by qualifying recognition as a mere political act, the orthodox declaratory theory tends to depreciate the importance of recognition. As will be seen later, recognition has an important consolidating effect with respect to statehood, especially in situations where the government of the recognized State is not fully effective.82 Moreover, it is clear that the viability of a State does depend, as a practical matter, upon relations with other States for which recognition is usually a prerequisite. In sum, and with reference to the above-mentioned qualifications, it may be concluded that international law contains a legal rule which holds that a certain entity, upon certain conditions being met, is a State, as a result of which it automatically enjoys full international personality, that is, without any further formality, procedure or action from any quarter whatsoever.

§ 5.

COLLECTIVE, IMPLIED, CONSTITUTIVE AND OBLIGATORY RECOGNITION OF STATEHOOD AND ADMISSION TO MEMBERSHIP IN THE UNITED NATIONS

The position that admission to membership in a universal international organization open for States only, amounts to implied recognition of the entity as a State both under the law of the organization and under general international law, has been put forward by a number of scholars. With reference to the Advisory Opinion of the International Court of Justice on Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter),84 Shearer, for instance, maintains that it is clear that [...] admission [to the United Nations] is tantamount to recognition of the member admitted as a state.

Some of the aforementioned scholars, like Dugard, go even further by combining the Lauterpacht doctrine on the obligation of recognition with the admission policy of, in particular, the United Nations. By such scholars it is argued that admission to the United Nations not only implies the recognition

Chapter 4, Section 5.2.1., infra. 82. See Chapter 8, infra. 83. See, e.g., S. Rosenne, Recognition of States by The United Nations, BYIL, 1949, p. 437, at p. 445; H.W. Briggs, Community Interests in the Emergence of New States: the Problem of Recognition, PASIL, 1950, p. 169, at p. 178. 84. ICJ Rep. 1948, p. 57 et seq. (hereinafter 'Conditions of Admission case'). 85. LA. Shearer, STARKE'S INTERNATIONAL LAW, 1994, p. 124.

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Chapter 2

of the statehood of the new member by those member States which voted in favour of the admission but also entails the obligation for other member States (including those members which voted against the admission) to recognize the statehood of the new member, not only under the United Nations Charter but also under general international law. As a result admission to United Nations membership constitutes collective (and, given the organization's nearly universal membership, also practically universal) recognition of statehood.86 As stated by Dugard with respect to United Nations admission practice regarding decolonized entities: [t]he unavoidable facts are that these entities have been admitted to membership in the United Nations and that such admission is today regarded as the definitive acknowledgement of their independence and statehood by the international community. States are not obliged to enter into bilateral or diplomatic relations with these new States [...]. The conclusion is inescapable that they have been recognized by the international community acting through the certification process of the United Nations. It is likewise impossible to avoid the conclusion that the international community has delegated the authority to recognize decolonized entities as States to the United Nations.87

And he adds that while there may be no duty to recognize a State that complies with the requirements of statehood under customary international law, there is an apparent duty on the part of members of the United Nations to recognize the existence of entities admitted to the United Nations as States subject to the benefits and burdens of both the law of the Charter and the general principles of customary law.88

In addition, it is suggested that admission to the United Nations "constitutes or confirms the existence of a State". Therefore, using the views of Lauterpacht's theory on the obligation of recognition as a foundation, the constitutive theory is both embraced and modernized. This view has also been referred to as the "constitutive-cum-collective

86. Dugard, RECOGNITION, pp. 78-80. It is sometimes suggested that the EC Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union of 16 December 1991 (ILM Vol. 31, 1992, pp. 1485-1487) amounted to collective recognition. However, because the EC member States granted recognition to these new States on an individual basis, the Guidelines must be interpreted as "a co-ordinated stand with regard to criteria for recognition by the Community and its member States rather than collective recognition as such". Shaw, INTERNATIONAL LAW, p. 313. See also A.V. Lowe and C. Warbrick, Recognition of States Part 2, ICLQ, Vol. 42, 1993, p. 433, at p. 441. 87. Dugard, RECOGNITION, pp. 73, and 78-80. 88. Id., at p. 80. 89. Id., at p. 79.


41

recognition theory".90 Thus, the admission of an entity to the United Nations is suggested to imply the recognition of the statehood of the entity in question by at least those member States voting in favour of admission. Those member States either withholding their vote or voting against admission are nonetheless bound to recognize the statehood of the new member State not only under the Charter of the United Nations but also under general international law. Because each and every member of the United Nations is ultimately considered to be bound to recognize the statehood of any entity admitted to United Nations membership, admission in effect amounts to collective recognition of statehood and results in the fact that "serious weaknesses in the constitutive position are remedied, if not completely cured". This is so because given the near universal membership of the United Nations, once collective recognition is granted, the existence of the recognized State would effectively be absolute, that is, it would be an international legal person in relation to nearly the entire international community of States.91 However, despite the arguably usefulness of constitutive collective recognition with obligatory effects for all members of the United Nations, several aspects of the theory raise substantial legal problems which make its acceptance difficult. The theory can be, and has been, challenged on several grounds.92 Indeed, it is doubtful whether admission is always equivalent to implied recognition. Furthermore, it can be questioned whether it is correct to state that such implied recognition is binding for all members of the United Nations and doubts can also be raised as to the argument that (collective) recognition is constitutive of the international legal personality of the entity

90. J.D. van der Vyver, Statehood in International Law, Emory Int'l L. Rev., Vol. 5, 1991, p. 9, at p. 20. 91. Dugard, RECOGNITION, p. 80. However, apart from other arguments which will be discussed below, it is doubtful whether collective recognition through the admission to the United Nations remedies the shortcomings of the traditional constitutive theory and in particular the theory's consequence of the relative existence of States. For, one is still confronted with the legal status of the entity prior to admission. In almost all cases of new States a time gap exists between the proclamation of independence and the admission to the United Nations. This may vary from days to months, to even years (as in the cases of Bangladesh and FYROM). Should it be stated, however, that in such cases the entity is a State under international law if it had satisfied the customary law criteria for statehood prior to its admission to the United Nations, this would amount to the acceptance of the declaratory theory according to which the State's existence is absolute. In that case the subsequent admission to the United Nations would be nothing more than an acknowledgement of statehood. 92. See Shaw, INTERNATIONAL LAW, p. 313, who holds that the theory is not in accordance with state practice. To the same effect, see M.J. Peterson, RECOGNITION OF GOVERNMENTS: LEGAL DOCTRINE AND STATE PRACTICE, 1815-1995, 1997, p. 132; Ruda, supra note 54, at p. 453. See also H.G. Schermers and N.M. Blokker, INTERNATIONAL INSTITUTIONAL LAW, 1995, pp. 11591162 (" [r]ecognition by an international organization does not imply recognition by the members of the organization" and "[a]cceptance as a member does not however necessarily imply recognition as a state").

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Chapter 2

concerned. As to the first point of criticism: is admission always equivalent to (implied) recognition of statehood? First, Article 4(1) of the Charter does indeed limit membership of the United Nations to "States".93 Nowadays, the vast majority of members of the United Nations are also States under general international law and because Article 4(1) of the Charter requires an entity to be a "State" in order to be qualified for United Nations membership, it cannot be denied that admission to the United Nations is strong evidence of statehood under general international law. However, even if the argument is limited to those member States voting in favour of admission, is it correct to state that their vote must always be interpreted as implying recognition of the statehood of the entity concerned? Given the drafting history of the Charter of the United Nations this point must be examined carefully. In this respect, it must be noted that it was not the intention of the authors of the Charter that admission to membership should automatically be equated with recognition by the individual members of the statehood of the entity concerned, not even for those voting in favour of admission. This is clear from the rejection of a proposed Norwegian amendment during the San Francisco Conference in 1945, designed to give the new organization the power of recommending collective recognition of new States. In addition, in 1950, the Secretary-General explicitly denied that the United Nations had the authority to recognize a new State and stated that collective recognition of statehood by the United Nations would require an amendment of the United Nations Charter.95 However, it would be incorrect to state that the opinion of member States as well as of organs of the Organization in 1945-1950 should be seen as valid for all times. Indeed, the Charter system must be interpreted in the light of the practice of the Organization and its members since its establishment. In that respect, there are at least four reasons why it is plausible that a vote in favour of admission of an entity to United Nations membership is, in principle, tantamount to recognition of the entity as a State. Firstly, in the present time, virtually all entities which are generally regarded as States under customary international law are also members of the United Nations. Secondly, there is no a priori reason why the 93. Article 4(1) states: "Membership in the United Nations is open to all 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". 94. See Amendments and Observations on the Dumbarton Oaks Proposals, submitted by the Norwegian Delegation, UNCIO Doc. 2, G/7, n. (1), p. 2, 3 May 1945; and see Aufricht, supra note 35, at p. 691. 95. Memorandum on the Legal Aspects of the Problem of Representation in the United Nations, UN Doc. S/1466, 1950, p. 2. The Memorandum was prepared at the Security Council's request and suggested furthermore that linking membership to recognition would be "unfortunate from a practical standpoint and wrong from the standpoint of legal theory".


43

term State in Article 4(1) should be interpreted differently from the term 'State' under customary international law.96 Thirdly, the International Court of Justice recognized that statehood is a primary qualification for admission to the United Nations.97 And fourthly, practice indicates that States voting in favour of admission regard that vote as implying recognition of the statehood of the entity concerned. However, a number of important qualifications must be made in this regard. Firstly, in some cases the facts are such that the aforementioned conclusion cannot apply. This is true, for instance, for those member States which have recognized the entity as a State prior to its admission to the United Nations. Obviously, there is no logic in multiple recognitions of statehood by one and the same State of one and the same entity. Examples of such cases are, for instance, the admission to membership in the United Nations of the Republic of Estonia100 and the Republic of Croatia, in 1991 and 1992 respectively.101 Secondly, practice indicates that important exceptions to the abovementioned rule do exist. Although the admission to membership of the United Nations of the Byelorussian SSR and the Ukrainian SSR was strongly politically influenced, and should not in themselves be regarded as legal precedents, the 96. See also Crawford, CREATION OF STATES, p. 133. 97. Conditions of Admission case, supra note 84, at p. 62. The Court held that an entity formally should meet five conditions namely (1) be a State, (2) be peace-loving, (3) accept the obligations of the Charter, (4) be able to carry out these obligations, and (5) be willing to do so. 98. An example is formed by the position taken by several European States with respect to the admission of FYROM to the United Nations. Germany is reported to have stated that its vote in favour of admission should be regarded as "affirmative" recognition of Macedonia, and the Danish Minister for Foreign Affairs Niels Helveg Petersen is reported to have stated that from the point of view of Denmark its vote for admission should be regarded as recognition of Macedonia. This position was shared by the Netherlands, Belgium and Italy. See, e.g., Denmark Says Recognises Macedonia, The Reuter European Community Report, 15 Apr. 1993; Nine EC States Recognise Macedonia, The Reuter European Community Report, 19 Apr. 1993; Reeks EGLeden Zegt Macedonienë te Erkennen, De Volkskrant, 16 Apr. 1993. It must be noted, however, that the explicit statements by some European States that their votes for admission of FYROM had to be regarded as recognition of statehood were also made to bypass Greek opposition to recognition of FYROM within the EC itself. See also Chapter 4, Section 3, infra. 99. A way out of this dilemma may lie in saying that the 'first' recognition would mean an mere acknowledgement of the statehood of the relevant entity and the 'second' an intention to establish diplomatic relations. However, it is not argued by any of the supporters of the collective recognition doctrine that a vote in favour of admission to the United Nations implies the intention to establish diplomatic relations, nor is there any evidence that States interpret their vote in favour of admission as such. 100. The Republic of Estonia was admitted to United Nations membership on 17 Sept. 1991 (UN Doc. A/Res. 46/4) and was already recognized by seventy-four members of the United Nations prior to that date. See R. Pullat, The Restoration of the Independence of Estonia 1991, Finnish YIL, Vol. II, 1991, p. 512, at pp. 529-530. 101. Seventy-six member States voting in favour of Croatia's admission to membership in the United Nations on 22 May 1992 (UN Doc. A/Res. 46/238) had already recognized Croatia prior to the admission procedure. See Department for Foreign Affairs of the Republic of Croatia, Povratak na Vanjske Poslove, 1998.

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Chapter 2

two federal parts of the former Soviet Union were admitted to membership. Not a single member of the international community of States argued that the two entities constituted States under general international law, nor that their admission to the United Nations had to be interpreted as a recognition of their statehood.102 Mention must also be made of the cases of the Philippines and India which became members of the United Nations in 1945, well before they became independent States (the Philippines on 4 July 1946 and India on 14 August 1947). Moreover, notwithstanding their original membership in the United Nations, Lebanon and Syria were still regarded as mandates by France at the time. In addition, the case of Namibia arguably forms another example, because the General Assembly recommended the admission of Namibia as a full member of the United Nations in 1976, notwithstanding that at that time, Namibia was not considered to be a State, which it.only became in 1990.103 Furthermore, Monaco is now a member of the United Nations despite the fact that it cannot be considered a State under general international law.104 The status of Monaco prior to its admission to the United Nations in 1993105 was sui generis because of a substantial lack of independence.106 It is difficult to maintain that Monaco is now regarded as a State under general international law because of its admission to the United Nations. Admission to the United Nations became feasible after the end of the Cold War. This event led to the termination of the opposition by the Soviet Union/Russia regarding the admission of micro-States such as Monaco. Admission used to be opposed because of their lack of independence (which meant that they did not qualify as States under general international law) and/or because it would lead to another 'Western vote' in the United Nations. After the end of the Cold War, the latter consideration did no longer apply, by which it became possible to extend the collective security system to entities like Monaco.107 Consequently, 102. The membership of the two republics was the outcome of a political compromise between the United States, Great Britain and the Soviet Union. The Soviet Union agreed with the proposed voting procedure in the Security Council and the admission of the two Soviet republics was accepted in return. See, e.g., R. Higgins, THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS, 1963, p. 15, and the references mentioned there. 103. See UN Doc. A/Res/31/149, 20 Dec. 1976. See also UN Doc. A/Res/32/9E of 4 Nov. 1977. 104. The case of Monaco is discussed in more detail in Chapter 3, Section 3.5.1., infra. 105. UN Doc. A/Res/47/231, 28 July 1993. 106. On independence as a criterion for statehood, see Chapter 3, Section 3.5., infra. 107. Andorra has been regarded as sui generis as well, because of the ambiguous position of the French President as co-Prince of the Principality which led to serious doubt with respect to Andorra's (formal) independence from France. This situation has changed to a certain extent as a result of the new Constitution which entered into force in 1993 and according to which Andorra is represented on the international plane by the two co-Princes together. This, it has been submitted, excludes the hegemony and monopoly which the French co-Prince possessed priorto the 1993 Constitution(SeeJ.C.Duursma, SELF-DETERMINATION AND INTERNATIONAL


45

these entities are considered to be States for United Nations purposes only. In sum, it is tenable that, as a general rule, a vote in favour of admission to the United Nations implies recognition of the statehood of the entity concerned. This does not, however, apply in cases where the State voting in favour of admission has already recognized the entity's statehood prior to the admission. Moreover, practice indicates that in some cases an entity may be admitted to membership of the United Nations notwithstanding the fact that it does not qualify as a State under general international law. In such cases, the entity is admitted for political reasons. Therefore, it would be incorrect to state that admission to the United Nations always implies recognition of the statehood of the entity concerned. Another objection to the collective recognition doctrine is related to the suggestion that once the entity is admitted to the United Nations, all member States, that is, including those States voting against the admission or withholding their vote, are obliged to recognize the statehood of the entity concerned both under the Charter of the United Nations and under general international law. In this regard, the first point of criticism relates to the fact that in the light of such a considerable limitation of the discretionary power of a State to recognize an entity as a State, one would at least expect to find some explicit statements to that effect by the majority, or at least part of the United Nations member States. However, no such statements exist. On the contrary, state practice indicates that States do not consider themselves bound to recognize an entity as a State under general international law subsequent to that entity's admission to the United Nations.109 For instance, although Israel was admitted to

RELATIONS OF MICRO-STATES, 1994, p. 350). Even if this would be correct (because it could be maintained that the necessity of the French President's agreement with respect to Andorra's international relations undermines Andorra's formal independence), the statehood of Andorra would be a result of the changes in the new Constitution and not due to its admission to the UN in 1993 (see UN Doc. A/Res/47/232, 28 July 1993). For a discussion of the status of Andorra, see, inter alia, Duursma, id., at pp. 343-411; J. Crawford, The International Legal Status of the Valleys of Andorra, RDISDP, Vol. 55, 1977, p. 258, at p. 266; D. Schindler, Andorra, EPIL, Vol. 1, 1992,p. 164; M.M. Whiteman, DIGEST OF INTERNATIONAL LAW, Vol. l, 1963, p. 277; Hams, supra note 73, at p. 104, n. 14; Massip v. Cruzel, ILR, 18, No. 23, 1951; Re Boedecker and Ronski, ILR, 44, p. 176; Courtiol v. Chappard, RGDIP, Vol. 88, 1984, p. 974. 108. It may be contended that there is no difference between the status of a United Nations member under the United Nations Charter and that of a State under general international law, and thus that an entity which is a member of the United Nations by necessary implication needs to be a State under general international law. However, this view is inaccurate. Although the Charter contains a considerable amount of, so to speak, core rights and obligations which are applicable to States, several rights and obligations attributed to States under general international law are not guaranteed in the Charter, such as the right of legation, the right to jurisdiction over all persons and things in the territory of the State, the right to conclude treaties, the right of coastal States to a territorial sea of twelve miles or the right to exercise diplomatic protection. 109. See also OPPENHEIM'S INT'L LAW, pp. 177-178; B. Broms, States, in: Bedjaoui (Ed.), supra note 36, pp. 41-66, at pp.45-48.

46

Chapter 2

membership of the United Nations on 11 May 1949, the Arab States did not consider themselves obliged to recognize Israel as a State under general international law as a result of that admission. 110 The same is true for the position of member States regarding the admission to membership of, for instance, India, the Philippines or Andorra, cases which were mentioned earlier. In this respect the following statement of the United States seems to reflect the general point of view of States with respect to the existence of any form of obligatory recognition of statehood: [i]n the view of the United States, international law does not require a state to recognise another entity as a state; it is a matter for the judgment of each state whether an entity merits recognition as a state. In reaching this judgment, the United States has traditionally looked for the establishment of certain facts. The United States has also taken into account whether the entity in question has attracted the recognition of the international community of states."111

In addition, the Arbitration Commission of the International Conference on Yugoslavia observed that recognition is a discretionary act that other states may perform when they choose and in a manner of their own choosing, subject only to compliance with the imperatives of general international law [...].

In the light of these statements and practice it cannot be maintained that admission to membership of the United Nations gives rise to an obligation for all member States to not only respect the provisions of the Charter vis-a-vis the entity concerned (which is certainly correct113), but also to recognize it as a State under general international law. The final objection relates to the statement that admission to the United

110. The refusal to recognize Israel's statehood was first and foremost related to the alleged illegitimacy of Israel's creation. However, the existence of Israel as a State was not denied and, consequently, Israel was repeatedly accused by the Arab States of having violated the provisions of the United Nations Charter and international customary law (in particular the rules relating to the use of force). See, generally, N. Feinberg, THE ARAB-ISRAELI CONFLICT IN INTERNATIONAL LAW, 1970. Israel was recognized by Egypt in 1979 and by Jordan in 1995. 111. Digest of United States' Practice in International Law, 1976, pp. 19-20, quoted in: Harris, supra note 73, at p. 143. This view is shared by the United Kingdom which states that as far as recognition of statehood is concerned United Nations resolutions may also be relevant for the decision whether or not recognition will be granted. See 102 HC Deb., col. 977, Written Answer, 23 Oct. 1986, and 169 HC Deb, cols. 449-450, Written Answer, 19 March 1990, cited in: Shaw, INTERNATIONAL LAW, p. 301. 112. Opinion 10, supra note 74, at p. 1526 (emphasis added). This is also the view of the United Kingdom. See Lowe and Warbrick, supra note 86, at pp. 433-434 and 440-441. 113. See also Ruda, supra note 54, at p. 453; H. Mosler, The International Society as a Legal Community, HR, Vol. 140, 1974, p. 3, at p. 60; Q. Wright, Some Thoughts About Recognition, AJIL, Vol. 44, 1950, p. 548, at p. 558.


47

Nations may be constitutive of the statehood of the entity concerned.114 In the first place, because, as has been shown earlier, practice in the field of individual recognition supports the validity of the declaratory theory, it is hard to believe that the position of States with respect to the legal nature of the act of recognition would be entirely different when they act in concert. Seen in the light of the terms of Article 4(1) of the Charter as well as of the Advisory Opinion of the International Court of Justice on the conditions of membership in the United Nations 115 there can be no other conclusion than that admission to the United Nations normally constitutes an implied acknowledgement (by those States voting in favour of the admission) of the status of State already achieved under general international law by the entity concerned.116 Certainly, admission to the United Nations may consolidate or secure statehood, as in the cases of, for instance, the Congo, Guinea Bissau, Angola, Georgia and Croatia.117 Consolidation or support of a legal status should, however, be separated from constitutive recognition, that is, it should not be confused with the origin of the entity's international legal personality, which is acquired under general international law. In sum, there is no sufficient ground to conclude that the recognition process has been collectivized through the admission procedure of the United Nations. There is no such thing as 'collective recognition' if this term is used to describe (near) universal recognition. Such a notion would, in particular, require any member State of the United Nations to be obliged to recognize an entity as a State under general international law once the entity in question has been admitted to the United Nations. However, under contemporary international law such an obligation does not exist. Thus, although recognition may be granted (implicitly) by several States at the same time, this must be distinguished from collective recognition proper.

114. Thus, writing in 1987, Dugard states: "Namibia's statehood will be achieved only when it has an effective government in the territory that is acceptable to the United Nations and its independence has been certified by admission to the United Nations itself. Dugard, RECOGNITION, p. 120 (emphasis added). Namibia became a member of the United Nations in 1990. 115. Conditions of Admission case, supra note 84. 116. See also Shaw, INTERNATIONAL LAW, p. 313; Crawford, CREATION OF STATES, p. 319; Brownlie, PRINCIPLES, p. 95; Wright, supra note 113, at pp. 551-552. 117. As to the case of the Congo, see Chapter 3, Section 3.3., infra. For the cases of Guinea Bissau and Angola, see Chapter 4, Section 2.2.1 (b) and (c), infra. For the case of Croatia, see Chapter 7, Section 3.3.2., infra, and for Georgia, see Chapter 8, Section 2.1.1., infra.

48

§ 6.

Chapter 2

CONCLUSIONS

Under international law, the State is a territorially defined sovereign institution of authority which possesses full international legal personality. The international personality of the State is not acquired through recognition, but under rules of general international law. Once an entity satisfies the customary law criteria for statehood, international personality is, as it were, automatically attributed by the international legal system to the entity concerned. Recognition of statehood, therefore, is declaratory in nature, but, as will be discussed in more detail later,118 it may have a consolidating effect as far as the statehood of the entity is concerned. This means that when recognition is granted when the criteria for statehood are not (yet) satisfied, no international legal personality is attributed to the entity in question. Morever, in addition to the fact that recognition does not attribute international personality, recognition does not 'create' the State either, because recognition necessarily presupposes the existence of a State. It follows that if recognition is withheld by a State or a group of States with respect to an entity which does satisfy the customary law criteria for statehood, this does not affect the entity's legal status of State' under international law vis-a-vis the States in question. Furthermore, because recognition is declaratory with respect to the existence of the State under international law there is no conflict with the right of self-determination insofar as this right includes the right of a people to establish a State. Because the acquisition of statehood does not juridically depend upon recognition by other States, the crucial matter for becoming a State is for an entity to satisfy the customary law criteria for statehood. The next Chapter discusses the criteria for statehood, the fulfilment of which was necessary as well as sufficient for the acquisition of statehood under traditional international law.

118. See Chapter 8, Section 5, infra.

Chapter 3

The Traditional Criteria for Statehood and the Concept of Effectiveness

§ 1.

INTRODUCTION

As was stated in Chapter 2, the source most often quoted as containing the conditions for statehood is Article 1 of the Montevideo Convention of 1933.1 According to Article 1 a State as a person of international law should possess a permanent population, a defined territory, a government and the capacity to enter into relations with other States. These criteria are also referred to as the traditional criteria for statehood. They are all, in principle, based on the notion of 'effectiveness'. This Chapter will examine the contents of the traditional criteria (Section 3) and their relation with recognition (Section 4). In addition, because, according to the declaratory theory, recognition must necessarily have retroactive effect to the date of the formation of the State in international law, Section 5 discusses the question of retroactivity. This point is intimately related to the question of the moment of the commencement of the State, which is, in turn, connected to the question of the legal character of the criteria for statehood. These issues are addressed in Section 6. However, before the contents of the traditional criteria for statehood can be analysed, it is necessary to analyse the notion of 'effectiveness'. Effectiveness is said to play the leading role in the process of the formation of States. Thus, according to De Visscher, [l]es effectivités tiennent une place de premier plan dans la théorie de la personnalité des Etats et par consequent, dans les conditions d'établissement [...] de l'ordre étatique.

1.

2.

For an analysis of the historical background of the Montevideo criteria see T.D. Grant, Defining Statehood: The Montevideo Convention and its Discontents, Colum. J. Transnat'l L., Vol. 37, 1999, p. 403, in particular at pp. 414-418. De Visscher, EFFECTIVITÉS, p. 36.

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Chapter 3

This observation, which was made some 40 years ago, is still valid today. Yet, despite its validity two important remarks must be made. Firstly, it will be shown that the role of effectiveness in the process of the formation of States is a relative one and that it must be interpreted in the light of modern developments in international law. As will be seen in Section 3.3., under certain circumstances the criterion of 'government' is deemed to be satisfied despite the lack of actual or effective control over the territory and its inhabitants by the authorities of the entity concerned. The point is important and will also be discussed in the light of premature recognition (Chapter 4) and statehood and the right of self-determination (Chapter 8). Secondly, under modern international law, statehood is denied to effective territorial entities which have been established in violation of certain norms of international law.3 However, apart from these two remarks, effectiveness does play the leading role with respect to questions regarding the fulfilment of the traditional criteria for statehood. As a consequence, any discussion of the contents of the traditional criteria for statehood first requires an analysis of the raison d'être and function, the legal effect, the scope of application as well as the meaning of 'effectiveness' under general international law and in particular within the context of the formation of States.

§ 2.

STATEHOOD AND THE NOTION OF EFFECTIVENESS IN INTERNATIONAL LAW

§ 2.1.

Raison d'être and function of effectiveness

§ 2. 1.1.

Absence of a central organ with general powers of attribution and enforcement of rights and obligations

Unlike the national legal system, the international legal order has no central organ that is empowered to attribute and enforce rights and obligations.4 Therefore, factual situations became and still are of greater importance for the

3. 4.

See Chapter 4, and Chapter 8, Section 3, infra. K. Doehring, Effectiveness, EPIL, Vol. 7, 1984, p. 70, at p. 70. Consequently, when rights are acquired under international law, the protection and enforcement of these rights rest primarily in the hands of the holder and not with a central authority. The.UN Security Council's position under the Charter as the central organ regarding the enforcement of rights and obligations of member States in the field of international peace and security is an exception to this general principle.

The Traditional Criteria for Statehood and Effectiveness

51

evaluation of legal positions than under national law. In the absence of such an attributive authority, it is the international legal system that contains rules which require the effectiveness of certain specific factual situations as a precondition for the attribution of a legal status (including statehood) and/or legal rights. Thus, on the international plane the acquisition of legal status and legal rights often needs to be realized through the materialization of a claim. In this respect, effectiveness operates to some extent as evidence of the ability to possess legal rights and to fulfill legal obligations. Thus - save for important exceptions which will be discussed later in this study - an entity wishing to acquire (full) international personality must show the effective existence of certain facts (that is, it must satisfy the traditional criteria for statehood) before the attribution of this status will take place by the international legal system. This 'procedure' applies with respect to the acquisition of international personality, but also to, for instance, the acquisition of terra nullius6 or the right to diplomatic protection when a person possesses more than one nationality.7 It follows that effectiveness as a pre-condition for the acquisition of a legal right is required only when this right is claimed or when it has to be proved. Thus, when the existence of a right can directly be based on, for instance, a treaty provision or another source of law, or when a right is inherent or implied in another right, power or competence, then the notion of effectiveness as a basis for the evaluation of the existence of the right becomes substantially less relevant and sometimes even irrelevant, at least from a theoretical point of view. Of course, effectiveness may reinforce the legal position of the entity, group or individual already holding the right. It may also result in, for instance, recognition of the existence of a right by other subjects of international law at an earlier point in time than without effectiveness. But that does not detract from the fact that in these cases, the pre-condition of effectiveness did not play a relevant legal role in the process of the acquisition of the right in question. It must thus be concluded that, on the one hand, the raison d'être of effectiveness under international law originates from the absence of an attributive authority, which is (in part) responsible for the imperfection of the 5.

6. 7.

Doehring, id. See also De Visscher, EFFECTIVITÉS, p. 20; J.P.A. François, GRONDLIJNEN VAN HET VOLKENREGHT, 1967, p. 351. Cf. also H. Krüger in: WÖRTERBUCH FÜR VÖLKERRECHT, 1960, p. 410, quoted in: W.H. Balekjian, DIE EFFEKTIVITÄT UND DIE STELLUNG NlCHTANERKANNTER STAATEN IM VÖLKERRECHT, 1970, p 12 ("[d]as Effektivitätsprinzip ist eine Begleiterscheinung, ein Komplement, ja eine Kompensation der unstaatlichen Natur des Völkerrechts"). Island of Palmas case (Netherlands v. United States of America), UNRIAA, Vol. 2, 1928, p. 829, at p. 838. Nottebohm case (Liechtenstein v. Guatemala), Second Phase, Judgment, ICJ Rep. 1955, p. 4, at p. 22.

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Chapter 3

international legal order, and, on the other, that the essential function of effectiveness is therefore limited to overcoming this deficiency. § 2.7.2.

Legal order

It has been observed by Doehring that there is another reason for the relevance of effectiveness in international law: [a]s in municipal law, international law needs reliability of legal norms. In municipal law this requirement is guaranteed by the State authority [...]. In international law the required reliability is guaranteed - at least in part - mainly through the factual situation.

According to Grotius, the notion of effectiveness plays an important role regarding stability among the relations of the subjects of international law. It is this function of effectiveness which is emphasized by Grotius when he discusses the notion of property under international law. Without effectiveness property could be subject to infinite discussions and claims. In 1909, the Permanent Court of Arbitration held in the Grisbadarna case dans le droit des gens, c'est un principe bien établi qu'il faut s'abstenir autant que possible de modifier l'état de choses existant en fait et depuis longtemps.10

Although, the Court's remark is too absolute (because it suggests that the international legal system is more or less a static system of rules), the basic idea underlying the Court's statement is clear: for the sake of stability and in the absence of a central institution possessing general powers to enforce the rights and duties of the subjects of the legal system, long established factual situations should be respected. Indeed, a change of a factual situation to which international law has attributed a legal status and/or legal rights may involve a violation of the law, and by that lead to destabilization. But this should not lead to the conclusion that the factual situation as such requires respect; rather the rights attached to a legal status and attributed to that factual situation by the international legal system must be respected.

8. Doehring, supra note 4 at p. 70. 9. H. Grotius, DE IURE BELLI Ac PACIS LlBRI TRES, 1646, II, ch. IV, s. 1. 10. Grisbadarna case (Norway/Sweden), Judgement, Hague Court Reports, 1909, p. 121, at p. 130.

The Traditional Criteria for Statehood and Effectiveness § 2.1.3.

53

Legal security

Verdross emphasizes effectiveness as a notion that ultimately guarantees legal security. According to him the fiction of the non-existence of illegal situations cannot be maintained forever, since this would ultimately affect legal security. In the end, the prior situation will have to be restored or the factual effective situation will have to be recognized in order to fill the gap between reality and law." This view is also reflected in Verzijl's observation when he states "that there are cases in which a legal situation cannot be attributed continuing and indefinite validity in the face of long-standing factual evidence to the contrary".12 In both situations it is argued that it is the law which must be adapted to existing facts, that is, to an effective situation. Although the aforementioned suggestions are probably correct, the suggested function of 'legal security' of effectiveness is a dangerous one, because it may lead one to conclude that on the basis of effectiveness as such, specific legal situations are, or can be, reversed by the sole effect of external actions inconsistent with them.13 Therefore, this alleged function of effectiveness is closely related to the question whether effectiveness as such can produce legal consequences. This question will now be considered. § 2.2.

Legal effects of effectiveness

Under this heading several questions need to be addressed. The first concerns the problem of whether effectiveness can, in and of itself, create rights and duties under international law. Only a few authors have argued that rights are created as a result of the effectiveness of a factual situation. The problem with this line of thought is that it seems to confuse the character of a pre-condition with a source of law. It is not denied that effectiveness influences the acquisition of rights in international law, but it remains a legal notion that is coupled by international law to certain facts in defined situations. Effectiveness is only legally relevant as far as the legal system permits it.15 Therefore, effectiveness as such, as a result of a factual situation

11. 12. 13. 14.

A. Verdross, VÖLKERRECHT, 1964, p. 133. See also Balekjian, supra note 5, at p. 19. J.H.W. Verzijl, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE, Vol. 1, 1968, p. 293. Id., at p. 294. See, e.g., J.L. Kunz, Revolutionary Creation of Norms in International Law, AJIL, Vol. 41, 1947, p. 119, at pp. 121-122. 15. Doehring, supra note 4, at p. 70; Verdross, supra note 11, at p. .133.

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Chapter 3

does not lead to the creation of rights. According to De Visscher: [c]e qu'il faut bien voir, c'est que le rôle de 1'effectivité se borne dans les situations subjectives à donner ouverture à 1'application de certaines règles de droit international. L'effectivité [...] peut apparaître comme le condition de leur mise en application; mais le contenu des droits et devoirs est détermine non par 1'effectivité, mais par le droit international. 16

This is without prejudice to the accepted point of view that factual events may have substantial influence on the formation of international law, both with respect to the modification of an existing rule or the creation of a new one.17 The maintenance and strict application of a system of rules without having regard to changing realities will almost by definition result in the destabilization of the system and the disruption of society. Therefore, the international legal system (and in fact any legal system) has to pay attention to real developments and needs to adjust itself to changing realities. An exception to this principle is formed, however, by realities that have been brought about as a result of a violation of a peremptory norm of international law.18 This point is discussed in more detail in Chapter 4. The possibility of change of legal rules, be it as a result of changing moral values or a changing opinio juris and usus, or as a result of conventional (treaty) law-making is a conditio sine qua non for any lasting and stable legal regime. However, it is one thing to assert that established facts influence the formation and change of legal rules, but it is quite another to assert that effectiveness as such, that a mere factual development, changes the existing law.19 This proposition is simply inaccurate. For, even in a case where no interested State protests with respect to a new factual situation which has been established as a result of an act which has hitherto been regarded as unlawful, the possible modification of the relevant legal rule is not a result of the principle of

16. De Visscher, EFFECTIVITÉS, p. 16. Later he adds: "[l]es auteurs, a la vérité peu nombreux, qui ont fait effort pour analyser la nature et l'action de 1'effectivite dans le droit international inclinent souvent à présenter 1'effectivite [...] comme un principe général du droit international, parfois même comme un 'principe autonome' qui régirait l'ensemble des rapports entre le fait et le droit [...]. Cette vue nous paraît inexacte [...]. Il n'y a pas de principe général d'effectivité". Id., at pp. 19-20. 17. Id., at p. 65; Balekjian, supra note 5, at p. 19. 18. This does not mean that such norms cannot change. However, at least with respect to these norms the 'principle of peaceful change' applies. On this legal principle see, e.g., Article 19 of the Covenant of the League of Nations. See also M. Bos, Self-Determination by the Grace of History, NILR, Vol. XV, 1968, p. 362, at pp. 365-366. 19. The thesis amounts to the principle ex factis jus oritur. The validity of this principle and of the principle ex factius jus non oritur is discussed in more detail in Chapter 4, infra. 20. See also De Visscher, EFFECTIVITÉS, p. 17; F.A. v.d. Heydte, VÖLKERRECHT, 1958, p. 26; Verdross, supra note 11, at p. 133; Verzijl, supra note 12, at p. 295.


55

effectiveness but of a general accepted mode through which existing law can be modified: acquiescence. Another question which needs to be addressed, is the following: if international law requires certain factual situations (for instance, occupatio of terra nullius) to be effective for the attribution of rights, does that mean that the effectiveness of these factual situations will always lead the international legal system to attach rights to these facts? According to Dahm the answer to the question must be in the affirmative: [s]olange das Völkerrecht unfertig, seine Zwangsgewalt swach ist, muß es die Wirklichkeit weithin nehmen, so wie sie ist; es knüpft die Norm fur das, was sein soll, bis zu einem gewissen Grade an das an, was ist.21

The Kantian distinction between Sollen (ought) and Sein (is) formed the pillar of German constitutional thought that had to find a solution for the transfer of the factual power of the strongest (the State) into a legitimate power.22 Jellinek clarified this by pointing at the normativen Kraft des Faktischen, that is, the psychological quality of human nature by which might becomes right, through the fact that the constantly observed factual rule becomes the yardstick. Consequently, factual relations become legal relations.23 This theory about the consequences of effectiveness was transferred to certain fields of international law, like the acquisition or loss of state territory and the law concerning occupation and annexation. Notwithstanding the relevance of effectiveness in these fields of international law prior to the development of the prohibition of aggression (which is now regarded as a peremptory norm of international law), 24 the theory of the normativen Kraft des Faktischen and its ideas about the consequences of effectiveness are certainly no longer in accordance with contemporary international law. As was stated above, the notion of effectiveness has a specific function - that is, to support the stabilization of the international legal order - in light of the imperfection of the international legal system (which is its raison d'être). Every interpretation of the notion and consequences of effectiveness that is broader than, or runs against this function, will ultimately lead to the destabilization of the legal order. Therefore, when an effective factual situation is brought about by illegal means this will not, in principle, lead to the attribution of rights and/or legal

21. G. Dahm, VÖLKERRECHT, Vol. I, 1958, p. 42. 22. See }. Wildeman, The Philosophical Background of Effectiveness, NILR, 1977, Vol. XXIV, Spec. Issue 1/2, p. 335, at pp. 338 and 343 et seq. 23. G. Jellinek, ALGEMEINE STAATSLEHRE, 1905, pp. 329-332. See also Wildeman, supra note 22, at p. 345. 24. See p. 144, infra.

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status by the international legal system.25 Thus, for instance, when Iraq effectively occupied Kuwait in 1990, this did not lead to Iraq's acquisition of rights (as opposed to obligations26) with respect to the Kuwaiti territory and its inhabitants. 27 In this respect it must be noted that not every violation of international law forms a bar to the acquisition of statehood. This point is, however, related to the discussion regarding the existence of modern criteria for statehood. The question of which violations of which rules of international law block the attribution of full international personality to a territorial entity will therefore be examined elsewhere in this study.28 Still another issue is whether or not recognition is permitted in the case of an illegally created but effective territorial entity. The point will be addressed in Chapter 4. A final question that must be dealt with is whether the attribution of full international personality only takes place when a factual situation is (fully) effective. International law contains specific rules which require specific factual situations to be effective for the attribution of legal status and/or rights. But that does not by definition exclude the possibility of the existence of an international legal rule or principle which does not require a specific factual situation to be (fully) effective for the acquisition of statehood. As will be pointed out later, international law does contain such a legal rule." It must therefore be concluded that effectiveness is a legal requirement (a pre-condition) for the attribution of rights, or, as the case may be, a legal status. However, that does not clarify what the pre-condition of effectiveness means in international law, and in particular in relation to the traditional criteria for statehood. This point will now be addressed.

25. See also De Visscher, EFFECTIVITÉS, p. 24: "[u]n acte internationalement illicite ne constitue jamais un titre valable en droit international. Ceci ne signifie pas 1'acte illicite soit à considérer comme inexistant et, de ce fait, à tout jamais incapable de produire des effets en droit [...]". But see id., at p. 25: " [1]' effectivité ne confère pas de titre valable à 1'acte illicite; en l'absence pronongée de toute résistance, elle peut conduire à admettre certains de ses effets. Il en résulte que le refus de reconnaitre une situation issue d'agissement illicites ne conserve pas indéfiniment sa signification juridique. Une tension trop prolongée entre le fait et le droit doit fatalement se dénouer, au cours du temps, au bénéfice de l'effectivite". 26. Like the obligations under, for instance, the Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 Aug. 1949, UNTS, Vol. 75, 1950, p. 287. 27. See, e.g., UN Doc. S/Res/662, 9 Aug. 1990 (where the Council decided that the declared Iraqi annexation "under any form and whatever pretext has no legal validity and is considered null and void"). 28. See Chapters 4 and 8, infra. 29. See Section 3.3., infra of this Chapter. See also Chapter 4, Section 2.2., and Chapter 8, Sections 2.1.-2.3., infra.

The Traditional Criteria for Statehood and Effectiveness § 2.3.

57

The meaning of effectiveness in the context of the formation of States

The principle of effectiveness is applied in many different fields of international law. One might think of, for instance, the question of defining the legal consequences of a State's illegal extension of state power over foreign territory, the question of defining which State may exercise diplomatic protection with respect to an individual who possesses two nationalities, the issue of a change of factual circumstances and treaty obligations, disputes with regard to title to territory between two or more States, or the influence of factual developments on the evolution and content of rules of customary international law, to mention just a few examples. Because of its wide scope of application, it is not possible to give an all-embracing definition of the meaning of effectiveness. In the words of one scholar: "[o]ne would proceed no further than the truism that all these applications relate to some alleged special influence of fact on law".31 For this study it is important, however, to define the meaning of effectiveness in the context of the creation of States. In this respect, a brief return to the question of the relationship between might and right is called for. From the beginning of its development, the exercise of power over a territory and a population has led international law to attach a legal status and/or legal rights to this factual state of affairs. Rules concerning prescription, the formation of States and the recognition of States were developed. As soon as a new territorial and political entity with these marks and with the expectance of durability presented itself on the international plane, the international law of the nineteenth century readily endowed this territorial entity with the legal status and customary rights which were enjoyed by the already existing States. In other words: might was converted into right. Technically, this process took place by transforming the actual exercise of power by a territorial entity - which until then was nothing more than a mere fact before the law - into an important legal criterion for statehood. But the exercise of power might not be complete over the whole territory that is claimed or may just exist in theory or on paper. In such cases, it is said 30. Additionally, one could mention effectiveness in the sense of the effectivity of law, that is, the degree of expediency of the law in relation to its raison d'être.'This meaning of the term and the related discussions lie outside the scope of this study. See, e.g., J. Stone, OF LAW AND NATIONS, 1974, pp. 207-217; H. Kelsen, PRINCIPLES OF INTERNATIONAL LAW, 1966, p. 420, n. 116; H. Kelsen, GENERAL THEORY OF LAW AND STATE, 1945, pp. 118-119. For criticism regarding Kelsen's view, see W. Friedmann, LEGAL THEORY, 1967, pp. 275-287. 31. Wildeman, supra note 22, at p. 337. 32. Id., at p. 337.

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that the new territorial entity lacks effectiveness as far as its exercise of power is concerned and therefore is not (yet) a State. Effectiveness, in this sense, means the quality of a fact (here the exercise of power or territorial jurisdiction), which - according to international law - makes this fact suitable as a condition for the attribution of full international legal personality.33 The distinct feature of the traditional criteria for statehood is that they are, in principle, all based on this meaning of effectiveness.

§ 3.

THE TRADITIONAL CRITERIA FOR STATEHOOD

§ 3.1.

Permanent population

The first qualification which a State should possess is the existence of a permanent population. The State as a territory-based form of political and social organization must necessarily be an organization of individual human beings. Thus, an uninhabited territory - like Antarctica - for this reason alone cannot qualify as a State. According to Oppenheim [a] permanent population is an aggregate of individuals of both sexes who live together as a community in spite of the fact that they may belong to different races or creeds, or be of different colour.

It must be noted that a permanent population is not necessarily the same as a 'people'. As is pointed out elsewhere in this study, a 'people' may refer to an ethnic sub-group within a State.35 In that case, a permanent population may consist of several distinct 'peoples'. Moreover, although there must be a population, there seems to be no minimum requirement with respect to the size of a State's population. ' As to the condition of 'permanency', two points have to be distinguished. First, the population must have the intention to inhabit the territory on a permanent basis. Where a group of people occupies an island or an uninhabited territory not with the intention to move there but, for instance, solely for the

33. 34. 35. 36.

See also id. L.F.L. Oppenheim, INTERNATIONAL LAW, 1955, p. 118. See Chapter 6, Section 3.2., infra. P.K. Menon, The Subjects of Modern International Law, Hague Y.B. Int'l L., Vol. 3, 1990, p. 30, at pp. 36-37; Crawford, CREATION OF STATES, p. 40 ; H.M. Blix, Contemporary Aspects of Recognition", HR, Vol. 130, 1970 II, p. 393, at p. 633.


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purpose of gaining monetary benefits, there can be no question of statehood.37 The same applies with regard to a population which completely consists of refugees who have no other intention but to return to their home country. But the fact that large numbers of nomads are moving in and out of the country, as in the case of Somalia, is in itself no bar to statehood as long as there is a substantial number of permanent inhabitants.38 Secondly, the territory claimed has to be habitable. § 3.2.

Defined territory

States are territorially defined institutions of authority. Territory and territorial sovereignty are closely interrelated. While territory can exist without territorial sovereignty (terra nullius), the latter cannot exist without the former. In the Island of Palmas case the Court noted that territorial sovereignty involves the exclusive right to display the activities of the State within a certain geographical

37.

See also B. Broms, States, in: M. Bedjaoui (Ed.), INTERNATIONAL LAW: ACHIEVEMENTS AND PROSPECTS, 1991, p. 41, at p. 44. During World War II, the United Kingdom established several anti-aircraft radar platforms along the east coast of England in the North Sea. Some of these platforms were, at the time, located outside British territorial waters. In 1966, an abandoned platform was occupied by the United Kingdom citizens Paddy Roy Bates and his wife. On 2 September 1967, Bates proclaimed the independence of the entity which was named the Principality of Sealand. The entity claimed to have 160,000 citizens, who except for a few, all had a second citizenship. In fact, the 'population' of the 'Principality' was made up of businessmen, who permanently lived in the countries they originated from. A small team of security guards abandoned the platform after storms in 1991. There is no doubt that in this case there was no permanent population in the sense of international law. Therefore, for this reason alone, Sealand was never a State. In April 2000, the Spanish Civil Guard dismantled the structure of the entity and arrested Bates' successor who operated mainly out of Spain. For details, see E. W. Strauss, HOW TO START YOUR OWN COUNTRY, 1999, pp. 132-138; http://www.pnncipality-sealand.-net/enOO.htm. See also Bogus Passport Ring Busted in Spain, The New York Times, 11 Apr. 2000. 38. American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, 1987, Vol. 1, p. 73, para. 201. Arguably this was the position of the International Court of Justice in the Western Sahara case where the Court appears to have expressed the opinion that the Sahrawis constitute a people for the purposes of statehood. Western Sahara case, Advisory Opinion, ICJ Rep. 1975, p. 12, at 342-344. See also G.J. Naldi, The Statehood of the Saharan Arab Democratic Republic, Indian JIL, Vol. 25, 1985, p. 448, at pp. 452-453. 39. On 19 January 1972, the 'Republic of Minerva' was proclaimed. The entity, which was the brainchild of Michael Oliver, a United States citizen, concerned a group of hitherto-unclaimed underwater reefs (260 miles west of Tonga). The government of the 'Republic' asked several governments to give recognition to the purported State. The Prime Minister of Minerva stated that after some construction work, the coral reefs could be made habitable all year round. The atoll was eventually formally annexed by Tonga on 21 June 1972. There is no doubt however that the entity was never a State if only because of the inhabitable character of the territory. See also B. Broms, Subjects: Entitlement in the International Legal System, in: R.St.J. Macdonald and D.M. Johnston (Eds.), THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW; ESSAYS IN

LEGAL PHILOSOPHY, DOCTRINE AND THEORY, 1983, p. 383, at p. 386.

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area.4() In the same line of thought Lachs observed that [...] the most basic manifestation of a State's jurisdiction is the power exercised in regard to its territory. Here we find the first and basic relationship between the State and nature [...], territory being the physical foundation of State power in several dimensions.41

Thus, a group of people without a territory cannot establish a State.42 And nonterritorial entities like intergovernmental organizations may exercise considerable authority over land, but they do not constitute States because the territory remains a constituent element of the member States.43 There is no rule prescribing a minimum size of the territory of the State. Tuvalu (seven square kilometres) and Nauru (21 square kilometres) are both States. As Crawford observes, the size of the territory is not what matters, provided that there is an independent authority that exercises actual authority over the territory.44 Statehood requires a defined territory, but not necessarily defined or agreed external boundaries. There is thus no need for the existence of frontiers which are undisputed by neighbouring States. As was noted by a German-Polish 40. Island of Palmas case, supra note 6, at p. 838. 41. M. Lachs, The Development and General Trends of International Law in Our Times, HR, Vol. 169, 1980, p. 9, at p. 36. See also L. Ali Khan, THE EXTINCTION OF NATION-STATES: A WORLD WITHOUT BORDERS, 1996, p. 63. Since time immemorial, a possessive-compulsive relationship exists between land and people as evidenced by countless numbers of wars which have been waged over land. This bond between land and people was deified by the concept of State, which as a territorially defined sovereign power signified the break with the medieval era of empires. As a consequence, territory rather than theology became the new source of authority. 42. Also, a State may become extinct and a people may lose its territory as a result of natural developments. For instance, two small islands forming part of the Republic of Kiribati drowned and several other islands of that Republic and the Republic of Tuvalu are threatened as a result of rising sea levels. See South Pacific Regional Environment Programme, Centre for Pacific Islands Studies, University of Hawaii, Pacific Islands Report, 3 Nov. 1998; Islands Disappear Under Rising Seas, Reuter, 14 June 1999. 43. See also Blix, supra note 36, at p. 632. 44. Crawford, CREATION OF STATES, p. 38. 45. Many of the new States that were established after the end of World War I were recognized as States while many of their external frontiers were not yet defined. The recognition was accompanied by stipulations which required the recognized States to accept the frontiers to be laid down by the Paris Peace Conference. See Lauterpacht, RECOGNITION, p. 30. Even in the situation of a dispute concerning the whole territory, the entity may still be regarded as a State, as in the case of Israel. When Israel applied for admission to the UN, the Arab States - despite claims to the entire territory of Israel - did not deny Israel's statehood as is evidenced by the Arab States' contention that Israel did not qualify for membership under the terms of Article 4 of the Charter because it was not a peace-loving State. See UN Ybk., 1948-1949, p. 403. Notwithstanding the Arab arguments, Israel was admitted to the UN (see UN Docs. S/Res/70, 4 March 1949 and A/Res/273 (III), 11 May 1949). See also Dugard, RECOGNITION, pp. 60-63. Other situations wherein claims to the entire territory of the State were raised against the background of admission to the UN are, for instance, Kuwait, Bahrein and Mauritania. See Crawford, CREATION OF STATES, p. 38, and the references mentioned there.


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Mixed Arbitral Tribunal: [w]hatever may be the importance of the delimitation of boundaries, one cannot go so far as to maintain that as long as this delimitation has not been legally effected the State in question cannot be considered as having any territory whatever [...]. In order to say that a State exists [...] it is enough that this territory has sufficient consistency, even though its boundaries have not yet been accurately delimited, and that the State actually exercises independent public authority over that territory. 46

This general rule was confirmed by the International Court of Justice in the North Sea Continental Shelf cases. Though external boundaries do not have to be fixed in the sense that they are undisputed, it must in some way be clear to the international community what state territory is claimed. Otherwise it might be possible to violate the State's territorial sovereignty without even knowing that one crossed that State's territory. This means, that the purported State must clarify what external boundaries are claimed. Thus, if a territorial entity which claims statehood cannot specify the external boundaries of the territory claimed, or constantly

46. Deutsche Continental Gas-Gesellschaft v. Polish State, ILR, Vol. 5, p. 11, at pp. 14-15. See also the statement by Jessup, the American representative on the Security Council of the UN in 1948. The statement was made in the context of Israel's admission to the UN and the conflicts over its external boundaries and territory. UN SCOR, 383nd mtg., 2 Dec. 1948, p. 41. 47. North Sea Continental Shelf cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. the Netherlands), ICJ Rep. 1969, p. 3, at p. 32, para. 46. A special and related situation concerns the admission of the former Yugoslav Republic of Macedonia to membership of the UN. Greece opposed the inclusion of the word 'Macedonia' in the name of the State, because that would imply territorial aspirations. Greece did not, however, raise objections regarding the statehood of Macedonia prior or during the discussions on admission to membership, nor did any other UN member State. Consequently, it appears that a dispute regarding the name, use of symbols, flags or emblems does not in itself affect statehood - even if these elements are interpreted by a neighbouring State as indicating territorial aspirations. See UN Ybk., Vol. 47, 1993, pp. 207-210; and UN Doc. A/48/637, 23 Nov. 1993. See also the Arbitration Commission of the International Conference on Yugoslavia, Opinion 6, ILM, Vol. 31, 1992, pp. 1507-1512 (the Commission held that the former Yugoslav Republic of Macedonia qualified for recognition by the EC member States because it had explicitly renounced all territorial claims and that, therefore, "the name 'Macedonia' cannot imply any territorial claim against another State"); Athene Boos Over Advies erkenning Macedonië, NRC Handelsblad, 15 Jan. 1992; AIs het van pas Komt Zijn Zelfs de Barbaren Grieks, De Volkskrant, 3 Feb. 1993; Reeks EG-Leden Zegt Macedonië nu te Erkennen, De Volkskrant, 16 Apr. 1993. The Security Council recommended and the General Assembly decided to admit Macedonia to membership of the UN under the provisional name of 'the Former Yugoslav Republic of Macedonia'. See UN Docs. S/Res/817,7Apr. 1993 and A/Res/47/225,8 Apr. 1993 (adopted by acclamation, Greece sponsor). See also pp. 105-106, infra. 48. See also K. Doehring, State, EPIL, Vol. 10, 1987, p. 423, at p. 425. This is inherent in the very legal concept of territory, defined by geographical space separated by borderlines from other space and under a common legal system. See Malanczuk, AKEHUKST'S MODERN INTRODUCTION TO INTERNATIONAL LAW, 1997, p. 76. See also, generally, M.N. Shaw, Territory in International Law, NYIL, Vol. 13, 1982, p. 61.

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shifts its claims with respect to its external boundaries,49 statehood is lacking or seriously becomes in doubt. This, it must be noted, does not apply in cases of already established States as is evidenced by numerous territorial and border disputes between States. The German-Polish Mixed Arbitral Tribunal which was referred to above emphasized that a State must consist of a certain sufficiently coherent territory that is effectively governed by an independent authority. It follows that the criterion of 'defined territory' cannot be separated from the criteria of 'government' and 'independence', which latter is inherent in the criterion of 'capacity to enter into relations with other States'. § 3.3.

Government

Statehood requires the existence of a government. But international law does not prescribe the exact form of government except that it must be in conformity with the right of self-determination of peoples.50 According to the traditional law of statehood, the criterion 'government' consists of two related dimensions. Firstly, there should be an institutionalized political, administrative and executive organizational machinery for the purpose of regulating the relations in the community and charged with the task of upholding the rules. ' Secondly, and based on the concept of effectiveness, the criterion 'government' refers to the existence of effective government, which means that the institutionalized political, administrative and executive organizational machinery must actually exercise state authority over the claimed territory and the people residing in that territory.52 In other words, to be effective there must be an entity or organ 49. It must seriously be doubted whether the Republic of Serbian Krajina which proclaimed independence from the Republic of Croatia on 19 December 1991 met the criterion of a defined territory, because of constantly shifting and unclear claims with respect to its external boundaries. For instance, according to one spokesman of the Croatian-Serbs the municipality of Petrinja (which had an ethnic composition of 50 per cent Croats and 50 per cent Serbs) did belong to the Republic of Serbian Krajina, according to another it did not. See Globus, Petrinjski Obzor, No. 16, 17 Apr. 1992. See also B. Covic (Ed.), CROATIA BETWEEN WAR AND INDEPENDENCE, 1991, p. 58. Arguably, for this reason alone the entity was not a State. For a further discussion of the case of the Republic of Serbian Krajina, see pp. 79-80, and esp. Chapter 7, Section 5.3., infra. 50. For the discussion of this point see Chapter 6, infra. 51. See also Blix, supra note 36, at p. 633. 52. To the same effect, see Oppenheim, supra note 34, at p. 118. The aspect of effectiveness of state authority was also emphasized by the Permanent Mandates Commission of the League of Nations. In 1931 the Commission adopted in 1931 a list of conditions which in its opinion had to be satisfied before a mandated territory could be considered to have achieved a position in which it could be released from the mandatory regime and recognized as a State. The conditions which were mentioned by the Commission were (a) a settled government and an administration capable of maintaining the regular operation of essential government services; (b) capacity to maintain its territorial integrity and political independence; (c) capacity to maintain peace


63

capable of establishing and maintaining a legal order throughout the territory of the prospective State. The position of Finland in the period 1917-1918 has frequently been referred to as a situation which clarifies the requirement of effective government.54 Finland had been an autonomous part of the Russian Empire from 1807. After the Russian revolution of March 1917 and after the Bolshevik coup d'etat in November, the Finnish Diet proclaimed the independence of Finland on 6 December 1917. Subsequently, as a result of several military interventions and the presence of foreign military troops it was, at least until the beginning of 1918, impossible to speak of an effective Finnish government. The International Commission of Jurists, which was entrusted in 1920 by the Council of the League of Nations with the task of giving an advisory opinion on the legal aspects of the Aaland Islands dispute between Finland and Sweden, was confronted with the question whether, and if so when, Finland became a State under international law. According to the Commission for a considerable time, the conditions required for the formation of a sovereign State did not exist. In the midst of revolution and anarchy, certain elements essential to the existence of a State, even some elements of fact, were lacking for a fairly considerable period. Political and social life was disorganised; the authorities were not strong enough to assert themselves; civil war was rife; further, the Diet, the legality of which had been disputed by a large section of the people, had been dispersed by the revolutionary party, and the Government had been chased from the capital and forcibly prevented from carrying out its duties; the armed camps and the police were divided into two opposing forces, and Russian troops, and after a time Germans also, took part in the civil war between the inhabitants and between the Red and White Finnish troops. It is therefore difficult to say at what exact date the Finnish Republic, in the legal sense of the term, actually became a definitely constituted sovereign State. This certainly did not take place until a stable political organisation had been created, and until the public authorities had become strong enough to assert themselves throughout the territories of the State without the assistance of foreign troops. It would appear that it was in May, 1918, that the civil war ended and that foreign troops began to leave the country, so that from that time onwards it was possible to re-establish order and normal political and social life, little by little.56

The emphasis on the requirement of an actual exercise of authority is evident. throughout the territory. LNOJ, 1931, p. 2176. See also Balekjian, supra note 5, at p. 29. 53. In this respect it is evident that approval of, or acquiescence by, the population in the exercise of State power contributes to the effectiveness of government. 54. See, e.g., Crawford, CREATION OF STATES, pp. 44-45. 55. See Chapter 7, Section 3.2.3., infra. 56. The Aaland Islands Question: Report of the Committee of Jurists, LNOJ, Spec. Supp., No. 3, 1920, pp. 3-19, at pp. 8-9.

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The underlying considerations for this emphasis on an actual exercise of authority seem to be expressed by Marek when she states: [a]s a rule, negotiations can only be conducted with a real and effective government; treaties can only be concluded with such a government which alone can give the guarantee of their implementation, and only a real and effective government can successfully be held responsible. In all those real transactions of international law fictitious or merely claimant governments can have no place.57

At first sight, such a proposition does seem reasonable. However, if Marek's proposition is accepted, the general acknowledgement of, for instance, the statehood of the Republic of Congo in 1960 is difficult, if not impossible, to explain. The proposition is, therefore, too absolute. In the early 1950s several political parties were formed in the former Belgian colony of the Congo. As a result of the rise of the doctrine of selfdetermination, several of these political parties explicitly expressed the wish for an independent State of Congo. The Belgian authorities came to realize that this Congolese independence movement could not be resisted for long without a great deal of effort, in particular a large-scale military intervention. A hasty independence was therefore granted by Belgium on 30 June 1960. The colony had no experience with self-government, there was little education above the age of 14, and there were hardly any Congolese-held positions of executive or operational responsibility during Belgian colonial rule. It was therefore not surprising that within one week after the proclamation of independence of the Republic of Congo by King Boudewijn of Belgium, the situation in the Republic became chaotic. Civil riots and mutiny in the armed forces - no longer under the command of the Belgian Government - could not be suppressed by the new, divided and bankrupt government, which was actually not even able to control the capital.58 On 10 July 1960, Belgian troops intervened upon request of the premier of the province of Katanga, which province formally proclaimed its independence on that same day. Finally, and upon request of the Congolese Government, the United Nations intervened

57. Marek, IDENTITY, p. 59. Cf. also Blix, supra note 36, at p. 633: "[i] f [...] a [community] organization is missing, it is meaningless for the outside world to seek to attribute rights and obligations to the population of a State. Accordingly, a State will not be considered to have come into being until there is an organization which can effectively shoulder these rights and obligations". 58. Crawford, CREATION OF STATES, p. 43. See, generally, C. Hoskyns, THE CONGO: A CHRONOL-

OGY OF EVENTS, JANUARY 1960-DECEMBER 1961, 1962; C. Hoskyns, THE CONGO SINCE INDEPENDENCE, 1965; J.B. Wright, ZAIRE SINCE INDEPENDENCE, 1988; R.F. Holland, EUROPEAN DECOLONIZATION 1918-1981, 1985, pp. 175-190; J. Stengers, CONGO, MYTHESET RÉALITÉS, 1989. See also Buchheit, SECESSION, pp. 141-153; Dugard, RECOGNITION, pp. 86-90.


65

in the conflict. As far as the lack of effective government is concerned it is not difficult to see the similarities between the facts in the Congo in 1960 and those in Finland in 1917-1918. As Crawford states with respect to the situation in the Congo: "[a]nything less like effective government [...] would be hard to imagine".59 Nevertheless, it is beyond any doubt that the Republic of Congo was regarded as a State from its inception, that is, from the day of the proclamation of independence onwards.60 It was widely recognized and admitted to the United Nations without dissent.61 In addition, the firm belief of the international community in the statehood of the Congo is reflected in the United Nations operation in the Congo. The United Nations peacekeeping force (ONUC) first directed its actions against the foreign intervention, but later on its actions became directed more and more against the secession of Katanga. On 24 November 1961, the Security Council passed Resolution 169 which reaffirmed that one purpose of the United Nations operation was "to maintain the territorial integrity and political independence of the Congo".62 In this respect the question of whether the criterion of 'government' must be satisfied on the basis of effectiveness in each and every situation does present itself. Based on the Congo situation it would seem that this is not the case. As is observed by Crawford: [t]he point about 'government' is that it has two aspects: the actual exercise of authority, and the right or title to exercise that authority."

This exclusive right to exercise authority or jurisdiction over the territory and its inhabitants may, as in the case of the Republic of Congo, result from a formal grant of independence by the former sovereign (devolution).' In such a case, the governmental authorities of the territorial entity have a prima facie

59. Crawford, CREATION OF STATES, p. 43. 60. Id. 61. See UN Docs. S/Res/142, 7 July 1960 and A/Res/1480 (XV), 20 Sept. 1960. 62. UN Doc. S/Res/169, 24 Nov. 1961. See also UN Doc. S/Res/145, 22 July 1960, Para. 2: "request all States [...] to refrain from any action which might undermine the territorial integrity and the political independence of the Republic of Congo" (emphasis added); UN Doc. A/Res/1474 (ES-IV), 20 Sept. 1960, Preamble: "[c]onsidering that, with a view to preserving the unity, territorial integrity and political independence of the Congo [...] it is essential for the United Nations to continue to assist the Central Government of the Congo" (emphasis added); id., at Para. 6: "[w]ithout prejudice to the sovereign rights of the Congo [...]" (emphasis added). 63. Crawford, CREATION OF STATES, p. 44 (emphasis added). 64. An exception to this rule is formed by a grant of independence which is in violation of a fundamental norm of international law such as the right of self-determination of peoples. See Chapter 4, Section 5.2.2.(b), infra. See also Crawford, id., at p. 215 ff., and in particular at pp. 218-227.

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international right to govern the territory.65 As was stated above, effectiveness as a pre-condition for the acquisition of a legal right is required when this right is claimed or when it has to be proved to exist. Therefore, if an exclusive right to govern a territory exists on the basis of, for instance, a formal grant of independence, the criterion of 'government' is met." As the case of the Congo indicates, under such circumstances a lack of effectiveness in relation to the actual exercise of authority does not, in itself, form a bar to the acquisition of statehood. Hence, the subsequent and universal recognition of the Congo as a State. But, as far as the recognition of the statehood of the Congo is concerned, another factor cannot be overlooked. It must be noted that the Congo qualified as a colonial territory which was entitled to political self-determination. 67 As will be discussed later, in the context of decolonization this meant that the population of the Congo had the right to establish an independent State.68 Thus, although the formal transfer of sovereignty by Belgium led to the immediate acquisition of an exclusive right to exercise authority over the country on the part of the Congolese authorities, this clearly took place against the background of the right of self-determination of the population of the Congo. In the light of the increasing international pressure on colonial powers to acknowledge the existence of a right of self-determination of colonial peoples, there is no doubt that the right of self-determination of the inhabitants of the Congo was also taken into consideration by the international community in 65. See also Crawford, id, at p. 44. 66. In this respect the situation of Finland in 1917-1918 is relevant. On the date of the proclamation of independence (6 December 1917) the Finnish authorities did not possess an exclusive right to govern the Finnish territory because no grant of sovereignty had taken place by the Russian government, nor could such an exclusive right be based on another source or rule of international law. Therefore, the conclusion of the Commission of Jurists that Finland did not constitute a State on 6 December 1917 appears to be correct. However, the Commission was also of the opinion that there was no Finnish State until May 1918 and in that particular respect the second Commission, the Commission of Rapporteurs, disagreed. The Rapporteurs were of the opinion that the recognition of Finland as a State by the Soviet authorities on 4 January 1918 was of considerable importance for the statehood of Finland (see LN Council Doc. B7:21/68/106, 1921, p. 22). While this argument was not put forward by the Rapporteurs, it is presumably correct to state that, in principle, recognition by the parent State of a seceding territorial entity amounts to the same legal effect as a formal grant of sovereignty, namely the renunciation of the title to the territory in question, including the title to exercise jurisdiction over that territory. In both situations, the authorities of the territorial entity have, directly or indirectly, explicitly or implicitly, obtained an exclusive title to exercise territorial jurisdiction. Therefore, and in combination with the fulfilment of the other traditional criteria for statehood, it may be argued that Finland became a State subsequent to Soviet recognition. This conclusion is reinforced by the conduct of several States, which recognized the new territorial entity as a new State only after the recognition by the Soviet authorities. For instance, Sweden recognized Finland on 4 January but after Soviet recognition, France on 5 January, Denmark and Norway on 10 January, and Switzerland on 22 February. 67. See Chapter 5, Section 3.4.2., infra. 68. See Chapter 5, Section 3.4.3., infra.


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recognizing and supporting the statehood of the Congo, that is, in addition to the Belgian grant of sovereignty and the related existence of an exclusive right to govern the territory. Indeed, as will be shown elsewhere in this study, in cases where a right of (external) self-determination exists,' the applicability of this right may compensate for a possible lack of effective government by the entity created as a result of the exercise of that right. This is so regardless of any transfer of sovereignty by the parent State. Without prejudice to the requirement of effectiveness in relation to the other traditional criteria for statehood, at this point it may be concluded that, as the case of the Congo shows, a State may come into being despite a substantial lack or sometimes even a total absence of effective government. This conclusion does not, however, lead to the existence of a presumption in favour of new States in comparison to established States with respect to the required degree of effective government, because, and apart from situations of illegal annexation and the like which will be addressed below, the subsistence of both new and established States essentially depends on the (continued) existence of an effective government. In other words, a new State could eventually collapse and become extinct if a situation of substantial lack of effective government persists. Although the latter situation concerns a problem which belongs to the field of the extinction rather than the formation of States, it is necessary to elaborate this point a bit further, because it is related to the fact that the outward characteristics of a State may be temporarily lacking. Practice indicates that even a prolonged period of absence of effective government does not ex definitione lead to the extinction of a State, that is, that there is a strong presumption in favour of the continuity of statehood. This applies in different cases, such as, for instance, belligerent occupation of a State. Under contemporary international law, belligerent occupation per se (accompanied or not by a government-in-exile) does not lead to the extinction of the international personality of a State, as was shown by the occupation of several States by Nazi Germany during World War II.70 Also, the annexation of a State does not, in principle, lead to the juridical extinction of that State, although it may have disappeared in an empirical sense. It is now generally accepted that no title to territory can be acquired through the illegal use or threat of armed force, not even when the occupation is 69. The applicability of a right of external self-determination means that a 'people' is entitled to implement its right to political self-determination through, amongst others, the establishment of an independent State. See p. 205, infra. 70. See Marek, IDENTITY, pp. 73-125; J.L. Kunz, Identity of States Under International Law, AJIL, Vol. 49, 1955, p. 68. See also, generally, H. Bokor-Szegö, Naissance et Disparation des Etats Dans le Droit International Contemporain, Acta Juridica Academiae Scientiarum Hungaricae, Vol. 25, 1983, p. 351; U. Fastenrath, States: Extinction, EPIL, Vol. 10, 1987, p. 465.

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effective and all effective organized resistance against the invader has ceased.71 In such cases the international personality of the annexed State, or in other words its juridical existence, remains intact, even though the actual exercise of its rights is suspended.72 Finally, a civil war or anarchy within a State for a more or less prolonged period of time does not a priori affect the continuity of that State's international personality.73 Although civil war and anarchy may overlap, in both cases the 71. See, e.g., Art. 2(4) UN Charter; UN Doc. A/Res/2625, (XXV), 24 Oct. 1970, Principle I; UN Doc. A/Res/3314 (XXIX), 14 Dec. 1974, Ann., Art. 5(3); UN Doc S/Res/242, 22 Nov. 1967. See also note 27, supra. 72. This principle was applied to, for instance, the World War II cases of Albania, Austria, Ethiopia and Poland. See generally Marek, IDENTITY, pp. 73-126; Crawford, CREATION OF STATES, pp. 58, 310-312, 417-420; OPPENHEIM'S INT'L LAW, pp. 192-193 and the references mentioned there. A complex case is formed by the Baltic States which remained under de facto Soviet control for over 50 years. Lithuania declared its independence on 11 March 1990, Estonia on 20 August 1991, and Latvia on 21 August 1991. Opinions differ with respect to whether the Baltic States regained their independence (which would only have been suspended de facto as a result of the Soviet annexation) or whether they became new States. The Baltic States' position is that they never de jure formed part of the Soviet Union and that consequently, they do not consider themselves to be successors of the Soviet Union. Most States never recognized the Soviet annexation dejure because the incorporation of the Baltic States was considered to be in violation of international law. Several States regarded the statehood of the Baltic States as uninterrupted since the establishment of their independence (see, e.g., A Charter of Partnership Among the United States of America and the Republic of Estonia, Republic of Latvia, and Republic of Lithuania, http://www.state.gov/www/regions/eur/). It is therefore tenable that their statehood did not become extinct during Soviet rule and, consequently, that the status quo ante (that is, the de facto situation prior to the Soviet annexation) was restored in 1990-1991. Practice seems to support this position. For instance, Finland and Estonia renewed the application of the treaty on cultural co-operation which was concluded over 50 years ago. Moreover, in a declaration of 27 August 1991, the EC welcomed the "restoration of the sovereignty and independence of the Baltic States" (quoted in: BYIL, Vol. 62, 1991, p. 558). Strictly speaking any reference to the restoration of sovereignty and independence is superfluous if the Baltic States became new States. The German Secretary of Foreign Affairs, Mr. Genscher, declared that the Baltic States had not been 'recognized', but that the interrupted diplomatic relations had merely been reestablished (see Frankfurter Allgemeine Zeitung, 28 Aug. 1991, p. 2). See also R. Mullerson, The Continuity and Succession of States by Reference to the Former USSR and Yugoslavia, ICLQ, Vol. 42, 1993, p. 473, at. 480-483; R. Mullerson, INTERNATIONAL LAW, RIGHTS AND POLITICS, 1994, p. 119 ff.; D. Murswieck, The Issue of a Right of Secession - Reconsidered, in: C. Tomuschat (Ed.),

MODERN LAW OF SELF-DETERMINATION, 1993, p. 21, at p. 31. Cf. also Crawford, CREATION OF STATES, p. 64, 419-420. And see, generally, Marek, IDENTITY, p. 581; A. Cassese, SelfDetennination of Peoples and the Recent Break-Up of USSR and Yugoslavia, in: R. St. J. Macdonald (Ed.), ESSAYS IN HONOUR OF WANG TlEYA, 1994, p. 131, at pp. 133-137. But see Fastenrath, supra note 70, at p. 465; Shaw, INTERNATIONAL LAW, p. 144. 73. Although the Yugoslav conflict was a war with aspects of both internal and international armed conflict (see The Prosecutor v. Dusko Tadic, ICTY, Appeals Chamber, Case No. IT-94-1-AR72, Decision of 2 Oct. 1995, p. 35, at. p. 43), for a considerable period it was not entirely clear whether the SFRY was or was not dissolved as a result of the events in 1990-1992. The Security Council was of the opinion that it was (see UN Doc. S/Res/777, 19 Sept. 1992: "[c]onsidering that the state formerly known as the Socialist federal Republic of Yugoslavia has ceased to exist"). This was also the opinion of the Arbitration Commission of the International Conference on Yugoslavia (see Opinion 8, 4 July 1992, ILM, Vol. 31, 1992, pp. 1521-1523). Confusion was created by General Assembly Resolution 47/1 which (a) did not take over the quoted passage of the Security Council resolution, and (b) stated that the FRY should apply for membership as well as that (c) the FRY was not entitled to participate in the work of the General Assembly.


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continuation of personality is presumed on the basis of the underlying assumption of the lack of finality of the existing situation. An example of a situation which features aspects of anarchy rather than civil war is the case of Albania after the outbreak of chaos in 1997. The general breakdown of institutions, law and order in Albania in March 1997 and the resulting period of widespread anarchy was caused by popular anger as a result of the collapse of dubious investment funds (also known as pyramid schemes) and due to the complete loss of faith in President's Berisha's government. This development was in turn influenced substantially by the authoritarian rule of the Democratic Party and President Berisha, the undermining of democracy by the Democratic Party and the President, as well as the thoroughly corrupt administration and mismanagement.74 For the majority of the population, final responsibility lay with the government, which in turn was unable to pay compensation for losses incurred. As a result, demonstrations in protest broke out in all the major cities. The police, overwhelmed, were obliged to withdraw, in some cases leaving their equipment in the hands of the demonstrators. Economic discontent turned into political demonstrations. More and more 'national salvation' committees sprang up, demanding the President's resignation. Army and police arms depots were ransacked, and the subsequent events resulted in the complete implosion of State structures.75 The government was not capable of maintaining law and order in Tirana, let alone in the other parts of the country. As a result of the establishment of the Multinational Protection Force in March 1997, the situation in Tirana and in the main Adriatic ports improved slightly.76 Despite this, the Albanian government did not control the major part of the country. This is also true as regards the situation after the deployment of an observer mission by the WEU in May 199777 and with respect to the whole of 1998. The The resolution thus seemed to state that the FRY both was and was not a member of the UN. See UN Doc. A/Res/47/1, 22 Sept. 1992. See also UN Doc. A/47/485, 29 Sept. 1992. The matter was solved by the application for membership of the FRY (UN Doc. A/55/528-S/2000/1043, 27 Oct. 2000) which necessarily implied FRY's revocation of the claim to continuity of legal personality and acceptance of the dissolution of the SFRY. 74. The Norwegian Helsinki Committee, Albania Report: Albania's Second Transition, A Human Rights Perspective on Recent Developments in Albania, Report No. 1, 1998; WEU Doc. 1650, Public Perception of WEU's Contribution to Stabilising Democracy in Albania - Reply to the Annual Report of the Council, Report Submitted on Behalf of the Committee for Parliamentary and Public Relations by Mrs. Pulgar, Rapporteur, 19 May 1999. 75.

Id.

76. The operation was also known as 'Operation Alba', carried out under Italian command and authorized by the Security Council in Resolution 1101 for a three month period. See UN Doc. S/Res/1101, 28 March 1997. The operation's primary goal was to allow humanitarian aid to reach the country. 77. The WEU Multinational Advisory Police Element which was established by the Council of the WEU on 2 May 1997.

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internal situation improved somewhat in comparison to the previous two years after the stationing in Albania and subsequent country-wide presence of a substantial amount of NATO troops within the framework of the NATO operation against the FRY in March 1999. However, notwithstanding the NATO presence, the country was still characterized by a general state of lawlessness and the fact that the government did not control major parts of the country, especially the northern part. The overall security situation did not improve significantly until the run-up to the June 2001 general election, when the political climate cooled off.78 It is important to note that at no point during the period of widespread anarchy and completely ineffective government has Albania's statehood been the subject of discussion. For instance, Security Council Resolution 1101 of 28 March 1997 affirmed "the sovereignty, independence and territorial integrity of the Republic of Albania",79 while it is clear that at the date of the adoption of the resolution and for a considerable period thereafter, an Albanian government existed in name only. The case of Somalia since 1991 is an example of civil war which is characterized not only by a division of authority over several groups within the country but also, and in particular, by the absence of government. In the power vacuum after the fall of President Siad Barre's regime in 1991, civil war broke out between factions and clans who either supported Interim President Ali Mahdi Mohamed or General Mohamed Farah Aidid. This resulted in the disappearance of a structure of government, disintegration of society and widespread death and destruction. As a result, Somalia is referred to as the principal example of a 'failed' or 'collapsed' State.80 However, despite this characterization the international legal personality of Somalia as a State has not been questioned.81 78. Human Rights Watch, World Report 2002, Albania, http://hrw.org/wr2k2/europel.html. 79. UN Doc. S/Res/1101, 28 March 1997, Preamble. See also UN Doc. S/Res/1114, 19 June 1997, Preamble. 80. As to the concepts of 'failed State' and 'collapsed State' see, e.g., R.H. Jackson, QlJASl-STATES:

SOVEREIGNTY, INTERNATIONAL RELATIONS, AND THE THIRD WORLD, 1990; I. Zartman (Ed.), COLLAPSED STATES: THE DISINTEGRATION AND RESTORATION OF LEGTIMATE AUTHORITY, 1995; G. Gros, Towards a Taxonomy of Failed States in the New World Order: Decaying Somalia, Liberia, Rwanda and Haiti, Third World Quarterly, Vol. 17, 1996, p. 455; D. Thürer, M. Herdegen & G. Hohloch, DER WEGFALLEFFECTIVER STAATSGEWALT: 'THE FAILED STATE', 1995; N. Wallace-Bruce, Of Collapsed, Dysfunctional and Disoriented States: Challenges to International Law, NILR, Vol. 47, 2000, p. 53. 81. While reference is made by the Security Council and the Secretary-General of the UN to the absence of an "effective functioning Government in the country" (UN Doc. S/25354, 3 March 1993), "the general absence of the rule of law in Somalia" (UN Doc. S/Res/814, 26 March 1993), "the absence of law enforcement and judicial authorities and institutions in the country as a whole" (UN Doc. S/Res/865, 22 Sept.1993), "the exceptional circumstances, including in particular absence of a government in Somalia" (S/Res/897, 4 Feb. 1994). In the last mentioned


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The case of Albania shows that even in a case of a temporary but completely ineffective government, as is the case with anarchy, the presumption is against extinction and in favour of continuity of statehood. As stated, this presumption is based on the assumption of a lack of finality of the situation.83 The Somali situation, however, seems to suggest that in the case of an established State the presumption is in favour of the continuity of statehood not only when there is a prolonged period of ineffective government but even if there is a prolonged period of absence of government. Indeed, in numerous resolutions the Security Council has stressed the importance of "the rehabilitation of Somalia's governing structures and the restoration of the rule of law throughout the country", which seems to reflect the Council's opinion that governing structures in Somalia can be re-established. On the other hand, it is doubtful that the considerably long period of absence of a central government in Somalia should be considered as a precedent for future situations. The patience of the international community in this particular case is best explained in terms of a refusal to jeopardize legal relations with an entity where there is clearly no successor State and where there is still a chance, however small, that the state

resolution the Security Council nevertheless states in unequivocal terms that it bears in mind "respect for the sovereignty and territorial integrity of Somalia [...]". See also UN Doc. S/Res/923, 31 May 1994; UN Doc. S/Res/954, 4 Nov.1994; UN Doc. S/PRST/1997/57, 23 Dec. 1997; UN Doc. S/PRST/1999/16, 27 May 1999; UN Doc. S/PRST/1999/31, 12 Nov. 1999; UN Doc. S/PRST/2000/22, 29 June 2000; UN Doc. S/PRST/2001/1, 11 Jan. 2001 (which states moreover that: "[t]he Security Council insists that all States should refrain from any military intervention in the internal situation in Somalia [...]"); UN Doc. S/PRST/ 2001/30, 31 Oct. 2001. And see Resolution No. 12/26-P on the situation in Somalia, adopted during the Twenty-Sixth Session of the Islamic Conference of Foreign Ministers, 28 June-1 July 1999. This resolution emphasizes the necessity of all Somali factions' "effective participation in the national reconciliation conference [...] so as to achieve peace and preserve the unity, territorial integrity and independence of Somalia" (emphasis added). Also the Final Communique of the same Twenty-Sixth Session states that "[t]he Conference reaffirmed its commitment to contribute effectively to the restoration of stability in Somalia and its full commitment to the respect of that country's sovereignty and territorial integrity". The different Somali leaders were and are of the opinion that Somalia's statehood remained intact as well. See Press statement on Somalia, UN Doc. S/1997/135,17 Feb. 1997, Ann. I. See also Somali Diplomat Case, Superior Administrative Court of North Rhine-Westfalia, Federal Republic of Germany, 11 Feb. 1992, ICR, Vol. 94, p. 596, at p. 606; Republic of Somalia v. Westhouse Drake and Carry (Suisse) SA and Others, England, High Court, Queen's Bench Division, 13 March 1992, ICR, Vol. 94, p. 608, at p. 621. These decisions, resolutions and statements clearly indicate that Somalia's statehood was always considered juridically intact, despite the fact that the exercise of the rights attached to statehood were suspended as a result of the absence of a government. 82. Crawford, CREATION OF STATES, p. 417: "generally, the presumption - in practice a strong one - is in favour of the continuance, and against extinction, of an established State. Extinction is thus, within broad limits, not affected by more or less prolonged anarchy within a State". 83. See also id., at pp. 417-418: "effective [...] disappearance of separate State organs [...] over a considerable period of time will result in the extinction of the State so long at least as no substantial international illegality is involved". 84. See, e.g., UN Doc. S/PRST/2001/1, 11 Jan. 2001.

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structure will be reconstructed.85 In sum, despite its fundamental position for the (continued) existence of a State, international law contains important exceptions to the requirement of effective government. These exceptions reflect the principle that international law is in favour of the continuity of a State's international personality in the absence of clear evidence to the contrary. Thus, even in cases involving a period of absence of government, the continuity of statehood is presumed. While this position bears a distinctly provisional character it is, according to the current state of international law, unclear as to how long such a period may take. Several conclusions may be drawn from the preceding discussions. Firstly, in order to qualify as a State, international law requires the existence of a government or a system of government. Secondly, this government should exercise exclusive territorial jurisdiction. Thirdly, where there is a lack of effective government this will form a bar to the acquisition of statehood with the exception of situations in which an exclusive right to govern the territory exists, such as in the case of the Congo in 1960. In such a situation - and provided that the other criteria for statehood are satisfied - the entity must be regarded as a State under international law. However, because a factual element - the actual exercise of authority - is still lacking, the State exists in a juridical but not yet in an empirical sense.86 It will be seen later in this study that this distinction has important consequences for questions of statehood in the colonial context (for instance in the cases of Algeria and Guinea Bissau) and in the post-colonial era (such as the cases of Croatia and the former Soviet Republic of Georgia).87 Here it is important to note that there is a certain resemblance between the situation of a lack of effective government in the context of the formation of States and the same situation in the case of an established State. The legal position of the latter is stronger, however. For, where the existence of a government is a conditio sine qua non for the creation of a State, a presumption in favour of the continuity of the statehood of an established State does exist even in cases of (prolonged) absence of (a central) government. A fourth conclusion that can be drawn is that the position of Finland in 1917-1918 seems to suggest that in the absence of an exclusive right or title to exercise territorial jurisdiction the criterion of 'government' must be 85. See also Fastenrath, supra note 70, at p. 466 ("[o]nly when all hope of ever re-establishing a central government is lost, does a State break-up into several parts ruled by regional authorities"); M.C.R. Craven, The European Community Arbitration Commission on Yugoslavia, BYIL, 1996, p. 333, at p. 376; P.H. Kooijmans, INTERNATIONAAL PUBLIEKRECHT IN VOGELVLUCHT, 2000, p. 21. 86. For this distinction see also Jackson, supra note 80, at pp. 21, 32-48, 51-53. The distinction is discussed in more detail in Chapters 4 and 8, infra. 87. See Chapter 4, Section 2.3., and Chapter 8, Section 2.2., infra.


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interpreted strictly, in the sense of 'actual exercise of authority', that is, effective government. Finally, the persistent lack or absence of effective government will eventually lead to the extinction of the State as an international person. The requirement that the government of an entity claiming statehood must actually govern the relevant territory and the requirement that, alternatively, an exclusive right or title to govern the territory concerned must exist, are directly related to the idea that a State must be independent. The requirement of independence is in fact implicit in the fourth criterion for statehood which is mentioned in the Montevideo Convention, namely "the capacity to enter into relations with other States". This criterion will now be examined. § 3.4.

The capacity to enter into relations with other States

It does not seem to be correct to state that a territorial and political entity must have relations with existing States in order to qualify as a State, because the existence or lack of such relations is largely dependent on the will of the existing States to enter into relations with the entity in question. 89 The emphasis must, therefore, be put on the term 'capacity'. This, it seems, is also the view of the American Law Institute: [a]n entity is not a state unless it has competence, within its own constitutional system, to conduct international relations with other states, as well as the political, technical, and financial capabilities to do so. 88. But see Chapter 8, Section 2.3, infra. 89. Kooijmans, supra note 85, at p. 21; Broms, supra note 37, at p. 45. See also S v. Banda, South African Law Reports, 4,1989, p. 519, at p. 543. But see, e.g., H. Bull, THE ANARCHICAL SOCIETY, 1977, pp. 8-9; Calgar and others v Billingham (Inspector of Taxes), 1996, para. 182, cited in: C. Warbrick, Unrecognized States and Liability for Income Tax, ICLQ, Vol. 45, 1996, p. 945, at p. 958, in which the English Special Commissioners for Inland Revenue held that the nonrecognition of the Turkish Republic of Northern Cyprus resulted in the absence of functional independence "as it cannot enter into relations with other states. It does not, therefore, satisfy the fourth requirement of statehood". It is difficult to follow this reasoning. If the existence of (diplomatic) relations with other States is mandatory for the existence of statehood, this would necessarily imply that without such relations the entity is not a State. This in turn would mean that under such circumstances the recognition of that entity (for the purpose of establishing relations) would be premature and without object. It is clear that such reasoning (which is in its foundations nothing more than a plea in favour of the constitutive theory on recognition) leads to a vicious circle because it confuses a condition for statehood with a (most likely) consequence of statehood. It must, therefore, be rejected. 90. Restatement (Third), supra note 38, at para. 201, cmt. (e). International law does not, however, require that the maintenance of all contacts with third States (and international organizations) is carried out by a State's own organs or representatives. Some States do not have the resources to meet such a requirement and therefore delegate some powers in the field of representation to an agent State. An example of such a relationship is formed by Switzerland's role with respect to representation of Liechtenstein at the international level. Such a delegation of powers does not derogate from statehood if the delegating State retains the power to instruct the agent State, to veto decisions of the agent State which might legally bind the delegating State, and to

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Thus, an organizational machinery which is capable and authorized to legally bind, and both politically and legally represent the State in its relations with other subjects of international law must exist. The capacity to enter into foreign relations is, however, not limited to States. Both international organizations and constituent parts of States (like federal components) (may) have the capacity or competence to enter into such relations. The term 'capacity' as it is used here refers to a consequence of the international personality of a State (or another entity) rather than to a constitutive requirement for its existence. In this respect it is important however, that the territorial and political entity must be able, at least potentially, to "create such legal relations with other units as it sees fit".92 The essence of such a capacity is independence. § 3.5.

Independence

When it is stated that the Peace of Westphalia marked the beginning of the era of the system of sovereign States, the term 'sovereignty' is used to refer to the freeing of the State from the notions of imperial and papal supremacy. The State is thus regarded as the highest authority on earth and therefore cannot derive its totality of competences from any other earthly authority. Sovereignty thus used reflects the generally accepted opinion that a State which, by its own will, actually and lawfully comes under the control of another State so as to no longer constitute a separate territorial and political entity (a separate legal order) but an extension of the authority of that other State, ceases to be a State under international law. A comparable reasoning applies to the creation of States. It is inherent in the requirement of the capacity to enter into relations with other States, that this must be done by an entity in its own right. Therefore, to become a State, a territorial and political entity must be 'independent'. In the Austro-German Customs Union case Judge Anzilotti observed [i]ndependence [...] is really no more than the normal condition of States according to international law; it may also be described as sovereignty (suprema potestas), or external sovereignty, by which is meant that the State has over it no other authority than that of international law. [...] The idea of dependence [...] unilaterally terminate the agency agreement. Put differently, the agent State must remain an agent, and the delegating State must remain responsible for the conduct of its foreign affairs by the agent-State on its behalf. One should thus not confuse international responsibility with international representation. See also Section 3.5. , infra. And see Crawford, CREATION OF STATES, pp. 186-208; Brownlie, PRINCIPLES, pp. 457-460. 91. See also, e.g., Crawford, CREATION OF STATES, p. 47; Grant, supra note 1, at p. 435.

92. Shaw, INTERNATIONAL LAW, p. 142.


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implies a relation between a superior State [...] and an inferior or subject State [...]; the relation between the State which can legally impose its will and the State which is legally compelled to submit to that will [...]. It follows that the legal conception of independence has nothing to do with a State's subordination to international law or with the numerous and constantly increasing states of de facto dependence which characterise the relation of one country to other countries. It also follows that the restrictions upon a State's liberty, whether arising out of ordinary international law or contractual engagements, do not as such in the least affect its independence. As long as these restrictions do not place the State under the legal authority of another State, the former remains an independent State however extensive and burdensome those obligations may be.9393

Thus, independence as described by Anzilotti does not mean that to be a State there should be no outside interference whatsoever. This fact is confirmed by state practice. The modern international society is characterized by States having become more and more interdependent with respect to different fields of decision-making. As a consequence, the decision of one State may, directly or indirectly, affect the decision-making of another State. A requirement which would hold that there shall not exist any outside interference would therefore be impossible to satisfy. Moreover, the requirement of independence does not mean that one State may not exert political pressure on another which may cause the latter to adopt or reject a particular course of action. If that would be the meaning of independence, very few States would exist today. The criterion of independence requires that a separate territorial and political entity possesses the legal capacity to act as it wishes, within the limits given by international law. It points to the absence of direct or indirect subordination of that legal capacity to the will of a third State or a group of States. It will be noted that independence used as a criterion for statehood thus differs from the notion of independence as often used to describe a 'right' of States after their establishment, a right which may eventually be defended even by using armed force. 'Independence' used thus, is nothing more than a synonym for sovereignty.96 Two aspects of the criterion of independence should be distinguished: formal independence and actual independence. 93. Judge Anzilotti, Separate Opinion, Customs Regime Between Germany and Austria (Protocol of March 19th, 1931), Advisory Opinion, PCIJ, Ser. A/B, No. 41, p. 45, at 57-58.

94. Shaw, INTERNATIONAL LAW, p. 142. 95. See also Kooijmans, supra note 85, at p. 21. 96. Denoting the totality of rights and obligations attributed by international law to the State, as well as the State's quality of suprema potestas. See p. 26, supra. 97. Lauterpacht, RECOGNITION, pp. 26-28; Marek, IDENTITY, pp. 162-189; Crawford, CREATION

OF STATES, pp. 52-71.

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§ 3.5.1.

Formal independence

Formal independence exists where the powers of government (both in internal and external affairs) are vested exclusively in one or more separate authorities of the purported State either as a result of its national law (such as a constitution or a proclamation of independence), or as a result of a grant of sovereignty by a former sovereign.98 It is clear that if an entity, although independent in fact, does not consider itself to constitute a State, there can be no statehood. A proclamation of independence is therefore a necessary requirement for statehood. An example of a de facto but not formally independent entity is Taiwan (Formosa). Formal independence continues to exist if a State enters into an international agreement by which it "undertakes to perform or refrain from performing a particular act". The same is true for the exercise of governmental competence on the basis of agency.102 But the existence of discretionary authority to determine and effect intervention in the internal affairs of the putative State may be regarded as a situation that derogates from formal independence.103 In this situation, the exclusiveness of the powers of government becomes seriously questionable. An example of such a situation is formed by the Principality of Monaco. On the basis of the treaty of 17 July 1918 between Monaco and France,104 France possesses the discretionary power to intervene with military means in

98. To the same effect, see Crawford, id., at p. 52. 99. See also Restatement (Third), supra note 38, at para. 201, cmt. (f). 100. Taiwan has not proclaimed independence. The government has stated, however, that it wishes recognition of Taiwan's de facto independence. See, e.g., President of Taiwan Seeks Separate Identity, NYT, 2 Sept. 1998; Taiwan Leader Denies Policy Change, AP, 14 July 1999; Taiwan Plans Statehood Explanation, AP, 21 July 1999; President Taiwan Wil Erkenning Maar Geen Onafhankelijkheid, De Volkskrant, 21 July 1999. See, generally, J. Shen, Sovereignty, Statehood, SelfDetermination, and the Issue of Taiwan, Am. U. Int'l L. Rev., Vol. 15, 2000, p. 1101; L. Chen, Taiwan's Current International Legal Status, New Engl. L. Rev., Vol. 32, 1997-1998, p. 675; J.F. Copper, TAIWAN: NATION-STATE OR PROVINCE?, 1996. Some States, such as FYROM, Papua New Guinea and Costa Rica, have accorded diplomatic recognition to Taiwan in exchange for loans or other financial agreements. Some other States still recognize the government of Taiwan as the only legitimate government of China. In these cases, recognition is heavily subsidized as well. See R.E. Newnham, Embassies for Sale: the Purchase of Diplomatic Recognition by West Germany, Taiwan and South Korea, International Politics, Vol. 37, 2000, p. 259; Peking Boos op Macedonië Wegens Erkennen Taiwan, De Volkskrant, 29 Jan. 1999. 101. S.S. Wimbledon case (France, Italy, Japan and United Kingdom v. Germany), Judgment, PCIJ Rep. 1923, Ser. A, No. 1, p. 5, at p. 25. 102. See Crawford, CREATION OF STATES, p. 54. See also, generally, id., at pp. 53-55 for an enumeration of suggested other situations which do not derogate from formal independence. 103. Id., at p. 56. 104. 1918TreatybetweenMonaco and France, reprinted in: J.P.Gallois,LERÉGIME INTERNATIONAL DE LA PRINCIPAUTÉ DE MONACO, 1964, pp. 224-225.


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Monaco for upholding the security of the two countries. Additionally, the same treaty stipulates, in Article 1, that Monaco is obliged to "exercise its rights of sovereignty entirely in accord with the political, military, naval, and economic interests of France". Succession to the throne of the principality must be in accordance with the French government and, when a future heir is absent, "the territory of Monaco shall form, under the protectorate of France, an autonomous State called the State of Monaco".105 The Minister of State and the Government Counsellor for the Interior have to be of French nationality and have to be chosen by the Prince of Monaco from several candidates proposed by the French government.106 Consequently, in the absence of formal independence Monaco does not qualify as a State under general international law, that is as a State with full international personality. 107 Formal independence alone is not, however, sufficient for the fulfilment of the criterion of independence. Formal independence may be a façade for what is in fact a dependent entity. Therefore the putative State must also satisfy the requirement of actual independence for "if independence is a condition for statehood, it must be genuine and not a mere fiction".108

105. Id., Art. 3. 106. See Franco-Monegasque Treaty of 28 July 1930, Art. 5 and exchange of letters of 7 May 1973, Journal Officiel de la République Française, 28 Feb. 1974, p. 2320, cited in: J. Duursma, SELFDETERMINATION, STATEHOOD AND INTERNATIONAL RELATIONS OF MICRO STATES, 1994, p. 281, n. 36. 107. See also Crawford, CREATION OF STATES, pp. 193-194. It is, however, regarded as a 'State' for certain purposes: Monaco is a member of the UN and a party to different treaties. But see Duursma, supra note 106, at pp. 277-342, who is of the opinion that Monaco should be qualified as a State under general international law, because France has no discretionary right to intervene in Monaco's internal and external relations as a result of a right to self-determination of the Monegasque people. In addition, Duursma maintains that Art. 3(2) of the 1918 Treaty (which addresses the consequences of default of succession) is void, because it violates the jus cogens norm of self-determination of the Monegasque people (at p. 339). It is difficult to accept this view. It seems more accurate to state that the 1918 Treaty reflects the will of the Monegasque people rather than constituting a violation of it. Since 1918, no initiative has been taken to amend the crucial provisions which derogate from Monaco's formal independence. Although it is true that the right of self-determination is an inalienable right, there is nothing legally wrong with the codification of an expression of external self-determination as long as the expression and codification of that expression in a binding instrument has not been procured by coercion in violation of international law (volenti non fit injuria). Consequently, an explicit approval by the Monegasque people of French action is unnecessary from a legal point of view as long as the action is within the limits as layed down in the 1918 Treaty. Therefore, the provisions in the 1918 Treaty and any French action in accordance with both these provisions as well as the spirit and purposes of the Treaty are not in violation of international law. For the discussion of the right of (internal and external) self-determination, see Chapter 6, infra. 108. Marek, IDENTITY, p. 169.

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§ 3.5.2.

Actual independence

Actual independence109 means that the decisions and actions of the putative State must be its own, that is to say, it must be the putative State as such, and not a third State, which can be held responsible under international law for the actions of the putative State. When decisions by a third State bind the putative State, this is in principle only in conformity with actual independence if the third State acts formally on behalf of the putative State, while the latter retains control of the decision-making process.110 Entities which are created in territory under belligerent occupation are presumed not to meet the actual independence test and thus do not to constitute States under international law.111 This is a logical consequence of international law being in favour of the continued and separate existence of the international personality of an occupied State.112 An example of such a situation is formed by the Japanese invasion of the Chinese province of Manchuria in 1931 and the subsequent establishment of the purported State of Manchukuo, which is discussed in more detail in Chapter 4.113 What is important here, is that one of the first steps which were taken by the Council of the League of Nations in reaction to the creation of Manchukuo was the establishment of a fact-finding body, generally known as the Lytton Commission, which was to investigate the Chino-Japanese relationship. The facts described in the 1932 Report of the Commission make it clear that Manchukuo was not actually independent, because its creation, continued existence and internal and foreign policy were in fact determined by Japan.114 Based on the Commission's Report, the League of Nations Assembly stated that "the sovereignty over Manchuria belongs to China".115 109. Actual independence has also been referred to as 'functional independence', in the sense that the State must be independent in the actual exercise of the functions of a State. But note that the term 'functional independence' was understood quite differently in Calgar and others v. Billingham (Inspector of Taxes), supra note 89. In that case, the lack of functional independence of the Turkish Republic of Northern Cyprus was equated with the lack of the possibility to enter into international relations. However, the lack of functional independence was, according to the Special Commissioners, not a result of a subject position of the 'Republic' in relation to Turkey, but rather the result of non-recognition of the claim to statehood by the international community. 110. See note 90, supra. See also the ILC Draft Articles on Responsibility of States for International Wrongful Acts, adopted by the Drafting Committee on second reading, UN Doc. A/CN.4/L.602/Rev.l, 26 July 2001, Art. 17. 111. Marek, IDENTITY, p. 113; Crawford, CREATION OF STATES, p. 60. 112. See p. 67 ff., supra; Marek, IDENTITY, p. 170. 113. See pp.116-120, infra. 114. Report of the Commission of Enquiry, League of Nations Publications, Vol. 7, 1932, No. 12. See also Lauterpacht, RECOGNITION, pp. 46-47. 115. Resolution of 24 Feb. 1932, League of Nations Spec. Supp., No. 112, p. 75.


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Several resolutions of both the Council and the Assembly of the League with respect to this matter, however, indicate that the principal consideration with respect to the rejection of the statehood of Manchukuo by the international community was grounded in its illegal creation rather than the manifest lack of actual independence."116 Another and more recent example of an entity lacking actual independence is the Republic of Serbian Krajina which was established on Croatian territory in 1991. Although this case will be discussed in more detail later in this study as well,117 a few remarks should be made here. In the course of June 1991, the Yugoslav National Army (JNA) intervened in the Republic of Croatia as a result of hostilities between Croatian police forces and Serbian militants which erupted after the Croatian proclamation of independence on 25 June 1991.118 Although it was maintained that the JNA had a neutral role and that the object of the military intervention was to separate the warring parties, the federal army in fact prevented the re-establishment of Croatian authority over certain Croatian territories where Serbs formed the majority or a substantial minority. As a result, these territories, which were proclaimed to constitute the Republic of Serbian Krajina on 19 December 1991, were effectively occupied and detached, first, from Croatia as a federal part of the SFRY, and after 8 October 1991 (the date that marked the lapse of a moratorium period with respect to Croatia's proclamation of independence of June 1991), from Croatia as a State under international law. In December 1991, in order to prevent further escalation of the conflict in Croatia, the international community proposed the establishment of 'United Nations Protected Areas' (UNPAs), which were areas which effectively corresponded to the Serbian controlled territories which made up the Republic of Serbian Krajina. 120 In these areas, United Nations peacekeeping troops and police monitors would be deployed. This plan for dealing with the conflict in Croatia is also known as the 'Vance-(peace) plan'. 121 The UNPAs would have to be demilitarized and the role of United Nations troops would be "to ensure 116. See also Dugard, RECOGNITION, pp. 32-33. But see Lauterpacht, RECOGNITION, p. 420; Crawford, CREATION OF STATES, p. 107. For a further examination of this point, see Chapter 4, Section 5.1., infra. 117. See Chapter 7, Section 5.3., infra. 118. For a discussion of the Croatian case, see Chapter 7, Section 3.3.2., infra. 119. The Proclamation states, inter alia, that "[t]he Republic of Serbian Krayina is a sovereign State exercising full political and administrative authority on the whole of its territory". Proclamation of the Republic of Serbian Krayina and the Basic Principle of the Constitution of the Republic of Serbian Krayina, on file with author. 120. UN Doc. S/23280, Ann. III, 11 Dec. 1991, para. 9. Three UNPA's were created: Eastern Slavonia, Western Slavonia and Krajina. 121. The plan was named after the UN Secretary-General's personal representative Cyrus Vance.

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that the areas remained demilitarized and that all persons residing in them were protected from fear of armed attack".122 It was emphasized that the establishment of the UNPAs as well as the United Nations operation "would be of an interim nature to create conditions of peace and security required for the negotiation of an overall settlement of the Yugoslav crisis".123 The plan was accepted by Croatia and Serbia, but met with firm resistance from the Croatian Serbs, because the plan spoke of the UNP As as "areas in Croatia [...] in which Serbs constitute the majority or a substantial minority of the population and where inter-communal tensions have led to armed conflict in the recent past",124 and thus rejected the existence of the Republic of Serbian Krajina as a State under international law.125 However, since President Milosevic of Serbia had already accepted the Peace Plan, the resistance of the Serbian minority was not tolerated by the Belgrade authorities. The eventual acceptance of the plan by the Serbian minority was therefore brought about by the exertion of substantial political pressure by both the Yugoslav federal authorities and the authorities of the Republic of Serbia. ' Despite this development the Serbian minority maintained its claim to statehood. The eventual acceptance of the Peace Plan by the Serb minority as a result of outside political pressure in and of itself gives rise to serious doubts regarding the actual independence of the Republic of Serbian Krajina. In addition, because Croatia became a State on 8 October 1991 a'nd because the JNA left the country only after the proclamation of independence of the Republic of Serbian Krajina, the latter was thus established during foreign occupation of one third of Croatian territory. As was stated above, there is a strong presumption against the actual independence of territorial entities created under such circumstances. Although, as will be discussed later,128 it was probably not the principal reason for the international community's denial of the validity of the claim to statehood by the Republic of Serbian Krajina, according to the law of statehood the latter's lack of actual independence did form a bar to the acquisition of statehood. Another situation that derogates from actual independence is that of "foreign control overbearing the decision-making of the entity concerned on 122. 123. 124. 125. 126.

UN Doc. S/23280, Ann. III, supra note 120, para. 7. Id., para. 1. Id., para. 8 (emphasis added). See Renegade Serbs Resist UN Troops, The Times, 27 Jan. 1992. See, e.g., Belgrad ûbt Druck auf Serben in der Krajina aus. Serbischen Politiker: Niemand darfdie A n k t n f t der Blauhelme in Kroatien verhindern, Die Welt, 24 Jan. 1992. 127. Only after the establishment of the United Nations Protection Force (UNPROFOR) in the course of February 1992 did the JNA begin the withdrawal of its forces from Croatian territory. 128. See Chapter 7, Section 5.3., infra.


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a wide range of matters of high policy and doing so systematically and on a permanent basis".129 This is without doubt true for so-called 'puppet States'. A puppet State has been described as "an entity which, while preserving all the external paraphernalia of independence, is in fact utterly lacking such independence, [...] and is in reality [...] a mere organ of the State which has set it up, whose [...] satellite it is",130 and therefore does not constitute a State at all. In most cases, puppet States are created by the occupant during occupation of a State, for the purpose of circumventing the former's international responsibility regarding the violation of the rights of the occupied State. In many cases the puppet character of the entity will be obvious, but in specific cases the concrete ties between the puppet and its master are difficult to establish, because of the latter's interest in the absence of official directions and instructions. This, for example, was the case with Manchukuo which entity was without a doubt a puppet State, in view of the fact that the striving for independence did not occur until Japanese occupation and because of the fact that Japanese officials were attached to all important departments of the entity, holding the most important posts. 131 Furthermore, in this context mention must also be made of the 'Independent State of Croatia', a fake State that was set up in 1941 by German and Italian occupation forces on Yugoslav soil and that was almost entirely controlled by Germany and Italy.132 In addition, another and more recent example is formed by the Serb Republic of Bosnia-Herzegovina, also called the 'Republika Srpsfa'. The Serb Republic was proclaimed on 7 April 1992 under the leadership of Radovan Karadzic. The republic's territory was cobbled together from an alliance of Serb enclaves that had rebelled against BosniaHerzegovina's secession from the SFRY. There seems to be little doubt about the republic's puppet character. As was observed by the Appeals Chamber of the ICTY in its judgment in The Prosecutor v. Dusko Tadic the control of the FRY authorities over [the Bosnian Serb armed forces] required by international law for considering the armed conflict to be international was overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations. [...] It now falls to the Appeals Chamber to establish whether, in the circumstances of the case, the Yugoslav Army [VJ] exercised in 1992 the requisite measure of control over the Bosnian Serb Army. The answer must be in the affirmative. [...] The creation of the [Army of the Serb Republic of Bosnia129. Brownlie, PRINCIPLES, p. 72 (emphasis in original).

130. Marek, IDENTITY, p. 170. 131. Report of the Commission of Enquiry, supra note 114, at p. 97. 132. See Socony Vacuum Oil Co. Claim, United States International Claims Commission, ICR, Vol. 21, 1954, p. 55 ff., cited in: Crawford, CREATION OF STATES, pp. 63-64.

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Chapter 3 Herzegovina (VRS)] by the FRY/VJ, therefore, did not indicate an intention by Belgrade to relinquish the control held by the FRY/VJ over the Bosnian Serb army. To the contrary, in fact, the establishment of the VRS was undertaken to continue the pursuit of the FRY's own political and military objectives, and the evidence demonstrates that these objectives were implemented by military and political operations that were controlled by Belgrade and the JNA/VJ [...]. While the evidence may not have disclosed the exact details of how the VRS related to the main command in Belgrade, it is nevertheless important to bear in mind that a clear intention existed to mask the commanding role of the FRY [...]. In actual fact, at least between 1992 and 1995, overall political and military authority over the Republika Srpska was held by the FRY [...]. Indeed, the fact that it was the FRY that had the final say regarding the undertaking of international commitments by the Republika Srpska, and in addition pledged, at the end of the conflict, to ensure respect for those international commitments by the Republika Srpska, confirms that (i) during the armed conflict the FRY exercised control over that entity, and (ii) such control persisted until the end of the conflict.133

In sum, to qualify as a State a territorial and political entity must be both formally and actually independent. To be sure, these are not two separate criteria for statehood but two aspects of one single criterion for statehood, namely independence. When an entity is formally independent, but its creation took place in a territory during and/or as a direct result of belligerent occupation, the presumption is against the existence of actual independence. On the other hand, when an entity has been granted full formal independence by a previous sovereign, the presumption is in favour of the actual independence of the entity concerned.134

§ 4.

RECOGNITION AND THE TRADITIONAL CRITERIA FOR STATEHOOD

It is generally agreed by both the supporters of the constitutive and the declaratory theory on recognition, that premature recognition constitutes an illegal act vis-a-vis the parent State.135 When an entity located within the boundaries of an established State claims statehood, but does not satisfy the criteria for statehood, third State recognition of the entity concerned is

133. The Prosecutor v. Dusko Tadic, Case IT-94-1-A, Judgment, 15 July 1999, paras. 145, 147, 154, 160. But see Kadic v. Karadzic, F.3d, Vol. 70, p. 232, cert. denied, USLW, Vol. 64, p. 3832, 18 June 1996, US Court of Appeals, 2nd Circuit, 13 Oct. 1995 (the Republika Srpska meets "the criteria for a state in all aspects of international law"). 134. See p. 66, supra; Crawford, CREATION OF STATES, pp. 65 and 71. However, as Crawford points out: "where there is evidence that real control has not been granted, other States are justified in withholding recognition, and may well be bound to do so". Id., at pp. 65-66. 135. See, e.g., H. Teuscher, DIE VORZEITIGE ANERKENNUNG IM VÖLKERRECHT, 1959. See also Chapter 4, Section 2, infra.


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premature and a violation of the prohibition of non-intervention.136 Therefore, the recognition of States is regulated by at least the same legal rules which regulate the formation of States. 137 Premature recognition must, however, be distinguished from a hurried and early recognition. While premature recognition as described above denotes an illegal act because a necessary element for statehood is lacking, a hurried or early recognition refers to a precipitate act from a political and retrospective point of view. The international community's recognition of Bosnia-Herzegovina in early 1992, has been mentioned as an example of the latter situation.138 Although recognition (or the withholding of such) may be politically influenced and in principle does not produce legal consequences in the sense of 'creating' the international personality of the recognized entity,139 its legal significance should not be underestimated. It is generally agreed that recognition may constitute an important indication for statehood especially when recognition is granted (primarily) on legal grounds, on a wide scale and by States having a different political system or ideological background and where the statehood of the entity before the recognition was equivocal.

§ 5.

RETROACTTVITY OF RECOGNITION OF STATEHOOD

In Chapter 2, it was seen that the adherents of the constitutive theory are of the opinion that because of the decentralized nature of international law and the absence of a centralized organ authorized to decisively and determinatively decide upon the existence or non-existence of a State, existing States have to

136. This is without prejudice to the fact that an act of recognition may violate the right of selfdetermination of a people. For instance, recognition of the unilateral proclamation of independence of Southern Rhodesia which was issued by the white minority regime on 11 November 1965, would have violated the right of self-determination of the black population of Southern Rhodesia. For a discussion of the case of Southern Rhodesia, see Chapter 4, Section 5.2.2.(a), infra. 137. States may, however, agree upon additional conditions for recognition as was done by the member States of the EC through the adoption of the Declaration on the Guidelines on Recognition of New States in Eastern Europe and the Soviet Union on 16 December 1991. See ILM, Vol. 31, 1992, pp. 1485-1487. As the title of the document suggests, the enumerated requirements were intended as conditions for recognition and not as conditions for statehood. See also Chapter 4, Section 10, and Chapter 8, Section 5, infra. 138. VS: Snelle Duitse Erkenning Kroatië Was Ernstige Fout, De Volkskrant, 18 June 1993 (in which United States Secretary of State Warren Christopher is reported as having stated that the hurried recognition of both Croatia and Bosnia-Herzegovina were serious mistakes for which Germany and the rest of the EC bear responsibility, because the war in Bosnia-Herzegovina escalated after recognition was granted). As to the case of Bosnia-Herzegovina, see Chapter 8, Section 2.4., infra. 139. But see p. 38, note 81, supra.

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fulfill that function by granting or withholding recognition.140 It was also seen that to that end, a comparison is made with national law, under which it is maintained that just like a factual situation of forcibly taking property is only theft and as such illegal, when and only from the moment of a determination of such by a competent court following a prescribed procedure, so is the act of recognition by existing States decisive for answering the question of whether a certain entity has fulfilled the criteria for statehood; if recognition is granted, the entity is a State with international personality from the moment of recognition onwards. 141 This argument was rejected precisely because it is not the court which 'creates' the illegality of the act, neither is the act illegal from the moment of the court's pronouncement. The act is illegal because the law so determines and it is illegal from the moment the act was committed. Thus, the determination by the court is declaratory in character and retroactive ab initio. The same applies with respect to the act of recognition by States. It was already pointed out that the declaratory theory best reflects customary international law.142 Consequently, recognition must thus be considered to be a formal acknowledgement of the existence of a State at a moment prior to the date of recognition. Recognition of statehood must therefore necessarily have a retroactive operation. This means that it dates back to the moment of the formation of the State as an international person. In this sense, recognition does not create the State or its international legal personality, but rather reflects a confirmation of the existence of statehood prior to the act of recognition. In must be noted that, technically at least, it is correct that retroactivity of recognition of statehood is superfluous with respect to the existence of the legal status of statehood and the attached rights and obligations.144 But this is only correct insofar as the notion of retroactivity is used to point to the 'validation' of acts and conduct of the recognized State. This is so, because in principle no 'validation' is required for the consequences of the exercise by a State of its rights under international law. However, in a broader sense, that is, pointing to the confirmation of a pre-existing situation, retroactivity of recognition of statehood is not superfluous. For, it is inherent in the declaratory theory and juridically necessary as long as States still base the decision to grant recognition 140. 141. 142. 143.

See Chapter 2, Section 3.1., supra. See Chapter 2, Section 4.1, supra. See Chapter 2, Section 4, supra. See also, e.g., I.A. Shearer, STARKE'S INTERNATIONAL LAW, 1994,pp. 121,137; R.M.M. Wallace,

INTERNATIONAL LAW, 1997, p. 86; Crawford, CREATION OF STATES, p. 388; Verdross, supra note 11, at p. 245; Von Glahn, supra note 43, at 96. But see I. Brownlie, Recognition in Theory and Practice, in: Macdonald and Johnston (Eds.), supra note 39,-p. 627, at p. 637. And see Luther v. Sagor, ICR, Vol. 1, 1921, p. 49; Boguslawski v. Gdynia American Line, King's Bench Division, 1, 1949, p. 157; Oetjen v. Central Leather Company, USLW, 246, 1918, p. 297, at pp. 302-303. 144. Brownlie, PRINCIPLES, p. 93.


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upon factors other than the fulfilment of the criteria for statehood.145 If recognition would not have retroactive effect in the aforementioned broader sense, this would mean that the date of recognition is determinative for the recognized State's (legal) existence with regard to the recognizing State. In effect, this would lead to an adoption of the constitutive theory of recognition, which is, as stated, not supported by existing international law. Retroactivity of recognition is also related to another issue, namely the problem of the recognition by foreign courts of the validity of internal acts of an entity where such recognition depends on the recognition of the entity as a State by the executive branch of government of the State where the Court in question resides. If recognition has been granted, the question arises whether a national law must be held applicable from the moment of the recognition of statehood or from the time the national law was enacted by the State concerned, assuming that the qualifications for statehood were met at that point in time. Most national courts adopt the latter view.146 The retroactive effect of the recognition of a new State in this sense may be tempered, however, "to uphold vested rights established under the ancient legislation"147 or for reasons of legal security, that is, when one has relied in good faith on the laws of the 'old' State. Thus, the fact that the ancient legislation is deemed to take priority over (some of) the laws of the new State with respect to a particular situation, does not in and of itself signify a denial of statehood of the new State at the date of enactment of the laws in question.

§ 6.

THE MOMENT OF THE COMMENCEMENT OF STATEHOOD

The discussion thus far was premised on the assumption that it is possible to determine the moment of the commencement of the State as an international person. As a matter of fact, the question of the critical date of commencement of statehood is inextricably bound up with the question of the objectiveness or juridical character of the traditional criteria for statehood. In this respect, and on the basis of the analysis of the content of the traditional criteria for statehood

145. To the same effect, see Chen, RECOGNITION, p. 177. 146. For a survey of national jurisprudence on the subject see J.G. Sauveplanne, Recognition and Acts of State in the Conflict of Laws, NILR, Vol. 7, 1960, p. 17. See also Institute of International Law, Resolutions Concerning the Recognition of New States and Governments, adopted at Brussels, April, 1936, Art. 7 (concerning the recognition of States) and Art. 16 (concerning the recognition of governments), AJIL, Vol. 30, 1936, Supp., pp. 185-187. And see J.M. Ruda, Recognition of States and Governments, in: Bedjaoui (Ed.), supra note 37, p. 449, at p. 454; OPPENHElM'S lNT'L LAW, p. 161, and the references mentioned there. 147. Sauveplanne, supra note 146, at p. 44.

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in this Chapter, it must be concluded that these criteria are sufficiently precise to be applied in specific cases. In other words, the criteria constitute legal rules (and not merely multi-interpretable guidelines). Hence, theoretically at least, the birth of the State takes place at an "objectively ascertainable time".148 At this point, the distinction between juridical and empirical statehood must be recalled.149 In both situations, the traditional criteria for statehood have been satisfied, but in the former situation the criterion of 'government' has been met as a result of the existence of an exclusive right or title to exercise authority over the relevant territory and its inhabitants. Therefore, the State commences both its juridical or empirical existence when it satisfies the criteria for statehood. Normally the date of the proclamation of independence will constitute the critical date of commencement of statehood; at least it will be the date on which statehood must be presumed in the absence of clear evidence to the contrary. It is not denied that ascertaining whether or not an entity satisfies the criteria for statehood is sometimes a difficult job. It is argued, however, that the traditional criteria for statehood constitute objective and 'workable' criteria. This means that a dispute between, for instance, a parent State and a recognizing State with respect to the question of whether a particular factual situation which has been created as a result of secession constitutes a State, is "in principle suitable for judicial determination by any body in possession of those facts"150 .

§ 7.

CONCLUSIONS

It has been asserted by both constitutivists and declaratists that "the formation of a State is a matter of fact [...] and not of law".151 However, this proposition is misleading and not in accordance with contemporary international law for mainly two reasons. Firstly, as has been seen, the formation of a State is not simply the establishment of some facts the verification of which is outside the realm of international law. Indeed, the creation of a State is the result of the fulfilment of specific legal rules. Whether these criteria are fulfilled or not is regulated by international law and as such "a matter of law". Secondly, and more importantly, the statement suggests that any set of facts which meets the traditional criteria for statehood on the basis of the pre-condition of effective148. 149. 150. 151.

See also Chen, RECOGNITION, p. 41. See p. 72, supra. Chen, RECOGNITION, pp. 41 and 49; Crawford, CREATION OF STATES, p. 389. Oppenheim, supra note 34, at p. 544. See also Chen, RECOGNITION, pp. 38 and 60; Lauterpacht,

RECOGNITION, p. 31.


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ness qualifies as a State under international law. This, it must be noted, has been the generally accepted position under traditional international law and when specific cases were analysed in the preceding paragraphs, the question whether the entity did or did not qualify as a State was in fact answered on the basis of this traditional position. However, if this would be the only correct position, it is difficult, if not impossible, to explain why effective territorial entities such as, for instance, Southern Rhodesia under the Smith government and the South African Homeland State of Transkei were never considered to be States and, consequently, remain(ed) unrecognized. A proclamation of independence is an act that calls for recognition and in the majority of cases recognition is granted on a universal scale. But in some cases it is not. The withholding or refusal to recognize is especially remarkable when the entity in question is effective and therefore the refusal to recognize cannot be said to be based - or to be based primarily - on the non-fulfilment of one or more traditional criteria for statehood. In some situations, the United Nations Security Council even explicitly called upon both member and nonmember States not to recognize an entity after its proclamation of independence and in other situations this was done implicitly through, for instance, a confirmation of the territorial integrity of the parent State. What, then, makes these factual situations so different from other situations that recognition is withheld? In the next Chapter it will be argued that the principal reason for the absence of recognition in these cases is given by the fact that the entities concerned have been created in violation of international law. The question which legal rules, if violated, call for non-recognition will be answered on the basis of the doctrine of the obligation of non-recognition. The refusal to recognize, especially when it is on a wide-scale basis, consistent and for a prolonged period, may give valuable information regarding the international community's point of view with respect to essential elements for statehood.152 This is particularly true when States consider themselves obliged to withhold recognition of an effective territorial entity under certain circumstances. In the next Chapter it will be submitted that such an obligation exists when certain specific norms of international law have been violated in the process of state formation and, furthermore, that a violation of these norms forms a bar to the acquisition of statehood by the entity concerned. It will thus be argued that the norms which must be respected in the process of the

152. See also J.A. Frowein, Recognition, EPIL, Vol. 10, 1987, p. 340, at p. 342.

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formation of the State constitute additional criteria for statehood. Because these criteria result from relatively recent developments in international law they will be referred to as the modern criteria for statehood which, unlike the traditional criteria, are not based on the concept of effectiveness but on legality.

Chapter 4

The Obligation of Non-Recognition and Additional Criteria for Statehood Based on Legality

§ 1.

INTRODUCTION

Now that it has been seen in the preceding Chapter that a de facto situation does not create rights or a legal status under international law by its mere effectiveness, the question needs to be addressed whether States are entitled, under international law, to recognize illegal but effective de facto situations. In addition to the political function of recognition, that is to say, expressing the intention to enter into relations with the recognized State, it is generally accepted that recognition may also have another function: the function or capacity of 'law-making'. This may be the case when a vast majority of States through recognition validates an illegal act or a factual situation resulting from illegal conduct. However, it should be clear that not every act of recognition of an illegal situation necessarily leads to the modification or disappearance of the international legal rule forming the legal ground from which the illegality in a specific case stems. Sometimes an illegal act or a situation resulting from such an act may be recognized for purely political reasons, and not because it is believed that the law should be modified. Apart from such situations, it is difficult to deny that, in principle, recognition of an act involving a violation of a right of the recognizing State, does lead to the latter's waiver of that right vis-a-vis the wrongdoer.1 When either a deviation from an existing rule or an infringement thereof, or the consequences of such are intended to be validated through recognition by the vast majority of States, then, in general, there is a strong presumption in favour of the modification or even the disappearance of the relevant rule. This is certainly the case if such recognition is repeated and if, prior to the acts

1.

H. Lauterpacht, The Principle of Non-Recognition in International Law, in: Q. Wright (Ed.), LEGAL PROBLEMS IN THE FAR EASTERN CONFLICT, 1941,p. 129,at p. 132. See also E. Usuki, The 1930s Jurists' Views on the Doctrine of Non-Recognition: the Lauterpacht Doctrine of 'NonRecognition ', Daito Bunka Univ. Bull., No. 31, 1993, p. 73, at p. 83. But see p. 107, note 73, infra.

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of recognition, said deviations or infringements were considered to be illegal and the consequences resulting from this without legal effect.2 Such recognition takes the form of 'curing' the invalidity of the conduct as well as of the consequences resulting from it. Therefore, it has been described as a quasilegislative act.3 True, such a law-creating or law-adjusting method is not striking in a system where there is no central law-making machinery and where it may sometimes be desirable to adjust the law to specific effective factual situations where a great tension between fact and law exists, and where there is no willingness to bring the facts into line with the existing law.4 For the purpose of this study it is not necessary, however, to address the question whether or not States are allowed to recognize any and all factual situations established as a result of illegal conduct. The question that needs to be addressed is whether or not States are allowed to recognize effective territorial entities claiming statehood and created in violation of one or more fundamental norms of international law.5 The core of the doctrine of the obligation of non-recognition as applied to territorial entities claiming statehood is formed by the question of the admissibility and legality of recognition when recognition is intended to 'validate' or 'cure' an illegal act and/or the consequences of such an act. As will be discussed below, the doctrine of non-recognition is widely supported in literature, confirmed by state practice and upheld in judicial decisions. According to this doctrine, States are under a legal obligation not to recognize

2. 3.

4.

But see Section 9 of this Chapter, infra. Lauterpacht, RECOGNITION, p. 412; Chen, RECOGNITION, p. 413. However, as the Supreme Court of Canada noted: "[t]he principle of effectivity [...] proclaims that an illegal act may eventually acquire legal status if, as a matter of empirical fact, it is recognized on the international plane [...]. It is, however, quite another matter to suggest that a subsequent condonation of an initially illegal act retroactively creates a right to engage in the act in the first place. The broader contention is not supported by the international principle of effectivity and must be rejected". Reference re Secession of Quebec, Supreme Court of Canada, ILM, Vol. 37, 1998, pp. 1342-1377, at p. 1375 (para. 146). See, e.g., R.Y. Jennings, Nullity and Effectiveness in International Law, in: CAMBRIDGE ESSAYS

IN INTERNATIONAL LAW, ESSAYS IN HONOUR OF LORD MCNAIR, 1965, p. 64, at pp. 74-75 ("the

5.

legal result of recognition may be to validate - at least in the municipal law and courts of the recognising state but perhaps also in a wider field - a situation brought about by illegal acts. Recognition is, after all, the principal device of traditional international law for accommodating the law to obstinate facts"). See also OPPENHEIM'S INT'L LAW, pp. 184-185. The question about the existence of a legal obligation of non-recognition of an act or situation established in violation of a fundamental rule of international law is also relevant for territorial acquisitions. This problem is not dealt with in this study. For a discussion of this point, see, e.g., Dugard,RECOGNITION, pp.111-117; OPPENHEIM'S INT'L LAW, pp. 194-198; P.K.Menon, Some Aspects of the Law of Recognition. Part VII: the Doctrine of Non-Recognition, RDISDP, 1991, No. 4, p. 227, at pp. 239-242; I. Brownlie, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES, 1963, Ch. 25.

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effective territorial entities which have come into existence as a result of a violation of one or more specific fundamental rules of international law. In this case "[n]on-recognition is said to 'bar the legality' of the act or situation in question, unless otherwise legalised".6 Thus, although a legal obligation to recognize a claim to statehood does not exist under contemporary international law, this, it is argued, does not mean that recognition is not regulated in international law. In this respect it has been observed that [w]hile the grant of recognition is within the discretion of states, it is not a matter of arbitrary will or political concession, but is given or refused in accordance with legal principle.

In addition, it has been pointed out that there is a clear relationship between non-recognition and the criteria for statehood: [t]o establish what states consider to be the essential criteria for statehood, it is more appropriate to consider under which circumstances they refuse recognition as a state.

Indeed, serious attention is called for when States withhold recognition of situations or acts where one would normally expect their recognition. This is particularly true for those situations where States are of the opinion that they are under an international legal obligation to withhold recognition of an otherwise effective territorial entity claiming statehood. It will be seen later that the grounds for the legal obligation of nonrecognition at the same time constitute legal criteria for a lawful recognition as well as additional criteria for statehood. These additional and 'modern' criteria for statehood are based on legality, not on effectiveness. Because the obligation of non-recognition has sometimes been confused with the prohibition of premature recognition, the latter is addressed in more detail in Section 2. Subsequently, the meaning of the obligation of nonrecognition is examined in Section 3. The origin of the doctrine of the obligation of non-recognition of statehood will be elaborated upon in Section 4, and state practice in the field of non-recognition both during the era of the League of Nations and during the era of the United Nation is analysed in

6. 7.

Chen, RECOGNITION, p. 411 (references omitted). See Chapter 2, Section 5, supra. See also Chapter 8, Section 5, infra.

8.

OPPENHEIM'S INT'L LAW, p. 130.

9.

J.A. Frowein, Recognition, EPIL, Vol. 10, 1987, p. 340, at p. 342. Cf. also Dugard, RECOGNITION, p. 81. 10. This is apart from the fact that the criteria for recognition and the criteria for statehood are not necessarily the same. See pp. 165-167, infra.

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Section 5. Section 6 examines the legal character of the norms which give rise to an obligation of non-recognition. Section 7 discusses the legal basis of the obligation of non-recognition. The question of the existence of modern and additional criteria for statehood will be examined in Section 8. Whether there are any limits to the obligation of non-recognition is analysed in Section 9. Finally, in addition to some conclusions, a number of observations are made in Section 10, which will form the basis for further investigation in the subsequent chapters.

§ 2.

THE PROHIBITION OF PREMATURE RECOGNITION

A possible distinction between the prohibition of premature recognition and the obligation of non-recognition is that the former has always been concerned with the duty not to recognize a territorial entity which does not (yet) meet the traditional criteria for statehood (and for that reason alone is not a State under international law), whereas the obligation of non-recognition is, as will be pointed out in more detail later, concerned with the withholding of recognition from an effective territorial entity brought into being in violation of a fundamental rule of international law. However, this distinction is to a certain extent blurred when modern and additional criteria for statehood based on legality rather than on effectiveness are accepted. In such a case, the recognition of an entity which does not satisfy a modern criterion for statehood and is therefore not a State under international law, would amount to a violation of the prohibition of premature recognition as much as it would to a violation of the obligation of non-recognition. On the other hand, it could be argued that 'premature' entails 'action which is undertaken before the propertime' and, consequently,that premature recognition refers to recognition granted at a time when the recognized situation does not yet satisfy all the conditions which would permit its recognition. This means that recognition of said situation could be permissible at some point in the future. As such, premature recognition would be distinguishable from the obligation of nonrecognition because the latter refers to a duty to withhold recognition now and in the future.11 Another possible distinction between the two principles is that in the case of non-fulfilment of the traditional criteria for statehood, recognition of an entity as a State under international law is premature and, if the entity is located within the territory of a parent State, constitutes a violation of an

11. Cf. also pp. 112-113, infra.


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obligation erga singulum (that is, a violation of the principle of non-intervention), whereas a grant of recognition to an entity where an obligation of nonrecognition exists, in principle involves a violation of an obligation erga omnes.12 But, as stated above, these cases may overlap. Assuming that criteria for statehood based on legality exist and that a territorial entity is established in accordance with these criteria, two other problems may still be envisaged with respect to premature recognition. The first is whether recognition is lawful in the absence of recognition of the entity by the parent State (the latter kind of recognition is called 'permissive' recognition). The second problem concerns the question whether recognition in the absence of fulfilment of the criterion of 'government' on the basis of effectiveness (effective government), is always premature and therefore unlawful. § 2.1.

No recognition without 'permissive' recognition?

According to the international law of the eighteenth and nineteenth century, States were under a general obligation not to recognize a new State before the recognition of that State by the parent State.13 Contemporary international law, however, recognizes "the possibility of an original, non-derivative emergence of States as subjects of international law",14 which means that the principle of 'permissive recognition' is no longer applicable.15 This is evidenced by, for instance, the recognition of Algeria by a substantial number of States prior to its recognition by France.16 Other examples include the recognition of Bangladesh well before its recognition by Pakistan in 1974, and the recogni12. See p. 149, infra. 13. R.H. Sharp, NONRECOGNITION AS A LEGAL OBLIGATION: 1775-1934, 1934, pp. 7-11; H. Teuscher, DIE VORZEITIGE ANERKENNUNG IM VÖLKERRECHT, 1959; Frowein, supra note 9, at p. 341; C. Haverland, Secession, EPIL, Vol. 10, p. 384, at p. 387. It was not until the achievement of independence of the former Spanish colonies in South America in the 1820s that the old rule, requiring recognition by the parent State, was put under pressure because of the recognition of statehood of the former Spanish territories by the United States, followed by Great Britain and other States. In 1903, the United States recognized Panama's secession from Colombia (which recognized Panama only in 1914). The United States' lead was soon followed by France, China, Germany and Austria-Hungary. However, eleven years later the United States admitted the unlawful character of that act. In the Treaty of Bogota of 1914 between the United States and Colombia, it was, among others, provided that the United States pay $ 25,000,000 as a form of compensation. See }. Brown Scott, The Treaty Between Colombia and the United States, AJIL, Vol. 15, 1921, p. 430; Lauterpacht, RECOGNITION, pp. 22-23. 14. Haverland, supra note 13, at p. 387.

15. OPPENHEIM'S INT'L LAW, p. 144. 16. France recognized the Republic of Algeria on 2 July 1962. In April 1961, twenty-nine States had already recognized Algerian statehood. See M. Bedjaoui, LAW AND THE ALGERIAN

REVOLUTION, 1961, pp. 112-138. 17. See Chapter 7, Section 3.3.1., infra.

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tion of Guinea-Bissau by various States before recognition by Portugal in September 1974.18 A recent example is the recognition of the statehood of Slovenia, Croatia and Bosnia-Herzegovina by the international community in 1992-1993, and the recognition of the Former Yugoslav Republic of Macedonia in 1993-1994, that is, before the recognition of these States by Yugoslavia.19 Therefore, it must be concluded that under modern international law a new territorial entity, created by secession, may acquire full international personality originally and independently, that is, without the necessity of a transfer of sovereignty by the predecessor State.20Thus, recognition of statehood in the absence of, or prior to, the recognition of the entity by the parent State, cannot be unlawful for that reason alone. However, as is discussed below, even if 'permissive' recognition is granted by the parent State, through, for instance, the transfer of sovereignty to an entity, recognition of the latter by third States may be unlawful, when, for instance, the grant of independence by the parent State is in itself unlawful under international law.21

18. OPPENHEIM'S INT'L LAW, p. 144, n. 8. Another example sometimes referred to in this context is the exchange of ambassadors between the United States and India in the course of FebruaryApril 1947 which implied recognition of India's statehood by the United States, although India did not become formally independent until August 1947. See Murarka et al. v. Bachrack, ILR, Vol. 20, 1954, p. 52. See also OPPENHEIM'S INT'L LAW, p. 174, n. 18. Arguably, still another case is formed by the grant of de facto and in some cases de jure recognition of the government of the Republic of Indonesia prior to the transfer of sovereignty by the Netherlands in December 1949. Although the de facto recognition may be regarded as not necessarily implying recognition of the Republic of Indonesia as a State, it is difficult to regard the grants of de jure recognition in the same way. For a discussion of the establishment and status of the Republic of Indonesia, see C. Hillgruber, DIE AUFNAHME NEUER STAATEN IN DIE VÖLKERRECHTSGENEINSCHAFT, 1998, pp. 446-498. And see, generally, Crawford, CREATION OF STATES, pp. 258-259, and the references mentioned there; Information Department of the Indonesia Office, THE REPUBLIC OF INDONESIA: A REVIEW, 1949; M. Taylor, INDONESIAN INDEPENDENCE AND THE UNITED NATIONS, 1960; A. Sastroamidjojo, The Status of the Republic of Indonesia in International Law, Colum. L. Rev., Vol. 49, 1949, p. 344; C. Hyde, The Status of the Republic of Indonesia in International Law, Colum. L. Rev., Vol. 49, 1949, p. 955; P.J. Kuyper and P.J.G. Kapteyn, A Colonial Power as Champion of Self-Determination: Netherlands State Practice in the Period 19451975, in: H.F. van Panhuys et al. (Eds.), INTERNATIONAL LAW IN THE NETHERLANDS, 1980, p. 149, at pp. 157-170. 19. Yugoslavia recognized Slovenia on 21 August 1992 (see The Ministry of Foreign Affairs of the Federal Republic of Yugoslavia, Note no. 5793, 21 Aug. 1992), Croatia on 23 Aug. 1996 (see Department for Foreign Affairs of the Republic of Croatia, Povratak na Vanjske Poslove, 1998), the former Yugoslav Republic of Macedonia on 8 April 1996 (see Agreement on the Regulations and Promotion of Co-Operation Between the Republic of Macedonia and the FRY, 8 Apr. 1996; Yugoslav-Macedonia Ties, The New York Times, 9 Apr. 1996) and Bosnia-Herzegovina on 3 October 1996 (see Declaration Commune, Paris, 3 Oct. 1996, cited in: M. Skrk, Recognition of States and its (Non-)Implication on State Succession: the Case of Successor States to the Former Yugoslavia, in: N. Mrak (Ed.), SUCCESSION OF STATES, 1999, p. 1, at p. 26, n. 96). 20. See also Haverland, supra note 13, at p. 388. 21. Cf. Section 5.2.1.(b) of this Chapter, infra.

Non-Recognition and Additional Criteria Based on Legality § 2.2.

Non-fulfilment recognition

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of the traditional criteria for statehood and

It is widely accepted that States are obliged to withhold recognition of an entity which does not satisfy the traditional criteria for statehood.22 As has been observed: [t]he question is precisely when recognition as a new state may be given as distinguished from the recognition as a belligerent authority. For an untimely and precipitate recognition as a new state is more than a violation of the dignity of the parent state. It is an unlawful act, and it is frequently maintained that such untimely recognition amounts to intervention.23

Recognition of a secessionist entity in the absence of the fulfilment of the traditional criteria for statehood has three effects: (a) it constitutes an unlawful intervention in the affairs of the parent State, (b) it is not constitutive in the sense that it does not create full international legal personality of the entity concerned and in that respect has no legal effect, and (c) it does have a constitutive effect in the sense that the recognition is opposable to the recognizing State which means that this State must treat the entity as a State.24 There is no doubt that in the absence or lack of a defined territory, a permanent population and/or (formal or actual) independence, the entity is not a State and, therefore, recognition would be premature. The question is, however, whether the recognition of a secessionist entity lacking an effective government must always be qualified as premature and unlawful. The question is relevant both for cases of decolonization and for post-colonial cases. § 2.2.7.

Colonialism and state formation through national liberation wars: the requirement of effective government and the operation of the right of self-determination

As to the relation between effective government and decolonization, several situations exist in which the awarded recognition of statehood can be considered premature, because there was a lack of effective government both on the date of the proclamation of independence as on the date when recognition was 22. There is practical unanimity among international lawyers (both constituvists and declaratists) about this aspect of the law of recognition. See, e.g., Chen, RECOGNITION, p. 54; H. Kelsen, Recognition in International Law: Theoretical Observations, AJIL, Vol. 35, 1941, p. 605, at pp. 607 and 610; Lauterpacht, RECOGNITION, pp. 8-9 and 94-96. See, generally, Teuscher, supra note 13, at pp. 59-93. 23. OPPENHEIM'S INT'L LAW, p. 143. 24. See p. 38, note 81, supra.

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granted. In this respect, and apart from the case of the Congo which was already discussed earlier,25 three of the principal cases in which a lack of effective government existed will be analysed: the emergence and recognition of Guinea-Bissau, Algeria and Angola.26 It will be seen that as far as the relationship between 'government', effectiveness, statehood and recognition is concerned, an important role is played by the operation of the right to selfdetermination of the inhabitants of colonial territories. (a) Algeria27 The case of Algeria's hard-won independence from the colonial power France forms an example of a situation wherein recognition was given before the existence of an effective government. Since the end of World War II France took several steps clearly aimed at the complete integration of Algeria into France, in response to an emerging aspiration of the Algerian people towards independence.28 Because, according to France, Algeria formed part of metropolitan France, the people of Algeria could not claim a right of selfdetermination. For, the French maintained, such a right was only granted to colonial peoples but not to minorities within a sovereign State claiming secession. As will be discussed later in this study, the French view was clearly contrary to international law and United Nations practice with respect to the

25. See pp. 64-67, supra. 26. As was stated above, it is arguable that the dejure recognition of the government of the Republic of Indonesia by several States prior to the Dutch transfer of sovereignty to the country, amounted to the recognition of the statehood of the republic. But it was only after the transfer of sovereignty that the Indonesian government actually exercised authority over the entire territory of the republic. It would thus appear that the given recognition was unlawful. However, it is a tenable position that the question of the legality of the grants of recognition must be answered in the light of the applicability of the right of self-determination. This point is discussed in more detail below. On the implicit recognition by the Netherlands of the right of self-determination of the population of the Republic of Indonesia, see the Agreement of Linggadjati of 15 Nov. 1946, Arts. 3 and 4, reprinted in: Taylor, supra note 18, App. 3. Moreover, in 1949 the Dutch government, after several efforts to crush the independence movement in Indonesia and in the context of the Round Table Conference which led to the formal transfer of sovereignty to the Republic of Indonesia, explicitly stated that "self-determination was an internationally recognized right which accrued to the people [of the Republic of Indonesia] irrespective of whether it had been laid down in an agreement or not". Kuyper and Kapteyn, supra note 18, at p. 166. Another case which has been suggested in this regard is the case of Ruanda-Urundi, but that case primarily involved doubts as to the capacity to exercise effective authority. See R. Higgins, THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS, 1963, pp. 22-23; H. Guillaume, LE RUANDA-URUNDI, 1959. 27. See, generally, Bedjaoui, supra note 16; A. Bleckmann, Decolonization: French Territories, EPIL,

Vol. 10, 1987, pp. 89-93; A Home, A SAVAGE WAR OF PEACE, ALGERIA 1954-1962, 1979; D.S. White, BLACK AFRICA AND DE GAULLE, FROM THE FRENCH EMPIRE TO INDEPENDENCE, 1979. 28. In 1958, a new French constitution was enacted which, as did its predecessor, accepted the right to self-determination within the French community. The Statut Organique de I'Algérie declared Algeria to be an integral part of metropolitan France, and granted all of its population equal voting rights for local self-governing bodies as well as for the French Parliament.


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right of self-determination for colonial peoples.29 For there is no doubt that Algeria qualified as a territory which was entitled to self-determination and independence.30 Although it was only in 1961 that the General Assembly formally declared Algeria to be a colonial territory the population of which was entitled to self-determination, the prior proceedings on the Algerian question within the United Nations took place on the assumption that Algeria was a colony.31 Nevertheless, the French government held firm to the integration of Algeria into the French Republic. An important consideration for this policy was formed by the fact that Algeria constituted the domicile of numerous French settlers and businesses. The FLN declared Algeria's independence on 19 September 1958. On the same day, it formed the Provisional Government of the Republic of Algeria. The government operated as a government-in-exile, having its seat in Tunis. The Republic was soon recognized by several Arab States, Asian countries, including China, and one year later by the OAU.32 The Soviet Union recognized Algeria's independence in March 1962, directly after the cease-fire with France, but before recognition by France, which led France to sever diplomatic relations with Moscow.33 Many of the aforementioned States had urged for discussion of the matter within the United Nations. However, and mainly for political reasons, it was not until 1960 that the claim to independence became an issue within the General Assembly, which called for the implementation of the right to self-determination and independence of the Algerian people.34 Independence was granted by France in the Accords d'Evian of 13 March 1962.35

29. See Chapter 5, Section 3.4., infra. It was not until 1999 that the French Parliament proposed a law which recognized the Algerian conflict as a 'war' in the sense of an international armed conflict. See Assemblée Nationale, Texte Adopté No. 334, Session Ordinaire de 1998-1999, Proposition de Loi Adoptée par 1'Assemblee Nationale en Premiere Lecture, 10 June 1999, Art. 1. 30. See UN Doc. A/Res/742 (VIII), 27 Nov. 1953, Ann. The resolution enumerates criteria for the identification of dependent territories. These criteria have been supplemented by the criteria mentioned in Principle IV of Resolution 1541. See UN Doc. A/Res/1541 (XV), 15 Dec. 1960, Ann. See, generally, Chapter 5, Section 3.4.2., infra. 31. A. Rigo Sureda, THE EVOLUTION OF THE RIGHT OF SELF-DETERMINATION, A STUDY OF UNITED NATIONS PRACTICE, 1973, p. 107. Prior to 1961, several States had asked for the inclusion of the question of Algeria on the agenda of the General Assembly, because they considered Algeria to be a colony. See UN Doc. A/2924 and Add.l, 29 July 1955, p. 2. 32. By April 1961, twenty-nine States had recognized the statehood of Algeria. See Bedjaoui, supra note 27, at pp. 112-138. 33. OPPENHEIM'S INT'L LAW, p. 147. The Soviet hesitation to grant recognition to Algeria was not based on any doubts concerning Algerian statehood. Instead, it feared that Soviet recognition would strengthen the western, French-led, opposition against Algerian independence. See M. Harbi, LES ARCHIVES DE LA REVOLUTION ALGÉRIENNE, 1981, pp. 518-519. 34. UN Doc. A/Res/1724 (XVI), 20 Dec. 1961. 35. UNTS, Vol. 507, p. 25. It has been argued, and not without merit, that the terms of the Accords acknowledge Algerian statehood. See Crawford, CREATION OF STATES, p. 259, n. 53.

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The numerous and preceding grants of recognition indicate, however, that Algeria was already considered to be a State under international law prior to its recognition by France, despite the lack of effective exercise of governmental authority.36 It will be pointed out below that this position is indeed tenable. First, however, it is necessary to discuss the cases of Guinea-Bissau and Angola. (b) Guinea-Bissau 37 The former Portuguese colony of Guinea-Bissau seceded from Portugal and was recognized as a State by a substantial number of States prior to the recognition of the country by Portugal.38 Portugal recognized the Republic of Guinea-Bissau through the 'Agreement Granting Independence between Portugal and Guinea-Bissau' of 26 August 1974. 39 In addition to the recognition by several States affirming the validity of the independence of the Republic regardless of Portuguese permission, the Security Council unanimously recommended the admission of the Republic of Guinea-Bissau to the United Nations on 12 August 1974.40 From the early 1960s onwards, the PAIGC started to use armed force against the Portuguese colonial power with the aim of liberating the territory. When, in 1972, a United Nations Special Mission visited the country, the Mission confirmed the claims of the PAIGC that it had liberated a large part of the country, that the colonial power had lost effective administrative control in these 'liberated' areas (about two-thirds of the country) and that in these areas the de facto administrative control was exercised by the PAIGC.41 The PAIGC formally proclaimed the independence of Guinea-Bissau on 24 September 1973,42 This claim of statehood was, apart from numerous individual grants of recognition, also accepted through the adoption of General Assembly Resolution 3061 (XXVIII) on 2 November 1973, which [w] elcomes the recent accession to independence of the people of Guinea-Bissau, thereby creating the sovereign State of the Republic of Guinea-Bissau [...]

36. But see OPPENHEIM'S INT'L LAW, p. 147. 37. See, generally, C. Rousseau, Guinée-Bissau, Chronique des Faits, RGDIP, Vol. 78, 1974, p. 1166. 38. Guinea-Bissau was recognized by more than seventy countries before October 1973. UN Ybk., Vol. 27, 1973, pp. 144. 39. ILM, Vol. 18, 1979, p. 1244. 40. UN Doc. S/Res/356, 12 Aug. 1974. The Republic of Guinea-Bissau was admitted to the UN on 17 September 1974. See UN Doc. A/Res/3205 (XXIX), 17 Sept. 1974. 41. UN Doc. A/AC.109/L804, 1971, p. 19. See also UN Ybk., Vol. 25, 1971, p. 567. 42. See UN Doc. S/11022, 5 Oct. 1973. The text of the proclamation of the State of Guinea-Bissau stated, amongst other things, that at its meeting of 24 September 1973 in the Boé region, the People's National Assembly, expressing the sovereign will of the people, had solemnly proclaimed the State of Guinea-Bissau as a sovereign, republican and democratic State.


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and furthermore demanded that the Government of Portugal desist forthwith from further violation of the sovereignty and territorial integrity of the Republic of Guinea-Bissau [...]. 43 There is thus little doubt that Guinea-Bissau was regarded as a State enjoying full international legal personality even before its recognition by Portugal, even in a situation where the PAIGC did not actually exercise authority over the vast majority of the population or in the major towns.44 It is difficult to deny the ineffectiveness of the government of Guinea-Bissau, because, of course, the actual exercise of authority is not only measured in terms of square kilometres where that authority is displayed. For, if effective government is to have any meaning it must require the actual exercise of authority over, at least, the major part of the territory as well as over the vast majority of the population. It is clear that a lack of control with respect to some remote areas is something entirely different from a lack of control regarding at least one-third of the territory which is moreover inhabited by the bulk of the population of the prospective State. However, as in the case of Algeria, it would seem that the lack of effective government was not considered a bar to the statehood of the Republic of Guinea-Bissau under current international law. (c) Angola46 The situation of Angola after the grant of independence resembles that of the Congo in 1960. The title to exercise exclusive authority was granted by Portugal to its former colonial territory of Angola in November 1975. However, after Portugal's withdrawal from the territory in April 1975, there did not appear to be one single governmental authority claiming and exercising effective

43. UN Doc. A/Res/3061 (XXVIII), 2 Nov. 1973 (vote: 93 to 7, with 30 abstentions). See also UN Doc. A/Res/3181 (XXVIII), 17 Dec. 1973, which excluded, inter alia, Guinea-Bissau ("which is an independent State") from the state territory of Portugal. 44. Shaw, INTERNATIONAL LAW, 1997, p. 145; Dugard, RECOGNITION, pp. 73-74. See also UN GAOR 28th Sess., General Comm., 213rd mtg., pp. 25-26, 28, 30 and 31; UN GAOR, 28th Sess., Plenary, 2156th mtg., pp. 8, 12 and 16 and 2157th mtg., pp. 22-25 and 65-67; UN Ybk., Vol. 27, 1973, pp. 143-144 (position of African and Asian countries). But see id., at p. 144 (position of a number of western States). 45. This was certainly the opinion of the Portuguese government, which argued that the "so-called Republic of Guinea-Bissau had not met the requirements of classical international law for the accordance of recognition to new States". It was furthermore maintained "that PAIGC was not in control, as it claimed, of three fourths of the territory and that the proclamation of independence had been made without a national territory and a capital city, without effective control of any population, and without anything that could characterize a State". See id., at pp. 144-145. 46. See, generally, M. Bothe, Völkerrechtliche Aspekte des Angola-Konflikts, ZaöRV, Vol. 37, 1977, p. 572; F. De Quadros, Decolonization: Portuguese Territories, EPIL, Vol. 10, 1987, p. 93.

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territorial and personal jurisdiction over the whole territory of Angola and its inhabitants. Instead, there were three different conflicting parties - the National Union for the Total Independence of Angola (UNITA),47 the National Front for the Liberation of Angola (FNLA)48 and the Popular Movement for the Liberation of Angola (MPLA) - each rivalling the other for power. The MPLA, which was backed by the Soviet Union, won the conflict for State control and an MPLA government was installed. Portugal had, even before the grant of independence, permitted the Soviet Union and Cuba to support the MPLA through the sending of military help, consisting of both materiel and men. In addition, Portugal breached earlier agreements with all the parties, by handing over the power to the MPLA alone on 11 November 1975. A civil war broke out and still rages on, especially between the MPLA government and UNITA, despite the conclusion of several peace agreements between the parties under the auspices of the international community.50 The MPLA government was assisted by Cuban troops (who, arguably, intervened to counteract South-African military intervention) and it did not control major parts of the country. The described situation thus has important features corresponding to the case of Finland in 1917-1918.51 But contrary to the Finnish situation, the vast majority of the international community did consider Angola to be a State under international law, despite the existence of a serious lack of effective governmental control.52 Angola was admitted to the United Nations on 1 December 1976, after initial resistance by the United States which was primarily caused by the direct involvement of Cuba in the civil war.53 (d) The Congo The situation of the Congo after the grant of independence by the Belgian colonial power in 1960 has been discussed elsewhere in this study.54 It has been 47.

48. 49. 50. 51. 52. 53.

54.

União Nacional para a Independência Total de Angola, founded in 1966, representing the Ovimbundu, the largest tribe in Angola, and in control of the central and southern regions of the country. Frente Nacional de Libertação de Angola, founded in 1962, holding control of the mountainous region in the north of the country. Movimento Popular de Libertaçãdo de Angola, founded in 1956 and in control of the capital city. See, e.g., the 1991 Acordos de Paz para Angola, UN Doc. S/22609, Ann, 17 May 1991; and the 1994 Lusaka Protocol, UN Doc. S/1994/1441, 22 Dec. 1994, Ann. See p. 63, supra. See also Dugard, RECOGNITION, pp. 74-75; Crawford, CREATION OF STATES, p. 136. Despite this involvement, the Angolan situation is a case primarily concerning the problem of effective government, rather than the problem of lack of independence, because Angola was not, notwithstanding substantial support from Cuba and the Soviet Union towards the MPLA government, an extension of one or both of these States, nor was it under Portuguese rule. See pp. 64-67, supra.


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seen that the entity lacked an effective government, but despite that feature its statehood was acknowledged by the international community at large. § 2.2.2.

The formation of States and ineffective government in the post-colonial era

As will be argued below, the right of self-determination of colonial peoples, which was widely accepted during the period in which the above-mentioned entities were established, played an important role with respect to the international community's stance regarding the claims to statehood by the entities concerned. The question whether this also applies in the post-colonial era, as in the cases of Bangladesh, Croatia, Bosnia-Herzegovina, Georgia and Moldova, of necessity requires a detailed analysis of the right of self-determination beyond the colonial context. Therefore, that point is discussed in Chapters 7 and 8.55 § 2.3.

Observations

The main question arising from the cases discussed above is how it can be explained that all these entities were considered to be States under general international law while there was a clear lack of effective government. In other words, it is difficult to deny that these entities were not States in an empirical sense. As suggested above, the answer to this question must be found in the operation of the right of self-determination of peoples and more in particular in the right of external self-determination. The specific content of the right of self-determination, within the context of decolonization as well as outside of that context, will be carefully and extensively scrutinized in the following chapters. Therefore, for present purposes it is sufficient to note that colonial peoples and territories were regarded by the international community as self-determination units which were entitled to establish an independent State. 56 This mode of implementing the right of self-determination, leading to the modification of the external boundaries of the parent State and determining the political status of the people concerned vis-a-vis the rest of the international community, is generally referred to as 'external' self-determination.

55. See Chapter 7, Section 3.3.3. and Chapter 8, Section 2, infra. 56. UN Doc. A/Res/1541, supra note 30, Ann., Principle VI ("[a] Non-Self-Governing Territory can be said to have reached a full measure of self-government by: (a) emergence as a sovereign independent State, (b) free association with an independent State, or (c) integration with an independent State").

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As was stated in Chapter 3, insofar as the criterion of 'government' is concerned, one must distinguish between the actual exercise of authority on the one hand and a right or title to exercise such authority on the other.57 It was observed that if an exclusive right to exercise authority can be based on, for instance, a treaty provision or another rule of international law, the lack or sometimes even near absence of the exercise of actual control does not form a bar to the fulfilment of the criterion of 'government' and thus to the formation of a State in international law. In such cases, the lack of effective control is compensated by the existence of the right to exercise authority. And this, as was observed, is in accordance with both the raison d'être and function of the principle of effectiveness in international law.58 In this respect it is important to note that in the cases discussed above, all the proclamations of independence were supported by, and indeed were based on, self-determination principles. It is beyond doubt that the populations of the respective colonial entities were holders of the right of external selfdetermination and that they were entitled to establish an independent State. Once this right was exercised through a proclamation of independence originating from a governmental authority which was deemed to be representative of the population of the colonial territory, a vast number of States granted recognition of statehood despite the lack of effective government. It must therefore be concluded that, at least in the context of decolonization, a presumption exists in favour of the existence of a legal rule holding that a right of external self-determination gives rise to an exclusive right to exercise authority over the (former colonial) territory once the right of self-determination is exercised through a proclamation of independence issued by a governmental authority deemed to be representative of the inhabitants of the territory. In turn, this right or title to exercise authority compensates for a possible lack of effective governmental power, certainly if such a lack of effectiveness is a result of unlawful conduct by the parent State, that is to say, the colonial power. Any other interpretation giving priority to effectiveness of government over the right of external self-determination in this context, runs counter to the raison d'etre and function of effectiveness in international law. Moreover, such a standpoint would provide a colonial power - whose policy of colonization gave rise to the right of external self-determination of the entity concerned in the first place - with the opportunity to prevent the authorities of the nascent State,

57. See p. 65, supra. 58. See Chapter 3, Section 2.1., supra.


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through the illegal use of armed force, from exercising effective authority over the territory. If this reasoning would be followed consistently, it would lead to the conclusion that the parent State, or colonial power, would retain the title to exercise authority over the territory. However, such a conclusion cannot be accepted in the light of the parent State's obligation under modern international law to transfer sovereignty to the authorities of such a territory immediately.60 Alternatively, if one would be of the opinion that neither the colonial power nor the authorities of the self-determination unit are the holder of the right to exercise authority over the territory, this would render the territory terra nullius, and hence open for occupatio. However, this conclusion cannot be accepted either in light of the observations of the International Court of lustice in the Western Sahara case.61 It follows that a rigid insistence on effectiveness of government in circumstances where a 'people' proclaims the independence of a State on the basis of an applicable right of external self-determination and where this 'people' is violently and unlawfully denied the right to effectuate this proclamation in practice,62 would reduce the right of self-determination to a virtually empty legal concept. This cannot, however, be assumed, especially in the light of the fundamental position this right has been given in the context of decolonization in particular, in resolutions of both the Security Council and the General Assembly.63 59. Note that the General Assembly described the use of force by Portugal against the people of Guinea-Bissau as an "act of aggression". UN Doc. A/Res/3061 (XXVIII), supra note 43, at Para. 3. Moreover, see UN Doc. A/Res/3051 (XXVIII), 2 Nov. 1973; UN Doc. A/Res/1514 (XV), 14 Dec. 1960, Para. 4 (where it is stipulated that armed action directed against dependent peoples is unlawful). See also UN Doc. A/Res/2160 (XXI), 30 Nov. 1966 (Declaration on Nonintervention), Para. 2 (d); UN Doc. A/Res/3314 (XXIX), 14 Dec. 1974 (Definition of Aggression), Preamble, Para. 6 and Art. 7; UN Doc. A/Res/2625 (XXV), 24 Oct. 1970 (Declaration on the Principles of International Law), Principle V, Para. 5. And see M. Rafiqul Islam, Use of Force in Self-Determination Claims, Indian JIL, Vol. 25, 1985, p. 424, in particular pp. 425-432. 60. UN Doc. A/Res/1514, supra note 59, Para. 5. And see Chapter 5, Section 3.4.1. See also the statement by the Indian permanent representative to the UN. UN SCOR, 987th mtg., UN Doc. S/PV/987, 1961, p. 11. 61. Western Sahara, Advisory Opinion, 1975, ICJ Rep. 1975, p. 13, at pp. 38-39 (the Court noted that "territories inhabited by tribes or peoples having a social and political organization" are not terra nullius). 62. See also UN Doc. A/Res/1514, supra note 59, which states in Para. 4: "all armed action or repressive measures directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence [...]" (emphasis added). Before the adoption of a substantially revised version of the Draft Articles on State Responsibility in 2001, such use of force was earmarked by the International Law Commission as a prime example of an international crime. See ILC Ybk. 1980, Vol. II, Part 2, Art. 19(3)(b). Because of forceful protest by a number of States, the distinction in the Draft Articles between international delicts and international crimes was eventually not maintained in the revised version. See Draft Articles on Responsibility of States for International Wrongful Acts, adopted by the Drafting Committee on second reading, UN Doc. A/CN.4/L.602/Rev.l, 26 July 2001. 63. See Chapter 5, Section 3.4., infra.

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In sum, the conclusion is inevitable that at least in cases where a colonial people is forcibly or in any other coercive manner prevented from realizing its right of self-determination, a State may come into existence under international law despite a substantial lack of effective governmental control by the authorities of the previously colonial territory over the relevant territory and its inhabitants.64 In such situations, the lack of effective government is compensated by an applicable right of external self-determination. This compensatory force of the right of external self-determination will be referred to in this study as the 'compensatory force principle'.65 As was discussed in Chapter 3, in those instances of State formation where an exclusive right or title to exercise authority exists but where in practice, there is only a minimal degree of governmental control by the government of the territory concerned, it must be concluded that, while there is (still) no empirical statehood, the State does exist in a juridical sense (juridical statehood), provided, of course, that the other criteria for statehood are satisfied.66 This is not to say that statehood is either 'juridical' or 'empirical'. Such a qualification moves along a continuum depending on the degree of governmental powers exercised effectively by the authorities of the State in question. However, because juridical statehood means that the entity concerned is a State under 64. See also Brownlie, PRINCIPLES, p. 71 ("the existence of effective government is in certain cases [...] unnecessary [...] to support statehood. The principle of self-determination will today be set against the concept of effective government, more particularly when the latter is used in arguments for continuation of colonial rule"). And see Shaw, 'INTERNATIONAL LAW, p. 144 ("[t]he evolution of self-determination has affected the standard necessary as far as the actual exercise of authority is concerned, so it appears that a lower level of effectiveness, at least in decolonisation situations, has been accepted"); Dugard, RECOGNITION, pp. 78-79 ("[a] rigid insistence on the pre-1960 criteria of statehood without regard for the principles of decolonization is incompatible with the expectations of States and contrary to modern State practice"); Higgins, supra note 26, at p. 23; Haverland, supra note 13, at p. 387. Cf. also Crawford, CREATION OF STATES, pp. 102, 257, and 261-263. However, Crawford contends that in certain circumstances "the principle of self-determination will operate to reinforce the effectiveness of territorial units [...]" (at p. 102, emphasis added). This is, however, difficult to accept. The fact that the territorial unit lacks an effective government is not changed as a result of an applicable right of external self-determination. It is therefore better to speak of compensatory force or compensatory effects rather than of reinforcement of effectiveness as a result of the right of external self-determination. 65. Prior to the recognition of self-determination as a positive right, state practice chiefly pointed to the acceptance of the principle that the effectiveness of governmental control was a conditio sine qua non for both the recognition of statehood and the recognition of a (revolutionary) government. However, this practice primarily concerned British and American practice. See, e.g., Lauterpacht, RECOGNITION, pp. 28-20, 98-102, and 115-136. And see Chapter 3, Section 3.3., supra. But important exceptions to this early practice have been noted, which should probably be regarded as the forerunners of modern practice in the light of the right of selfdetermination. See D.P. O'Connell, INTERNATIONAL LAW, 1970, pp. 136-139 ("British practice has not always been based on the acceptance of facts. In the nineteenth century there was a tendency to exact some formal evidence of effectiveness in the form of popular consent. If the government was 'well supported by the nation at large' it would be recognised"). 66. See pp. 65-67, supra.


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international law, recognition of that entity as a State cannot be regarded as premature and unlawful. Finally, the fact that it is possible for a State to come into existence with a substantial lack of effective government must, however, as discussed earlier,67 be distinguished from the continued existence of that State. If the lack of effective government persists over a prolonged period of time and in particular when this lack of effectiveness is not a result of the illegal use of armed force by a third State, the State will eventually become extinct.

§ 3.

THE MEANING OF THE DOCTRINE OF OBLIGATORY NON-RECOGNITION

Before entering into a discussion about the meaning of the doctrine of obligatory non-recognition, a preliminary point must be made. As will be seen below, the obligation of non-recognition has a declaratory character in the sense that States are considered to be under a legal obligation not to recognize a specific situation which is already legally non-existent. Thus, the obligation of withholding recognition is not the cause of the fact that an illegal act does not produce the intended results, that is, legal rights for the wrongdoer. Nonrecognition merely declares or confirms that fact and the obligation not to grant recognition prevents the validation or 'curing' of the illegal act or the situation resulting from that act. The same is true for questions of statehood. Nonrecognition as such does not form a bar to the acquisition of statehood. If an entity satisfies all the criteria for statehood, it is a State. If it does not, it is not a State. In the latter situation the non-recognition of the entity merely confirms the absence of statehood, it is not the cause of it. However, one should beware of oversimplification. For instance, one may envisage the situation in which a territorial entity, which has satisfied all the criteria for statehood, is not recognized for political reasons. It is obvious that the non-recognition, while it does not juridically affect the statehood of the entity concerned, may eventually be decisive for its continued existence. This is the case in particular when the new State is not recognized by the vast majority of States or possibly even all States. An example of such a situation is formed by the case of the former Yugoslav Republic of Macedonia, which proclaimed its independence on 17 September 1991, but was not recognized by the international community until April 1993.68 67. See p. 67, supra. 68. A few States did accord recognition before April 1993. This was done by Bulgaria (15 Jan. 1992), Turkey (6 Feb. 1992) and Lithuania (26 June 1992). See R. Rich, Recognition of States: the Collapse of Yugoslavia and the Soviet Union, EJIL, Vol. 4, 1993, p. 36, at p. 52.

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The non-recognition was based on political reasons. These concerned objections by Greece with respect to the name of the Republic and the symbols used by the Republic which, according to Greece, implied territorial aspirations. In this case the prolonged postponement of recognition in combination with economic sanctions imposed by Greece and the blocked access to foreign credits, could have resulted in the Republic's collapse. After repeated statements by the Republic that it did not claim, and did not have the intention to claim additional territory, as well as pledges, guarantees and specific provisions in its constitution to that effect, it was finally recognized by the major part of the international community in the course of 1993 under the (provisional) name of 'former Yugoslav Republic of Macedonia' (FYROM) 69 It will be noted that no State held that Macedonian statehood was absent due to the non-recognition thereof, 70 which is completely in conformity with legal theory. But that does not mean that general absence of recognition cannot have far-reaching effects. It can, as it is almost impossible for a State to survive without international relations. Moreover, if general non-recognition of a claim to statehood is motivated by legal considerations related to the purported statehood of the entity concerned (as was not the case with FYROM), it forms a strong indication or even evidence of the absence of statehood. Let us now turn to the meaning of the doctrine of obligatory nonrecognition as applied to situations involving claims to statehood. The evolution towards an acceptance of an obligation of non-recognition of invalid acts and 69. The Republic was admitted to the UN under the same provisional name (see UN Docs. S/Res/817, 7 Apr. 1993 and A/Res/47/225, 8 Apr. 1993). The conflict over the Republic's name is still unsolved. On the conflict over the name and symbols of the Republic, see Arbitration Commission of the International Conference on Yugoslavia, Opinion 6, 11 Jan. 1992, ILM, Vol. 31, 1992, pp. 1507-1512 (holding that there were no objections for recognition by the EC member States); Greek Memorandum to the United Nations Concerning the Application of the Former Yugoslav Republic of Macedonia for Admission to the United Nations, UN Doc. A/47/877-S/25158, App.,25 Jan.1993, reprinted in: S. Trifunovska (Ed.), YUGOSLAVIA THROUGH DOCUMENTS FROM ITS CREATION TO ITS DISSOLUTION, 1994, pp. 807-810; H. Axt, Mazedonien: ein Streit um Namen oder em Konflikt for dem Ausbruch?, Europa Archiv, Vol. 48, No. 3, 10 Feb. 1993, pp. 65-75; J. Shea, MACEDONIA AND GREECE: THE STRUGGLE TO DEFINE A NEW BALKAN NATION, 1997; M. Craven, What's in a Name? The Former Yugoslav Republic of Macedonia and Issues of Statehood, Aust. YIL, Vol. 16, 1995, p. 199. Several member States of the EC declared that they recognized FYROM on its admission to the UN on 8 April 1993. See p. 43, note 98, supra. The United States recognized the Republic on 9 February 1994. See http://www.binfo.com/places/Macedonia/republic/White-House_Recogn.shtml. Greece did not formally recognize FYROM's statehood until 13 September 1995 when it signed the 'Interim Accord Between the Hellenic Republic and the FYROM', which contains a provision (Art. 1) to that effect. See http://www.mfa.gr/foreign-/treaties/95-27866.htm. 70. Indeed, on 2 May 1992, that is, almost a year before FYROM was admitted to UN membership and subsequently widely recognized, the EC member States declared that "[t]hey are willing to recognize that State as a sovereign and independent State, within its existing borders, and under a name that can be accepted by all parties concerned" (emphasis added). EPC Informal Meeting of Ministers for Foreign Affairs, Declaration on the Former Yugoslav Republic of Macedonia, Guimaraes, 1-2 May 1992, EPC Press Release 53/92.


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situations under international law requires a belief and basic recognition that the observance of the rules of law is a common concern of the international community as a whole.71 The result of such a belief would be that violations of the law and especially those violations which concern fundamental legal rules, are no longer considered in terms of bilateral relationships only, that is, the wrongdoer and the direct and primary victim of the illegal act. In such a situation, it is recognized and accepted that tolerating a violation of certain fundamental norms may have disastrous consequences for the legal position of all members of the international community, and indeed for the preservation of the international public order as such. The next and related step in the evolution towards the existence of an obligation of non-recognition is that it is accepted that a violation of such a fundamental norm and its results shall not be validated and that this obligation is owed erga omnes. In light of the foregoing, the doctrine of the obligation of non-recognition as applied to statehood holds that States are under an obligation not to recognize, through individual or collective acts, the purported statehood of an effective territorial entity created in violation of one or more fundamental norms of international law.72 Recognition of such an entity would constitute an illegal act vis-a-vis the holder of the right that was breached during the process of the formation of the entity, because such would waive the holder's rights without his consent.73 Moreover, because, as will be shown later, the obligation of non71. See also Chen, RECOGNITION, p. 416. 72. It has been argued that if the illegality of a factual situation in itself forms a bar for any legal status being attached to that factual situation, any further obligation of non-recognition would be illogical and unnecessary. See J. Verhoeven, LA RECONNAISSANCE INTERNATIONALE DANS

LA PRATIQUE CONTEMPORAINE: LES RELATIONS PUBLIQUES INTERNATIONALES, 1975, pp. 586-617. However, non-recognition is not so much concerned with the factual situation as such, but with the rights or legal status under international law which are claimed to flow forth from those facts, because recognition of the situation, especially if such recognition is accorded by several States, may validate or 'cure' the illegality or its consequences. It is precisely this possible effect of recognition which is the raison d'être and function of the obligation of non-recognition, and it is therefore difficult to regard this as "illogical" or "unnecessary". See also Crawford,

CREATION OF STATES, p. 123, n. 172. 73. Indeed, the holder of a right is free to waive its right (volenti non fit injuria), as long as the waiver does not conflict with the rights of a third party which might be directly affected by the waiver. For an example under contemporary international law one might think of the transfer of territory of a State and the attached rights of territorial sovereignty to another State after the latter's occupation through the unlawful use of force of part of the territory of the former. If the transfer is done by an unrepresentative government or without the prior consultation of the population of the State and/or the population inhabiting the territory which is the object of devolution assuming that this population is entitled to the right to self-determination - the transfer would itself be in conflict with a substantive norm of international law and therefore be illegal. See also Western Sahara case, Advisory Opinion, ICJ Rep. 1975, p. 13, at p. 33, para. 59; Reference re Secession of Quebec, supra note 3, at p. 1372, para. 129; Cassese, SELF-DETERMINATION, p. 287. If the waiver does not conflict with the rights of others and if freely expressed, the subsequent recognition by third States of the initially illegal conduct or situation cannot be unlawful. It will be noted that the transfer by the United Kingdom of Hong Kong to China

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recognition relates to acts and the consequences of such acts which are in violation of a norm which must be respected erga omnes, recognition of such an act or situation constitutes in itself an act which is illegal erga omnes.74 Clearly, according to the legal doctrine of non-recognition, the obligation of non-recognition is grounded in juridical and not in purely political considerations. The doctrine is sometimes referred to as the doctrine of 'collective nonrecognition'. This terminology is used if one wishes to indicate that the determination of the occurrence of an illegal act takes the form of, for instance, a decision by a 'collective' organ of an international organization such as the League of Nations or the United Nations. Such a decision could then be followed by another 'collective' decision on the obligation of non-recognition of the illegal act and its results. However, it must be clear that, although under these circumstances the determination of the violation of international law bears a 'collective' character, the obligation of non-recognition is borne by the individual (member) States.76 Therefore, state practice as a result of these 'collective' determinations may be referred to as 'collective non-recognition', but this is by no means necessary.77 This is illustrated by the fact that the absence of a 'collective' determination of the occurrence of a breach of a fundamental rule of international law does not mean that States are freed from the obligation not to recognize the illegal act or its results.78 Returning to the relationship between a violation of international law and

in 1997 was not accompanied by a direct consultation of the population of Hong Kong. However, as has been convincingly argued by Cassese, the special circumstances of the case justified the absence of direct consultation. See id., at p. 80, n. 36. 74.

M. Ragazzi, THE CONCEPT OF INTERNATIONAL OBLIGATIONS ERGA OMNES, 1997, pp. 168-170. See also p. 149, infra.

75. Dugard, RECOGNITION, p. 24; Brownlie, PRINCIPLES, p. 96. Another example of 'collective nonrecognition' is formed by the situation wherein several States enter into a treaty which includes an explicit provision on an obligation of each individual party to the treaty not to recognize specific violations of international law. See, e.g., the Anti-War Treaty of Non-Aggression and Conciliation, 1933, Art. 2 (Saavedra-Lamas Treaty), LNTS, Vol. 163, p. 393; Convention on Rights and Duties of States, 1933, Art. 11 (Montevideo Convention), LNTS, Vol. 165, p. 19. 76. True, if these States intend to recognize or validate the situation through a decision of a collective organ, and assuming that that organ is competent to perform that act on behalf of those States, then the obligation of non-recognition is also applicable to that collective organ. In that specific case, it would be proper to speak of a collective obligation of non-recognition. 77. Brownlie, PRINCIPLES, p. 96. 78. For instance, in Article 41(2) of the ILC's Draft Articles on Responsibility of States for International Wrongful Acts (supra note 62), it is stated that "[n]o State shall recognize as lawful a situation created by a serious breach [of an obligation arising under a peremptory norm of general international law]". This obligation thus exists regardless of a collective determination that such a breach has occurred. See also p. 157, note 302, infra. This, of course, requires that such an obligation is part of customary international law. It is submitted that this is the case. See Section 7 of this Chapter, infra.


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the creation of a 'State' as a result of that violation, the following must be noted. The breach of international law which was of cardinal importance for the establishment of the entity concerned, may have been committed either by the authorities in control of the territorial entity, or by a third State, or by both. When a third State is involved, this State's illegal conduct sowed the seeds for the de facto establishment of the territorial entity. In other words, it is highly improbable that the territorial entity would have come into de facto existence without the illegal conduct of the third State, which may consist of, for instance, the use of armed force and occupation of a part of the territory of the State in which the effective entity is formed. Non-recognition thus denies the lawbreaker, or the one reaping the benefits thereof, the intended result of the breach of law, namely the legal existence or validity of the situation brought about in violation of international law. Consequently, it is not the object of the obligation of non-recognition "to render illegal an otherwise lawful and valid act; its object is to prevent the validation of what is a legal nullity".79 Moreover, when it is said that States are under an obligation to withhold recognition of an illegal act or situation, the non-recognition is not intended to invalidate or annul the act or the results of that act. For, the act and its results were already in and of themselves "devoid of legal validity by reason of their illegality or 80 •11 illegal creation". Because the obligation of non-recognition is, as will be seen later, strongly related to the principle of ex injuria jus non oritur according to which "acts contrary to international law cannot become a source of legal rights for a wrongdoer",81 the obligation of non-recognition is primarily directed at the consequences or 'poisoned fruits' of the illegal conduct. The reason for this is obvious. As was stated above,82 the fundamental norm upon which the illegality is based might be seriously undermined as a result of the validation of the consequences of the illegal conduct through recognition. This in turn may - if the legal rule involved is substantial - threaten the international legal order as a whole. Recognition of the direct consequences or manifestations of the illegal act is probably more likely to occur than recognition of the illegal act itself, because in the former situation at least the appearances may be kept up that the recognizing States have no intention to do away with the "moral or legal opprobrium attachingto the original illegality". However, if such recognition 79. Lauterpacht, RECOGNITION, p. 413.80. Usuki, supra note 1, at p. 85.

81. OPPENHEIM'S INT'L LAW, p 184. 82. See p. 90, supra. 83. Lauterpacht, RECOGNITION, p. 412.

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of situations deriving from the same sort of illegal conduct is repeated by a substantial number of States, it becomes very difficult to maintain that the legal norm the breach of which gave rise to the different illegalities has not been replaced or modified, at least vis-a-vis the recognizing States. As is observed by Chen: [h]ere, recognition is not mere confirmation of facts, but may have the effect of creating or conferring [...] rights previously non-existent. 85

On the other hand, in principle there is no logical objection to an adjustment of the law through recognition, provided that such an adjustment does not in itself pose a threat to the system of law. As will be discussed below, 86 the recognition of certain acts or their results which are in conflict with certain fundamental legal rules, such as those having the character of jus cogens, would pose a threat to the maintenance of the system of international law as a whole. No legal system can, as a matter of legal logic, contain such an unlimited permissive rule without simultaneously providing for its own self-destruction. The principle of the obligation of non-recognition is closely bound up with the maintenance of international peace through the preservation of the existing international legal order. Through the refusal of recognition of the wrongdoer's claims to legal rights or status, which according to the wrongdoer derive from his conduct, non-recognition aims at the preservation of the legal status quo ante. However, it is equally true that any rigid interpretation of this doctrine in the sense of an absolute prohibition on the recognition of any illegal act or result of that act may in itself result in a situation that is not conducive to the general good. It would simply be naive to think that international stability can only be maintained through the preservation of these legal norms and principles existing at a certain point in time. The change or adjustment of legal rules has often taken place through the general recognition of, or acquiescence in, acts or situations in violation of a rule of law, if the violation was committed with

84.

Cf. also Anglo-Norwegian Fisheries case (United Kingdom v. Norway), ICJ Rep. 1951, p. 116, at p. 131. But see Section 9 of this Chapter, infra. Lauterpacht was of the opinion that it was permissible to grant de facto recognition to an act or its direct consequences - by which the recognizing State considers the act or situation to be a fact in the international domain with limited legal effects - without doing away with the illegality as such. See Lauterpacht, supra note 1, at pp. 148-149. However, quite apart from the fact whether there are any legal differences as regards the effects of de jure or de facto recognition, it seems clear that without a distinctive framework that defines the exceptions to the obligation of non-recognition regarding specific acts or results flowing from illegal conduct, allowing for de facto recognition of illegal acts (in the sense of Lauterpacht's view) in the doctrine of non-recognition would eventually result in 'self-annihilation' of this doctrine. See also Usuki, supra note 1, at p. 95. 85. Chen, RECOGNITION, p. 413. 86. See Section 6 of this Chapter, infra.


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the intention to adjust the rule to the changing demands of international life, or simply because in evaluating the breach of the law States generally agree that the old rule should be adapted to the new circumstances.87 In sum, the obligation of non-recognition is not directed at prohibiting the recognition or validation of any and all illegal acts or illegally established situations, but at those acts or situations which are in conflict with a fundamental rule of international law, that is, those acts or situations which violate a legal norm which must be respected erga omnes and which thus affects the interests of the international community as a whole. But even in the case of a fundamental norm, a situation may occur in which it is considered justified to validate a breach of a fundamental rule or the effective consequences of such a breach for the purpose of the effectuation of another fundamental rule of international law - a situation that is accepted even in the context of jus cogens.88 However, in these kinds of exceptional cases as well, the law is - as a matter of principle - against recognition, and where the law permits recognition it follows that the sole effectiveness of a situation brought about in violation of a fundamental norm does not render its recognition admissible.89 Thus, the scope and limits of the prohibition on recognition of statehood should be interpreted in the light of the object and purpose of the doctrine of non-recognition, which is the maintenance of international peace and stability through the preservation of the authority, integrity and legal character of international law. In this context, collective non-recognition must be regarded as a sanction. From the perspective of law enforcement, obligatory nonrecognition therefore bears the character of a lever. As has been pointed out 87. This seems to have been the case with, for instance, the limits of the territorial sea. See Shaw,

INTERNATIONAL LAW, pp. 70-72, 401-402; Brownlie, PRINCIPLES, pp. 185-186. 88. Vienna Convention on the Law of Treaties, UNTS, Vol. 1155, 1980, p. 331, Art. 53: "a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character". 89. See Chapter 3, Section 2.2., supra; K. Doehring, Effectiveness, EPIL, Vol. 7, 1984, p. 70, at p. 74. 90. L. Henkin, International Law: Politics, Values and Functions, HR, 1989 IV, p. 19, at p. 33; C. Lloyd Brown-John, MULTILATERAL SANCTIONS IN INTERNATIONAL LAW, A COMPARATIVE ANALYSIS, 1975, pp. 13-14. A 'sanction' in the sense of international law can be defined as a coercive measure imposed by a State (generally) in response to perceived unlawful conduct by another State or entity and meant to uphold standards of behaviour required by international law. When the sanction is imposed by a group of States acting in concert, or by (an organ of) an international organization on behalf of its members, one speaks of a 'collective' sanction. See A. de Hoogh, OBLIGATIONSERGAOMNES' AND lNTERNATIONAL CRIMES, 1996, pp. 217-220; B. Boutros-Ghali, Supplement to An Agenda for Peace, UN Doc. A/50/60, 3 Jan. 1995, p. 16 (para. 66); N. Schrijver, The Use of Economic Sanctions by the UN Security Council: An International Perspective, in: H. Post (Ed.), INTERNATIONAL ECONOMIC LAW AND ARMED CONFLICT, 1994, p. 123, at p. 125. Cf. also V. Gowlland-Debbas, Comments, in: Post (Ed.), id.,

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by Lauterpacht: [i]n a society in which the enforcement of the law is precarious, there is a natural tendency to regard successful breaches of the law as a source of legal right. Nonrecognition obviates that danger to a large extent. It is the minimum of resistance which an insufficiently organized but law-abiding community offers to illegality; it is a continuous challenge to a legal wrong. In a sense, the effectiveness of nonrecognition grows with the passage of years. For it brings into relief the contrast between the consolidating power of the successful defiance of the law and its status as a mere legal nullity.91

However, Marek has pointed out, and probably correctly, that "in view of the unrelenting pressure of facts", non-recognition is essentially a temporary measure. Holding on to non-recognition without the willingness to restore the legal status quo ante if the situation is not brought to an end as a result of the non-recognition as such, may indeed result in the fact that international law is largely reduced to a system of "ideal notions".92 According to Marek, an obligation of non-recognition "would make sense in an organized international community which would be both able and willing to let deeds follow words".93 However, this does not mean that deeds should follow words immediately. Rectifying international action may be postponed for a considerable time, especially when non-recognition, through its force of isolating a situation both legally and practically, is in itself regarded as capable of forcing the wrongdoer to reverse the situation. Nevertheless, Marek observes that the refusal to admit the validity of an existing situation can make sense only if that situation is, sooner or later, to be brought effectively to an end; the reservation of violated rights can make sense only if such rights can again be effectively implemented in the future [...]. Non-recognition is therefore bound to give way to a new adaption either of fact to law, or vice-versa.94

However, this appears to be a valid argument only when the continuance of non-recognition in itself becomes a greater threat to the maintenance of the

at pp. 163-173. And see J. Combacau, Sanctions, EPIL, Vol. 9, p. 337 ("[s] anctions are not intended to be directly repressive or punitive [...] but rather 'coercive'" (at p. 339)). See, generally, Report of the ILC to the General Assembly on the Work of Its Thirty-First Session, UN Doc. A/34/10, Ybk. ILC, 1979, Vol. II, Part. 2, pp. 115-122; R. Ago, Eighth Report on State Responsibility, UN Doc. A/CN.4/318 Add. 1-4, Ybk. ILC, 1979, Vol. II, Part 1, pp. 39-47; G.M. Abi-Saab, De la Sanction en Droit International: Essai de Clarification, in: J. Makarczyk (Ed.),

THEORY OF INTERNATIONAL LAW AT THE THRESHOLD OF THE 21 ST CENTURY, 1996, p. 61; 91. 92. 93. 94.

J. Kunz, Sanctions in International Law, AJIL, Vol. 54, 1960, p. 324. Lauterpacht, RECOGNITION, pp. 430-431. Marek, IDENTITY, p. 565. Id., at pp. 562-563. Id., at p. 563.


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international public order and international stability than the non-recognized act or situation, which, taking into consideration the fundamental character of the norms involved and the possible precedential effect of recognition, cannot be assumed easily.

§ 4.

THE ORIGIN AND DEVELOPMENT OF THE DOCTRINE OF OBLIGATORY NON-RECOGNITION IN PRACTICE

Under contemporary international law, the validity of the doctrine of obligatory non-recognition of statehood is evidenced by the bulk of modern state practice which reflects the conviction that governments do not deem themselves free to grant recognition to purported States in an arbitrary manner, that is, "by exclusive reference to their own political interests, and regardless of legal principle".95 Some of the elements of the doctrine of the obligation of non-recognition can be traced back to the early practice of States in the field of non-recognition of governments. This was sometimes intermingled with the non-recognition of statehood. For this study, the early practice is particularly relevant because it sheds light on the object and purpose of the concept of non-recognition. As far as the legal roots of the modern doctrine of non-recognition are concerned, the early practice is of lesser importance because, as will be seen below, this practice was primarily based on political and not on legal considerations. The earliest practice of non-recognition of governments was developed in the eighteenth century. The French Revolution put pressure on the monarchy as a system of government. Therefore, the European monarchs assumed the obligation not to recognize the results of revolutions, that is to say, any inroad upon the monarchial system of government. This practice became known as the doctrine of monarchial illegitimacy. Although the obligation not to recognize revolutionary governments was set down in formal declarations 96 and treaties, it did not reflect and did not become a rule of international customary law. As regards the scope of application of the doctrine of monarchial illegitimacy, it must be noted that the obligation of non-recognition assumed by the main European monarchial powers, was not limited to revolutions in Europe 95. OPPENHEIM'S INT'L LAW, p. 133. 96. Such as the Declaration of Pillnitz of 1791, signed by Leopold II of Austria and Frederick William II of Prussia, which contained an implicit non-recognition of the revolutionary government of France. See Sharp, supra note 13, at p. 14. 97. Like the treaty establishing the Holy Alliance of 1815 signed by Russia, Austria and Prussia, as well as The Netherlands and other continental powers. Id., at p. 22.

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only. It was also considered to be applicable to non-European colonies of monarchial powers, and especially to Spanish colonies in South America claiming independence as a result of revolution. In this respect, and as a logical consequence of its basic principles, the doctrine of monarchial illegitimacy was also applied to cases involving claims to statehood. But again, this obligation was applicable only to monarchies, who accepted, among themselves, such an obligation. States which were not bound by treaties and declarations which contained such obligations, were only bound by the rules of general international law, which at that time, as was stated earlier, held that no recognition may be granted prior to the parent State's recognition of the entity in question.98 In this regard, the following should be stressed. As was suggested above, the assumed obligation of non-recognition of revolutionary governments and new States resulting from successful revolutions was not regarded as an obligation flowing forth from a violation of a rule of international law," as is the case in the modern doctrine of the obligation of non-recognition. Indeed, non-recognition was based on political grounds.100 Non-recognit.ion, especially in the form of a collective measure, was thus used as a form of pressure in order to maintain the status quo ante, that is to say, the system of monarchial government. The next step in the development towards a doctrine on obligatory nonrecognition based on legal grounds, was formed by what is generally referred to as the doctrine of constitutional legitimacy. This doctrine particularly influenced international relations in North and Latin America between 1907, when the ideas of the doctrine appeared in the Additional Convention to the General Treaty of Peace and Amity, and 1933, when a general obligation of non-intervention was included in the Montevideo Convention on Rights and Duties of States.101 The doctrine of constitutional legitimacy was also mainly concerned with the non-recognition of governments and, as was the case with the doctrine of monarchial illegitimacy, the reason for non-recognition was essentially politically motivated. Defenders of the doctrine were Charles Tobar,102 a former 98. See p. 93, supra. See also Sharp, supra note 13, at p. 30. 99. In most cases, however, the revolutions were in violation of the municipal law of the (parent) State. 100. See also Menon, supra note 5, at pp. 249-250. 101. See, e.g., Sharp, supra note 13, at pp. 34-66; Menon, supra note 5; at pp. 230-239; OPPENHEIM'S

INT'L LAW, p. 152. 102. The doctrine of constitutional legitimacy is also referred to as the 'Tobar doctrine', since Tobar was one of the first to state that "the American Republics [...] should intervene indirectly in the internal dissensions of the Republics of the continent. The intervention could consist at least in the refusal to recognize de facto governments, issuing from revolutions against the


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Ecuadorian Minister for Foreign Affairs, and the American President Woodrow Wilson.103 They legitimized their support for the doctrine by referring to such notions as constitutionalism. The doctrine held that any government that came into power in violation of the State's constitution.– which is seen as the ultimate expression of the 'will' of the people - that is, as a result of a coup d'etat or of a revolution, was an illegitimate government and should not be recognized. The doctrine acquired legal foundation when it was included in Article 1 of the Additional Convention to the General Treaty of Peace and Amity of 1907,104 which stated: [t]he Governments of the High Contracting Parties shall not recognize any other Government which may come into power in any of the five Republics as a consequence of a coup d'etat, or of a revolution against the recognized Government, so long as the freely elected representatives of the people thereof have not constitutionally reorganized the country.105

Article II of the 1923 General Treaty of Peace and Amity went even further in imposing an obligation not to recognize an elected government when the head of the government would be disqualified to fulfill that function under the Constitution of that State. The 1923 treaty was signed by five Central American States.106 However, the doctrine of constitutional legitimacy did not attract much support in practice. Two of the five signatories denounced the 1923 treaty, and United States' Secretary of State Stimson qualified the general policy of 'constitutionalism' as contrary to international law.107 The doctrine was firmly criticized in the 1930s by people like the Mexican Foreign Minister Estrada. He maintained correctly that the doctrine of constitutional legitimacy was nothing less than an intervention in the affairs of another State and thus a violation of international law. Furthermore, he was of the opinion that as far as the recognition of governments was concerned, formal recognition should be abandoned and, in order to prevent intervention in the internal affairs of a State, third States should deal with whatever government which de facto exercised power in a State. This policy became generally known as the 'Estrada doctrine'. However, the proposals of Estrada are difficult if not impossible to apply, since in the case of two rival governments both claiming de facto control,

Constitution". Quoted in: Sharp, supra note 13, at p. 35. 103. Wilson's view on the matter resembled that of Tobar. Wilson's view is sometimes referred to as 'Wilsonian Constitutionalism'. Id., at pp. 35-36, 56. 104. Reprinted in: AJIL, Vol. 2, 1908, Supp., pp. 219-265. 105. Id., at pp. 229-230. 106. The States concerned were Costa Rica, Guatemala, Honduras, Nicaragua and El Salvador. 107. Sharp, supra note 13, at pp. 56-57.

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the de facto government requirement by necessary implication requires the passing of a judgment on which of the two governments should be regarded as representing the State, and thus cannot avoid a third State's qualification with respect to the internal affairs of that State. In sum, the early practice of 'collective' non-recognition was mainly concerned with governments. The obligation was based on conventional law and therefore not binding on States who were not parties to the conventions in question. Finally, the obligation thus assumed was primarily politically based that is, it was not related to a violation of international law. The idea that the recognition or validation of effective territorial entities created in violation of a fundamental rule of international law would itself be in violation of international law and should therefore be withheld, first appeared during the period of the League of Nations in the context of the SinoJapanese conflict over Manchuria. However, this assumed obligation was soon abandoned and only appeared again during the era of the United Nations. It is this practice in the field of non-recognition and claims to statehood, both during the period of the League of Nations and during the era of the United Nations, to which we will now turn.

§ 5.

STATE PRACTICE IN THE FIELD OF NON-RECOGNITION OF CLAIMS TO STATEHOOD

§ 5.1.

The era of the League of Nations

The obligation of non-recognition of the Japanese seizure of Manchuria in 1931 and the subsequent establishment of the purported State of Manchukuo,"108 formulated by the League of Nations, was without a doubt influenced directly by the policy of the United States regarding the matter. On 7 January 1932 Foreign Secretary Stimson informed both China and Japan that [the United States] cannot admit the legality of any situation de facto [...] and that it does not intend to recognise any situation, treaty or agreement which may be brought about by means contrary to the covenants and obligations of the Treaty of Paris of August 27, 1928.109

108. See, generally, G. Mong, LA POSITION JURIDIQUE DU JAPON EN MANDCHOURIE, 1933; A.R. Tullé; LAMANDCHOURIEETLECONFLITSlNO-jAPONAISDEVANTLASOCIETEDESNATIONS, 1935; T. Leang-Li (Ed.), THE PUPPET STATE OF MANCHUKUO, 1935; M.O. HUDSON, THE

VERDICT OF THE LEAGUE: CHINA AND JAPAN IN MANCHURIA: THE OFFICAL DOCUMENTS, 1933; Marek, IDENTITY, pp. 173-180; Dugard, RECOGNITION, pp. 27-35. 109. Reprinted in: AJIL, Vol. 26, 1932, p. 342.


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This policy became known as the 'Stimson doctrine'.110 The League's Council, of which the United States was not a member, had not considered nonrecognition in the early days of the Manchurian conflict. After Stimson's declaration however, it gradually adopted this policy of non-recognition as well. It is clear from the terms of statements and resolutions by both the League's Council and Assembly that the assumed legal obligation imposed on the members of the League of Nations not to recognize the Japanese seizure nor any result flowing forth from that seizure, was read into Article 10 of the League's Covenant, which stated that: [t]he Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League.111

On 16 February 1932, the President of the Council directed an appeal to the Japanese government. With explicit reference to Article 10 of the Covenant, it was made clear that no infringement of the territorial integrity and no change in the political independence of any member of the League ought to be recognized as valid and effectual by the Members of the League of Nations.112

This course was continued with the adoption by the Assembly of the League of the often cited resolution of 11 March 1932, in which the Assembly declared that it is incumbent upon the Members of the League of Nations not to recognize any situation, treaty or agreement which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris.

Therefore, it is probably correct to state that the obligation of non-recognition assumed in 1932, based as it was on Article 10 of the Covenant in particular,

110. See generally, Sharp, supra note 13, at pp. 134-151; A. McNair, The Stimson Doctrine of NonRecognition: A Note on Its Legal Aspects, BYIL, 1933, pp. 65-74; H. Kelsen, PRINCIPLES OF

INTERNATIONAL LAW, 1966, pp. 415-416; R.A. Vitas, THE UNITED STATES AND LITHUANIA, THE STIMSON DOCTRINE OF NON-KECOGNITION, 1990, pp. 16-30; OPPENHEIM'S INT'L LAW, pp. 184-185; Lauterpacht, RECOGNITION, pp. 415-420; Dugard, RECOGNITION, pp. 27-35. The Stimson doctrine did not, as was sometimes suggested, assume the existence of any legal obligation of non-recognition on the side of the United States. The doctrine was merely seen as a political undertaking rather than a legal obligation. Lauterpacht, supra note 1, at p. 136; Dugard, RECOGNITION, p. 416. 111. LNOJ, Feb. 1920, pp. 3-11, at p. 5 (emphasis added). 112. LNOJ, March 1932 (Part I), p. 384, quoted in: Sharp, supra note 13, at p. 141. 113. Id. at pp. 87-88, quoted in: Sharp, id., at pp. 142-143.

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was not declaratory of an already existing customary rule of law,114 but was declaratory of an already existing treaty obligation. Moreover, the formulation of the obligation was such that it was not specifically limited to the protection of the exclusive interests and subjective rights of the non-recognizing State, but rather concerned the interests of all members of the League and parties to the Pact of Paris.115 The question is whether or not this obligation of non-recognition did encompass the obligation not to recognize territorial entities claiming statehood, but created in violation of the Covenant of the League and the Pact of Paris. In other words, did the assumed legal obligation of non-recognition have any bearing on the creation of States? According to O'Connell, the answer to this question must be in the negative, because if any legal obligation of nonrecognition developed at all in this period, it was "a rule against extinction of States or violations of territorial sovereignty [...]".116 Consequently, "the doctrine of non-recognition is thus concerned only with territorial change and not with new States or new governments".117 However, as is convincingly argued by Dugard, it is very likely that the obligation of non-recognition by the League's members was - in addition to territorial changes brought about as a result of aggressive war - also meant to apply to situations of purported statehood.118 This does not only follow from the language used in the League's declarations, where the term "situation" is indeed wide enough to encompass the case of a 'State',119 but also from the fact that the League maintained its non-recognition policy even after Japan had recognized Manchukuo as a State on 15 September 1932, and thus had renounced any claim as to the annexation of the territory.120 If the obligation 114. 115. 116. 117. 118. 119. 120.

Cf. Lauterpacht, supra note 1, at p. 138 ("controversial"). See also Lauterpacht, RECOGNITION, p. 416. O'Connell, supra note 58, at p. 142. Id. Dugard, RECOGNITION, pp. 32-35. Id., at p. 32. Cf. Assembly Resolution of 24 February 1933 (which was thus adopted more than five months after Japan's recognition of Manchukuo), LNOJ, March 1932, Part I, p. 39. The Lytton Commission's report, which was discussed elsewhere (see p. 78, supra), was considered by another commission, established by the Assembly (the Commission of Nineteen). The recommendatory report of the latter commission stated that: "[i]t follows that, in adopting the present report the Members of the League intend to abstain, particularly as regards the existing regime in Manchuria, from any act which might prejudice or delay the carrying out of the recommendations of the said report . They will continue not to recognize this regime either de jure or de facto". LNOJ, 1933, Spec. Supp., No. 112, pp. 75-76. The recommendatory report of the Commission of Nineteen thus endorsed the recommendation of the Lytton Commission not to recognize Manchukuo and advised the Assembly to associate itself with that recommendation. This the Assembly did by adopting the report of the Commission of Nineteen on 24 February 1933.


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of non-recognition was only assumed with respect to unlawful territorial changes, its continued application after Japan's recognition would have been legally inconsistent. Therefore, this position can only be explained if the measures taken by the League were intended to prevent the recognition of Manchukuo as a State under international law. It has been stated that the object of the collective non-recognition of Manchukuo was its lack of actual independence (and thus the non-fulfilment of a traditional criterion for statehood), rather than its illegal creation. 121 Manchukuo was without a doubt not an independent entity as was clearly stated in the Lytton Commission's Report.122 Recognition would, therefore, have violated the prohibition of premature recognition. It is also correct that the measures taken by the League were to a large extent predicated on the Report of the Lytton Commission. However, not once was the lack of actual independence included in the League's resolutions insisting on the obligation of nonrecognition. Rather, with respect to the obligation of non-recognition, reference was made to the Covenant of the League (Article 10) and the Briand-Kellog Pact and thus to the illegal creation of the situation. It thus appears that, without prejudice to the absence of actual independence of Manchukuo as a result of its creation by Japan on occupied territory, it was the illegal manner in which that entity was created which the League's members had in mind first and foremost when they referred to the obligation of non-recognition of Manchukuo's claim to statehood.123 The case of Manchukuo has, therefore, rightly been considered as a precedent for a legal rule on the obligation of non-recognition of a territorial entity "which has been brought in to being contrary to a fundamental rule of international law, in casu the prohibition on aggressive war". 124 It is well known, however, that the assumed obligation of non-recognition of situations realized as a result of the aggressive use of force, including the establishment of 'States', did not last long during this period of history. Although the doctrine of non-recognition, especially in the field of territorial acquisitions obtained by force, gained substantial support in countries of the South American continent,125 which continent, as was discussed above, already had experience with the practice of non-recognition, the doctrine had to give 121. Lauterpacht, RECOGNITION,p. 420;H. Lauterpacht, in:E. Lauterpacht(Ed.),INTERNATIONAL

LAW, BEING THE COLLECTED PAPERS OF HERSCH LAUTERPACHT, Vol. I, 1970, p. 339; Crawford, CREATION OF STATES, pp. 60, 62, and 107. 122. Report of the Commission of Enquiry, League of Nations Publications, Vol. 7, No. 12, 1932, p. 97 ff. See also Chapter 3, Section 3.5.2., supra. 123. See also Dugard, RECOGNITION, p. 33. 124. Id.,at p. 35. 125. See note 75, supra.

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way to the political realities of the time, as will be seen below. It has also been argued that the rather wide interpretation by the League of the obligation of non-recognition, which included the duty to bar Manchukuo even from the benefits of the Universal Postal Union,126 has been an important factor in the League's failure to uphold the doctrine of nonrecognition.127 And indeed, it is probably not always in the interests of the inhabitants and not in the interest of the general good not to recognize any act resulting from a substantial illegal situation. 128 The absolute denial of the effective situation was difficult to maintain, which resulted in gradual acquiescence on the part of the League in Manchurian participation in international matters such as postal and other technical agreements.129 This arguably resulted in the subversion of the authority of the obligation of nonrecognition and consequently in a lower threshold for some States to set aside the obligation of non-recognition eventually and to recognize Manchukuo as a State under international law. However, this was certainly not the only factor contributing to the demise of the doctrine. The fact that the changed political realities were not particularly favourable for respect for the rule of law, should not be overlooked. In the period between 1934 and 1941, Japan's allies as well as other States proceeded with the recognition of Manchukuo as an independent State. These States held that the recognition of Manchukuo was legitimate, because recognition was a sovereign act which could not be limited by the Covenant of the League of Nations without an explicit provision to that effect.130 In other words, these States no longer interpreted Article 10 as implying an obligation of non-recognition. The abandonment of the doctrine of non-recognition is also apparent from the broad recognition of the Italian annexation of Ethiopia in 1936.131 After that recognition, other annexations followed.132 Puppet entities

126. Recommendations of the League of Nations Advisory Committee of 7 June 1933, LNOJ, Spec. Supp., No. 113, p. 10. 127. Usuki, supra note 1, at p. 90. 128. See Section 9 of this Chapter, infra. 129. Usuki, supra note 1, at p. 90. 130. Cf. the statement by the consul of El Salvador in reply to the criticism that all members of the League were obliged to withhold recognition of the Manchurian entity. Sharp, supra note 13, at p. 171. See also Dugard, RECOGNITION, p. 34. 131. The annexation of Abyssinia was proclaimed on 9 May 1936. See, generally, Marek, IDENTITY, pp. 263-282. More than thirty States granted recognition either dejure or de facto. The US never recognized the annexation, while the United Kingdom, after hesitation, granted de facto recognition of the King of Italy as Emperor of Ethiopia in December 1936, and de jure recognition thereof in November 1938. See Haile Selassie v. Cable and Wireless Ltd. (No. 2), 1939, Ch. 182; Haile Selassie v. Cable and Wireless Ltd. (No. 1), 1938, Ch. 545, 839. See also OPPENHEIM'S lNT'L LAW, pp. 191-192, and the references mentioned there (dealing primarily with UK practice).


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were set up on occupied territory by Germany, such as the State of Slovakia in 1939,133 which was recognized in due course by most European States.134 This practice undoubtedly prevented the doctrine of non-recognition from becoming a rule of international customary law in this period, particularly in the field of statehood. During this era of the League of Nations, one can clearly identify the rise of the doctrine of the legal obligation of non-recognition. Under this doctrine, an obligation did exist not to recognize or to validate, through an individual or a collective act, a violation of a fundamental rule of law or the results of that violation, the general rule concerned being the prohibition of the aggressive use of force. There is no logical reason for excluding purported States created in violation of that fundamental rule from the application of this obligation of non-recognition. Indeed, as the case of Manchukuo shows, there are strong reasons to believe that the doctrine was considered to be applicable to cases of state creation as well. The circumstances in, and leading up to World War II led to situations in which the doctrine was no longer upheld. However, when looking back on this episode of history, it may be said that the doctrine was not abolished completely, but only suspended temporarily. For, during the era of the United Nations the doctrine of the obligation of non-recognition of purported statehood was revived through the adoption of resolutions by both the Security Council and the General Assembly, containing determinations of violations of international law and calling on member States not to recognize either the act itself or its results as having legal effect. Three situations have arisen specifically concerning purported statehood in which the United Nations explicitly called for the non-recognition of these entities as a result of their establishment contrary to a fundamental rule of international law. These are the cases of the Turkish Republic of Northern Cyprus, Southern Rhodesia and the South African Homeland territories. Analysis of these cases not only reveals concrete norms entailing an obligation of non-recognition of purported statehood if the entity is created in violation of such a fundamental norm, but also casts light on the character of the legal norms involved. First, however, it is necessary to examine the circumstances 132. Of, for instance, the Baltic States into the Soviet Union in 1940. See Marek, IDENTITY, pp. 369416; and see p. 68, note 72, supra, 133. Marek, IDENTITY, pp. 287-291; R. Langer, THE SEIZURE OF TERRITORY: THE STIMSON

DOCTRINE AND RELATED PRACTICES IN LEGAL THEORY AND DIPLOMATIC PRACTICE, 1947, pp. 207-244. 134. For instance, the United Kingdom accorded defacto recognition to the Government of Slovakia in May 1939. OPPENHEIM'S INT'L LAW, p. 187, n. 5. On the subject of the puppet State of Croatia which was established in 1941 by Germany and Italy on Yugoslav occupied territory, see A.P. Sereni, The Status of Croatia Under International Law, APSR, 1940, p. 1144. And see Re Dues for Reply Coupons Issued in Croatia, ILR, Vol. 23, 1956, p. 591.

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leading to the establishment of the aforementioned entities and to discuss the international community's response to their claim to statehood. § 5.2.

The era of the United Nations

§ 5.2.7.

Violation of the prohibition of the use of force, in particular the prohibition of aggression

In 1951, Chen wrote: a new State may be set up in the territory of an existing State through the intervention of a foreign State. However, if, once set on its feet, the new State is in fact able to lead an independent national life, the mere fact that the intervening State had committed a breach of international law by the intervention does not necessarily invalidate the legal existence of the new State. Its recognition should be determined according to the principle of de factoism.135

Although this statement is understandable in the context of the time when it was written, it is no longer in accordance with contemporary international law on the subject. This is shown by the case of the establishment of the Turkish Republic of Northern Cyprus (TRNC)136 and the reaction of the international community which, with the exception of Turkey, has completely rejected the Republic's claim to statehood. Cyprus has a population of around 700,000, of which it is estimated that around 70-75 per cent are Greeks and 20-24 per cent are Turks.137 The Greeks are descended from the Greek mainland and the Turks are descended from Turkish settlers who came to the island when it was part of the Ottoman empire. In 1878, after some 300 years under Ottoman rule, Turkey agreed to assign Cyprus to Britain after Britain's decision to join Turkey in a defensive alliance against Russia. Cyprus remained under Turkish sovereignty but would be ruled by Britain. Anti-colonial feelings led to the Greek Cypriot's call for Enosis (union with Greece). When Turkey took position against Britain in World War I , the latter annexed the island in 1914. This annexation was recognized by Turkey in 1923. Under British rule, inter-ethnical tensions ran high. On 11 February 1959, Turkey and Greece reached an agreement on the 135. Chen, RECOGNITION, pp. 414-415. 136. The history of Cyprus and the conflict over the northern part of the island has been described in extensive detail elsewhere. See, e.g., Z.M. Necatigil, THE CYPRUS QUESTION AND THE

TURKISH POSITION IN INTERNATIONAL LAW, 1989; J. Joseph, CYPRUS: ETHNIC CONFLICT AND INTERNATIONAL POLITICS, 1997; R McDonald, THE PROBLEM OF CYPRUS, 1989. See also S. Palmer, The Turkish Republic of Northern Cyprus: Should the United States Recognize It as an Independent State?, B.Univ. ILJ, Vol. 4, 1986, p. 423. 137. Necatigil, supra note 136, at p. 1.

Non-Re cognition and Additional Criteria Based on Legality

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future for Cyprus,138 which would entail its independence, and which was accepted by the British as well as the representatives of the Greek and Turkish communities eight days later, with the 'London Agreement'. The Cyprus Constitution was signed on 6 April 1960, and was followed by the signature of three treaties on 16 August 1960: the Treaty of Establishment and the Treaty of Guarantee to which the United Kingdom, Greece, Turkey and Cyprus were parties, and the Treaty of Military Alliance to which Greece, Turkey and Cyprus were parties. On that same date, Cyprus became an independent State. The period between 1960 and 1974 was one fraught with constitutional crisis and mounting inter-communal strife.139 A United Nations peacekeeping force was deployed on the island in 1964.140 The situation remained tense, especially since the Turkish Cypriot position deteriorated when the government came to be more and more under Greek Cypriot control.141 On 7 and 8 August 1964, Turkey bombed certain areas in Cyprus. This action was denounced almost immediately by the Security Council.142 On 15 July 1974, the Government of the Greek Cypriot Archbishop Makarios, who was accused of abandoning Enosis, was overthrown by a coup d'etat by officers of the Greek Cypriot National Guard, backed by Greece.143 This action provoked the Turkish military intervention on 20 July 1974, after aborted consultations with the British government who refused to act in concert with the Turks.144 Turkey invoked the Treaty of Guarantee as a legal ground for its actions and stated that its actions were necessary to protect the Turkish Cypriot community. On that same day, the Security Council adopted Resolution 353, which demanded "an immediate end to foreign military intervention in the Republic of Cyprus [,..]."145 Turkish forces occupied the northern part of Cyprus, that is to say, about 35 per cent of the island. On 13 February 1975, the 'Turkish Federated State of Cyprus' was proclaimed. This proclamation however, was not intended as a proclamation of an independent State, but rather as a proclamation of an autonomous part within a federation which at that time did not exist. Following unsuccessful 138. Basic Structure of the Republic of Cyprus, British and Foreign State Papers, Vol. 164, p. 219. 139. Civil riots after president Makarios's proposal to amend the 1960 Constitution envisaging a minority status for the Turkish population led to some 500 people killed and many thousands wounded. McDonald, supra note 136, at p. 12. 140. UN Doc. S/Res/186, 4 March 1964 (UNFICYP). 141. McDonald, supra note 136, at p. 14. 142. UN Doc. S/Res/ 193, 9 Aug. 1964. 143. McDonald, supra note 136, at p. 18; D. Wippman, International Law and Ethnic Conflict on Cyprus, Texas International Law Journal, Vol. 31, 1996, p. 142, at p. 147; Necatigil, supra note 136, at p. 75-77. 144. Necatigil, supra note 136, at p. 79-80. 145. UN Doc. S/Res/353, 20 July 1974.

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talks between the two communities during the period between 1974 and 1983, an Assembly elected by the Turkish Cypriot community unanimously proclaimed the TRNC as an independent State on 15 November 1983.146 The TRNC was recognized immediately by Turkey. On 18 November 1983, the Security Council adopted Resolution 541 in which it "deplores the declaration of the Turkish Cypriot authorities of the purported secession of part of the Republic of Cyprus". The resolution continued by stating that the Security Council: 2. Considers the declaration referred to above as legally invalid and calls for its withdrawal, [...] 7. Calls upon all states not to recognize any Cypriot state other than the Republic of Cyprus, [...].147

This Resolution was followed by Security Council Resolution 550 of 11 May 1984, which re-affirmed Resolution 541, condemned all secessionist actions, including the exchange of 'ambassadors' between the TRNC and Turkey, and repeated the call on all States not to recognize the "purported State of the Turkish Republic of Northern Cyprus".148 Both Security Council Resolutions 541 and 550 cannot be considered to be binding instruments, however, because they were not adopted under Chapter VII and did not contain a reference to Article 25 of the Charter. Nor did their terms imply that the resolutions were intended to be binding.149 In addition to the resolutions adopted by the Security Council, the proclamation of independence was rejected by the Committee of Ministers of the Council of Europe,150 the European Communities 151 and the Common

146. 147. 148. 149.

See UN Doc. A/38/586-S/16148, 16 Nov. 1985. UN Doc. S/Res/541/83, 18 Nov. 1983. UN Doc. S/Res/550, 11 May 1984. Dugard, RECOGNITION, p. 110; Calgar and others v Billingham (Inspector of Taxes), 1996, p. 150, quoted in: C. Warbrick, Unrecognized States and Liability for Income Tax, ICLQ, Vol. 45, 1996, p. 945, at p. 958. See also J.A. Frowein, Non-Recognition, EPIL, Vol. 3, 1997, p. 627. 150. Committee of Ministers, Resolution (83) 13, 24 Nov. 1983, Paras. 1 and 2, reprinted in: Republic of Cyprus, EUROPEAN STAND ON THE CYPRUS PROBLEM, 1998, p. 45. See also Parliamentary Assembly, Recommendation 974, 23 Nov. 1983 and Parliamentary Resolution 816, 21 March 1984. Both documents are reprinted in: id., at pp. 27-30. 151. Declaration, 16 Nov. 1983, stating: "[t]he ten Member States of the European Community are deeply concerned by the declaration purporting to establish a 'Turkish Republic of Northern Cyprus' as an independent State. They reject this declaration, which is in disregard of successive resolutions of the United Nations. The Ten reiterate their unconditional support for the independence, sovereignty, territorial integrity and unity of the Republic of Cyprus. They continue to regard the Government of President Kyprianou as the sole legitimate Government of the Republic of Cyprus. They call upon all interested parties not to recognize this act, which creates a very serious situation in the area", quoted in: European Court of Human Rights, Loizidou v. Turkey (Merits), Judgment, 18 Dec. 1996, Reports of Judgments and Decisions of


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wealth Heads of Government.152 No State, except for Turkey, has ever accepted the TRNC's claim to statehood.153 In view of the above, it has been suggested, and as will be seen correctly so, that the main reason for the universal (minus one) non-recognition of the TRNC is that its emergence was a direct result of a violation of the prohibition on the use of force contained in Article 2(4) of the United Nations Charter, which is accepted as being part of international customary law.154 This argument must, of course, be based on the view that the use of armed force by Turkey was - and in view of its continued military presence and occupation still is - unlawful. This position is not, however, shared by all writers. It is argued that the Treaty of Guarantee authorizes the taking of "action" under Article IV155 by each of the guaranteeing Powers in the event of a breach of the provision of the Treaty and after consultation among the guaranteeing Powers. Therefore the Turkish use of armed force would be lawful both under the Treaty, the Charter of the United Nations and customary international law, because "action" was meant to include armed intervention.156 This view is difficult to accept, however. Article IV should be read in conjunction with Articles I and II of the Treaty. Even if "action" was meant to include armed intervention

152.

153.

154. 155.

156.

157.

the European Court of Human Rights, 1996 VI, p. 2216, at p. 2224. See also Resolution of the European Parliament, 17Nov, 1983, Para. 1, reprinted in: Republic of Cyprus, EUROPEAN STAND ON THE CYPRUS PROBLEM, supra note 150, at p. 75. Press Communique, 29 Nov. 1983, stating inter alia, "[t]he Heads of Government condemned the declaration by the Turkish Cypriot authorities issued on 15 November 1983 to create a secessionist state in northern Cyprus, in the area under foreign occupation. Fully endorsing Security Council Resolution 541, they denounced the declaration as legally invalid and reiterated the call for its non-recognition and immediate withdrawal. They further called upon all states not to facilitate or in any way assist the illegal secessionist entity. They regarded this illegal act as a challenge to the international community and demanded the implementation of the relevant UN Resolutions on Cyprus", quoted in: Loizidou v. Turkey, supra note 151, at pp. 2224-2225. See also Loizidou v. Turkey, supra note 151, at pp. 2230-2231; European Commission on Human Rights, Cases 6780/74 and 6950/75, Cyprus v. Turkey, Ybk. of the European Commission on Human Rights, Vol. 18, 1975, p. 82 (esp. at pp. 118-120). See also Dugard RECOGNITION, p. 110. Article IV provides: "In the event of a breach of the provisions of the present Treaty, Greece, Turkey and the United Kingdom undertake to consult together with respect to the representations or measures necessary to ensure observance of those provisions. Insofar as common or concerted action may not prove possible, each of the three guaranteeing Powers reserves the right to take action with the sole aim of re-establishing the state of affairs created by the present Treaty". Quoted in: Necatigil, supra note 136, at p. 101. Necatigil, id., at pp. 108-124. This view seems to be supported by Britain when, in 1964, during debates at the UN the British representative stated that Article IV authorized the use of armed force, but that such use would not necessarily be inconsistent with the UN Charter. UN SCOR, 1098th mtg., 1964, 27 Feb. 1964, para. 12. Article I states: "The Republic of Cyprus undertakes to ensure the maintenance of its independence, territorial integrity and security, as well as respect for its Constitution". Under Article II, the three guarantor States "taking note of the undertakings of the Republic of Cyprus

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- and quite apart from the fact that, as has been suggested, Article IV may have come to be without legal effect when Cyprus became a member of the United 158 Nations - any armed intervention against the territorial integrity of Cyprus would be in violation of the Treaty as well as Article 2(4) of the Charter of the United Nations and, therefore, customary international law.159 The armed intervention on Cyprus and the subsequent occupation of the northern part of the island by Turkish forces since 1974, violates the territorial integrity of Cyprus without a doubt. Events subsequent to the intervention show that the "action" was not aimed at "re-establishing the state of affairs created by" the Treaty of Guarantee, in which context "state of affairs" must be interpreted as including the territorial unity of Cyprus. This is so because the protection of the independence and territorial unity of Cyprus forms the essential raison d'être of the Treaty of Guarantee.160 Several arguments lead to the conclusion that the "action" taken by Turkey was and is directed against the territorial unity of Cyprus. First, it is difficult to believe that the TRNC could have been established unilaterally, that is, without outside intervention by Turkey. Instead, the establishment of the TRNC is a direct result of the Turkish occupation of the northern part of the island. Through the continued presence of 30,000 Turkish troops there, Turkey in fact secures and supports the de facto partition of Cyprus. Moreover, the recognition of the proclamation of independence of the Turkish Republic by Turkey in 1983, provides conclusive evidence that the military intervention and subsequent military presence was and is directed against the territorial integrity of Cyprus, and hence is in violation of international law, as an act of aggression. This argument is supported by the terms of the Security Council resolutions. The Council determined in Resolution 353 that the "foreign military intervention in the Republic of Cyprus [was] in contravention of [the obligation of] all

set out in Article I [...] recognise and guarantee the independence, territorial integrity and security of the Republic of Cyprus, and also the state of affairs established by the Basic Articles of its Constitution". 158. Crawford, CREATION OF STATES, p. 168. This argument was raised by the Government of Cyprus in the UN. See, e.g., UN SCOR, 1098th mtg., 27 Feb. 1964, pp. 15-31, esp. at pp. 18-19. But see for convincing criticism, Necatigil, supra note 136, at pp. 108-111. 159. To the same effect, see A. Filos, Die Entwicklung der Zypern-Frage unter besonderer Berücksichtigung der geplanten EU-Mitlied schaft der Republik Zypern, ZaöRV, Vol. 59, 1999, p. 185, at pp. 195-196. 160. This also follows from the second paragraph of Article II of the Treaty which states that the three guaranteeing Powers "[...] prohibit, so far as concerns them, any activity, aimed at promoting directly or indirectly either union of Cyprus with any other state or partition of the island".


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States to respect the sovereignty, independence and territorial integrity of Cyprus". Therefore, the violation of the territorial integrity of Cyprus by Turkey was not only a 'mere' violation of the Treaty of Guarantee, but also a violation of a fundamental rule of international law, in this case the prohibition of aggression, affecting all States and indeed posing a threat to the international legal order as such. It was seen earlier that, according to the doctrine of non-recognition, it is precisely such a situation which would engender an obligation for States not to 'cure' the illegality of the act or its 'poisoned fruits' through recognition.161 Therefore, it must be concluded that the violation of the prohibition of aggression in the process of the entity's establishment is the principal reason for the withholding of recognition of the TRNC. Moreover, the fact that the TRNC was created on occupied territory gives a strong presumption against the entity's actual independence, and may thus form an additional ground for the non-recognition of the entity's claim to statehood.162 Still another factor may be a ground for the general non-recognition of the TRNC. As will be argued later in this study, in the post-colonial context a right of external self-determination (including a right of unilateral secession) only exists as an ultimum remedium, under certain specific circumstances.163 In that respect, it can indeed be questioned whether the Turkish population in Cyprus can genuinely be considered as 'a people' for the purposes of external selfdetermination.164 But even if the Turkish population should be qualified as such, it is tenable that under the circumstances prevailing in 1983, this 'people' was not entitled to external self-determination, and thus not to the establishment of the TRNC, in the absence of circumstances which would legitimize unilateral secession.165

161. 162. 163. 164.

T.M. Franck, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS, 1995, p. 271. See Chapter 3, Section 3.5.2., supra. See Chapter 7, infra. See Chapter 6, Section 3.2. and Chapter 7, Section 4.1., infra. See also Wippman, supra note 143. That is not to say that the Greek population should be considered as 'a people' for the purposes of the right of self-determination. Rather, on the basis of the negative reactions of the international community regarding either union, or Enosis (Greek Cypriots), or separation, or Taksim (Turkish Cypriots), it must be concluded that the Greek Cypriots and Turkish Cypriots together are regarded as 'a people', at least for the purposes of the right of external selfdetermination. 165. Although human rights of Turkish Cypriots were violated by Greek Cypriots (and vice versa) before and during the Turkish military intervention (see, e.g., Necatigil, supra note 136, at pp. 84-86), the situation cannot be considered to be of such an exceptional character as to give rise to a right of secession as an ultimum remedium, as it did in the cases of, for instance, Bangladesh or Croatia. See Chapter 7, infra.

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§ 5.2.2.

Violation of the right of peoples to self-determination

(a) The case of Southern Rhodesia166 In the nineteenth century, the territory which was later called 'Southern Rhodesia' came under British colonial rule. The territory was administered by the British South African Company until the colony obtained a limited form of self-government. Although Britain retained powers to control and regulate legislative activities in Southern Rhodesia, the direct administration of the territory came to rest more and more in the hands of the British settlers. From 1923 onwards, when Southern Rhodesia was granted 'responsible government' by Britain, the white settlers consolidated their power. The internal political relations between the settlers and the Africans was characterized by domination and racial discrimination. Attempts were made to crush African political awareness through several bans on African political parties. The introduction of the 1961 Constitution which, as a result of British pressure, did provide for some representation of the Africans in the Legislative Assembly, did not change much else as far as the position of the Africans was concerned. It was around this time that the United Nations became concerned with Southern Rhodesia. On 12 June 1962, the General Assembly of the United Nations adopted Resolution 1747,167 which declared that Southern Rhodesia constituted a NonSelf-Governing Territory under Chapter XI ('Declaration Regarding Non-SelfGoverning Territories') of the Charter. After the victory of the 'Rhodesian Front', a white settlers political party, in the national elections of 7 May 1965, the wish for independence was explicitly and avowedly supported.168 Prime Minister Ian Smith demanded an immediate grant of independence by Britain, which was rejected. Instead, Britain listed five conditions to be fulfilled after which independence could be granted. These included the demand for progress in ending racial discrimina-

166. See, e.g., V. Gowlland-Debbas, Collective Responses to the Unilateral Declarations of Independence of Southern Rhodesia and Palestine, An Application of the Legitimizing Function of The United Nations, BYIL, Vol. 61, 1991, p. 135; Gowland-Debbas, THE QUESTION OF SOUTHERN RHODESIA; J. Nkala, THE UNITED NATIONS, INTERNATIONAL LAW, AND THE RHODESIAN

INDEPENDENCE CRISIS, 1985; Dugard, RECOGNITION, pp. 90-98. 167. UN Doc. A/Res/1747 (XVI), 12 June 1962. 168. One day before the elections, the Security Council passed Resolution 202, which recalled General Assembly Resolution 1514 (XV) of 14 December 1960. The Security Council furthermore requested "the United Kingdom and all States Members of the United Nations not to accept a unilateral declaration of independence for Southern Rhodesia by the minority Government". In addition, the United Kingdom was requested "not to transfer under any circumstances to its colony of Southern Rhodesia, as at present governed, any powers or attributes of sovereignty, but to promote the country's attainment of independence by a democratic system of government in accordance with the aspirations of the majority of the population". UN Doc. S/Res/202, 6 May 1965.


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tion and the requirement that the British government needed to be satisfied that any basis proposed for independence was acceptable to the people of Rhodesia as a whole.169 No agreement could be reached during the negotiations which followed between the Southern Rhodesian authorities and the British government.170 On 11 November 1965, Southern Rhodesia was unilaterally proclaimed an independent State by the Smith Government. The unilateral declaration of independence (UDI) was generally rejected. The next day, the Security Council passed Resolution 216, which stated that the Security Council: 1. Decides to condemn the unilateral declaration of independence made by a racist minority in Southern Rhodesia; 2. Decides to call upon all States not to recognize this illegal racist minority regime in Southern Rhodesia and to refrain from rendering any assistance 171 to this illegal regime.

This resolution was followed by several others dealing with, amongst other issues, non-recognition, the right to self-determination of the people of Southern Rhodesia and the imposition of sanctions. Security Council Resolution 217 of 20 November 1965 referred to the Smith regime as "illegal authorities" and "a racist settler minority".172 In the same resolution, the Council continued to state that it regarded "the declaration of independence by [the racist settler minority] as having no legal validity",173 and called upon "all States not to recognize the illegal authority as well as not to entertain any diplomatic or other relations with it". When the Smith regime proclaimed the republican status of Southern Rhodesia in March 1970, the Security Council reacted promptly by condemning "the illegal proclamation of republican status of the

169. United Kingdom, Command Papers 2807, at p. 66, cited in: Nkala, supra note 166, at pp. 12-13. 170. In anticipation of a proclamation of independence, the General Assembly passed a Resolution which warned that the UN would oppose any declaration of independence not based on adult suffrage and appealed to all States, "in any case, not to recognize any government in Southern Rhodesia which is not representative of the majority of the people". UN Doc. A/Res/2022 (XX), 5 Nov. 1965. 171. UN Doc. S/Res/216, 12 Nov. 1965. See also UN Doc. A/Res/2024, 11 Nov. 1965, which condemned "the unilateral declaration of independence made by the racialist minority in Southern Rhodesia". Thus, both the General Assembly and the Security Council rejected the UDI almost simultaneously. 172. Later, in Resolution 328 of 10 March 1973, yet another terminology was used when the Smith regime was referred to as "the illegal racist minority regime". 173. In Resolution 288 of 17 November 1970, the Security Council referred to the UDI as "the illegal declaration of independence".

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Territory by the illegal regime in Southern Rhodesia" and decided that Member States shall refrain from recognizing this illegal regime or from rendering any assistance to it.174

The Council also "urged" States not members of the United Nations to act in accordance with the provisions of the resolution.175 In an attempt to gain legitimacy, the minority regime planned to have elections in April 1979. This intention was condemned by the Council which declared that the elections and the results thereof "will be null and void" and "that no recognition will be accorded either by the United Nations or any Member State to any representatives or organ established by that process".176 Only with the Constitutional Conference held in London in 1979 was the rebellion brought to an end, which lead to the resumption of constitutional authority by the United Kingdom and to the independence of the territory now known as Zimbabwe in 1980. It is generally agreed among writers that Southern Rhodesia under the Smith regime would have passed the test of the fulfilment of the traditional criteria for statehood based on effectiveness, and would therefore normally have qualified as a State under international law.177 However, as stated above, the minority regime's claim to statehood was condemned, declared as having no legal validity and qualified as illegal by the United Nations. No State recognized the entity as a State under international law. The main reason for the non-recognition of Southern Rhodesia as a State under international law is that the minority regime's UDI violated the right 174. UN Doc. S/Res/277, 18 March 1970. 175. Id., Para. 18. A comparable formula was used in Resolution 288 of 17 November 1970, which states in operative Paragraph 5: "[f]urther urges all States, in furtherance of the objectives of the Security Council, not to grant any form of recognition to the illegal regime in Southern Rhodesia". 176. UN Doc. S/Res/445, 8 March 1979, Para. 6. See also Resolution 448 adopted by the Security Council after the elections under the auspices of the minority regime, which "reaffirms" Resolution 445 and in particular its provisions on the elections. It is furthermore stated that the elections did not constitute "a genuine exercise of the right of the people of Zimbabwe to selfdetermination and national independence", the resolution "reaffirms the so-called elections and the results thereof as null and void", and "reiterates" the previous "call to all States not to accord recognition to any representative of or organ established by that process". UN Doc. S/Res/448, 30 Apr. 1979. 177. See, e.g., D.J. Devine, The Requirements of Statehood Re-Examined, Mod. L. Rev., Vol. 34, 1971, p. 410, at p. 412; D.J. Devine., The Status of Rhodesia in International Law, Acta Juridica, Vol. 1, 1973, p. 39, at pp. 78-89; J.E.S. Fawcett, Note in Reply to Devine, Mod. L. Rev., Vol. 34, 1971, p. 417; J.E.S. Fawcett, Security Council Resolutions on Rhodesia, BYIL, Vol. 41, 1965-1966, p. 103, at p. 110; Crawford, CREATION OF STATES, p. 103; Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, pp. 205-216; Dugard, RECOGNITION, p. 91; Nkala, supra note 166, at p. 56; Shaw, INTERNATIONAL LAW, p. 145.


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178

to self-determination of the Southern Rhodesian people. This argument is, of course, based on the presumption that the Southern Rhodesian people were entitled to self-determination. United Nations practice overwhelmingly supports this point. Thus, the General Assembly on 18 June 1962 passed Resolution 1747, which "regretted" the fact that the United Kingdom had "not yet taken steps to transfer all powers to the people of Southern Rhodesia as required under Paragraph 5 of resolution 1514" and affirmed that "the territory of Southern Rhodesia is a Non-Self-Governing Territory within the meaning of Chapter XI of the Charter of the United Nations". From this time onwards, numerous resolutions were adopted either by the Security Council or the General Assembly which mentioned and confirmed the right to self-determination of the Southern Rhodesian people.180 In addition, several statements by the International Court of Justice in the case concerning Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970)181 and the Western Sahara case182 leave no doubt that Southern Rhodesia was a territory qualifying for self-determination. In 1971, the Court, in dealing with the evolution of international law in particular since the League of

178. Dugard, RECOGNITION, pp 97-98; Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, pp. 225-229; Fawcett, Security Council Resolutions on Rhodesia, supra note 178, at pp. 112-113; Crawford, CREATION OF STATES, pp. 105-106. The illegality of the UDI from the point of view of the Constitution of Southern Rhodesia is not discussed here. See GowllandDebbas, THE QUESTION OF SOUTHERN RHODESIA, pp. 80-85, and the references mentioned there. 179. UN Doc. A/Res/1747 (XVI), 18 June 1962. For a discussion regarding the General Assembly's competence to pass the resolution, see Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, pp. 104-132. This author subscribes to the widely supported view that the General Assembly was competent in this regard. See also Higgins, supra note 26, at p. 113. 180. As regards the continued reaffirmation of the right to self-determination of the people of Southern Rhodesia by the Security Council, see also UN Doc. S/Res/232,16 Dec. 1966; UN Doc. S/Res/253, 29 May 1968; UN Doc. S/Res/288, 17 Nov. 1970; UN Doc. S/Res/318, 28 July 1972; UN Doc. S/Res/326, 2 Feb. 1973; UN Doc. S/Res/328, 10 March 1973; UN Doc. S/Res/386, 17 March 1976; UN Doc. S/Res/403, 14 Jan. 1977; UN Doc. S/Res/411, 30 June 1977; UN Doc. S/Res/423, 14 March 1978; UN Doc. S/Res/424, 17 March 1978; UN Doc. S/Res/445, 8 March 1979; UN Doc. S/Res/448,30 Apr. 1979; UN Doc. S/Res/460, 21 Dec. 1979; UN Doc. S/Res/463, 2 Feb. 1980). As for the General Assembly, see, e.g., UN Doc. A/Res/2022 (XX), 5 Nov. 1965 (which stated that the intention of the minority regime to proclaim independence "would continue the denial to the African majority their fundamental rights to freedom and independence", quoted in: Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, p. 225. And see UN Doc. A/Res/2151 (XXI), 22 Oct. 1966; UN Doc. A/Res/2262 (XXII), 3 Nov. 1967; UN Doc. A/Res/2383 (XXIII), 7 Nov. 1968 ("any independence without majority rule in South Rhodesia is contrary to the provisions of General Assembly Resolution 1514 (XV) [...]". In the same Resolution, States are furthermore requested not to recognize any form of independence which does not conform to Resolution 1514 (XV)). See also UN Doc. A/Res/2877 (XXVI), 20 Dec. 1971. 181. Advisory Opinion, ICJ Rep. 1971, p. 6 (hereinafter 'Namibia case'). 182. Western Sahara case, supra note 73.

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Nations Mandate system, noted that the subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them.183

In the Western Sahara case, the Court stated without hesitation that the people of a territory entitled to self-determination have the right "to determine their future political status by their own freely expressed will". 184 The fact that the Smith regime proclaimed the independence of the territory while totally unrepresentative of the people of Southern Rhodesia, and the fact that it did so without the approval of the majority of the people of the territory, was considered to be a flagrant violation of the right to self-determination of the people of Southern Rhodesia as envisaged in the 1960s Resolutions 1514 and 1541 of the General Assembly.185 As a consequence, the UDI was declared to have "no legal validity", and the subsequent consequences of it, at least as far as the results of national elections were concerned, were explicitly declared to

183. Namibia case, supra note 181, at p. 31. This passage was again cited with approval by the Court in the Western Sahara case. See Western Sahara, supra note 73, at pp. 31-33. It is tenable that Resolution 1514 (supra note 59) was declaratory of an already existing rule of international customary law, because the Resolution reflects the general and consistent practice of the General Assembly regarding self-determination prior to the adoption of that Resolution. See Chapter 5, Section 3.4.3., infra. 184. Western Sahara case, supra note 73, at p. 36. See also Separate Opinion, Judge Dillard, id., at pp. 121-122 ("the present Opinion is forthright in proclaiming the existence of a 'right' [...]. The pronouncements of the Court thus indicate, in my view, that a norm of international law has emerged applicable to the decolonization of those non-self-governing territories which are under the aegis of the United Nations". And see Separate Opinion, Judge Nagendra Singh, id., at p. 81 ("the consultation of the people of the territory awaiting decolonization is an inescapable imperative whether the method followed on decolonization is integration or association or independence [...]. Thus even if integration of territory was demanded by an interested State, as in this case, it could not be had without ascertaining the freely expressed will of the people - the very sine qua non of all decolonization"). See also UN Doc. A/Res/637 A (VII), 16 Dec. 1952, Para. 2, which expressly states that the exercise of the right to self-determination should take place in accordance with "the freely expressed wishes of the peoples concerned, the wishes of the people being ascertained through plebiscites or other recognized democratic means, preferably under the auspices of the United Nations". 185. See UN Doc. S/Res/217, 20 Nov. 1965 (vote: 10 to 0, with one abstention (France)) which "[c]ondemns the usurpation of power by a racist settler minority in Southern Rhodesia and regards the declaration of independence by it as having no legal validity" and "calls upon the United Kingdom [...] to take immediate measures in order to allow the people of Southern Rhodesia to determine their own future consistent with the objectives of General Assembly Resolution 1514 (XV)". And see S/Res/277 of 18 March 1970, which states that "[t]he situation in Southern Rhodesia continues to deteriorate as a result of the introduction by the illegal regime of new measures, including the purported assumption of republican status, aimed at repressing the African people in violation of General Assembly Resolution 1514 (XV) of 14 December I960" and subsequently "[c]ondemns the illegal proclamation of republican status of the Territory by the illegal regime in Southern Rhodesia" (emphasis added).


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be null and void.186 It is therefore beyond all doubt that the call for nonrecognition was based on the denial and thus the violation of the right to selfdetermination of the Rhodesian people as a whole, and its object was to prevent recognition, either explicitly or implicitly, of Southern Rhodesia as a State under international law. 187 The UDI and its non-recognition is generally and solely approached from the perspective of the illegality of the UDI. Although this is correct, another element is important as well. This concerns the fact that according to the application by the United Nations of the right to self-determination during the period of decolonization, the Smith regime lacked all competence to issue a proclamation of independence. As will be discussed elsewhere in this study, the subject of the right to self-determination during this phase of history was limited to the inhabitants of colonial territories. Thus, the subject of the right, was territorially rather than ethnically defined.188 The effectuation of selfdetermination could be realized either through opting for independence or another political status as a result of a decision by an authority which was deemed to be representative of the inhabitants of the territory, or through a referendum or a comparable means of free political expression by the population.189 It is evident that a proclamation of independence by an unrepresentative 186. UN Doc. S/Res/445, 8 March 1979. The Resolution moreover reaffirms that "the existence of the illegal racist minority regime in Southern Rhodesia constitutes a threat to international peace and security", and reaffirms the "inalienable right of the people of Southern Rhodesia to selfdetermination and independence". 187. It may be questioned whether the violation by the UDI of the right to self-determination was the only ground for non-recognition, or that other grounds yet existed. In that respect, mention could be made of the prohibition of racial discrimination which, at the time of the UDI, was recognized as a rule of customary international law. See, e.g., Case Concerning the Barcelona Traction Light and Power Company, Limited, (Second Phase), Judgment, ICJ Rep. 1970, p. 4, at p. 32 (hereinafter 'Barcelona Traction case'); Dissenting Opinion Judge Tanaka, South West Africa cases, (Second Phase) (Ethiopia v. South Africa; Liberia v. South Africa), ICJ Rep. 1966, p. 6, at pp. 286-301, esp. at p. 293; Draft Report of the 1966 Special Committee on Principles of International Law Concerning Friendly Relations and Co-Operation Among States, Rapporteur W. Riphagen, UN Doc. A/AC.125/L.38/Add.6, 21 Apr. 1966, p. 16. See also ICCPR, Arts. 2(1) and 26; and see the International Convention on the Elimination of all Forms of Racial Discrimination of 7 March 1966, UNTS, Vol. 660, 1969, p. 212. Moreover, reference can be made to the numerous resolutions of both the Security Council and the General Assembly against South Africa's Apartheid policy (see notes 204 and 205, infra). See also Brownlie, PRINCIPLES, pp. 602-605. However, in the resolutions of both the Security Council and the General Assembly concerning Southern Rhodesia, there is no special emphasis on the violation of the prohibition of racial discrimination as far as the illegality of the UDI is concerned. It must, however, be assumed that the prohibition was taken into consideration as is evidenced by the reference in the resolutions to the racist minority regime. However, it was, arguably, not the principal ground for non-recognition.SeealsoGowlland-Debbas,THE QUESTION OF SOUTHERN

RHODESIA, pp. 221-225. 188. See, e.g., UN Doc. A/Res/1541, (XV), supra note 30, Principle IV; and see Chapter 5, Section 3.4.2., infra. 189. Western Sahara case, supra note 73, at p. 33; UN Doc. A/Res/1541, supra note 30, Principles VII and IX; UN Doc. A/Res/2625, supra note 59, Principle V, Para. 6.

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authority in a colonial territory does not meet these principles. It is therefore not surprising to see that these principles were emphasized in the Security Council resolutions on Southern Rhodesia.190 The following conclusions present themselves. The proclamation of independence by the Smith regime had two juridical effects, both of which were apparently considered to engender the obligation of non-recognition. Firstly, as is clear from the United Nations decisions, the UDI was illegal because it violated a substantive rule of international law, namely the right of selfdetermination of the population of Southern Rhodesia. The violation of this norm was regarded as being of such gravity that the UDI was therefore considered a legal nullity. Secondly, the UDI also lacked legal validity, that is, it could not produce the intended legal consequence of changing the international status of the colonial territory, because it was issued by an entity which was (a) not the subject of the right of self-determination and (b) not representative of the subject of that right. Therefore it did not possess the competence under international law to exercise the right to self-determination. Hence any recognition of this proclamation of independence would in fact endow the act by the minority regime with legal consequences which would be opposable vis-à-vis the recognizing State. Because such recognition would in itself be unlawful as a violation of the right to self-determination of the people of Southern Rhodesia, this point also explains the call for non-recognition by the Security Council and the withholding of recognition by all States.191 (b) The South African Homeland territories The creation of the so-called 'independent Homelands' by the South African government from the mid 1970s onwards, was met with general condemnation and rejection of the Homelands as States under international law. The policy of Apartheid by the South African minority regime and its implications under international law has been much discussed in doctrine.192 The Apartheid policy 190. Cf., e.g., UN Doc. S/Res/253, 29 May 1968, where, in Para. 17, it is stated "that the United Kingdom as the administering Power should ensure that no settlement is reached without taking into account the views of the people of Southern Rhodesia, and in particular political parties favouring majority rule, and that it is acceptable to the people of Southern Rhodesia as a whole" (emphasis added). See also the comments by the Netherlands, stating that the Netherlands' views "were based on the principles of [Resolution 1514]. It therefore rejected the claim of the minority regime to decide the future of the people of the Territory. That regime's UDI was illegal". UN GAOR (XXVI), 4th Committee, 1955th mtg., p. 212, para. 15, 24 Nov. 1971. 191. See also M.F. Witkin, Transkei: An Analysis of the Practice of Recognition - Political or Legal?, Harv. ILL Vol. 18, 1977, p. 605, at p. 620, n. 91. 192. See, inter alia, id., at pp. 605-627; D.A. Heydt, Nonrecognition of the Independence of Transkei, Case W. Res. JIL, Vol. 10, 1978, p. 167; Crawford, CREATION OF STATES, pp. 222-227; Dugard, RECOGNITION, pp. 98-108. For an account of the origins of and justifications for Apartheid, see L. Thompson, THE POLITICAL MYTHOLOGY OF APARTHEID, 1985.


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and the legal system based on it, demanded the most rigid form of racial segregation. It was the means by which the white minority attempted, and for a long time succeeded, to retain power in South Africa. Although racial segregation and discrimination, accompanied by the creation of separate areas exclusively designated for the native black Africans (the Bantus) featured in the policy of the white governments in South Africa as early as the beginning of the twentieth century, no independent Homelands were envisaged at that time.193 This idea developed as a result of international pressure and condemnation of the Apartheid policy and the growing emphasis and interest in decolonization in the 1950s and 1960s. The South African Government attempted to combat this international pressure to its policy of systematic racial discrimination - of which kind of policy Apartheid is the example par excellence - through a territorial definition of "separate development". This resulted in the introduction in 1959 of the Promotion of Bantu Self-Government Act. The Act set up machinery for the creation of ten territorial areas in South Africa ('Homelands') for different government-designated African tribal groups.104 The 'Homelands' comprised some 13 per cent of the territory of South Africa. The South African government asserted that this policy was based on the principle of self-determination.195 Grants of self-government to the Bantu reserves by the South African government in the course of the 1960s and 1970s would constitute evidence of the South African government's adherence to the principle of self-determination. In 1971, the South African government announced that it intended eventually to grant "self-determination" or "sovereign independence" to the ten areas.196 The first Homeland to obtain 'independence' was Transkei, which was granted independence on 26 October 1976. This was followed by grants to Bophuthatswana in 1977, Venda in 1979, and Ciskei in 1981. Even before the grant of independence to Transkei, the General Assembly of the United Nations had already adopted several resolutions stating that the Bantustan policy was in pursuance of Apartheid, and condemning the policy as violating the right of self-determination and as being prejudicial to the territorial integrity of South Africa. In addition, these resolutions called upon 193. J. Dugard, Collective Non-Recognition: the Failure of South Africa's Bantustan States, in: BOUTROS BOUTROS GHALI AMERICORUM DISCIPULORUMQUE LIBER, Vol. l, 1998, p. 383, at pp. 384-385. 194. Id., at p. 385; H.J. Richardson III, Self-Determination, International Law and the South African Bantustan Policy, Colum. J. Transnat'l L., Vol. 17, 1978, p. 185, at pp. 185-186. 195. Dugard, supra note 193, at p. 385. 196. UN Doc. 20/74, 1974, pp. 26-27, 40. 197. See, e.g., UN Docs. A/Res/ 2671 F (XXV), 8 Dec. 1970 and A/Res/2775E (XXVI), 29 Nov. 1971. The latter Resolution furthermore condemns "the forcible removal of the African people of South Africa and Namibia to those areas as a violation of their inalienable rights contrary to the

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"all Governments and organizations not to accord any form of recognition to [the Bantustan homelands]".198 On 26 October 1976, in response to the grant of independence to Transkei, the General Assembly passed Resolution 31/6 A, which called the 'independence' of Transkei a sham. The resolution continued by stating that the General Assembly: 1. Strongly condemns the establishment of bantustans as designed to consolidate the inhuman policies of apartheid, to destroy the territorial integrity of the country, to perpetuate white minority domination and to dispossess the African people of South Africa of their inalienable rights; 2. Rejects the declaration of 'independence' of the Transkei and declares it invalid; 3. Calls upon all Governments to deny any form of recognition to the so-called independent Transkei and to refrain from having any dealings with the socalled independent Transkei or other bantustans [...].199

The grants of 'independence' to Bophuthatswana, Venda and Ciskei were also 200 denounced generally. On the matter of Bophuthatswana, the General Assembly used similar terms as in the case of Transkei. The General Assembly condemned the establishment of Bantustans and called upon all States not to recognize them.201 The 'independence' of Venda was also rejected, which was made clear through a statement by the President of the Security Council on behalf of the Council. When Ciskei was granted independence a similar statement was issued. Until the disappearance of the Homeland territories

principle of self-determination [...]"• 198. UN Doc. A/Res/3411 D (XXX), 28 Nov. 1975. 199. UN Doc. A/Res/31/6 A, 26 Oct. 1976 (vote: 134 to 0, with one abstention (USA)). The abstention of the US government, however, had nothing to do with the principal points of the Resolution, but with the fact that the Resolution ostensibly prohibited all contact with the 'bantustans', applying even if the security or interests of US citizens would be at stake. See UN GAOR, 42nd plenary mtg., p. 726 and UN Doc. A/31/PU.42, 1976. Resolution 31/6 A was upheld by Security Council Resolution 402 of 22 December 1976. See also the Special Committee against A partheid, who in its annual report of 1976 recommended the General Assembly "to condemn the declaration of the 'independence' of Transkei as utterly invalid" and "to call on all Governments to refrain from extending any form of recognition to Transkei". UN Ybk., Vol. 30, 1976, p. 122. 200. Cf. the statement by the Foreign Secretary of the United Kingdom regarding Bophuthatswana's 'independence', stating: "Bophuthatswana's fragmentary nature is only one reason why no country thought it right to recognise its independence. That country is financially dependent on South Africa. The very existence of Bophuthatswana is a consequence of apartheid, and I think that that is the principal reason why recognition has not been forthcoming". BYIL, 1988, Vol. 59, pp. 436-437. 201. UN Doc. A/Res/32/105 N, 14 Dec. 1977. 202. The statement condemned "the proclamation of the so-called independence of Venda" and called "upon all Governments to deny any form of recognition to the so-called 'independent' bantustans". UN Doc. S/13549, 21 Sept. 1979. 203. UN Doc. S/14794, 15 Dec. 1981.


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in 1994, the United Nations, both through the Security Council204 and through the General Assembly,205 regularly condemned the Apartheid policy and 'bantustanization', and affirmed the right to self-determination of the people of South Africa as a whole. Until their dismantling, no State had recognized the Homeland territories as States under international law, despite the fact that no resolution adopted by the United Nations organs on the subject of withholding recognition was legally binding.206 Several grounds for the non-recognition of the Homeland territories have been suggested. One such is that the creation of the Homeland territories by a racist minority government, leading to the fragmentation of the territory of South Africa, violated the right to self-determination of the South African people. Apartheid and bantustanization or fragmentation have been stated to be incompatible with genuine independence and self-determination. This ground seems to refer to Resolution 1514 of 1960 which in its operative Paragraph 6 states that "any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations".208 Although this provision may be interpreted so as to include situations in established States, the history and purpose of the Resolution point against such an interpretation. The apparent difficulty here is that, contrary to for instance the colonial territory of Southern Rhodesia, there was no doubt that South Africa was an independent State. How then could the creation of the Homelands violate the right to self-determination? Because the issue of the scope of

204. See, e.g., UN Doc. S/Res/181, 7 Aug. 1963; UN Doc. S/Res/392, 19 June 1976; UN Doc. S/Res/417,31 Oct. 1977. In 1980, the Security Council adopted Resolution 473, which recognized "the legitimacy of the struggle of the South African people for the elimination of apartheid and the establishment of a democratic society in which all the people of South Africa as a whole, irrespective of race, colour or creed, will enjoy equal and full political and other rights and participate freely in the determination of their destiny". UN Doc. S/Res/473, 13 June 1980. See also UN Doc. S/Res/556 of 23 Oct. 1984, which reaffirms "the will of the people as the basis of the authority of Government" and "the legitimacy of the oppressed people of South Africa for the full exercise of the right to self-determination and the establishment of a non-racial democratic society in an unfragmented South Africa". In addition, the same Resolution states in its operative Paragraph 6: "[d] emands the immediate eradication of apartheid as the necessary step towards the full exercise of the right to self-determination in an unfragmented South Africa, and to this end demands (a) the dismantling of the bantustan structures [...]". 205. See, e.g., UN Doc. A/Res/31/34,30Nov. 1976 (" [a] ffirming that bantustanization is incompatible with genuine independence, unity and national sovereignty [...]"). And see UN Doc. A/Res/37/43, 3 Dec. 1982, which reiterates the same formula. Dugard also refers to General Assembly Resolution 37/69 A of 9 December 1982, which characterizes "bantustanization" and denationalization of black South Africans as an international crime. Dugard, RECOGNITION, p. 102. 206. Id., at p. 102; OPPENHEIM'S INT'L LAW, p. 190. 207. See notes 204 and 205, supra. 208. UN Doc. A/Res/1514 (XV), 14 Dec. 1960.

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self-determination is discussed in more detail in the following chapters, at this time only the main points will be addressed against the background of the South African situation. Firstly, there is no doubt that both the General Assembly and the Security Council were of the opinion that the population of South Africa was the bearer of the right to self-determination as is evidenced by the recognition of the applicability of that right in numerous resolutions. Secondly, the situation in South Africa has been considered to be one of a "colonial-type domination".209 When the definition of the holder of the right to self-determination according to General Assembly Resolution 1541 as well as United Nations practice during decolonization - both limiting the right to traditional colonial situations - is taken into consideration, South Africa cannot be regarded as a "colonial territory" or a "non-self-governing territory" in the sense that these concepts are used in United Nations instruments. 210 However, it is difficult to deny the similarities between the South African political system and a traditional colonial situation, especially regarding alien domination and exploitation. This, it seems, would in itself justify the application of Resolution 1514 mutatis mutandis to the situation in South Africa, and thus the applicability of self-determination and the prohibition on territorial fragmentation. 211 But in this respect, it must be emphasized that the realization of self-determination under General Assembly Resolution 1514 was primarily envisaged in the ways listed in Resolution 1541, that is, through either independent statehood, association with, or integration in another State. These modes of implementation of (external) self-determination are not and were not considered to be applicable to the population of South Africa.212 Consequently, it must be concluded that the violation of self-determination in the case of South Africa was essentially concerned with the effectuation and implementation of the internal aspect of self-determination, namely the right of the South African population, and in particular the black majority, to freely determine its political status through representation in the government of South Africa and participation in its political decision-making processes without discrimina-

209. Dugard, RECOGNITION, p. 103, citing the Declaration of Lagos of 1984, UN Doc. A/39/433S/16709 and Corr. 1, 11 Sept. 1984. 210. See, e.g., UN Doc. A/AC.125/SR.69,4 December 1967, p. 22 (Kenya: "[t]here were two examples in Africa itself of a flagrant breach of the right of self-determination where the colonial issue did not arise. In South Africa and Rhodesia a minority was subjecting the majority to indescribable indignities and humanity"). 211. See Dugard, RECOGNITION, pp. 102-103. 212. Although the General Assembly's wording of its Resolution 31/34 of 30 November 1976 seems to point to the similarities between traditional colonialism and South Africa when it referred to the fact that bantustanization is incompatible with genuine independence.


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tion.213 Only through this development could "genuine independence" be achieved. 214 In this respect, the decision of the South African government to create the Bantustans, and the subsequent grants of 'independence' were taken neither with the consent of the groups who were associated with the designated areas, nor with the consent of the population of South Africa.215 The absence of consent is in line with the fact that the majority of the South African population had never been able to determine its political status and future freely. Instead, this was determined for them unilaterally by the white minority government. It is for this reason that the General Assembly referred to the establishment of the Bantustans as forming part of a means to "dispossess the African people of their inalienable rights", which cannot but include the right of self-determination.216 Yet, whatever the merits of this argument, it should not be separated, at least not regarding the South African situation, from the international community's efforts to combat colonialism and its diminishing217 hesitation to proclaim explicitly the applicability of self-determination to situations in established States in the early 1970s. Thus, on the one hand, the South African bantustan policy resulted in a situation of a 'colonial type', established and maintained by a white minority government, and, on the other, this government was the government of an established and widely recognized State. It is submitted that these two interrelated aspects regarding the creation of the South African Homelands may clarify to a certain extent the unclear language of the United Nations resolutions and statements with respect to the exact legal basis of the right to self-determination of the people of South Africa. However true this may be, there can certainly be no misunderstanding about the international community's view that (a) the establishment of the Homelands constituted a violation of the right of self-determination of the South African people, and (b) that this violation shall not be validated through the recognition of the 213. See the resolutions mentioned in notes 204 and 205, supra; and UN Doc. S/Res/556, 23 Oct. 1984. Note that the South African black majority was generally referred to as an 'oppressed people' and not as a colonial people as such. See, e.g., A/Res/35/35/A, 14 Nov. 1980, Para. 6. See also A. Rosas, Internal Self-Determination, in: C. Tomuschat (Ed.), MODERN LAW OF SELFDETERMINATION, 1993, p. 225, at pp. 236-238. For a detailed discussion of the scope and status of internal self-determination, see Chapter 6, Sections 2-4, infra. 214. The term 'genuine independence' is used in General Assembly Resolution 31/34, supra note 205. 215. Dugard, RECOGNITION, p. 105; Witkin, supra note 191, at p. 621. As to the requirement of consent by the inhabitants of a colonial territory with respect to the exercise of external selfdetermination, see Chapter 5, Section 3.4.3., infra. For a comparable requirement in the context of post-colonial cases of external self-determination, see Chapter 6, Section 5, infra. 216. See also Witkin, supra note 191, at p. 621. 217. See note 213, supra.

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Homelands as States under international law.218 Another suggested ground for non-recognition is that the Homelands did not become States, because they were not independent for the purpose of statehood in international law.219 Reference to this point was made by the United Nations Special Committee against Apartheid in its 1976 annual report, where, with regard to the establishment of the Bantustans, it recommended the General Assembly to call on all Governments to refrain from extending any form of recognition to Transkei and any contact with the authorities of that bantustan [...] and to call on all corporations, organizations institutions and individuals to refrain from any dealings with the puppet authorities.220

Moreover, any territorial entity that is established by a racist minority regime of an established State in order to perpetuate racist policies is presumed not to be independent. At the very least, such an entity has a heavy burden of proof regarding its actual independence. However, whatever the probability of this point as a ground for nonrecognition, the resolutions and statements by the General Assembly and the Security Council did not explicitly refer to any lack of independence as a ground for non-recognition of the claims to statehood. Therefore, as far as this factor is concerned, the very most that can be said is that the presumed lack of actual independence of the Homelands was taken into account by the international community, but that this factor was overshadowed by the fact that the creation of the entities violated several fundamental rules of international law, including the right of self-determination. § 5.2.3.

Violation of the prohibition of systematic racial discrimination including the prohibition of Apartheid

The case of the South African Homeland territories points at another ground for non-recognition of these territories as States under international law. For, the Homelands were established as a "logical territorial extension of Apartheid as both a general policy and a way of life for whites as a single preferred tribe 218. Another ground for non-recognition consists of the fact that the creation of the Bantustans violated the prohibition of racial discrimination, which is discussed in the next Section. Dugard has suggested yet another ground for non-recognition, namely "compulsory denationalization on grounds of race". See Dugard, RECOGNITION, p. 107. 219. Witkin, supra note 191, at p. 615; Crawford, CREATION OF STATES, p. 226. But see Heydt, supra note 191, at pp. 189-191. 220. See Report of the Special Committee Against Apartheid, UN GAOR, 13th sess., Supp. No. 22 (A/10022), p. 40 (emphasis added). And see UN Ybk., Vol. 30, 1976, p. 122.


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over blacks as an inferior collection of tribes".221 Both the General Assembly and the Security Council have condemned this South African policy as a violation of the Charter of the United Nations and of the principle of the prohibition of systematic racial discrimination, including the prohibition of Apartheid. 222 There is practical unanimity both among States and among international lawyers as to the fundamental character of these prohibitions.223 Therefore, the fact that these norms were violated flagrantly in the process of the formation of the Homelands, arguably constitutes another ground for the complete denial of their claim to statehood.

§ 6.

THE CHARACTER OF THE LEGAL NORMS INVOLVED

As observed earlier, the doctrine of the obligation of non-recognition is premised on the ground that acts and their results which are in violation of fundamental rules of international law are without legal effect and shall not be recognized or validated. The practice of the United Nations in the field of claims to statehood and non-recognition suggests the existence of certain legal rules considered to be of such importance that any act in violation of such a rule, and the consequences of such an act, including effective territorial entities, are considered to be legally non-existent,224 and will not and shall not be recognized as valid. The relevant legal norms that can be deduced from United Nations practice are (a) the prohibition of the use of force and more in particular the prohibition of aggression, (b) the prohibition of the violation of the right to self-determination of peoples, and (c) the prohibition of systematic racial discrimination, including the prohibition of Apartheid. The fact that the United Nations was of the opinion that violations of these 221. Richardson, supra note 194, at p. 192. 222. See, e.g., Declaration of the President of the Court, Sir M. Z. Khan, Namibia case, supra note 181, at p. 57, and at p. 63. See also International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 Nov. 1974, UNTS, Vol. 1015, p. 244 and ILM, Vol. 13, pp. 50-57 (which declares that Apartheid, defined as certain violations of human rights "committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them", is a crime against humanity). And see the UN resolutions mentioned supra notes 204 and 205; the International Convention on the Elimination of All Forms of Racial Discrimination, supra note 187 (Article 3 expressly condemns Apartheid). See also the statement by the Foreign Secretary of the United Kingdom, supra note 200; Witkin, supra note 191, at pp. 621-626. 223. Witkin, id.; and see note 263, infra. 224. The legal non-existence of the entity is evidenced by the fact that in all the discussed cases a third or parent State is addressed as the one under an obligation to put an end to the illegal situation. For a further discussion of the aspect of the legal non-existence of an effective territorial entity, see Section 8 of this Chapter, infra.

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norms were of such gravity that even effective territorial situations should be regarded as "invalid", "without legal effect", "illegal" or "null and void", must be rooted in a belief that these illegal acts and their consequences do not only affect the rights and interests of the holder of the violated right, but indeed affect the rights and interests of the international community as a whole. Otherwise it is difficult to explain why the United Nations called upon all States to refuse to accept the claims by the relevant territorial entities to legal status and rights under international law. For, it will be recalled, such legal status and rights would have been acquired under traditional international law as a result of the effective existence of the entities concerned. The idea that certain acts and their results are considered to be without legal effect because they are in conflict with a fundamental norm, is reflected in the underlying concept of Article 53 of the Vienna Convention on the Law of Treaties. In this Article, it is stated that a treaty is void if, at the time of its conclusion it conflicts with a rule of jus cogens.225 And jus cogens has been defined as "those substantive rules of conduct that prohibit what has come to be seen as intolerable because of the threat it presents to the survival of States and their peoples and the most basic human values".226 It is readily admitted that Article 53 deals with inter se relations. But does that warrant the conclusion that the concept of jus cogens has no role to play beyond the realm of treaty-law, as has been argued by some scholars? The generally accepted position is that the validity and effect of jus cogens transcends treaty-law.228 As has been pointed out,229 at the time of the adoption of the Vienna Convention, the criticism arose that any limitation of the concept of 225. Article 53 reads: "[a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character". 226. Report of the ILC, 53rd sess, 23 Apr.-ljune and 2 July-10 Aug. 2001, UN GAOR, 56th sess., Supp. No. 10, A/56/10, ch. IV.E.2 (Commentaries to the Draft Articles), p. 283. jus cogens norms are thus phrased in the form of prohibitions rather than rights. See also G. Schwarzenberger, International Jus Cogens?, in: Conference on International Law, Lagonissi (Greece), 3-8 Apr. 1966, Papers and Proceedings, Vol. II, THE CONCEPT OFJUSCOGENS IN INTERNATIONAL LAW, 1967, p. 117, at p. 119. 227. See, e.g., J. Sztucki, JUS COGENS AND THE VIENNA CONVENTION ON THE LAW OF TREATIES, A CRITICAL APPRAISAL, 1974, p. 68; K. Marek, Contribution a I'Étude du Jus Cogens en Droit International, in: RECUEIL D'ETUDES DE DROIT INTERNATIONAL EN HOMMAGE A PAUL

GUGGENHEIM, 1968, p. 426, at p. 441. 228. See, e.g., L. Hannikainen, PEREMPTORY NORMS (JUS COGENS) IN INTERNATIONAL LAW, 1988, p. 6 ff.; S. Kadelbach, ZWINGENDES VÖLKERRECHT, 1992, p. 335ff.; B. Simma, From Bilateralism to Community Interest in International Law, HR, 1994 VI, p. 221, at p. 288; G. Dahm,

VÖLKERRECHT, Vol. III, 1961, p. 60. 229. Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, pp. 248-249.


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jus cogens to inter se relations did not take into account the reasons for this restriction on the contractual freedom of States, namely that these rules do not only affect the parties' individual interests which may be waived at will, but the interests of the international community as a whole.230 It is difficult to accept that a rule may not be derogated from because of overriding interests of the international community as a whole in one context, while this would be allowed in another context. In that respect, it has been observed that "if a jus cogens rule cannot be derogated from by treaty it cannot afortiori, be violated by a unilateral act or omission without having the same legal effects".231 The fact that Article 53 of the Vienna Convention limits the scope of jus cogens to treaties is by no means an argument against the existence of jus cogens beyond treaty law, because the article is part of a treaty on the law of treaties and it was that field of international law the International Law Commission was concerned with when it drafted this Convention. Indeed, in its recent Commentary to the Draft Articles on Responsibility of States for International Wrongful Acts, the Commission makes it very clear that the concept of jus cogens extends beyond treaty-law.232 Furthermore, the fact that the United Nations called upon all States not to recognize certain acts and the consequences of those acts, strongly suggests that the breach of certain obligations under international law cannot and shall not be treated as any other breaches of international law, also in cases where the breach did not arise out of inter se relations, but out of a unilateral act. The United Nations reaction should therefore be explained by the fact that the norms breached in the cases discussed above, are generally regarded as norms of jus cogens because these norms consecrate values the respect of which is "essential to the maintenance of the international public order".233 The 230. See also E. Suy, The Concept of Jus Cogens in International Law, in: Lagonissi Conference, supra note 226, p. 17, at p. 75. 231. G. Abi-Saab, Introduction, in: id., p. 7, at pp. 10-11. See also the observation by Suy that "[i]f an international jus cogens exists it must, indeed, make necessarily null and void any of those acts and actions of states whose object is unlawful [...]. It is inconceivable that this effect should not extend to any act or action [in violation of a norm which has] in the hierarchy of legal norms a lower rank than treaties". Suy, id. 232. For instance, the Commission observed that "[i]t is however desirable to make clear that the circumstances precluding wrongfulness in Chapter V of Part One do not authorize or excuse any derogation from a peremptory norm of general international law. For example, a State taking countermeasures may not derogate from such a norm: for example, a genocide cannot justify a counter-genocide". Moreover, the Commission continued," [o] ne State cannot dispense another from the obligation to comply with a peremptory norm, e.g. in relation to genocide or torture, whether by treaty or otherwise [•••]". In addition, the Commission notes that "[Articles 53 and 64 of the Vienna Convention on the Law of Treaties] recognize the existence of substantive norms of a fundamental character, such that no derogation from them is permitted even by treaty". ILC Report 2001, supra note 226, at pp. 207-208, 209, 279 (emphases added). 233. Dugard, RECOGNITION, p. 153.

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fundamental character of the norms which were breached in the aforementioned cases is moreover reflected, as will be seen below, by the fact that each separate obligation to respect each of these norms is considered an obligation erga omnes. The position that the prohibition of the use of force, and in particular the prohibition of aggression, is the example par excellence of jus cogens seems unassailable. It was identified by the International Law Commission in its commentary on the draft of the Vienna Convention on the Law of Treaties as "a conspicuous example" of jus cogens,234 and this position of the Commission was cited by the International Court of Justice in the Nicaragua case.235 There is no doubt as to the crucial position of the prohibition of aggression as one of the basic rules of the Charter of the United Nations, and its imperative status is reflected in several authoritative resolutions of the General Assembly.236 Moreover, the International Court of Justice has considered the obligation on the prohibition of aggression to be amongst other obligations erga omnes.237 Its status of jus cogens is furthermore underscored by several writers.238 The fundamental status of the prohibition of aggression and the related obligation of non-recognition of the results of a violation thereof, is supported by the fact that with respect to the conflict on the territory of the former Socialist Federal Republic of Yugoslavia, the European Community Guidelines on Recognition of New States explicitly stated that "[t]he Community and its Member States 239 will not recognise entities which are the result of aggression". 234. Report of the ILC, 18th sess., ILC Ybk., 1966, Part II, p. 247. See also ILC Report 2001, supra note 226, at p. 283, and the references mentioned there, concerning statements made by States to that effect during the United Nations Conference on the Law of Treaties. 235. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, ICJ Rep. 1986, p. 14, at p. 100. See also, id., Separate Opinion Judge Singh ("the principle of non-use of force belongs to the realm of jus cogens"), at p. 153; and id., Separate Opinion Judge Sette-Camara, at p. 199. For a general account of the Court's practice regarding fundamental rules of international law, see V. Gowlland-Debbas, Judicial Insights Into Fundamental Values and Interests of the International Community, in: A.S Muller, D. Raic & J.M. Thuránszky (Eds.), THE INTERNATIONAL COURT OF JUSTICE. ITS FUTURE ROLE AFTER FlFTY

YEARS, 1997, p. 327. 236. UN Doc. A/Res/2625, supra note 59, Principle I; UN Doc. A/Res/3314 (XXIX), 14 Dec. 1974 (Definition of Aggression); UN Doc. A/Res/36/103, 9 Dec. 1981 (Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States). 237. Barcelona Traction case, supra note 187, at p. 32. With respect to obligations erga omnes (which the Court defined as "obligations of a State towards the international community as a whole"), the Court observed: "such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination". 238. Y. Dinstein, WAR, AGGRESSION AND SELF-DEFENCE, 1994, p. 102; Brownlie, PRINCIPLES, p. 515; Dugard, RECOGNITION, p. 154; AD. McNair, LAW OF TREATIES, 1961, pp. 214-215. 239. Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, 16 Dec. 1991, ILM Vol. 31, 1992, pp. 1485-1487.


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The prohibition of the violation of the right of peoples to self-determination has also often been advanced as a peremptory norm of international law. There are strong reasons to believe that this view is correct. In the first place, the fundamental position of the right of self-determination with regard to the maintenance of international peace and security as emphasized by Article 1 (2) of the Charter of the United Nations must be noted. In said Article, it is stated that friendly relations among nations must be developed by the United Nations on the basis of equal rights and self-determination.24() And, as has been pointed out, "[d]eveloping such friendly relations is one of the Purposes of the United Nations - central to its existence".241 According to the International Law Commission, the right of self-determination certainly qualifies as a norm of jus cogens.242 In addition, the International Court of Justice considered the obligation to respect the basic rights of the human person to be an obligation erga omnes.243 Given the indispensable position of the right of self-determination as a prerequisite for the effective exercise and enjoyment of individual human rights,244 it is seems inescapable that the obligation to respect the right of selfdetermination is also owed erga omnes. Moreover, in the East Timor case, the Court held that the entitlement to respect of the right to self-determination is itself a right erga omnes.245In the same case, the Court emphasized that the right of peoples to self-determination is "one of the essential principles of contemporary international law".246 This has also been the position of various States during the discussions preceding the adoption of Resolution 2625 in 1970.247 The right of self-determination was characterized as "a fundamental principle 240. See also, e.g., the Preamble of General Assembly Resolution 1514 (XV), supra note 59, at Para. 4, and id. operative Para. 1. 241. Dissenting Opinion Judge Weeramantry, Case Concerning East Timor (Portugal v. Australia), Judgment, 1995, ICJ Rep. 1995, p. 92, at p. 194. 242. See ILC Report 2001, supra note 226, at pp. 208, 284. 243. Barcelona Traction case, supra note 187. 244. See pp. 239-242, infra. 245. East Timor case, supra note 241, at p. 102. It will be noted that in this case, the Court referred to the erga omnes character of (the entitlement to respect for) the right of self-determination, not to the erga omnes character of the obligation to respect this right. The distinction between obligations and rights erga omnes was upheld by the Court in:-Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Federal Republic of Yugoslavia (Serbia and Montenegro), Preliminary Objections, Judgment, ICJ Rep. 1996, p. 595, at p. 616 (hereinafter 'Genocide case'). The matter is particularly relevant for the law of state responsibility, for instance, with respect to the entitlement of third States to impose countermeasures vis-a-vis the State (not necessarily the parent State) which is responsible for the violation of the right of self-determination of a people. The problem lies outside the scope of this study. See, e.g., R. Lefeber and D. Raic, Frontiers of International Law, Part One: The Chechen People, LJIL, Vol. 9, 1996, p. 1. 246. East Timor case, id. 247. See, generally, V.S. Mani, BASIC PRINCIPLES OF MODERN INTERNATIONAL LAW, 1993, pp.224258.

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of contemporary international law binding on all States",248 "one of the fundamental norms of contemporary international law",249 "one of the most important principles embodied in the Charter",250 "a universally recognized principle of contemporary international law",251 and "indispensable for the existence of community of nations". All these qualifications emphasize the fundamental position of the right of self-determination for the maintenance of the international legal order and the survival of peoples. Therefore, a denial of the right to self-determination does not only affect the interests of the direct holder of the right but also the interests and rights of "the international community as a whole".253 The right of self-determination is intertwined with, for instance, individual human rights, international peace and security, the principle of non-intervention and the right to territorial integrity. In view of its importance, the obligation to respect the right of self-determination has been emphasized in numerous resolutions of the United Nations. It is now even beyond doubt, as will be discussed elsewhere in this study, that the scope of application of the right to self-determination is by no means limited to the colonial context. The right of self-determination is of universal application, that is, it also applicable to peoples in established States.254 However, as has been pointed out, one would be disregarding the various discussions on self-determination as well as the complexity of the rules and principles related to the norm, if one were to argue that the prohibition on the violation of the right to self-determination as such is jus cogens, that is, without any qualification as to which particular aspect(s) of the norm qualify as such.255 As will be shown later, it is generally accepted that the right is applicable to peoples residing in Non-Self-Governing Territories or colonial territories, that is, to peoples who do not live within the boundaries of an established State and who are the victim of alien subjugation, domination or exploitation.256 In addition, the right of self-determination for peoples under 'colonial-type' situations as in South Africa prior to the Mandela government has been

248. 249. 250. 251. 252. 253. 254. 255. 256.

UN Doc. A/AC.125/SR.41, 27 July 1966, p. 9 (Poland). UN Doc. A/AC.125/SR.40, 27 July 1966, p. 9 (Yugoslavia). UN Doc. A/AC.125/SR.69, 4 Dec. 1967, p. 17 (Japan). UN Doc. A/AC.125/SR.70, 4 Dec. 1967, p. 12 (Cameroon). UN Doc. A/AC.125/SR.68, 4 Dec. 1967, p. 3 (United States of America). Barcelona Traction case, supra note 187, at p. 32. See Chapter 6, infra. Dugard, RECOGNITION, p. 159. Namibia case, supra note 73, at p. 31. See also UN Docs. A/Res/1514 supra note 59, Arts. 1 and 2 and A/Res/2625, supra note 59, Principle V.


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explicitly recognized. The above-mentioned developments have led to the situation that there is now wide support for the position that in the traditional colonial context, the prohibition on the denial of the right of 'external' selfdetermination has reached the status of jus cogens, and the same applies for situations involving a 'colonial type of domination', but here, as in South Africa, the primary concern is the 'internal' aspect of the right of self-determination.258 The final norm which may be deduced from the explicit non-recognition practice by the international community in the field of claims to statehood is the prohibition of systematic racial discrimination. This prohibition encompasses the prohibition of Apartheid. The obligations are specifically dealt with in two conventions, namely the International Convention on the Elimination of All Forms of Racial Discrimination259 which entered into force in 1969, and the International Convention on the Suppression and Punishment of the Crime of Apartheid which entered into force in 1976.260 In Article 3, the former Convention expressly condemns the practice of Apartheid, which condemnation supports the view that Apartheid is but one form of systematic racial discrimination. Both the prohibition of racial discrimination and the prohibition of Apartheid are mentioned by the International Law Commission as examples of jus cogens261 Moreover, the prohibition of racial discrimination has been qualified as an obligation erga omnes by the International Court of Justice in the Barcelona Traction case.262 There is now wide agreement on the jus cogens character of these prohibitions. 263 This seems difficult to deny as there is no 257. As to the explicit recognition by the UN of the right to self-determination of the Palestinian people, see, e.g., UN Doc. A/Res/3236, 22 Nov. 1974. 258. See pp. 215-219, infra. And see, e.g, H. Gros Espiell, Implementation of United Nations Resolutions Relating to the Right of Peoples Under Colonial and Alien Domination to SelfDetermination, Study Prepared by the Special Rapporteur, E/CN.4/Sub.2/405 (Vol. 1), 20 June 1978, pp. 31-37; ILC Commentary to the Draft Articles on the Law of Treaties, ILC Ybk., 1966, Vol. II, p. 248; Brownlie, PRINCIPLES, p. 515; Hannikainen, supra note 228, at pp. 357-424; H.J. Richardson, supra note 194, at p. 190; M. Nowak, UNO-PART ÜBER BÜRGERLICHE UND

POLITISCHE RECHTE UND FAKULTATIVPROTOKOLL, CCPR-KOMMENTAR, 1989, at p. 14; J.C.

259. 260. 261. 262. 263.

Duursma, SELF-DETERMINATION, STATEHOOD AND INTERNATIONAL RELATIONS OF MICROSTATES, 1994, p. 103; Dugard, RECOGNITION, pp. 158-163; De Hoogh, supra note 90, at pp. 69, 182; S. Rosenne, Automatic Treaty Succession, in: J. Klabbers and R. Lefeber (Eds.), ESSAYS ON THE LAW OF TREATIES, 1998, p. 97, at p. 99; Separate Opinion Judge Ammoun, Barcelona Traction case, supra note 187, at p. 304 (referring to the right of self-determination, the principle of equality and the principle of non-discrimination on racial grounds as "imperative rules of law"). On the distinction between internal and external self-determination, see Chapter 6, Sections 2.2. and 5, infra. Supra note 263. UNTS, Vol. 1015, 1976, p. 212. ILC Commentary, supra note 257; ILC Report 2001, supra note 226, at p. 283. Barcelona Traction case, supra note 187. As to the prohibition of systematic racial discrimination see Separate Opinion Judge Ammoun, Barcelona Traction case, supra note 257; Dissenting Opinion Judge Tanaka, South West Africa Cases, supra note 187, at p. 298; Brownlie, PRINCIPLES, p. 515; Dugard, RECOGNITION, pp.

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other legal basis upon which the international community could have stated that South Africa under the white minority government was violating this rule of international law, because South Africa had never either tacitly or expressly accepted an obligation to abolish racial discrimination including Apartheid.264 The question of whether the resolutions and statements of the United Nations were declaratory of already existing peremptory norms has been answered in the affirmative.265 Indeed, it would be juridically wrong to isolate the cases discussed from the development of international law dating back to times before the establishment of the United Nations. In the above discussed post-1945 cases, the response of the United Nations and its member States as well as non-member States regarding the breaches of international law and their consequences are clearly evidence of a communis opinio that recognition of the relevant entities as States would in itself be unlawful and in conflict with the interests of the international community as a whole. Any argument holding that this belief sprang up 'over night', as it were, that is to say, not before the international community was confronted with these cases in 1965 (South Rhodesia), 1976 (Transkei) and 1983 (TRNC), ignores the development of international law up to and including the era of the United Nations. Indeed, the relevant resolutions and statements of the United Nations regarding nonrecognition of claims to statehood affirmed the existence of norms already recognized as imperative at that time by the international community of States.266 Yet, although affirmative or declaratory of an already existing 156-158; Crawford, CREATION OF STATES, p. 227. As to the prohibition of Apartheid, see, e.g., ILC Report 2001, supra note 226, at p. 283; Dugard, RECOGNITION, at p. 157; Witkin, supra note 191, at p. 626. 264. P.H. Kooijmans, International Law: Placebo or Medication?, in: W.J.M. van Genugten et al.

(Eds.), REALISM AND MORALISM IN INTERNATIONAL RELATIONS, 1999, p. 87, at p. 89. See also Witkin, supra note 191, at p. 626. 265. Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, p. 252. And see Section 3 of this Chapter, supra. 266. It would seem impossible to defend the position that the prohibition of aggression became a rule of jus cogens as a result of the non-recognition of the TRNC, and the same is true for the other norms involved. Regarding the right to self-determination, the consistent stance and practice of the UN regarding decolonization since the early days of the UN's establishment, eventually cumulated in the adoption of Resolution 1514 in 1960. Although, as will be discussed in Chapter 5, infra, the Resolution was arguably declaratory of an already existing rule of customary law, it cannot be denied that it was clearly a catalytic agent regarding the achievement of independence by remaining Non-Self-Governing Territories under the heading of selfdetermination. State practice since 1960, the wording of Resolution 1514, and subsequent UN resolutions dealing with self-determination, as well as the adoption of the ICCPR and the ICESCR in 1966 where self-determination was considered to be a conditio sine qua non for the effective exercise and enjoyment of individual human rights, make clear that external selfdetermination in the context of decolonization was not only a rule of international customary law in the mid-1960s, but was also recognized at that time as being of fundamental importance for the maintenance of the international public order and the survival of peoples. As regards the prohibition of racial discrimination, including Apartheid, see H. Santa Cruz, Racial Discrimination, Study by the Special Rapporteur of the Sub-Commission on Prevention of


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peremptory norm, it cannot be denied that "such resolutions are essential as they provide certainty by substituting for the decision of an individual State a collective determination of illegality and nullity".267 In sum, all the norms which constituted a ground for the United Nations to call for the non-recognition of the effective territorial entities involved, are generally regarded as jus cogens norms. Moreover, it was also seen that the corresponding obligation to respect these norms is an obligation which is owed erga omnes. From this, it follows that on the basis of the character of the norms involved, the obligation to withhold recognition of an effective territorial entity created in violation of such norms, is in itself an obligation erga omnes. On the basis of the observations and analysis in this Section, it must be concluded that States are now under an obligation not to recognize, through individual or collective acts, a claim to statehood by an effective territorial entity created in violation, or being a direct consequence of a violation, of one or more fundamental rules of international law. These fundamental rules of international law are, more in particular, those rules having the character of jus cogens or, those rules which are at any rate substantive rules of international law which should be respected erga omnes "so that the illegality is one which involves the international community as a whole."268 This conclusion is supported by a statement by the Arbitration Commission of the International Conference on Yugoslavia which held that while recognition is not a prerequisite for the foundation of a state and is purely declaratory in its impact, it is nonetheless a discretionary act that other states may perform when they choose and in a manner of their own choosing, subject only to compliance with the imperatives of general international law, and particularly those prohibiting the use of force in dealings with other states or guaranteeing the rights of ethnic, religious or linguistic minorities. 269

And, recently, this principle has been affirmed explicitly by the International Law Commission. Article 41(2) of the Commission's Draft Articles on Responsibility of States for International Wrongful Acts states: [n]o State shall recognize as lawful a situation created by a serious breach [of

Discrimination and Protection of Minorities, E/CN.4/Sub.2/370/Rev.l, 1977, pp. 1-20; and see note 263, supra. 267. Dugard, RECOGNITION, p. 135; Dugard, supra note 193, at pp. 398-399. 268. Crawford, CREATION OF STATES, p. 123. See also Dugard, RECOGNITION, p. 135. 269. Arbitration Commission of the International Conference on Yugoslavia, Opinion 10, para. 4, ILM, Vol. 31, 1992, p. 1488, at p. 1526 (emphasis added).

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Chapter 4 an obligation arising under a peremptory norm of general international law], nor render aid or assistance in maintaining that situation.270

§ 7.

THE LEGAL BASIS OF THE OBLIGATION OF NON-RECOGNITION

From the above, it follows that the legal basis of the obligation of nonrecognition of effective territorial entities created in violation of a fundamental norm of international law and claiming statehood is twofold.271 First, such an obligation may derive from a mandatory resolution adopted by the Security Council, as in the case of the non-recognition of Southern Rhodesia when the Security Council adopted Resolution 277 in response to the proclamation of independence of Southern Rhodesia in 1970. After the Council had stated that it was acting under Chapter VII of the Charter, it decided "that Member States shall refrain from recognizing this illegal régime."272 The second legal basis of the obligation of non-recognition is to be found in customary international law. The status of the other Resolutions adopted by the Security Council on the non-recognition of Southern Rhodesia up until 1970 (Resolutions 216 and 217) is generally regarded as non-binding. This does not only follow from the absence of a reference to Chapter VII or Article 25 in those resolutions, but also from their wording. 273 It is, however, important to note that no State granted recognition to Southern Rhodesia even before the adoption of the mandatory Security Council Resolution 277. This points to the existence of a rule of customary international law regarding obligatory nonrecognition of illegally created but effective territorial entities. This rule is firmly rooted in the maxim ex injuria jus non oritur. The existence of such a rule of customary international law on the obligation of non-recognition must also be accepted in the light of the withholding of recognition to Southern Rhodesia by non-member States. For, the non-recognition of Southern Rhodesia by non-members of the United Nations cannot be based on the mandatory Resolution 277 of the Council, because according to the maxim pacta tertiis nec nocent nec prosunt, non-member States of the United Nations cannot be bound by resolutions of the Security 270. Draft Articles on Responsibility of States, supra note 62. And see the Commentary of the Commission, ILC Report 2001, supra note 226, pp. 286-292 (with reference to the situations of Southern Rhodesia and the Bantustans in South Africa, the Commission observes: "[t]hese examples reflect the principle that where a serious breach in the sense of article 40 has resulted in a situation that might otherwise call for recognition, this has nonetheless to be withheld"). 271. See also Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, pp. 279-295; Dugard, RECOGNITION, pp. 135-137; Witkin, supra note 191, at p. 627. 272. Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, p. 279.

273. Id.


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Council which are adopted under Chapter VII of the Charter.274 Moreover, the duty of non-recognition under customary law can also be deduced from the fact that the United Nations resolutions on non-recognition concerning the Turkish Republic of Northern Cyprus were not mandatory. This also applies with regard to the United Nations resolutions and statements on non-recognition of the South African Homelands. The latter resolutions were passed by the General Assembly, and the statements were issued by the President of the Security Council. The Security Council Resolutions which endorsed the General Assembly Resolutions on non-recognition are Resolutions 402 and 407. 275 Yet, these Security Council resolutions did not have a mandatory character either. In both instances, however, recognition was universally and consistently withheld, 276 which adds decisive support for the existence of a customary rule of international law regarding the obligation of non-recognition of effective territorial entities the creation of which was accompanied by, or a result of, a violation of a fundamental norm of international law.

§ 8.

MODERN CRITERIA FOR STATEHOOD BASED ON LEGALITY

It has been observed by Dugard that [i]nternational law distinguishes between non-existent (in existant) acts and acts which are null and void ab initio by reason of their illegality. Although neither

274. Indeed, the Council used terms like "urges" and "calls upon" when it addressed non-member States in the relevant mandatory resolutions. This is in conformity with Article 2(6) of the Charter. See also UN Doc. S/Res/277, 18 March 1970, Para. 18: "[u]rges, having regard to the principle stated in Article 2 of the Charter, States not Members of the United Nations to act in accordance with the provisions of the present resolution". And see UN Doc. S/Res/288, 17 Nov. 1970, Para. 4. See also I. Sinclair, THE VIENNA CONVENTION ON THE LAW OF TREATIES, 1984, pp. 98-101; L.M. Goodrich and E. Hambro, CHARTER OF THE UNITED NATIONS,

COMMENTARY AND DOCUMENTS, 1946, pp. 70-71; P. Malanczuk, AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW, 1997, p. 137; Brownlie, PRINCIPLES, p. 628; Nkala, supra note 166, at pp. 120-127. Cf. also the example of Switzerland's response with regard to the invitation by the Secretary-General of the UN to Switzerland to comply with mandatory Security Council Resolution 232 (1966). The Swiss government stated "for reasons of principle, Switzerland, as a neutral State, cannot submit to the mandatory sanctions of the United Nations. [It] will however see to it that Rhodesian trade is given no opportunity to avoid United Nations policy through Swiss territory. It is for that reason that it decided, as early as 17 December 1965, independently and without recognizing any legal obligation to do so, to make imports from Rhodesia subject to mandatory authorization and to take the necessary measures to prevent any increase in Swiss imports from the territory". UN Doc. S/7781, Ann. II, Feb. 1967, p. 117. But see C. Tomuschat, Yugoslavia's Damaged Sovereignty over the Province of Kosovo, in: G.P.H. Kreijen et al. (Eds.), STATE, SOVEREIGNTY AND INTERNATIONAL GOVERNANCE, to be published in 2002. 275. UN Docs. S/Res/402, 22 Dec. 1976 and S/Res/407, 25 May 1977. 276. With the exception, of course, of Turkey and South Africa.

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Chapter 4 of these acts has legal effect the distinction should be maintained if only for the purpose of jurisprudential clarity.

Dugard continues by referring to Guggenheim when he states that [i]n the case of the non-existent act" l"absence de certains elements est considérée comme si grave qu'elle n'entraîne pas la nullité de l'acte, mais son in existence". On the other hand, the act which is void by reason of its illegality fulfils the requirements of a particular act but loses its validity because it violates a rule of law in the process.277

The distinction between non-existent acts and acts which are null and void is sometimes made in municipal law, but it has been repeatedly suggested that the distinction has no place in international law, which is regarded as in essence only recognizing the concept of nullity.278 In this respect, it is at least remarkable that the Vienna Convention on the Law of Treaties does not mention this distinction. At any rate, it should be noted that in the end, and from a more practical point of view, the legal situation does not differ very much as regards both acts. Where the first is legally non-existent from its very inception onwards, the second is presumed to have never existed legally ab initio.279 Then, with reference to United Nations practice regarding the situations of Southern Rhodesia, the Bantustan territories and the Turkish Republic of Northern Cyprus, it is concluded that [r]esolutions of both the Security Council and the General Assembly condemn the non-recognized 'States' as 'null and void', invalid and illegal which strongly suggests that they are without legal effect as States, not because they fail to meet

277. Dugard, RECOGNITION, pp. 130-131, quoting P . Guggenheim, La Validité et la Nullité des Actes Juridiques lnternationaux, HR, 1949, p. 191, at p. 204. But see Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, pp. 239-240 (where she maintains that "procedural irregularities", as opposed to a violation of a substantive rule, in the process of the bringing into being of the legal act lead to its nullity rather than its non-existence). 278. P. Cahier, Les Caractéristiques de la Nullité en Droit International et Tout Particulièrernent Dans la Convention de Vienne de 1969 sur le Droit des Traités, RGDIP, Vol. 76, 1972, p. 645, at pp. 652653; Jennings, supra note 4, at p. 66. The concept of nullification has, in the absence of universal recognition of the compulsory jurisdiction of the ICJ, limited value under international law. 279. It is suggested moreover that the eventual legal consequences differ in both situations. Whereas a legal act which is null and void ab initio may have some legal consequences, a non-existent act would not and cannot have any legal consequences. See J.A. Frowein, Nullity in International Law, EPIL, Vol. 7, 1984, p. 361. This position is doubtful, because even in cases where an act is performed by one who is not competent to perform the act, by which both the legal act and the intended legal consequences do not, strictly speaking, come into existence, the act may nevertheless violate the right of a third party. In this sense, the legally non-existent act may thus have legal consequences. Any other interpretation which would rely on the fact that something that is not legally existent can not harm the rights or interests of a third party, would be a prime example of Begriffsjurisprudenz ad absurdum.


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the essential requirements of statehood but because their existence violates a peremptory rule of international law.280

From this, it appears that Dugard is of the opinion that, at least on the basis of the cases discussed, the traditional criteria for statehood remain unchanged, and thus that the relevant territorial entities created in violation of international law do constitute States, but that these States, although existing in fact, are without legal effect. Dugard's argument regarding the existence of the entities as States, contrasts with the views of, for instance, Fawcett and Crawford.281 Fawcett and in particular Crawford both contend that an act in violation of a particular fundamental norm is void and - when the illegal act is linked directly to the establishment of a territorial entity - leads to the non-existence of the entity as a State. However, whatever the differences in point of view between the scholars, the arguments of both Dugard on the one hand, and Fawcett and Crawford on the other, indicate their general acceptance of, and agreement on, the existence of a new criterion for statehood (that is, for the acquisition of full international legal personality) which is not based on effectiveness but on legality. Because the terminology in the United Nations resolutions on Southern Rhodesia, the Bantustan territories and the Turkish Republic of Northern Cyprus points to the substantial illegality of origin as forming a bar to the acquisition of statehood by these territorial entities rather than to the nonfulfilment of a traditional criterion for statehood, it is difficult to deny that the respect for certain fundamental norms (that is, 'legality') is considered to be a constitutive criterion for the emergence of a State. At this point of the discussion, a brief pause is probably in order. The discussion is, it is submitted, academic, because, as was stated above, whether the violation of a fundamental norm is a criterion which leads to the nonexistence of an entity as a State from its inception, or leads to a State which is null and void ab initio, both situations lead to the existence of a situation which is ultimately legally non-existent and, in principle, without legal effect under international law.282 And if statehood under international law is defined as denoting a separate territorial entity, constituting a political and social 280. Dugard, RECOGNITION, p. 131 (emphasis added). 281. Fawcett, supra note 178; Crawford, CREATION OF STATES, pp. 103-106. See also I.I. Dore, Recognition of Rhodesia and Traditional International Law: Some Conceptual Problems, Vand. J. Transnat'l L., 1972, p. 25, at p. 40. 282. As will be shown later, an act that is null and void ab initio may nevertheless be considered to have some legal effects, either because third parties have relied in good faith on the validity of the act, or because certain effects of the illegal act cannot and should not be overlooked for humanitarian and practical reasons. See Section 9 of this Chapter, infra.

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organization of human beings and possessing full international legal personality, substantial illegality of origin in both instances forms a bar to, and thus a criterion for, statehood defined as such. Having said this, it is now again possible to return to the main discussion. In essence, both Crawford and Dugard agree that a State in the sense of (or in the context of) international law is a State which exists in international law,283 that is, a separate territorial entity which possesses full international legal personality. Therefore, on the basis of the situations discussed above in which the entities' claims to statehood were rejected explicitly through non-recognition - and with due regard to the remarks of both Crawford and Dugard - the following line of reasoning presents itself. Once an entity meets the traditional criteria for statehood on the basis of effectiveness, it exists as an effective territorial entity. In order to become a State in the sense of international law, the entity should be created lawfully, that is to say, its creation should not have been accompanied by, or be the result of, a violation of certain fundamental rules of international law. This is so because as was seen above, an effective territorial entity which has been brought about in violation of a fundamental rule - and in particular one having the character of jus cogens - is without legal effect. The breach of international law forms a bar to the attribution of full international legal personality to the entity concerned. Therefore, while existing in fact, the entity does not come into existence as a State under international law. While Dugard is of the opinion that the de facto entity is a State but without legal effect and thus not a State under international law,284 Crawford contends that no State comes into being at all. The qualification of such an effective but illegally created territorial entity as a State, because it meets the traditional criteria for statehood is confusing, however, and questionable from a legal point of view.285 Apart from the fact that the qualification of ''State' is 283. See, e.g., Dugard, supra note 193, at p. 403, where he states that "[t]he Bantustan States failed to become states under international law" because their creation was designed to give legitimacy to the policy of Apartheid which "raised doubts about their compliance with new criteria for statehood based on respect for the principles of self-determination and human rights" (emphasis added). 284. Dugard, RECOGNITION, p. 147. 285. Because, according to Dugard, a State does not become a State 'under international law' when it is illegally created, the question may be asked what, then, is the status of such a State? It seems to be a mere factual situation, which is 'outside' international law as far as its statehood is concerned. But, as has been observed, "a State is not a fact in the sense that a chair is a fact, it is a fact in the sense in which it may be said a treaty is a fact: that is, a legal status attaching to a certain state of affairs by virtue of certain rules" (Crawford, CREATION OF STATES, p. 4). Therefore, a State which does not exist under international law seems to be a uncomprehensible construct from a legal point of view. See also Chen, RECOGNITION, p. 31. Moreover, Dugard's position seems to suggest that a violation of jus cogens forms a bar to recognition only, resulting


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more than a mere semantic question, Dugard's position does not appear to be in accordance with state practice. For instance, in the context of Southern Rhodesia, the Security Council used wordings such as the "illegal racist minority regime in Southern Rhodesia",286 "illegal authority"287 and "the illegal proclamation of the Territory by the illegal regime in Southern Rhodesia", 288 by which the term 'State' was carefully avoided. Moreover, in Resolution 424, the Security Council called upon the United Kingdom "to take prompt and effective measures to bring to a speedy end the existence of the illegal racist minority regime in the rebel colony of Southern Rhodesia [...]".289 Mention should also be made of the position of the Secretary-General,290 statements made by delegations during the debates regarding the question of Southern Rhodesia in the fourth Committee of the General Assembly,291 and in the Security Council.292 On the basis of these statements it is impossible to maintain that Southern Rhodesia was at any time considered to be a State in whatever sense. The same is true for the language used in relation to the Homelands. The General Assembly resolutions used different terms like "the so-called independent Transkei",293 and "the so-called 'independent' bantustans".294 The President of the Security Council referred to "the so-called 'independence' of Venda"295 and to "the socalled 'independent bantustans'".296 As to the Turkish Republic of Northern

286. 287. 288. 289. 290.

291.

292.

293. 294. 295. 296.

in the formation of a State which cannot be recognized. This position cannot be sustained without distorting the concept of jus cogens and its assumed universality. To the same effect, see K. Knop, The 'Righting' of Recognition: Recognition of States in Eastern Europe and the Soviet Union, in: Canadian Council on International Law, STATE SOVEREIGNTY: THE CHALLENGE OF A CHANGING WORLD, Proceedings of the 1992 Conference of the Canadian Council on International Law, 1992, p. 36, at pp. 57-58. UN Doc. S/Res/216, 12 Nov. 1965. UN Doc. S/Res/217, 20 Nov. 1965. UN Doc S/Res/277, 18 March 1970. UN Doc. S/Res/424, 17 March 1978 (emphasis added). In reply to the request by the Smith regime to participate in proceedings under Article 32 of the Charter of the UN, the Secretary-General stated that "the legal status of Southern Rhodesia is that of a Non-Self-Governing Territory [...]. Article 32 of the Charter does not apply". Accordingly, the request was rejected. See UN SCOR, 1280th mtg., 18 May 1966, p. 23. See, e.g., the statement of the representative of Guinea, UN GAOR (XXVI), 4rh Comm., 1955th mtg., 1977, para. 50 (referring to the situation of Southern Rhodesia as "fictitious independence"). See, e.g., the statement by the Pakistani representative to the Security Council who addressed the collective liability of the Smith regime for violating the right to self-determination and stated: "[t]hat it is not a State, but a group of people, which has thwarted this process and threatened the peace does not make it any less a matter of international concern justifying action by the United Nations". UN SCOR, 1335th mtg., para. 80 (emphasis added). UN Doc. A/Res/31/6A, 26 Oct. 1976. UN Doc. A/Res/32/105 N, 14 Dec. 1977. UN Doc. S/13549, 21 Sept. 1979. Id.

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Cyprus, Security Council Resolution 541 uses the term "Turkish Cypriot authorities"297 and Security Council Resolution 550 refers to "the Turkish Cypriot leadership" and to "the purported State of the Turkish Republic of Northern Cyprus".298 Thus, in analysing the language of the resolutions and other documents of the Security Council and the General Assembly as well as statements by States in relation to the status of Southern Rhodesia, the Bantustan territories and the Turkish Republic of Northern Cyprus, it cannot but be concluded that, although these territorial entities existed as effective de facto situations, they were not qualified as States in any sense. However, whatever label is put on the effective but legally non-existent 'territorial entity' (which is a better description of the effective situation), the issue that really matters - for this study at least - is the question of the existence or non-existence of a State in the sense of international law, that is, whether international law attaches a legal status (full international legal personality) to a certain state of affairs. In that respect, it must be agreed upon with both Crawford and Dugard that the traditional criteria for statehood certainly no longer suffice. In sum, on the basis of the practice of explicit non-recognition of claims to statehood it must be concluded, that for the emergence of a State in the sense of, and thus under, international law, additional and new criteria for statehood must be met which are not based on effectiveness, and which can be grouped under the broader heading of the obligation to respect fundamental rules of international law (that is, at least jus cogens) during the entity's creation. Violation of these norms obviates statehood of the entity concerned and, if only for reasons of clarity, such an entity will not be called a State. The specific modern criteria for statehood which may be deduced from non-recognition practice, as discussed above, are (a) the prohibition of aggression, (b) the prohibition of the violation of the right of self-determination of peoples (in the colonial context at least) and (c) the prohibition of systematic racial discrimination, including the prohibition of Apartheid. This is without prejudice to the fact that other norms having the same character also qualify.299 As a result of the declaratory theory on recognition, the doctrine of nonrecognition, and state practice, three conclusions present themselves. Firstly, an entity does not come into existence as a State under international law when 297. UN Doc. S/Res/541/83, 18 Nov. 1983. 298. UN Doc. S/Res/550, 11 May 1984. And see also the declaration by the Commonwealth Heads of Government, supra note 152 (referring to the TRNC as "illegal secessionist entity" (emphasis added)); the United Kingdom stated: "[w]e do not recognise the area under de facto Turkish Cypriot administration as forming in any sense a separate sovereign state" (emphasis added). HC Debs., Vol. 210, WA, col. 211, 24 June 1992, quoted in: BYIL, Vol. 63, 1992, p. 647. 299. See Chapter 8, infra.


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it is created in violation of jus cogens, notwithstanding its effective existence.300 As was correctly observed by Judge Kreca [i] us cogens creates grounds for a global change in relations of State sovereignty to the legal order in the international community and for the establishment of conditions in which the rule of law can prevail over the free will of States. As an objective, non-eliminatory norm, it constitutes a material basis, a criterion for challenging the legality of individual acts in the international community. Therefore, it essentially limits the impact of effectiveness in international law. Effectiveness in a system with a defined concept of legality may be legally accepted only in cases in which it does not conflict with the norms that serve as criteria of legality. Within the co-ordinates of the de iure order effectiveness versus legality is an incorrect approach, because to accept effectiveness as a rule 'would indeed be to apply a hatchet to the very roots of the law of nations and to cover with its spurious authority an infinitive [sic] series of international wrongs and disregard for international obligations'.301

Secondly, the consequence of a breach of such a norm of international law is that States are under a general obligation not to recognize the entity as a State even if the breach has not been determined by the Security Council.302 And thirdly, if the occurrence of the illegality has been determined by the Security Council or the General Assembly, that determination is in principle declaratory in character. A final remark should be made as regards one of the peremptory norms which, if violated, forms a bar to statehood, namely the prohibition on the violation of the right to self-determination. It has been stated that this criterion would necessarily lead to many existing States ceasing to exist as States under international law.303 Crawford has suggested that this criterion would only be applicable to "self-determination units" and he excludes existing States from the applicability of the criterion.304 This has been criticized by Dugard, who maintains that this would lead to an unfortunate double standard between 300. See also Shaw, INTERNATIONAL LAW, pp. 145-146; Menon, supra note 5, at pp. 248-251. 301. Dissenting Opinion Judge Kreca, Genocide case, supra note 245, at p. 709, quoting J.H.W. Verzijl, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE, Vol. I, 1968, p. 293 (emphasis in original). Later Kreca adds: "[n]orms of ius cogens do not tolerate derogation, so any concurrent regime or situation, whether it be established by way of a bilateral or unilateral act, cannot acquire legal force due to the peremptoriness of ius cogens - more specifically, this act or acts remains in the sphere of simple facts". Id., at p. 754. 302. As was observed by Judge Skubiszewski with respect to the prohibition on the use of force: "the obligation not to recognise a situation created by the unlawful use of force does not arise only as a result of a decision by the Security Council ordering non-recognition. The rule is selfexecutory". Dissenting Opinion Judge Skubiszewski, East Timor case, supra note 241, at p. 262. See also J. Crawford, The General Assembly, the International Court and Self-Determination, in: V. Lowe and M. Fitzmaurice, FIFTY YEARS OF THE INTERNATIONAL COURT OF JUSTICE, ESSAYS IN HONOUR OF SIR ROBERT JENNINGS, 1996, p. 585, at p. 605. 303. Devine, supra note 177, at p. 410.

304. Crawford, CREATION OF STATES, pp. 105-106.

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entities claiming statehood and existing States.305 However, as was seen above,306 such a double standard is not uncommon, as is shown by the fact that prior to the acceptance of the right of self-determination under positive international law, international law required entities claiming statehood to possess a considerable degree of effective government, whereas the absence of effective government with respect to an existing State, for instance as a result of civil war, did not, and does not, automatically lead to the end of statehood, even if this situation persists for a long period. Thus, state practice shows that the criteria for the formation of a State and those applying to the continued existence of a State under international law are not necessarily the same. However, as will be shown later in this study,307 the violation of the right of self-determination by an established State does have a substantial legal effect on the scope of the rights attached to statehood. State practice indicates that the prohibition on the violation of the right of selfdetermination does not (yet) affect the continuance of statehood of an established State as such, but it does affect the exclusive title of the authorities of the State to exercise authority over (parts of) its territory and population. Thus, as a result of modern developments in international law, the State's 'shield of sovereignty', including its right to territorial integrity, may come under legitimate pressure from within the State itself.

§ 9.

LIMITS TO THE OBLIGATION OF NON-RECOGNITION

As has been shown above, the doctrine of non-recognition holds that it is not allowed under international law to recognize the consequences, 'poisoned fruits' or claims to title or status which result from or are based on an act in violation of a fundamental norm of international law. Does this imply the application of the doctrine of nullity with regard to all the consequences of the breach of international law? That is to say, does the doctrine of non-recognition preach absolute nullity? At this point, it is necessary to recall the League of Nations' response to the invasion of Manchuria by Japan and the subsequent establishment of Manchukuo. Subsequently to the League's decision that the members of the League were

305. Dugard, RECOGNITION, p. 128. Following Dugard's distinction between a State under and a State outside international law, this criterion would lead to strange juridical results insofar as the established State would cease to be a State under international law, but would remain a 'State' outside international law. 306. See Chapter 3, supra. 307. See Chapter 7, infra.


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under an obligation not to recognize Manchukuo as a State, an Advisory Committee was appointed by the League's Assembly to advise it on the implementation of the non-recognition of Manchukuo. The main task of the Committee consisted of identifying which acts could be regarded as implying either de facto or de jure recognition of the purported statehood of Manchukuo under international law, and should thus be prohibited under the obligation of non-recognition. The Advisory Committee recommended that Manchukuo should be barred from accession to international conventions, and in that regard it even went so far as to include the Universal Postal Convention of 1913 and the Sanitary Convention of 1926. Passports issued by the Manchukuo 'government' were not be recognized and States should prevent official quotations in 'Manchukuo' currency. As regards consuls, the Committee considered it in principle not contrary to the obligation of non-recognition for States to maintain or replace consuls in Manchukuo for the protection of the citizens of these States. However, consuls would be under an obligation to avoid any action which might be interpreted as express or implied recognition of Manchukuo as a State. In fact, the recommendations of the Committee, which were favoured by the League's members, entailed a policy of absolute non-recognition of all acts by the Manchukuo entity. Adopting this position is probably one of the gravest mistakes the League made and the main reason why the doctrine of nonrecognition was eventually undermined during the League's existence.309 This conclusion becomes more compelling if one considers that acts which were controversial, such as certain contacts by consuls with the 'government' of Manchukuo, the issuing of visa's, and postal and other technical agreements with Manchukuo, were acquiesced in later by the League. It therefore seems evident that the recommendations were too strict, in that they failed to acknowledge the possible occurrence of practical necessities requiring some form of cognition, and that such an act would not necessarily be contrary to, or undermine, the general obligation of non-recognition. Moreover, the recommendations failed to deal with the consequences of the policy of non-recognition as regards the status and rights of the inhabitants of the territory in light of the application of the Manchukuo's or conqueror's law to the territory.310 What about the validity of such law? Again, this point touches upon the important question of whether the obligation of nonrecognition does not only entail an obligation not to recognize the entity as a

308. LNOJ, Spec. Supp., No. 113, p. 10. 309. See also Usuki, supra note 1, at p. 90. 310. See also O'Connell, supra note 58, at p. 147.

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State, but also all consequences resulting from the illegal establishment of the entity. Although dealing with matters relating to the illegal presence of South Africa in South West Africa (Namibia), and not with an illegally established territorial entity, the authoritative 1971 Advisory Opinion of the International Court of Justice in that case is helpful in identifying the consequences of the obligation of non-recognition. With reference to Security Council Resolution 276,311 the Court held that United Nations member States were under an obligation to recognize the illegality of the continued presence of South Africa in Namibia and the invalidity of its acts on behalf or concerning Namibia; and to refrain from any acts and in particular dealings with the Government of South Africa implying recognition of the legality of, or lending support or assistance to, such presence and administration.312

According to the Court, Resolution 276 was a mandatory resolution and constituted a "declaration of illegality and invalidity".313 The Court continued by stating that the "precise determination of the acts permitted or allowed [...] is a matter which lies within the competence of the appropriate organs of the United Nations acting within their authority under the Charter".314 After this affirmation of the Council's discretionary power to oblige member States to withhold recognition of acts by the South African government on behalf or with regard to Namibia, the Court confined itself in the Opinion to giving advice on those dealings with the Government of South Africa which under the Charter of the United Nations and general international law should be considered as inconsistent with the declaration of illegality and invalidity, seeing as they might imply recognition of South Africa's presence in Namibia as legal. In this respect, it is important to note, as was made clear by Judge Dillard, that the references [by the Court] to 'any facts' and 'any dealings' are to be read subject to the critically significant qualifying phrase 'implying recognition of the legality' of South Africa's presence in Namibia.315

311. UN Doc. S/Res/276, 30 Jan. 1970. 312. Namibia case, supra note 181, at p. 58. 313. The binding character has been questioned. See Separate Opinion Judge Petrèn, Namibia case, id., at pp. 136-137; Crawford, CREATION OF STATES, p. 124. . 314. Namibia case, supra 181, at p. 55. 315. Separate Opinion Judge Dillard, id., at p. 166. And see UN Doc. A/Res/3031 (XXVIII), 18 Dec. 1972, in which the General Assembly requested "all States to refrain from action which may confer a semblance of legitimacy upon South Africa's illegal occupation of Namibia" (emphasis added).


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One should keep Judge Dillard's remark in mind when analysing the Court's considerations regarding the scope of the general obligation of non-recognition of member States under both United Nations law and general international law. Thus the Court considered the obligation of non-recognition to imply:316 (a) abstention from entering into treaty relations with South Africa in all cases in which the South African government purports to act on behalf or concerning Namibia; (b) abstention from invoking or applying bilateral treaties concluded by South Africa on behalf or concerning Namibia which involve active intergovernmental cooperation; (c) abstention from first, sending diplomatic or special missions to South Africa including in their jurisdiction the Territory of Namibia, and secondly, from sending consular agents to Namibia, as well as an obligation to withdraw any such agents already there;317 and (d) abstention from entering into economic and other forms of relationship or dealings with South Africa on behalf or concerning Namibia which may entrench its authority over the Territory. The acts or dealings which were prohibited were, according to the Court, those acts or dealings which, under general international law, are normally considered or could be considered to recognize the claim to rights or title of South Africa regarding Namibia as lawful. 318 In this respect the Court made it very clear that member States should sever diplomatic and consular relations with South Africa but moderated this obligation by emphasizing the link between such relations and the validation of South Africa's illegal conduct regarding Namibia. The obligation was thus clearly related to the prevention of implied recognition of which the establishment or maintenance of diplomatic relations is the 316. Namibia case, supra note 181, at pp. 55-56. 317. The Court furthermore stated that member States "should also make clear to the South African authorities that the maintenance of diplomatic or consular relations with South Africa does not imply any recognition of its authority with regard to Namibia". Id., at p. 55. 318. It appears to be within the limits of this rule that States are under an obligation not to recognize a judgment and the direct consequences of this judgment of a Court of a State or entity, if the judgment affirms the validity of a claim either to a title regarding a territory outside the State's borders or to the existence of the entity as a State under international law, where the majority of the international community considers that claim to be in conflict with a fundamental norm of international law, and thus illegal and invalid. Cf. S. v. Banda, South African Law Reports, 4, 1989, p. 519. In this case, Judge Friedman held that Bophuthatswana could be considered to be a State under international law, because it complied with the criteria for statehood under international customary law. Since non-recognition in principle does not affect the statehood of the entity in terms of its own national legal order, it appears that courts which are established under that legal order can pass judgments as regards the statehood of the entity under international law. However, no further effects, in terms of validity, are attached to such judgments as far as third States are concerned. These States remain under an obligation to withhold recognition of the entity as such, and of acts which are based on the judgments of its courts.

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example par excellence - of the legality of South Africa's claims with regard to Namibia. This is in accordance with the policy adopted by the League of Nations with regard to Manchukuo 319 and by the United Nations regarding Rhodesia under the Smith régime.320 This content of the obligation of nonrecognition thus seems to reflect principles directly flowing from the purpose of non-recognition. Where an obligation of non-recognition exists, implied recognition, especially through the maintenance or establishment of diplomatic relations, should be withheld, because this will be interpreted as validating or 'curing' either an illegal claim to statehood, or to a title to territory, depending on the specific circumstances in each case. As far as treaty relations are concerned, and in particular with regard to the required abstention from specific conduct concerning bilateral treaties, the Court made an important qualification when it stated that "with respect to multilateral treaties the same rule cannot be applied to certain general conventions such as those of a humanitarian character".321 From the Court's statement, it is possible to distil a general principle holding that obligatory nonrecognition of attempted and illegal territorial changes includes an obligation for States not to accept the applicability of treaties to the territory except for those treaties having a "humanitarian character". The same principle appears to apply in cases of non-recognition of claims to statehood. For no resolution either of the General Assembly or of the Security Council excluded the applicability of such treaties to the inhabitants of South Rhodesia, the South African Homelands or the Turkish Republic of Northern Cyprus. With regard to the non-recognition of acts by the South African authorities concerning Namibia, the Security Council had stated in Resolution 276 that "all acts taken by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid".322 This determination, embracing the enactment of laws as well as both public and private acts, was not accepted entirely by the Court. The Court made a distinction between "official acts performed by the Government of South Africa on behalf of or concerning Namibia" and private acts in the field of "the registration of births, deaths and marriages, the effect of which can be ignored only to the detriment of the inhabitants of the Territory".323 These latter acts do not, according to the Court, fall under the acts which should not be 319. Although, as was seen above, in that situation the maintenance of consular relations was not regarded as derogating from the obligation of non-recognition. 320. See UN Docs. S/Res/253, 29 May 1968 and S/Res/277, 18 March 1970. 321. Namibia case, supra note 181, at p. 55. 322. UN Doc. S/Res/276, 30 Jan. 1970. 323. Id., at p. 56.


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recognized by States, through, for instance, their domestic courts. This point met with approval by the European Court of Human Rights in the case of Loizidou v. Turkey,324 which case, it must be noted, took place against the background of the non-recognition of the statehood of the Turkish Republic of Northern Cyprus. Moreover, at this time the point made by Judge Dillard in his Separate Opinion in the Namibia case must be recalled, namely that it is difficult (though, admittedly, not impossible) to regard recognition of such acts as implying recognition of the original illegality in this case the occupation of Namibia and the denial of self-determination of its inhabitants by South Africa.325 Moreover, it seems reasonable to permit the recognition of specific acts with respect to the rights of private persons when the absolute non-recognition of such acts would harm the well-being of the inhabitants. 326 However, this effect should not be assumed too easily. It seems that such hardship must be evident, and not of an essentially economical character.327 With respect to 'official acts' by the South African government, the majority Opinion did not leave much room for manoeuvre. In fact, the Court subscribed to the absolute nullity of all relevant official acts. Judge Petrèn criticized this 324. Loizidou v. Turkey, supra note 151, at p. 2233 (para. 45). 325. Cf. in this respect Jennings, supra note 4, at p. 75 ("how far is it useful to regard a nullity as being so to speak contagious, where what is in issue is the legal status of a chain of acts or consequences stemming from an original illegality. For it may often be possible, and indeed necessary, to distinguish between the original illegality which ought not be regarded as a source of title for the wrongdoer, and remoted consequences precipitated by new situations, which may themselves, within certain limits, be creative of legal rights and obligations"). 326. See also Dissenting Opinion Judge Jambrek, Case of Loizidou v. Turkey, supra note 151, at p. 2248. And see Carl Zeiss Stiftungz v. Rayner and Keeler Ltd. (No. 2), Law Reports, Appeal Cases, 1967, p. 853, at p. 961, where Lord Wilberforce held that "recognition of a law does not necessarily entail recognition of the law-maker as a government with sovereign power". It seems tenable to state that recognition of (private) laws - which do not affect the public policy of the (purported) State - does not entail the recognition of a claim to statehood. This principle may also be applied in other cases regarding claims to title or status. See also Hesperides Hotels v. Aegean Holidays Ltd., Law Reports, Queen's Bench Division, 1978, p. 205, at p. 218 (Lord Denning obiter dictum). But see Adams v. Adams, ILR, Vol. 52, p. 15 (in which a Rhodesian divorce degree granted under the Smith regime was not upheld in an English Court). 327. See Case C-432/92, The Queen v. Minister of Agriculture, Fisheries and Food ex pane S.P. Anastasiou (Pissouri) Ltd. and Others, Judgment of 5 July 1994, 1994 ECR 1-3087. The case concerned the issuing of movement certificates by the authorities of the TRNC and acceptance of these certificates by the EC member States although not under the designation of the TRNC. This practice was condoned by the European Commission. However, under the Association Agreement between the EC and Cyprus only certificates issued by the government of Cyprus may be accepted. With reference to the ICJ's Advisory Opinion in the Namibia case, the United Kingdom and the Commission argued that the policy of non-recognition should not result in depriving the population of Cyprus of any advantages conferred by the Association Agreement. The European Court of Justice rejected this argument by stating that given the differences in law and fact between Cyprus and Namibia no interpretation could be based on an analogy. The Court concurred with the point of view of the Advocate General who was of the opinion that the ICJ Opinion was of "little, if any, relevance to the present case" (id., at p. 3108).

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part of the Opinion as being too strict an interpretation of the doctrine of nullity. According to him, the admissibility of recognition of acts by the South African government regarding Namibia was dependent on "human considerations and practical needs".328 Indeed, it seems tenable - especially in the light of the considerations of the Court regarding humanitarian necessities - that specific forms of cooperation329 and the recognition of specific acts is allowed to the extent that these cannot be dispensed with without severe humanitarian consequences for the inhabitants of the entity, and insofar as such cooperation or recognition cannot be interpreted to imply the recognition or validation of the original illegality.330 In sum, it follows that the doctrine of non-recognition cannot be interpreted in such strict terms that its application would lead to the undermining of international law and human well-being in general, and in so doing would lead to the destruction of the premises upon which it is based. That is not to say, however, that the scope of the obligation of non-recognition is entirely clear. It seems that the outer limits of the obligation of non-recognition are more or less determined. Such an obligation of non-recognition exists in those cases where a fundamental rule of law has been violated and especially where the illegality has been collectively determined. The obligation of non-recognition extends to both the act and the consequences of that act, to the extent that recognition of the consequences would by implication mean recognition or validation of the original illegal act or the illegal claim to legal status. This obligation applies to both express recognition and implied recognition.331 However, this is, with some qualifications, without prejudice to the admissibility 328. Separate Opinion, Judge Petrèn, Namibia case, supra note 181, at p. 134. See also the Separate Opinion of Judge Dillard who stated: "[t]he legal consequences flowing from a determination of the illegal occupation of Namibia do not necessarily entail the automatic application of a doctrine of nullity [...]. [T]he maxim ex injuria jus non oritur is not so severe as to deny any source of right whatever can accrue to third persons acting in good faith". Id., at pp. 166-167. 329. Here it should be recalled that the Court stated that "[i]n general, the non-recognition of South Africa's administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation". And see Separate Opinion Judge Petrèn, Namibia Opinion, id. at p. 56. See also id., at pp. 134-136 (after excluding "official and ostentatious top-level contacts", Judge Petrèn held that "necessities of a practical or humanitarian nature may justify certain contacts or certain forms of co-operation"). 330. Crawford, CREATION OF STATES, pp. 127-128; Gowlland-Debbas, THE QUESTION OF SOUTHERN RHODESIA, pp. 310-311. As a general principle it seems that even in cases of humanitarian necessities it would be incumbent upon third States to limit their recognition or validation to those acts which are of a humanitarian and non-sovereign nature. This seems to follow from the fact that if such recognition would validate the illegal claim by the wrongdoer, this could eventually lead to a situation which might be even more harmful to the inhabitants of the territory than when no recognition would have been granted at all. 331. For a general discussion of the modes of recognition in the field of statehood, see P. K. Menon, Some Aspects of the Law of Recognition. Part V: Modes of Recognition, RDISDP, 1991, No. 1, p. 19.


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of recognition of certain consequences of an illegal act or situation, if nonrecognition would have substantial harmful effects for the inhabitants of the entity concerned. Thus, within the given limits, each case should be judged on its own merits.

§ 10.

NON-RECOGNITION AND THE EUROPEAN COMMUNITY DECLARATION ON THE GUIDELINES ON THE RECOGNITION OF NEW STATES IN EASTERN EUROPE AND IN THE SOVIET UNION

As has been discussed above, because States are obliged under certain circumstances to withhold recognition of an effective territorial entity, the grounds for that obligation constitute legal criteria for a lawful recognition.332 In addition, it was also seen that these grounds constitute separate and modern criteria for statehood as well. If an entity has been created in violation of a fundamental norm of international law it shall not be recognized and is not a State under international law. That is not to say that the conditions for recognition on the one hand, and the criteria for statehood on the other, are necessarily the same. In that respect an example is formed by, for instance, the Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, adopted by the member States of the European Community on 16 December 1991.333 In the Declaration, the member States affirmed their attachment to the principles set down in the Helsinki Final Act of 1975334 and in the Charter of Paris of 1990,335 and in particular to the principle of self-determination. The Declaration continues by stating that the member States affirm their readiness to recognize, subject to the normal standards of international practice and the political realities in each case, those new States which, following the historic changes in the region, have constituted themselves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations.

The Declaration subsequently mentions specific requirements which reflect 332. It was already observed that the acceptance of modern criteria for statehood leads to the fact that recognition of an entity which does not satisfy the modern criteria is in violation of both the prohibition of premature recognition (it is not a State) as well as the obligation of nonrecognition (the entity has been established in violation of a fundamental rule of international law). See Section 2 of this Chapter, supra. 333. EC Guidelines on Recognition, supra note 239. 334. ILM, Vol. 14, 1975, pp. 1292-1325. 335. ILM, Vol. 30, 1991, pp. 190-228.

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a "common position" of the member States of the European Community on the process of recognition of those new States, which requires: - respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights; - guarantees the rights of the ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE; - respect the inviolability of all frontiers which can only be changed by peaceful means and by common agreement; - acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as well as to security and regional stability; - commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning State succession and regional disputes.336

It is emphasized moreover that "the Community and its Member States will not recognise entities which are the result of aggression". These requirements must be understood as intended to lay down conditions for recognition first and foremost, and not conditions for statehood, which is also evident from the title of the Declaration. By listing these specific requirements, it was made clear that recognition would not be accorded if these requirements were not met, which is nothing other than a policy of conditional recognition. In fact, the conditions - especially insofar as they require commitment to treaties - presuppose the international legal existence of the States to be recognized. In addition, a requirement like "acceptance of all relevant commitments with regard to disarmament" is clearly a political condition which no-one would qualify as a criterion for statehood. It must therefore be concluded that the requirements spelled out by the member States of the European Community were not supposed to deal with the statehood of the relevant republics, but to clarify the sort of policies the new States were expected to follow after recognition.337 Moreover, non-fulfilment of a condition would in principle lead to no more than a political - as opposed to a legal obligation of non-recognition for the member States of the European Community, because the Declaration was not meant to have a legally binding 336. EC Guidelines on Recognition, supra note 239. 337. See also Shaw, INTERNATIONAL LAW, p. 146; S. Mahmoudi, Recognition of States: The Case of Former Yugoslav Republics, in: O. Bring (Ed.), CURRENTlNTERNATIONALLAWlSSUES. NORDIC PERSPECTIVES: ESSAYS IN HONOUR OF JERZY SZTUCKI, 1994, pp. 135-159, at p. 154; R. Rich, Recognition of States: the Collapse of Yugoslavia and the Soviet Union, EJIL, Vol. 4, 1993, p. 36, at pp. 55-56; M. Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, AJIL, Vol. 86, 1992, p. 569, at p. 588.


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character.338 It could be argued that a possible exception in this regard is formed by the requirement concerning guarantees for the rights of the ethnic and national groups and minorities, which to a certain extent seems to reflect an objective legality criterion for a well-founded claim to statehood. However, closer analysis will reveal that this criterion was primarily considered in terms of a criterion for recognition as well. The point is discussed later in this study.339 An implicit reference to the doctrine of the obligation of non-recognition can be found in the formulation that "the Community and its Member States will not recognise entities which are the result of aggression". The explicit statement and the reference to "entities" moreover confirms the view that the prohibition of aggression forms a bar to the acquisition of statehood in international law.

§ 11.

CONCLUSIONS AND OBSERVATIONS

It has been shown that recognition is not just a matter of discretion to be granted whenever a State wants it to do so. Recognition is regulated by legal principles, which prescribe that when a certain effective de facto situation exists which is not in violation of fundamental rules of international law, recognition is both permissible and lawful.340 In addition, it was seen that the existence of a State under international law is to be determined on the basis of (a) criteria based on the concept of effectiveness (the traditional criteria) and (b) criteria based on legality (the modern criteria). Furthermore, the analysis of the cases of Southern Rhodesia and the Homeland territories indicates that the right of self-determination may be regarded as a necessary legal foundation for statehood under international law. These cases show that there is a distinct relationship between the right of selfdetermination and statehood. In that respect it was also seen that, in the colonial context at least, the applicability of a right of external self-determination runs counter to a strict application of the principle of effectiveness in relation the criterion of 'government'. Indeed, the right of external selfdetermination gives rise to an exclusive right or title to exercise authority over

338. Germany, for instance, declared that it would recognize Croatia and Slovenia before Christmas 1991 notwithstanding any negative advice by the Arbitration Commission. See, generally, B. Crawford, Explaining Defection from International Cooperation. Germany's Unilateral Recognition of Croatia, World Politics, Vol. 48, Oct. 1995-July 1996, p. 482. 339. See Chapter 8, Section 5, infra. 340. See also OPPENHEIM'S INT'L LAW, p. 130.

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the territory and its inhabitants, which compensates for the lack of effectiveness. In such a case, the State which has been established exists in a juridical sense (juridical statehood). This is, however, only the beginning of an analysis regarding the role of the right of self-determination with respect to the formation of States in international law. Thus, the issue must be addressed of whether this role is limited to (a) the situation in which a completely unrepresentative regime unilaterally proclaims the independence of the territory (as in the case of Southern Rhodesia) and (b) the situation in which a completely unrepresentative government of a State without consulting the majority of its population, attempts to split up the State's territory through the grants of independence to parts of its territory (as in the case of the South African Homelands). Moreover because, the right of self-determination extends beyond the colonial context, as will be shown later, it must be examined what role, if any, the law of self-determination has in the process of post-colonial State formation. In modern, post-colonial times there have been, and still are, several cases of unrecognized - that is ignored - claims to statehood by effective territorial entities. Mention could be made of, for instance, the Republic of Abkhazia, the Republic of Serbian Krajina, the Republic of Anjouan and the Republic of Bougainville. Because there are no explicit collective determinations in these cases with regard to the illegality of their creation, the withholding of recognition cannot a priori be explained in the light of the modern doctrine of the obligation of non-recognition. Moreover, it seems that with respect to the establishment of several of these entities there is no clear-cut case of aggression, no violation of a right of self-determination of the majority of the population, and no racial discrimination or Apartheid. However, the virtually universal denial of their claims to statehood by the international community is strong evidence for the absence of statehood. The question of course is: why? It will be shown that the principal answer to this question is to be found in the law of self-determination. Under contemporary international law, the right of self-determination is not only the principal legitimation of statehood, it has also become a crucial factor in the process of the formation of States. However, it follows that before it is possible to examine any other (potential) effects - in addition to the effects already discussed in this Chapter - of the concept of self-determination on the formation of States under international law, an analysis of the rules and principles relating to the law of self-determination, including the content of the right, its scope and its subject, is required. The next Chapter will commence this analysis by investigating the roots of the concept and its development until the end of the era of decolonization.

Part II Self-Determination


Chapter 5

The Emergence and Development of the Principle of Self-Determination: From the American and French Revolutions to the Era of Decolonization

§ 1.

INTRODUCTION

Common Article 1 of the 1966 Covenants on Human Rights states [a] 11 peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.1

The wording repeats the language of Paragraph 2 of General Assembly Resolution 1514 of 1960,2 and clearly formed the basis for the almost identical wording in General Assembly Resolution 2625 of 1970.3 Common Article 1(1) states that "peoples" have the right freely to determine their political status, which refers to the concept of 'political self-determination'. This study concentrates itself on the analysis of this particular political aspect of selfdetermination for two reasons. Firstly, as will be shown, it is this aspect of selfdetermination that is linked to the law of statehood, and secondly, in nearly all situations political self-determination is a conditio sine qua non for the effective exercise, protection, development and enjoyment of economical, social and cultural self-determination.5 5 1. 2. 3.

4.

5.

See ICCPR, Art. 1(1) and ICSECR, Art. 1(1). Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc. A/Res/1514, 14 Dec. 1960. Declaration on Principles of International Law Concerning Friendly Relations and CoOperation Among States in Accordance With the Charter of the United Nations, UN Doc. A/Res/2625 (XXV), 24 Oct. 1970. The term 'political' denotes "of, or relating to government, a government, or the conduct of government". WEBSTER'S ENCYCLOPEDIC DICTIONARY, 1994. In the context of the concept of self-determination the first two meanings are primarily relevant. J. Klabbers and R. Lefeber, Africa: Lost Between Uti Possidetis and Self-Determination, in: C. Brölmann, et al. (Eds.), PEOPLES AND MINORITIES IN INTERNATIONAL LAW, 1993, p. 37, at p. 42.

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Leaving to one side for a moment the treaty context in which the abovequoted phrasing appears, and assuming that the wording reflects international customary law on the subject, it must be clear that it raises several questions. For instance, what is meant by the term "freely"? It obviously refers to the absence of interference, but who should abstain from interference? And what is meant by the phrase "political status"? Does it mean that a people is free to decide on its 'internal' political status (for instance, through political participation or territorial autonomy), its 'external' political status (for instance, independence or association with another State), or both? And how should that be determined? Finally, and probably the most difficult question raised is what is meant by "peoples"? However, despite this lack of clarity it seems possible to conclude prima facie that political self-determination is a concept, an idea, a doctrine about the legal-political relationship between a people and the State.6 In addition, it would appear that a 'people' and not the State as such is the holder of the right of political self-determination. But this seems to be all that can be said at this point. Therefore, in order to find answers to these questions which relate to the raison d'être, content, subject and scope of application of self-determination, it is necessary to analyse the historical roots of the concept and its subsequent development. This Chapter analyses the development of self-determination up to and including the era of decolonization. The post-colonial era will be dealt with in subsequent chapters. Section 2 charts the political and philosophical foundations of the concept of self-determination. In Section 3, the actual emergence of the concept within international relations, strongly influenced by both Wilson's and Lenin's ideas on self-determination, will be addressed. Section 4 will elaborate upon the development, content and application of the principle of self-determination in the era of decolonization under the guidance of the United Nations. On the basis of the analysis in the previous sections, Section 5 will examine the core meaning, raison d'être and objective of political self-determination as an international legal norm.

§ 2.

POLITICAL AND PHILOSOPHICAL FOUNDATIONS

§ 2.1.

The American and French Revolutions: democratic political theory

An important and influential factor with respect to the emergence and historical development of the concept of self-determination is formed by the phenomenon 6.

See also A. Cobban, THE NATION STATE AND NATIONAL SELF-DETERMINATION, 1969, p. 39.

The Emergence and Development of Self-Determination

173

of communities refusing to consent to, or accept any longer, the exercise of power over them by a ruler or governmental authority which they considered to be 'alien'.7 Preceded by a gradual development of group consciousness and political awareness, these communities repudiated the right of an elite or an 'alien' people to determine for them and without their consultation their fate, their destiny, and their political, cultural, social and economical status. It is this claim of peoples to govern themselves which finds expression in both the American and French Revolutions. These Revolutions were based on natural law theory insofar as they reflected a rejection of the Divine Right of Kings. The Declaration of Independence of the united States of America of 4 July 1776, written by Thomas Jefferson, states: [w]hen in the Course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and

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