Literature Notes – Week 4
Gleider Hernandez, International Law – Chapter 5, States as subjects of international law
5.1 Introduction: the nature of the state
Under international law it is states that possess full, objective legal personality, endowing them with
full legal capacity with respect to rights, powers, and obligations within that legal system. Conversely,
other entities regarded as subjects under international law have come to be regarded as having
international personality only through conferral or recognition by states, such as international
organisations.
5.2 The criteria for statehood
5.2.1 Conceptualising statehood
The sovereignty required for statehood requires a centralised, organised structure capable of
exercising effective control over a given territory and those individuals found within it. Today it is
possible for states to join the UN, even if they have delegated parts of their sovereignty to other
states. Article 1 of the Montevideo Convention on the Rights and Duties of States lists four criteria for
statehood. It provides that a “state as a person of international law should possess the following
qualifications: a permanent population; a defined territory; a government; and the capacity to enter
into relations with other states.
5.2.2 Population
That a state requires a population of inhabitants is indisputable: one cannot rule over a territory
without inhabitants over which to exercise control.
5.2.3 Territory.
5.2.3.1 Existence of a defined territory
Without territory, a state cannot exercise any meaningful control over a sustained period of time
5.2.3.2 Modes of acquiring and disposing of territory
States may transfer territory to one another peacefully, usually through cession, though a change in
legal circumstances can engender a transfer too, such as the expiration of the UK’s lease of
Hongkong. Because of the prohibition on the use of force in international law, it is now rare that
states acquire title to territory through annexation.
5.2.4 Effective government
The requirement of effective government is rather subjective and is underlain by the idea that a
people must be sufficiently socially and politically organised to be viewed as an entity. Therefore, a
state can only exist if it is in a position to uphold its international legal duties and obligations.
International law is neutral as to what political form the state in question should take. Once
established, statehood carries with it a presumption of continuity: it will persist even if there is a
partial or total collapse in governmental structures and an inability for the central government to
exercise effective control over the state, such as in the cases of Somalia and Syria.
5.2.5 Capacity to enter into international relations
The essence of the capacity to enter into relations with other states was independence; a territory
could not be a state if under the direct or indirect control of another state.
5.2.6 Emerging or unsettled criteria: respect for democracy, human rights, and the right to self-
determination
5.2.6.1 Respect for democracy, the rule of law, and human rights
An important document in this regard was the 1991 set of Guidelines adopted by the European
Community for the recognition of new states in Eastern Europe.
5.2.6.2 Self-determination
Some municipal courts have argued that a right to external self-determination arises because a
, certain group of people have been denied the ability to exert internally their right to self-
determination. A similar claim has been advanced by Kosovo, in response to which the ICJ
distinguishes its declaration of independence from that of Rhodesia and Northern Cyprus, in that
these entities violated norms of jus cogens. Self-determination raises basic questions as to what
constitutes a sufficiently coherent group to demand exercise of the right and whether it might also
confer the right to secede from a state. It has nevertheless been adopted in Article 1(2) of the UN
Charter and 1(1) of the two UN Covenants on Human Rights.
5.3 Recognition of states and governments
5.3.1 Competing theories on the recognition of states
5.3.1.1 The declaratory and constitutive theories of recognition
The notion of “recognition” of an entity as a state by other states is key. Recognition is a formal
procedure through which an existing state and a new state recognise each other as being capable of
exercising all the capabilities of statehood. There are two dominant theories of recognition:
The declaratory theory, according to which recognition merely formalises an already-extant
situation. This theory maintains that the legal effects of recognition are limited, and that the
act of recognition only confirms the pre-existing legal capacity of the state.
The constitutive theory, according to which recognition contributes to the emergence of the
state as such. The legal effects of these two theories are radically distinct. This theory
maintains that recognition by other states is a necessary condition for statehood, even if all
the criteria for statehood are otherwise satisfied.
Some non-recognition, however, might be explained by in that some entities violated in some way a
peremptory norm of jus cogens, thus echoing the ICJ’s statement in Kosovo on the matter.
5.3.1.2 Reconciling the two dominant theories; is there a duty to recognise
Rather than to prefer on theory, the two theories coexist, and each helps to illuminate the role that
recognition plays within statehood.
5.3.2 Recognition of governments
5.3.2.1 General rules on recognition of governments
The recognition of governments is a distinct process from that of states. With a change in
government, recognition is normally only an issue when there has been a drastic or unconstitutional
change in government. There are two types of recognition following an unconstitutional change:
De jure recognition, which is a formal act and follows when the recognising state is satisfied
that the new government enjoys “the obedience of the mass of the population; effective
control of much of the greater part of the territory of the state concerned”.
De facto recognition, which suggests that while a government may be in power and effective
authority, the recognising state has doubts over the legitimacy of the government and how it
came into power. However, the consequences of mere de facto recognition are significant,
especially in the realm of diplomatic relations.
5.3.2.2 US and UK practice since 1977
The recognition of governments by the USA has declined since 1977, when it separated recognition
from the approval of the policies of a foreign government. In 1980, the UK government announced
that it would no longer recognise governments at all.
5.3.2.3 Effects of non-recognition in municipal law
Because the act of recognition remains at its root a political act, it remains a prerogative of the
executive branch of government in most municipal legal systems. The effect of non-recognition has
far-reaching effects within the legal systems of the non-recognising state, such as the inability to sue
in its own name in the courts of the non-recognising state.
