ILA SofiaRpt RecogCmte164 98 Excerpt Libre

THE

INTERNATIONAL LAW ASSOCIATION

(FOUNDED 1873)

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Tel: +44 (0) 20 7323 2978. Fax: +44 (0) 20 7323 3580Email: [email protected]

MULTIS MELIOR PAX UNA TRIUMPHIS

REPORT

OF THE

SEVENTY-FIFTH CONFERENCE

HELD IN

SOFIA

August 2012

London2012

The Bulgarian Branch wishes to acknowledge with thanks the support of the

following persons, organisations and sponsors:

ORGANIZING COMMITTEE:

Alexander Yankov (President)Margarit Ganev (Vice President)

Anguel Anastassov; Anton Stankov; Atanas Semov; Dencho Georgiev; Emil Konstantinov; Evgeni Zhishev; Nikolay Natov; Irena Ilieva; Sevdalin Mavrov; Tsvetana

Kamenova; Ventsislava Zhelyazkova

HONORARY ADVISORY BOARD

Professor Nicolaas J Schrijver President of International Law Association

Professor Eduardo Grebler Vice-President, ILA; President of the Brazilian Branch

Professor Gilbert Guillaume Former President of the International Court of Justice, President of the French Branch

Professor Anatoly Kapustin President of the Russian Branch

Professor Paul Lagarde Recipient of the Hague Prize for International Law 2011

Professor Cynthia Lichtenstein Vice President of the American Society of International Law

Vice-Chair Executive Council, ILA

Hans van Loon Secretary General of the Hague Conference on Private International Law

Christine van den Wyngaert Judge at the International Criminal Court

Marin Raykov Ambassador of the Republic of Bulgaria in France,

Former Deputy Minister of Foreign Affairs,

Actual Prime Minister of Bulgaria

Professor Stanimir Aleksandrov Former Deputy Minister of Foreign Affairs

Actual Co-chair of Sidley’s international arbitration practice. Washington, DC

HONORARY NATIONAL ORGANISING COMMITTEE:

Professor Evgeni Tanchev Chief Justice of the Constitutional Court of the Republic of Bulgaria

Professor Lazar Gruev Chairman of the Supreme Court of Cassation of the Republic of Bulgaria

Mr Georgi Kolev Chairman of the Supreme Administrative Court of the Republic of Bulgaria

Professor Boris Velchev Attorney General of the Republic of Bulgaria

Dr Diana Kovatcheva Minister of Justice

Mr Nikolay Mladenov Minister of Foreign Affairs

Mrs Jordanka Fandakova Vjg"Oc{qt"qh"UqÝc"Owpkekrcnkv{

THE CONFERENCE WAS SUPPORTED BY:

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Editors: Professor Christine Chinkin; Professor Marcel Brus; Dr Sarah Nouwen; Christopher Ward

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Published by the international law association,

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PART I

Preface by the chair of executive council,

the rt hon lord mance ............................................................................... 15

resolutions ProPosed by international committees ........................................ 17

notes on the business of the association ........................................................... 57

financial rePort ................................................................................................. 64

history and worK of association ...................................................................... 67

constitution of the association ......................................................................... 79

Patrons and officers of the association ........................................................... 93

international committees .................................................................................. 97

branches of the association .............................................................................. 100

chairs of the executive council ....................................................................... 106

directors of studies ........................................................................................... 106

PART II

oPening ceremony ................................................................................... 109

Committees

international Protection of consumers

Committee Report .......................................................................................... 113Working Session ............................................................................................. 153

recognition/non-recognition in international law


international human rights law


cultural heritage law


islamic law & international law


sPace law


international civil litigation and the interests of the Public


baselines under the international law of the sea


legal PrinciPles relating to climate change


rights of indigenous PeoPles


committee on international securities regulation


reParation for victims of armed conflict


international trade law


non state actors


nuclear weaPons and non-Proliferation


feminism in international law


committee on international monetary law


intellectual ProPerty and Private international law


international law on sustainable develoPment


study Groups

Responsibility of inteRnational oRganisations

Working Session ............................................................................................. 880United nations RefoRm


engagement of domestic coURts with inteRnational law


pRivate law pRinciples, inteRnational law

Working Session ............................................................................................. 994socially Responsible investment

Working Session ............................................................................................. 1000

soft-law instRUments in investment law


soveReign insolvency

Working Session ............................................................................................. 1027the condUct of hostilities UndeR inteRnational hUmanitaRian law

in the 21st centURy

Working Session ............................................................................................. 1037

interest Groups

teaching of inteRnational law

Working Session ............................................................................................. 1046closing ceremony ........................................................................................1051

Recognition/Non-recognition in Contemporary International Law

Rapporteur<"C¦k¦"VwhÝ"Ucnkdc

FIRST REPORT

Introduction

The Committee on Recognition/Non-recognition of States was established by the Gzgewvkxg"Eqwpekn"kp"Oc{."422;."ykvj"vjg"rwtrqug"qh"gzcokpkpi"Ðyjgvjgt"eqpvgorqtct{"issues of secession, break-up of states and the creation of new states have changed inter-pcvkqpcn"ncy"cpf"rqnke{"ykvj"tgurgev"vq"tgeqipkvkqpÑ0"Vjg"Eqookvvgg"Ýtuv"ogv"cv"vjg"4232"ILA Conference in The Hague, Netherlands. It also held meetings in the 2011 Regional ILA Conference, in Taipei, Taiwan, and at the Polish Academy of Sciences of Vienna, in January 2012.

The Committee decided to begin its work by addressing questions regarding funda-mental aspects of recognition of States. The questions were the following:

(a) Does the dichotomy between the declaratory and constitutive doctrines persist?(b) What are the current criteria for the recognition of States?(c) What role – if any – does effectiveness play in the recognition of States?(d) Is recognition a political or a legal matter?

INTERNATIONAL LAW ASSOCIATION

SOFIA CONFERENCE (2012)

RECOGNITION/NON-RECOGNITION IN INTERNATIONAL LAW

Members of the Committee:

Professor Wladyslaw Czaplinski (Poland): Chair

Rtqhguuqt"C¦k¦"VwhÝ"Ucnkdc"*Dtc¦kn+<"Rapporteur

Professor Nisuke Ando (Japan) Alternate: Professor Shotaro HamamotoRtqhguuqt"Ejtkuvqrjgt"Dqtigp"*WUC+Dr Jean d’Aspremont (Belgium) Alternate: Dr Eric de Brabandere

(Belgium)Rtqhguuqt"Ocvvjgy"Jcrrqnf"*WM+Ot"Fcwf"Kn{cu"*WM+Dr Khoti Kamanga (East Africa)Mr Petr Kremnev (Russia)Nicholas Levrat (Switzerland)Rick Liew (Australia)Professor Monica Lugato (Italy)

Rtqhguuqt"Octictgv"OeIwkpguu"*WUC+Professor Stefan Oeter (Germany)Dr Alison Pert (Australia) Alternate: Stephen TullyDr Olivier Ribbelink (Netherlands)Dr Yael Ronen (Israel)Rtqhguuqt"Dtcf"Tqvj"*WUC+Professor David Ruzie (France)Professor Werner Scholtz (South Africa)Professor Mirjam Skrk (Slovenia)Dr A M H Vermeer-Kunzli (Netherlands)Professor Andreas Zimmermann (Germany)

recognition/non-recognition in international law 165

Members of the committee were asked to provide, whenever possible, pertinent dip-lomatic, administrative, judicial or parliamentary practice of the countries on which they were reporting. In particular and in order to provide a common baseline for discus-sion, they were asked whether the State on which they were reporting had recognized Abkhazia, Kosovo, North Korea, Palestine, South Sudan or Western Sahara as a State. More generally, members could add their views, if they wished, as long as they made clear what constituted State practice and what was their own position on the issue.

Responses to the questionnaire were received from the following branches (and mem-bers): Austria (Gerhard Hafner), Australia (Rick Liew, Alison Pert and Stephen Tully), Belgium (Jean D’Aspremont), France (David Ruzié), Italy (Monica Lugato and Enrico Milani), Israel (Yaël Ronen), Japan (Nisuke Ando and Shotaro Hamamoto), Russia (Petr Mtgopgx+."Uqwvj"Chtkec"*Ygtpgt"Uejqnv¦+."Vcp¦cpkc"*Mjqvk"Mcocpic+."Wpkvgf"Mkpifqo"*Ocvvjgy" Jcrrqnf" cpf" Fcwf" Kn{cu+." Wpkvgf" Uvcvgu" *Ejtkuvqrjgt" Dqtigp." Octictgv"McGuinness and Brad Roth). Additional research was conducted on Algeria, Argentina, and Brazil1.

Yjgtg"rquukdng."ogodgtu"tghgttgf"vq"qhÝekcn"fqewogpvu"qh"vjg"Uvcvg"qp"yjkej"vjg{"were reporting.

Only selected excerpts from the replies received have been transcribed below, as re-ports must conform to a page limit2. However, the Committee will soon post the full responses on SSRN (Social Science Research Network) 3.

30" Eqpuvkvwvkxg"qt"Fgenctcvkxg"Ejctcevgt"qh"TgeqipkvkqpWhen can an entity be regarded as a State? Who decides if an entity constitutes a State? Is such determination a matter of fact or a matter of law? What consequences – if any – emanate from recognition?

Vjgug"swguvkqpu"ctg"kpvgtvykpgf"cpf"jcxg"tgegkxgf"eqpÞkevkpi"cpuygtu"qxgt"vjg"{gctu0"Hqt"kpuvcpeg."Qrrgpjgko"uvcvgf"vjcv"Ðhqt"gxgt{"Uvcvg"vjcv"ku"pqv"cntgcf{."dwv"ycpvu"vq"dg."a member [of the family of nations], recognition is therefore necessary. A State is and dgeqogu"cp"Kpvgtpcvkqpcn"Rgtuqp"vjtqwij"tgeqipkvkqp"qpn{"cpf"gzenwukxgn{0Ñ4

Qrrgpjgko." jqygxgt." cnuq" cfokvvgf" vjcv" Ðocp{" ytkvgtu" fq" pqv" citgg" ykvj" vjku"qrkpkqpÑ05

Indeed, early writers had expressed the opposite view. The notion of sovereignty as suprema potestas superiorem non recognoscens was incompatible with the concept of c"hqtgkip"tgeqipkvkqp."cu"knnwuvtcvgf"d{"Rwhgpfqth." <"ÐÈ"jg"]vjg"mkpi_"qygu"jku"fkipkv{"and empire to no foreign power, so he need not obtain the consent and approval of other mkpiu"qt"uvcvgu."kp"qtfgt"vq"vjg"cuuwokpi"vjg"cevkqpu"qt"ejctcevgt"rtqrgt"vq"jku"qhÝeg"*È+"c"Hqtgkipgt"eqwnf"pqv"fkurwvg"jku"Tkijv"vq"vjg"Iqxgtpogpv."ykvjqwv"c"ocpkhguv"kplwt{Ñ06

1 The rappourter expresses his gratitude to his research assistants Maria Clara Cardoso, Tainá Garcia Maia, Priscila Viola Foureaux and Alice Fabris for their research on the practices of Algeria, Argentina, Brasil and France. 2 See ILA’s Director of Studies Circular Note ILA 2012 Preparations.3 < www.ssrn.com>. 4 OPPENHEIM, Lassa. International Law:"c"vtgcvkug0"Pgy"[qtm"cpf"Dqodc{<"Nqpiocpu."Itggp"("Co., 1905. Vol. 1 (Peace), p. 109. 5 OPPENHEIM, International Law, p. 109. 6" RWHGPFQTH."Ucowgn0"Of Law and Nature. 4th ed. in English. Book VII, § 9. London: J. Walthoe, R. Wilkin, J. and J. Bokwicke, S. Birt, T. Ward, and T. Osborne, 1729, p. 659.

166 international law association

Positivism gradually changed such notions.7 The obligation to obey international law, kp" vjg"rqukvkxkuvŁu" xkgy."fgtkxgu" htqo"Uvcvg" eqpugpv0"C" Ðpgy"UvcvgÑ" eqwnf" gzkuv" dghqtg"recognition, but it could not have rights in the international arena before its acceptance d{"vjg"Ðhcokn{"qh"pcvkqpuÑ0"Qrrgpjgko"gzrnckpu"vjcv"ÐKpvgtpcvkqpcn"Ncy"fqgu"pqv"uc{"vjcv"a State is not in existence as long as it is not recognized, but it takes no notice of it before kvu"tgeqipkvkqp0Ñ8

Therefore, the positivist approach saw recognition as the admission to a select club, a Ðlwtkuvke"dcrvkuoÑ9. Recognition created international personality, which meant creating c"Uvcvg"htqo"c"ngicn"uvcpfrqkpv0"Dghqtg"tgeqipkvkqp."vjg"Uvcvg"ycu"Ðc"ocvvgt"qh"hcev."pqv"qh"ncyÑ010"Vjku"rquukdng"fkxkukqp"dgvyggp"vjg"ÐhcevÑ"qh"uvcvgjqqf"cpf"vjg"Ðngicnkv{Ñ"qh"uvcvg-hood is emblematic of the debate over whether recognition is constitutive or declaratory.

The Constitutive Theory’s main idea is that the recognition creates the interna-tional personality of a State. A prima facie objection to this notion might be that it is unfair, as it gives previously existing States the right to act as gatekeepers of the Kpvgtpcvkqpcn"Eqoowpkv{"cpf"vq"fgrtkxg"pgygt"gpvkvkgu"qh"gpvt{"kpvq"Ðvjg"hcokn{"qh"pc-vkqpuÑ0"Hwtvjgtoqtg."kv"uggou"vq"dg"kpeqpukuvgpv"ykvj"vjg"rtkpekrng"qh"uqxgtgkip"gswcnkv{"of States.11

Nevertheless, one of the best-known advocates of the Constitutive Theory, Lauterpacht, put forward an interesting argument in its defense:

Why should the mere accident of prior existence give to some States the right to call into being the full international personality of rising communities? The answer is that personality as such cannot be automatic and that as its ascertainment requires the prior determination of fkhÝewnv"ektewouvcpegu"qh"hcev"cpf"ncy."vjgtg"owuv"dg"someone to perform that task. In the absence of a preferable solution, such as the setting up of an impartial international organ vq" rgthqto" vjg" hwpevkqp." vjg" ncvvgt"owuv" dg" hwnÝnngf"d{"Uvcvgu" cntgcf{" gzkuvkpi0"Vjg"xcnkf"objection is not against the fact of their discharging it, but against their carrying it out as a matter of arbitrary policy as distinguished from legal duty.12

The declaratory theory, on the other hand, regards recognition as a political act that is not a necessary component of statehood13. A State is not obligated to enter into political rela-tions with another State. Thus, recognition translates into a willingness to entertain such relations as exist only among states, such as exchanging diplomatic envoys or concluding treaties.14"Uwej"yknnkpipguu"Ðfqgu"pqv"eqpuvkvwvg"cp{"eqpetgvg"ngicn"qdnkicvkqpÑ15, although it may have relevant economic, social and political consequences.16

7 CRAWFORD, James. The creation of States in International. 2nd" gfkvkqp0"Qzhqtf<"QWR."4228."p. 13. 8 OPPENHEIM, International Law, p. 110. 9 CRAWFORD, The creation …, p. 16. 10 CRAWFORD, The creation …, p. 16. 11" ECUUGUG."Cpvqpkq0"Kpvgtpcvkqpcn"Ncy0"Qzhqtf<"QWR."42230"12" NCWVGTRCEJV."Tgeqipkvkqp"qh"Uvcvgu" kp" Kpvgtpcvkqpcn"Ncy0"The Yale Law Journal, vol. 53, number 3, pp. 385–458, at p. 437. 13 CRAWFORD, The creation …, p. 22. 14 KELSEN, Hans. Recognition in International Law: theoretical observations. American Journal of International Law, v. 35, p. 605, 1941. 15 KELSEN, Hans. Recognition in International Law: theoretical observations. American Journal of International Law, v. 35, p. 605, 1941.16 In favor of the Declaratory doctrine, see, for instance, JIMENEZ DE ARECHAGA, Eduardo. Derecho Internacional Público0"Vqoq"KK0"Oqpvgxkfgq<"HEW."3;;7."rr0"67Î6;="HCWEJKNNG."Rcwn0"


Beginning with de Visscher17, some writers adopted a combined version of the Declaratory and Constitutive views. In his reply to the Committee, d’Aspremont ob-ugtxgf" vjcv." kp" ceeqtfcpeg"ykvj" vjku" vjktf" crrtqcej." Ðtgeqipkvkqp" ku" uckf" vq" dg"pgkvjgt"fgenctcvqt{"pqt"eqpuvkvwvkxg0"Kv"ukorn{"ku"c"rqnkvkecn"cev"yjkej"jcu"ukipkÝecpv"ngicn"ghhgevu"in the international and domestic legal orders. This approach is premised on the idea vjcv" vjg" fkejqvqo{"dgvyggp"fgenctcvqt{" cpf" eqpuvkvwvkxg" ku" kpuwhÝekgpv" vq" gzrnckp" vjg"complexity of the impact of recognition on the functioning of legal orders. Yet, such an approach is not exclusive of the idea that recognition occasionally has some declaratory and constitutive effects (the latter being generally reserved to effects of recognition under fqoguvke"ncy+0Ñ18

Vjg"Ýtuv"swguvkqp"rqugf"vq"ogodgtu"qh"vjg"Eqookvvgg"tgictfgf"vjg"ewttgpv"tgngxcpeg"of declaratory and constitutive doctrines.

Some replies by Committee members stated the view that the dichotomy between the declaratory and constitutive doctrines still persists. However, the recognition of the continuity of such dichotomy came cum grano salis. The Italian report cautioned that ÐVjg"fkejqvqo{"ku"nctign{"tghgttgf"vq."dwv"kvu"korqtvcpeg"ku"rquukdn{"qxgtgorjcuk¦gf."qt"cnvqigvjgt"okungcfkpiÑ.19"yjgtgcu"qpg"Dtkvkuj"tgrqtv"pqvgf"vjcv"Ðvjg"fkhhgtgpegu"dgvyggp"

Traité de Droit International" Rwdnke0" :g" fif0"Vqog" 3gt0" Rtgokfltg" Rctvkg0" Rctku<"Tqwuugcw"("Ekg0"3;44."r0"529="="UGCTC"Xè¥SWG¥."Oqfguvq0"Derecho Internacional Público. México, DF: Porrúa, 2009, p. 103; BRIERLY, J.L. The Law of Nations. Sixth edition, edited by Humphrey Waldock. Qzhqtf<"QWR."3;58."r0"35;0"Dtkgtn{"uvcvgf"vjcv"ÐVjg"dgvvgt"xkgy"ku"vjcv"vjg"itcpvkpi"qh"tgeqipkvkqp"to a new state is not a ‘constitutive’ but a ‘declaratory’ act; it does not bring into legal existence c"uvcvg"yjkej"fkf"pqv"gzkuv"dghqtg0Ñ"Kv" ku"cnuq"tgngxcpv"pqvkekpi"vjcv." kp"3;58."vjg"Kpuvkvwv"fg"Ftqkv"Kpvgtpcvkqpcn"cfqrvgf"c"tguqnwvkqp"qp"vjg"ÐTgeqipkvkqp"qh"pgy"Uvcvgu"cpf"pgy"iqxgtpogpvuÑ0"Vjg"tguqnwvkqp"gzrtguun{"qrvgf"hqt"c"fgenctcvqt{"xkgy"qh"Uvcvg"tgeqipkvkqp."cu"kpfkecvgf"kp"kvu"Ýtuv"ctvkeng"*kvcnkeu"cffgf+<"ÐNc"tgeqppckuucpeg"fÓwp"Gvcv"pqwxgcw"guv"nÓcevg"nkdtg"rct"ngswgn"wp"qw"rnwukgwtu"Gvcvu"constatent l’existence sur un territoire déterminé d’une société humaine politiquement organisée, indépendante de tout autre Etat existant, capable d’observer les prescriptions du droit international et manifestent en conséquence leur volonté de la considérer comme membre de la Communauté internationale. La reconnaissance a un effet déclaratif. L’existence de l’Etat nouveau avec tous les effets juridiques qui s’attachent à cette existence n’est pas affectée par le refus de reconnaissance fÓwp" qw" rnwukgwtu" Gvcvu0Ç" KPUVKVWV" FG" FTQKV" KPVGTPCVKQPCN0" Nc" tgeqppckuucpeg" fgu"nouveaux Etats et des nouveaux gouvernements. Adopted in Brussels, 1936. Available at < http://www.idi-iil.org>. Access in 02/03/2011. 17 See CRAWFORD, James. The criteria for statehood in International law. British Yearbook of Kpvgtpcvkqpcn"Ncy"*3;98+"6:"*3+"rr0";5Î3:4."r0327Î328<"ÐKv"ku"uqogvkogu"uwiiguvgf"vjcv"vjg"Òitgcv"debate’ over the legal nature of recognition has been beside the point, and that it is mistaken to categorize recognition as either declaratory or constitutive. French writers, following de Visscher, have tended to regard recognition as combining both elements. […] The tentative conclusion is that the international status of an entity ‘subject to international law’ is, in principle, independent qh" tgeqipkvkqp."cnvjqwij" vjg"swcnkÝecvkqpu"cntgcf{"ocfg"uwiiguv" vjcv" vjg"fkhhgtgpegu"dgvyggp" vjg"fgenctcvqt{"cpf"eqpuvkvwvkxg"uejqqnu"ctg"nguu"kp"rtcevkeg"vjcp"okijv"jcxg"dggp"gzrgevgf0Ñ"Ugg"cnuq"CRAWFORD, The creation …, pp. 26–27. 18 D’ASPREMONT, Jean. D’Aspremont refers to the work of J. Verhoeven, La reconnaissance

internationale dans la pratique contemporain – Les relations publiques internationales. Paris : Pedone, 1975 and to his book on Non-Democratic States in International Law (J. d’Aspremont, L´Etat non démocratique en droit international. Etude critique du droit international positif et de la

pratique contemporaine, Paris, Pedone 2008.19" NWICVQ."Oqpkec"cpf"OKNCPK."Gptkeq0"Kvcnkcp"tgrqtv0

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declaratory and constitutive doctrines may well be less stark in practice than is often uwrrqugf0Ñ20

The Russian reply brought the strongest objection to the relevance of the Constitutive/Fgenctcvqt{"fgdcvg<"ÐEqpuvkvwvkxg"cpf"fgenctcvkxg"vjgqtkgu"qh"tgeqipkvkqp"uggo"vq"jcxg"nquv"vjgkt"rtcevkecn"ukipkÝecpeg"cpf"kp"kvu"rwtg"hqto"ctg"wpnkmgn{"vq"dg"wughwn0"Rtqdcdn{."kv" ku"oqtg" crrtqrtkcvg" vq" wug" vjgug" vjgqtkgu" kp" c" uekgpvkÝe" cpf"jkuvqtkecn" curgev." qt" cu"rwtgn{"fqevtkpcn"eqpegrvu."dwv"pqv"cu"c"tgÞgevkqp"qh"vjg"rtcevkeg"qh"oqfgtp"kpvgtpcvkqpcn"tgncvkqpu0Ñ21

The Belgian response noted that whereas English legal literature has kept reason-kpi"cnqpi"vjg"nkpgu"qh"vjg"fgenctcvqt{"cpf"eqpuvkvwvkxg"fqevtkpgu."c"ukipkÝecpv"pwodgt"qh"French authors have backed away from this dichotomy, embracing the third approach mentioned above.

Responses from Australia22, Austria23, France24, Italy25, South Africa26"cpf"vjg"Wpkvgf"Kingdom indicated that these states have adopted the declaratory doctrine.27 Additionally, an analysis of the written statement presented by Argentina to the ICJ in the Kosovo case reveals that Argentina considers to be well established in general international law that Ðtgeqipkvkqp"fqgu"pqv"jcxg"c"eqpuvkvwvkxg"ghhgevÑ028

Vjg"W0U0"tgrn{"gzrtguugf"fqwdvu"yjgvjgt"W0U0"rtcevkeg"ecp"dg"uckf"vq"tgÞgev"gkvjgt"the declaratory or the constitutive view in any clear and consistent manner. On the one

20 ILYAS, Daud. British report. 21 KREMNEV, Petr. Russian report. 22" NKGY."Tkem="RGTV."Cnkuqp="VWNN[."Uvgrjgp0"Cwuvtcnkcp" tgrqtv0" Kp" vjg"Cwuvtcnkcp" tgurqpug" kv"was noted that „ In broadly adopting the Montevideo criteria when deciding whether or not to recognise a new state (…), the Australian government implicitly follows the declaratory doctrine qp"tgeqipkvkqp0Ñ"23" JCHPGT."Igtjctf0"Cwuvtkcp"tgrqtv0"Vjg"Cwuvtkcp"tgrn{"uvcvgf"vjcv<"ÐCwuvtkc"rtqeggfu"htqo"vjg"view that recognition is merely of declaratory nature. Thus, Austrian diplomatic practice consistently ujqyu"vjcv"tgeqipkvkqp"qh"cpqvjgt"uvcvg"ku"qpn{"fgenctcvqt{"cpf"fqgu"pqv"jcxg"eqpuvkvwvkxg"ghhgev0Ñ"Ncvgt"kp"vjg"tgrqtv."Jchpgt"gzrnckpgf"vjcv"Ð*È+"Cnhtgf"Xgtftquu."yjqug"xkgy"jcu"dgeqog"guvcdnkujgf"legal doctrine in Austria, considered that recognition was declaratory, but could have constitutive ghhgevu"kh"ceeqorcpkgf"d{"hwtvjgt"ogcuwtgu"uwej"cu"vjg"guvcdnkujogpv"qh"fkrnqocvke"tgncvkqpu0Ñ"Jg"cited as a source Alfred Verdross, Völkerrecht, (1964) 246. 24" TW¥K¡."Fcxkf0"Htgpej"tgrqtv0"Tw¦kfi"uvcvgf"vjcv"Ðvjg"fkejqvqo{"gzkuvu"dwv"qp"Uvcvg"tgeqipkvkqp"*qp"vjg"eqpvtct{"qh"ewuvqo"tgeqipkvkqp+"vjg"fgenctcvqt{"fqevtkpg"rtgxcknu0Ñ"25" NWICVQ."Oqpkec"cpf"OKNCPK."Gptkeq0"Kvcnkcp"tgrqtv0"26 SCHOLTZ, Werner. South African Report. According to the South African reply „In theory, most states seem to support the declaratory theory. The approach of the South African courts concerning the theories was illustrated in S v Banda (1989 (4) SA 519 (B)), where the learned judge found in favor of the declaratory theory. He argued that this approach is less arbitrary and it enjoys more uwrrqtv"coqpi"uejqnctu"cpf"uvcvgu0Ñ27 The view that the Declaratory doctrine enjoys greater support in diplomatic practice and in the legal literature also appears in the writings of Julio BARBOZA. Derecho Internacional Publico. Buenos Aires: Zavalia, 2004, p. 180. 28 ICJ Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of

Independence by the Provisional Institutions of Self-government of Kosovo. Written Statement of the Argentine Republic, para. 48 Additionally, it is worth noting that the Arbitration Commission of the Eqphgtgpeg"qp"[wiquncxkc"cnuq"uvcvgf"vjcv"Ðvjg"gzkuvgpeg"qt"fkucrrgctcpeg"qh"vjg"Uvcvg"ku"c"swguvkqp"qh"hcev=" vjcv" vjg"ghhgevu"qh"tgeqipkvkqp"d{"qvjgt"Uvcvgu"ctg"rwtgn{"fgenctcvqt{Ñ"*Qrkpkqp"Pq0"3."53"International Legal Materials, 1495).


hand, it notes that the Restatement of the Law (Third) of the Foreign Relations Law of the Wpkvgf"Uvcvgu"gzrnckpu."kpvgt"cnkc."vjcv"Ò]c_"uvcvg"ku"pqv"tgswktgf"vq"ceeqtf"hqtocn"tgeqipk-tion to any other state but is required to treat as a state an entity meeting the requirements of [the Montevideo Convention criteria]’.29 However, it also pointed to a speech delivered d{"vjgp"W0U0"Ugetgvct{"qh"Uvcvg"Lcogu"Dcmgt"kp"Ugrvgodgt"3;;3."tgictfkpi"etkvgtkc"hqt"recognition of new states in Central and Eastern Europe that seemed to include further criteria beyond those of Montevideo.30

Vjg"W0U0"pcvkqpcn"tgrqtvgtu"uvcvgf"vjcv"uwej"xctkgv{"qh"rtcevkeg"ÐtgÞgevu"rqnkvkecn"rtg-conditions to the decision to recognize. It leaves unclear the extent of legal obligations, if any, perceived to be owed to entities not qualifying for recognition under the political etkvgtkc0"Vjku"tckugu"swguvkqpu"cdqwv"yjgvjgt"W0U0"rtcevkeg"ecp"dg"uckf"vq"tgÞgev"uvtckijv-hqtyctfn{"gkvjgt"vjg"fgenctcvqt{"qt"vjg"eqpuvkvwvkxg"xkgyÑ031

The Japanese32 and the South African33 responses noted that neither legal doctrine is capable of explaining state practice satisfactorily.

29" Vjqwij"pqv"cp"qhÝekcn"W0U0"iqxgtpogpv"fqewogpv."vjg"Tguvcvgogpv"ku"ogcpv"vq"dg"cp"ceewtcvg"distillation of the then-current state of the law.30" Kp"jku" urggej." vjg"Ugetgvct{"qh"Uvcvg"eqpfkvkqpgf" tgeqipkvkqp"qp"ÐÝxg" kpvgtpcvkqpcnn{"ceegrvgf"rtkpekrnguÑ<"*c+"fgvgtokpcvkqp"qh"vjg"hwvwtg"kp"rgceghwn"cpf"fgoqetcvke"rtqeguugu="*d+"tgurgev"hqt"cnn"existing borders; (c) support for democracy and the rule of law; (d) safeguarding of human rights, based on full respect for the individual and including equal treatment of minorities; (e) respect for international law and obligations. Reuters, SOVIET TURMOIL; Baker’s Remarks: Policy on Soviets, n.y. times, Sept. 5, 1991, at A12 (reprinting speech given by Secretary of State James Baker on September 4, 1991). As to the changes that are taking place in center-republic relations, our policy, that is, the policy of vjku"Cfokpkuvtcvkqp."vqyctf"vjg"Uqxkgv"hwvwtg"yknn"dg"iwkfgf"d{"vjg"hqnnqykpi"Ýxg"rtkpekrngu0" Hktuv."vjg"hwvwtg"qh"vjg"Uqxkgv"Wpkqp"ku"hqt"vjg"Uqxkgv"rgqrngu"vq"fgvgtokpg"vjgougnxgu."rgceghwnn{"and consistent with democratic values and practices and the principles of the Helsinki Final Act. We call upon all Soviet leaders at all levels of government, including those of the republics, to show their support for these internationally accepted principles. In this process there can be no legitimate place for threats, intimidation, coercion or violence. Second, we urge all to respect existing borders, both internal and external. Any change of borders should occur only legitimately by peaceful and consensual means, consistent with C.S.C.E. principles. Third, we support democracy and the rule of law. And we support peaceful change only through orderly democratic processes, especially the processes of elections. Four, we call for the safeguarding of human rights based on full respect for the individual and including equal treatment of minorities. Five, we urge respect for international law and obligations especially adherence to the provisions of the Helsinki Final Act and the Charger of Paris. 31" Kp"DQTIGP."OEIWKPPGUU"cpf"TQVJ0"W0U0"tgrqtv0"32" ÐKp"o{"xkgy."pgkvjgt"fqevtkpg"cnqpg"ecp"gzrnckp"uvcvg"rtcevkeg"ucvkuhcevqtkn{0"Fgenctcvqt{"fqevtkpg."if it goes to the extreme, should obligate States to recognize a new State once the latter meets certain criteria, but this cannot explain, for example, the case of non-recognition of North Korea by Japan. Qp"vjg"qvjgt"jcpf."cnvjqwij"Vwtmg{"tgeqipk¦gf"vjg"Tgrwdnke"qh"Pqtvj"E{rtwu."vjg"Wpkvgf"Pcvkqpu"decided that Member States should not recognize it, as a result of which the Turkish recognition has hckngf"vq"etgcvg"c"pgy"Uvcvg0Ñ"Gzvtcevgf"htqo"CPFQ."Pkuwmg0"Japanese report. 33" Ð"Vjg"fkueqwtug"eqpegtpkpi"vjg"fkhhgtgpv"vjgqtkgu"ku"engctn{"qh"c"xgt{"eqorngz"pcvwtg0"Kp"vjgqt{."at least it seems that an irreconcilable distinction between the theories persists. It is, however, not always clear, what the practical relevance of the theories are since various instances of recognition (Palestine, Kosovo, South Ossetia and Abkhazia) through state practice cannot be easily


In any case, there was practically no express support for the Constitutive doctrine in the replies presented. However, such lack of support for the Constitutive doctrine did not vtcpuncvg"kpvq"wrjqnfkpi"c"ÐrwtgÑ"fgenctcvqt{"fqevtkpg0"Kv"oc{"gxgp"dg"ctiwgf"vjcv"kp"uqog"kpuvcpegu."vjqwij"vjg"rtcevkeg"ycu"fgpqokpcvgf"Ðfgenctcvqt{Ñ."kvu"fguetkrvkqp"ycu"enqugt"to the third view mentioned above.

2. Statehood and the Criteria for recognition

As stated by Crawford, modern doctrine and practice has shifted its attention to issues of statehood and status independent of recognition34. Different criteria have been suggested hqt"uvcvgjqqf."dwv"pq"fgÝpkvkqp"jcu"dggp"igpgtcnn{"citggf"wrqp"{gv0"35

One of the most relevant legal formulations of statehood appears in Article I of the Montevideo Convention on the Rights and Duties of States (1933). According to the Montevideo Convention, the State as a person of international law should possess the hqnnqykpi"swcnkÝecvkqpu<"*c+"rgtocpgpv"rqrwncvkqp="*d+"fgÝpgf"vgttkvqt{="*e+"iqxgtpogpv="and (d) capacity to enter into relations with other States.36

Despite the fact that only sixteen States37"jcxg"tcvkÝgf"vjg"Oqpvgxkfgq"Eqpxgpvkqp"(1933), its formulation of the elements necessary to form a State are widely employed in diplomatic practice and referred to in academic works. The reports of Australia38, Austria39, Japan, South Africa40, Tanzania41"cpf"vjg"Wpkvgf"Mkpifqo42 – none of which is

ceeqooqfcvgf"d{"qpg"qh" vjg" tgngxcpv" ngicn" vjgqtkgu0Ñ"Gzvtcevgf" htqo"UEJQNV¥."Ygtpgt0"South

African Report.34 CRAWFORD, The creation …, p. 37. 35 CRAWFORD, The creation …, p. 37. 36 The Montevido treaty can be found at < http://www.oas.org/juridico/english/treaties/a-40.html>. Access on March, 2nd, 2011.37 The sixteen States that are a party to the Montevideo Convention are Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Pkectciwc."Rcpcoc."Wpkvgf"Uvcvgu"cpf"Xgpg¦wgnc0"Hwtvjgt"kphqtocvkqp"cdqwv"vjg"Oqpvgxkfq"vtgcv{"can be found at < http://www.oas.org/juridico/english/sigs/a-40.html>. Access on March, 2nd, 2011. 38" ÐVjg" Cwuvtcnkcp" iqxgtpogpv" tgswktgu" ucvkuhcevkqp" qh" vjg" hqnnqykpi" etkvgtkc<" c" rgtocpgpv"rqrwncvkqp."c"fgÝpgf"vgttkvqt{."c"ecrcekv{"hqt"ghhgevkxg"iqxgtpogpv"cpf"c"ecrcekv{"vq"jcxg"tgncvkqpu"ykvj"qvjgt"pcvkqp/uvcvgu"Î"kp"vjku"pqvg"tghgttgf"vq"hqt"eqpxgpkgpeg"cu"vjg"Oqpvgxkfgq"etkvgtkc"*È+Ñ0"39" ÐEgtvckp" uvcvgjqqf" etkvgtkc" ctg" wpcpkoqwun{" tgswktgf" kp" vjg" rtcevkeg" qh" uvcvgu0"Vjg{" kpenwfg" c"rgtocpgpv"rqrwncvkqp."c"fgÝpgf"vgttkvqt{."c"iqxgtpogpv"cpf"vjg"ecrcekv{"vq"gpvgt"kpvq"tgncvkqpu"ykvj"the other states and are expressed in Article 1 of the Montevideo Convention. Austrian diplomatic rtcevkeg"jcu"kpxqmgf"vjgug"etkvgtkc"kp"vjg"eqpvgzv"qh"uvcvgjqqf0Ñ40 In the book International Law: A South African Perspective, by South African professor John Dugard (and others), the Montevideo criteria is also mentioned. They explain that „Although qpn{"Ýhvggp"Uvcvgu"cpf"vjg"Wpkvgf"Uvcvgu"ctg"rctvkgu"vq"vjku"Eqpxgpvkqp."kv"ku"igpgtcnn{"ceegrvgf"cu"tgÞgevkpi"vjg"tgswktgogpvu"qh"Uvcvgjqqf"wpfgt"ewuvqoct{"kpvgtpcvkqpcn"ncy0"Ugg"FWICTF."Lqjp0"BETHLEHEM, D. L., PLESSIS, Max Du, and KATZ Anton. International Law: A South

African Perspective. Lansdowne, South Africa: Juta, 2007, p. 84. 41" ÐChtkecp" rqnke{"ocmgtu" ctg" pq" fqwdv" hcoknkct"ykvj" vjg" etkvgtkc" qh" uvcvgjqqf" cu" ugv" qwv" kp" vjg"Oqpvgxkfgq"Eqpxgpvkqp."3;55."vjcv"ku"vq"uc{."rgtocpgpv"rqrwncvkqp."fgÝpgf"vgttkvqt{."iqxgtpogpv."cpf"Ýpcnn{." vjg" ecrcekv{" vq" gpvgt" kpvq" tgncvkqpu"ykvj" qvjgt"Uvcvgu0Ñ"Gzvtcevgf" htqo"MCOCPIC."Khoti. Tanzanian report.42" Jcrrqnf"qdugtxgu"kp"jku"tgrqtv"Ð"Vjg"etkvgtkc"yjkej"vjg"WM"Iqxgtpogpv"rwtrqtvu"vq"crrn{"hqt"the recognition of States were set out in a Written Answer dated 16 November 1989 by the then Rctnkcogpvct{"Wpfgt/Ugetgvct{"qh"Uvcvg"hqt"Hqtgkip"cpf"Eqooqpygcnvj"Chhcktu."cpf"ctg" vjcv<"ÐKv"

http://www.oas.org/juridico/english/treaties/a-40.html

http://www.oas.org/juridico/english/sigs/a-40.html


a party to the Montevideo Convention – all mentioned the Montevideo Convention and its four elements as relevant criteria for the recognition of States. It comes as no surprise that Brazil qt"vjg"Wpkvgf"Uvcvgu43 – which are parties to the Montevideo convention – also utilize it. As one looks into the responses presented by the national reporters, one may see that even in cases where there was no express mention of the Montevideo Convention, there was substantial overlap between the criteria used by different countries and the Montevideo formula.44

Though the Montevideo criterion of what constitutes a State is frequently invoked in international practice (or perhaps because it is employed so often), it is not immune to criticism or even skepticism. D’Aspremont, in his reply to the Committee, referred to the Oqpvgxkfgq"etkvgtkqp"cu"ÐOqpvgxkfgq"knnwukqpÑ"cpf"uvcvgf"vjcv"jg"ku"uvtqpin{"cickpuv"Ðvjg"kfgc"vjcv"kpvgtpcvkqpcn"ncy"cwvjqtkvcvkxgn{"fgÝpgu"yjcv"Uvcvgjqqf"kuÑ0"Kp"jku"dqqm"qp"tge-qipkvkqp."Vjqocu"Itcpv"kphqtou"vjcv"uqog"jcxg"Ðctiwgf"vjcv"vjg"Eqpxgpvkqp"ku"qh"nkokvgf"law-making force and therefore, regardless of the quality of its content, has little norma-vkxg"tgcej0Ñ45"Cffkvkqpcnn{."vjg"Oqpvgxkfgq"Eqpxgpvkqp"jcu"dggp"ecnngf"Ðqxgt/kpenwukxgÑ."hqt"cwvjqtu"yjq"dgnkgxg"kv"eqpvckpu"gngogpvu"yjkej"ctg"pqv"Ðguugpvkcn"vq"uvcvgjqqfÑ046"ÐKp"ujqtvÑ."ytkvgu"Itcpv."Ð"vjgtg"jcu"ctkugp"c"dqf{"qh"uejqnctn{"qrkpkqp"vjcv"ecnnu"kpvq"swguvkqp"

ujqwnf"jcxg."cpf"uggo"nkmgn{"vq"eqpvkpwg"vq"jcxg."c"engctn{"fgÝpgf"vgttkvqt{"ykvj"c"rqrwncvkqp."c"Government who are themselves able to exercise effective control of that territory, and independence kp"vjgkt"gzvgtpcn"tgncvkqpu0"Qvjgt"hcevqtu."kpenwfkpi"uqog"Wpkvgf"Pcvkqpu"tguqnwvkqpu."oc{"cnuq"dg"tgngxcpv0Ñ"Kv"ecp"dg"uggp"vjcv"vjg"Ýtuv"ugpvgpeg"qh"vjg"cpuygt"nctign{"tgrtqfwegu"vjg"ÒOqpvgxkfgq"criteria’, with emphasis being put on the aspects of effectiveness and permanence. As the second sentence indicates, normative criteria can play a role in some situations, particularly those of non-tgeqipkvkqp0"Jqygxgt."vjg"WM"jcu"cnyc{u"dggp"ectghwn"vq"pqvg"vjcv<"ÐGcej"ecug"qh"vjg"tgeqipkvkqp"qh"c"uvcvg"ku"eqpukfgtgf"qp"kvu"qyp"ogtkvu0Ñ43" Cu"pqvgf"d{"vjg"pcvkqpcn"tgrqtvgtu"Dqtigp."OeIwkppguu"cpf"Tqvj"kp"vjg"WU"tgurqpug"ÐUgevkqp"423"qh"vjg"Tguvcvgogpv"*Vjktf+"qh"Hqtgkip"Tgncvkqpu"Ncy"uvcvgu<"ÒWpfgt"kpvgtpcvkqpcn"ncy."c"uvcvg"ku"cp"gpvkv{" vjcv"jcu"c"fgÝpgf" vgttkvqt{"cpf"c"rgtocpgpv"rqrwncvkqp."wpfgt" vjg"eqpvtqn"qh" kvu"qyp"government, and that engages in, or has the capacity to engage in, formal relations with other such entities.’ This echoes the Montevideo criteria of statehood, which, as the Reporters’ Notes to the Tguvcvgogpv"kpfkecvg."nctign{"tgÞgevu"vjg"fgenctcvqt{"xkgy<"ÒVjku"ugevkqp"*Ugevkqp"423+"vgpfu"vqyctfu"the declaratory view, but the practical differences between the [declaratory and constitutive] have itqyp" uocnngt0" Gxgp" hqt" vjg" fgenctcvqt{" vjgqt{." yjgvjgt" cp" gpvkv{" ucvkuÝgu" vjg" tgswktgogpvu" qh"uvcvgjqqf"ku."cu"c"rtcevkecn"ocvvgt."fgvgtokpgf"d{"qvjgt"uvcvgu0ÓÑ"Kp"DQTIGP."OEIWKPPGUU"cpf"TQVJ0"W0U0"tgrqtv0"44" Ugg." hqt" kpuvcpeg." vjg" Kvcnkcp" tgrn{" Ð"Uvcvg" rtcevkeg" ujqyu" cfjgtgpeg" vq" egtvckp" encuuke" etkvgtkc"(effective and independent government, territory, population, will to be considered a State). The fgocpf"hqt"vgttkvqtkcn"uvcdknkv{"jcu"cnuq"ngf"vq"c"engct"chÝtocvkqp"qh"vjg"rtkpekrng"qh"uti possidetis in fkhhgtgpv"eqpvgzvu"*È+Ñ="vjg"Lcrcpgug"tgrqtv"vtcpuetkdgu"cp"qhÝekcn"fqewogpv"yjkej"dtkpiu"cu"etkvgtkc"Ð"ghhgevkxg"rqnkvkecn"cwvjqtkv{"qxgt"vjg"rqrwncvkqp"nkxkpi"kp"c"egtvckp"vgttkvqt{Ñ0"Vjg"Kutcgnk"tgrqtv."d{"Rtqhguuqt"TQPGP."rqkpvu"vq"cp"qhÝekcn"fqewogpv."yjkej."d{"kvu"vwtp."tghgtu"vq"vjg"ÐVjg"vtcfkvkqpcn"etkvgtkc"hqt"uvcvgjqqfÑ0"Vjg"etkvgtkc"ctg"eqpvckpgf"kp"vjg"fqewogpv"ctg"ÐGhhgevkxg"cpf"kpfgrgpfgpv"iqxgtpogpvcn"eqpvtqn."vjg"rquuguukqp"qh"fgÝpgf"vgttkvqt{."vjg"ecrcekv{"vq"htggn{"gpicig"kp"hqtgkip"tgncvkqpu"cpf"ghhgevkxg"eqpvtqn"qxgt"c"rgtocpgpv"rqrwncvkqp0"Ugg"Ð">"http://www.mfa.gov.il/MFA/Rgceg-Rtqeguu1Iwkfg-vq-vjg-Rgceg-Rtqeguu1C-Wpkncvgtcn-Rcnguvkpkcp-Fgenctcvkqp-qh-Uvcvgjqod-.htm> 45" ITCPV."V0"FgÝpkpi" Uvcvgjqqf<"Vjg"Oqpvgxkfgq"Eqpxgpvkqp" cpf" kvu"Fkueqpvgpvu0"Columbia

Journal of Transnational Law, v. 37, p. 403–457, 1998, p. 434.46" ITCPV."V0"FgÝpkpi" Uvcvgjqqf<"Vjg"Oqpvgxkfgq"Eqpxgpvkqp" cpf" kvu"Fkueqpvgpvu0"Columbia

Journal of Transnational Law, v. 37, p. 403–457, 1998, p. 434.

http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/A+Unilateral+Palestinian+Declaration+of+Statehood-.htm




past reliance on the Montevideo Convention as an authoritative pronouncement on the ejctcevgtkuvkeu"qh"vjg"uvcvg0Ñ47

The most criticized of the four elements of the Montevideo formula is probably the Ðecrcekv{"vq"gpvgt"kpvq"tgncvkqpu"ykvj"qvjgt"UvcvguÑ048 There are different grounds for ob-lgevkqp0" Kv"oc{"dg" uckf" vjcv" uwej" ecrcekv{" Ðku." kp" ghhgev." c" eqpugswgpeg." tcvjgt" vjcp" c"eqpfkvkqp" qh" uvcvgjqqf0Ñ49 One may also argue that such capacity is not exclusive of States and, therefore, not particularly useful to distinguishing States from other entities.50 International Organizations and, in some cases, even sub-unities of a State, such as prov-inces51, länder"qt"Ðuvcvg"ogodgtu"qh"c"hgfgtcvkqpÑ."oc{"cnuq"eqpenwfg"vtgcvkgu052

Yjgtgcu"uqog"dgnkgxg"vjcv"vjg"Oqpvgxkfgq"hqtownc"ku"Ðqxgt/kpenwukxgÑ."qvjgtu"jcxg"suggested additional criteria such as self-determination, democracy, minority rights and constitutional legitimacy.53 One must be careful, however, not to confuse criteria of state-hood with criteria of recognition (or conditions of recognition).54 There is no question that a State can come into existence without being democratic or having respect for minority rights; however, as States are not obligated to provide recognition, they may choose to tgeqipk¦g"qpn{" gpvkvkgu"yjkej" hwnÝnn" egtvckp" eqpfkvkqpu0"Vjgtg" ku" tgngxcpv" kpvgtpcvkqpcn"practice in this regard.

Dgukfgu" vjg" rtcevkeg" qh" vjg" Wpkvgf" Uvcvgu" ogpvkqpgf" cdqxg55, there are other ex-corngu" qh" Uvcvgu" fgocpfkpi" vjg" hwnÝnnogpv" qh" egtvckp" eqpfkvkqpu" hqt" tgeqipkvkqp0"Qp"

47" ITCPV."V0"FgÝpkpi" Uvcvgjqqf<"Vjg"Oqpvgxkfgq"Eqpxgpvkqp" cpf" kvu"Fkueqpvgpvu0"Columbia

Journal of Transnational Law, v. 37, p. 403–457, 1998, p. 434. 48" TQVJ"qhhgtu" vjg" hqnnqykpi" gzrncpcvkqp" hqt" uwej" gngogpv<" ÐVjg" tghgtgpeg" kp"Ctvkeng" 3" vq" Ðvjg"ecrcekv{" vq" gpvgt" kpvq" tgncvkqpu" ykvj" qvjgt" uvcvguÑ" vjwu" crrgctu" vq" jcxg" dggp" kpvgpfgf." pqv" cu"conditioning statehood on the entity’s reception by other states, but as excluding entities whose international relations were confessedly subordinate to another state – i.e., units of federal states (e.g., Michigan, Tasmania) and territories that have full internal self-governance but are dependent kp"gzvgtpcn"chhcktu"*g0i0.Ðcuuqekcvgf"uvcvgjqqfÑ"cttcpigogpvu."uwej"cu"vjg"tgncvkqpujkr"qh"vjg"Eqqm"Kuncpfu" vq" Pgy" ¥gcncpf+Ñ0" Kp" TQVJ." D0" Ugeguukqp." Eqwru" cpf" vjg" Kpvgtpcvkqpcn" Twng" qh" Ncy<"Assessing the Decline of the Effective Control Doctrine. Melbourne Journal of International Law, v. 11, p. 1–47, 2010, at p. 7. 49" FGVVGT"FGNWRKU."Kpitkf0""The international legal order . Fctvoqwvj<"Cnfgtujqv."WU."3;;6."r0"650"Lcogu"Etcyhqtf"qdugtxgu"vjcv"ÐEcrcekv{"vq"gpvgt"kpvq"tgncvkqpu"ykvj"Uvcvgu"cv"vjg"kpvgtpcvkqpcn"level is no longer, if it ever was, an exclusive State prerogative. True, States preeminently possess that capacity, but this is a consequence of statehood, not a criterion for it – and it is not constant dwv"fgrgpfu"qp"vjg"ukvwcvkqp"qh"rctvkewnct"Uvcvgu0Ñ"Kp"ETCYHQTF."Lcogu0"The Creation … p. 61. 50" ITCPV."V0"FgÝpkpi" Uvcvgjqqf<"Vjg"Oqpvgxkfgq"Eqpxgpvkqp" cpf" kvu"Fkueqpvgpvu0"Columbia

Journal of Transnational Law."x0"59."r0"625Î679."3;;:."r0"6570"Itcpv"ctiwgu"vjcv"ÐGxgp"kh"ecrcekv{"were unique to states, the better view seems to be that, though capacity results from statehood, it is pqv"cp"gngogpv"kp"c"uvcvgÓu"etgcvkqp0Ñ51 COTÉ Charles-Emmanuel. La réception du droit international en droit canadien. Supreme Court

Law Review, v. 52, pp. 483–567, 2010. 52" ITCPV."V0"FgÝpkpi" Uvcvgjqqf<"Vjg"Oqpvgxkfgq"Eqpxgpvkqp" cpf" kvu"Fkueqpvgpvu0"Columbia

Journal of Transnational Law, v. 37, p. 403–457, 1998, p. 434.53 For a discussion, see GRANT, Thomas D. The recogntion of states0"Yguvrqtv"*WU+<"Rtcgigt."3;;;."esp. chapter 4. 54 See GRANT, Thomas D. The recogntion of states0"Yguvrqtv" *WU+<"Rtcgigt." 3;;;." r0" :50"Vjg"American reporters aptly called the criteria of recognition „preconditions to recognition of uvcvgjqqfÑ0"55 See Section 1 of this report (Constitutive or Declarative Character of Recognition).


December 16, 1991, the EC held a meeting in which a set of guidelines for recognition was adopted. The criteria to be ascertained includes respect for the provisions of the Ejctvgt"qh"vjg"Wpkvgf"Pcvkqpu."vq"vjg"twng"qh"ncy."fgoqetce{"cpf"jwocp"tkijvu."iwctcpvggu"for the rights of ethnic and national groups and minorities, respect for the inviolability of all frontiers, acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as well as to security and regional stability and commitment to settle by agreement, including where appropriate by recourse to arbitration, all ques-tions concerning State succession and regional disputes.56"Pgxgtvjgnguu."Itcpv" chÝtou"vjcv"Ðrtqhguugf"eqookvogpv"vq"vjg"Fgegodgt"38"Iwkfgnkpgu"fkf"pqv"*È+"vtcpuncvg"kpvq"rtcevkeg"wpkhqton{0Ñ57

Vjg"Cwuvtcnkcp"tgrqtv"ogpvkqpu."cu"Ðkornkgf"etkvgtkcÑ"hqt"tgeqipkvkqp"qh"Uvcvgu."non-

violation of International Law58 and respect for territorial integrity of States. Regarding

56 The full text of the EC Guidelines reads:“Declaration on the ̀ Guidelines on the Recognition of New States in Eastern Europe and in the

Uqxkgv"WpkqpÓ"*38"Fgegodgt"3;;3+In compliance with the European Council’s request, Ministers have assessed developments in Gcuvgtp"Gwtqrg"cpf"vjg"Uqxkgv"Wpkqp"ykvj"c"xkgy"vq"gncdqtcvkpi"cp"crrtqcej"tgictfkpi"tgncvkqpu"with new states. In this connection they have adopted the following guidelines on the formal recognition of new uvcvgu"kp"Gcuvgtp"Gwtqrg"cpf"kp"vjg"Uqxkgv"Wpkqp<" Vjg"Eqoowpkv{"cpf"kvu"Ogodgt"Uvcvgu"eqpÝto"vjgkt"cvvcejogpv"vq"vjg"rtkpekrngu"qh"vjg"Jgnukpmk"Hkpcn"Cev"cpf"vjg"Ejctvgt"qh"Rctku."kp"rctvkewnct"vjg"rtkpekrng"qh"ugnh/fgvgtokpcvkqp0"Vjg{"chÝto"vjgkt"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. Therefore, they adopt a common position on the process of recognition of these new States, which requires:Î" tgurgev"hqt"vjg"rtqxkukqpu"qh"vjg"Ejctvgt"qh"vjg"Wpkvgf"Pcvkqpu"cpf"vjg"eqookvogpvu"uwduetkdgf"

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 for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE

– respect for 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.

The Community and its Member States will not recognize entities which are the result of aggression. They would take account of the effects of recognition on neighboring States. The commitment to these principles opens the way to recognition by the Community and its Ogodgt"Uvcvgu"cpf"vq"vjg"guvcdnkujogpv"qh"fkrnqocvke"tgncvkqpu0"Kv"eqwnf"dg"nckf"fqyp"kp"citggogpvu0Ñ57 GRANT, The Recognition …, p. 95. 58" Vjg"Cwuvtcnkcp" tgrqtv"ogpvkqpu" vjg" hqnnqy" gzcorngu<" Ð"Qp" qeecukqp"Cwuvtcnkc" jcu" tghwugf" vq"recognise an entity claiming statehood in violation of international law, such as Rhodesia following its unilateral declaration of independence in 1965: ‘Australia does not recognise Rhodesia. Ever ukpeg"vjg"Wpkncvgtcn"Fgenctcvkqp"qh"Kpfgrgpfgpeg"kp"Tjqfgukc"Cwuvtcnkc"jcu"tgictfgf"vjg"Tjqfgukcp"Government as an illegal regime and therefore of no international standing.’Source: Minister


vjg"ncvvgt."kv"pqvgu."jqygxgt."vjcv"Cwuvtcnkc"Ðjcu"tgeqipkugf"Mquqxq"pqvykvjuvcpfkpi"vjg"ncem"qh"eqpugpv"htqo"UgtdkcÑ059

Hqt"Kutcgn."kv"Ðku"knngicn"*cpf"kpxcnkf+"vq"tgeqipk¦g"uvcvgjqqf"vjcv"hqnnqyu"c"xkqncvkqp"qh"a legal commitment. In addition, Israel holds that as a matter of policy, recognition should hqnnqy"eqpugpuwcn"tcvjgt"vjcp"wpkncvgtcn"rtqeguugu0Ñ60

Lcrcp." kp" cffkvkqp" vq"fgocpfkpi" Ð" ghhgevkxg"rqnkvkecn" cwvjqtkv{"qxgt" vjg"rqrwncvkqp"nkxkpi"kp"c"egtvckp"vgttkvqt{Ñ."cnuq"Ðvcmgu"kpvq"ceeqwpv"yjgvjgt"vjg"gpvkv{"jcu"vjg"yknn"cpf"vjg"ecrcekv{"vq"qdugtxg"kpvgtpcvkqpcn"ncy0Ñ61

50 GhhgevkxgpguuAs noted in the beginning of this report, members of the committee were asked about the role of effectiveness in the recognition of States. It may be argued that the Montevideo hqtownc"cpf"uqog"qvjgt"cpcnqiqwu"eqpegrvkqpu"qh"uvcvgjqqf"ygtg"Ðguugpvkcnn{"dcugf"qp"vjg"rtkpekrng"qh"ghhgevkxgpguuÑ62.

With the caveat that there are competing views of what effectiveness means, it may be wpfgtuvqqf"vq"cu"vjg"Ðghhgevkxg"eqpvtqn"qh"cp"kpfgrgpfgpv"iqxgtpogpvÑ"qxgt"c"Ðrgtocpgpv"rqrwncvkqpÑ"cpf"c"ÐfgÝpgf"vgttkvqt{Ñ063

representing the Minister for Foreign Affairs, statement in the Senate 7 October 1976, in 7 Australian Yearbook of International Law (1976–77) p.433. Similarly, Australia refused to recognise the South African Bantustans, based on Australia’s opposition to apartheid as a philosophy and on Security Council resolutions calling on states not to recognise them: ‘The Australian Government’s opposition to apartheid and to the concept of independent homelands is well known and clearly on record. Australia, along with the rest of the international community, does not recognise the so-called homelands. Following the declaration on 6"Fgegodgt"3;:3"qh"vjg"uq/ecnngf"kpfgrgpfgpeg"qh"vjg"Ekumgk"vjg"Wpkvgf"Pcvkqpu"Ugewtkv{"Eqwpekn"condemned that development and called upon all governments to deny any form of recognition to the bantustans. The Australian Government has complied fully with that appeal.’ Source: Minister representing the Minister for Foreign Affairs, Commonwealth of Australia, Senate, Parliamentary

Debates, 47"Octej"3;;4"r033790Ñ"59" NKGY."Tkem="RGTV."Cnkuqp="VWNN[."Uvgrjgp0"Cwuvtcnkcp"tgrqtv0"60 RONEN, Yael. Israeli report. 61 HAMAMOTO, Shotaro. Second Japanese report. The report brings the following extract of cp" qhÝekcn" fqewogpv<" ÐOt" Lwpkejktq"Mqk¦wok." Rtkog"Okpkuvgt."Ytkvvgp"Cpuygt"Pq0" 544."Jqwug"of Representatives, 164th Sess., June 16, 2006. <http://www.shugiin.go.jp/index.nsf/html/index_shitsumon.htm> [in Japanese, translated by the national reporter]: ‘Generally speaking, in order for cp"gpvkv{"vq"dg"tgeqipk¦gf"cu"c"Uvcvg."kpvgtpcvkqpcn"ncy"tgswktgu"vjg"gpvkv{"vq"hwnÝnn"eqpfkvkqpu"vq"dg"c"State, i.e. to establish an effective political authority over the population living in a certain territory. Japan also takes into account whether the entity has the will and the capacity to observe international ncy0"]È_"Qp"vjgug"dcugu."yg"jcxg"pqv"tgeqipk¦gf"Pqtvj"Mqtgc"cu"c"Uvcvg0ÓÑ"Jcocoqvq"qdugtxgu"vjcv"ÐVjg"Ýtuv"ugpvgpeg"qh"vjg"cpuygt"swqvgf"cdqxg"uwiiguvu"vjcv"vjg"igpgtcn"kpvgtpcvkqpcn"rtcevkeg"cu"understood by Japan sees no difference between the criteria for the recognition of States and those for statehood. The second sentence indicates that Japan takes into account an additional criterion. Lcrcp"vjwu"eqpukfgtu"vjcv"Uvcvgu"ctg"htgg"vq"nc{"fqyp"cffkvkqpcn"etkvgtkc"hqt"tgeqipkvkqp"qh"Uvcvgu0Ñ62 CRAWFORD, The creation"È." r0" ;90" Ugg" cnuq" ECP~CFQ"VTKPFCFG."Cpv»pkq"Cwiwuvq0"States As Subjects Of International Law and The Expansion Of International Legal Personality. International Law for Humankind. Recueil des Cours, v. 316 (2006). Martinus Nijhoff Publishers, pp.203–219. Available at <http://www.nijhoffonline.nl/>. Last visited on August, 15th, 2011.63 See ROTH, B. Secession, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine. Melbourne Journal of International Law, v. 11, p. 1–47, 2010, at p. 7. Qtcmjgncujxknk"rtgugpvu"c"ukoknct"pqvkqp<"ÐCu"rctv"qh"vjg"hcevwcn"etkvgtkc"qh"uvcvgjqqf."effectivité refers

http://www.shugiin.go.jp/index.nsf/html/index_shitsumon.htm

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Vjg"pqvkqp"vjcv"Ðc"Uvcvg"ku"c"ocvvgt"qh"hcevÑ"gpuwgu"htqo"cp"Ðgswcvkqp"qh"ghhgevkxgpguu"ykvj"uvcvgjqqfÑ064 In other words, the exercise of state authority over a certain territory cpf"rqrwncvkqp"yqwnf"ogcp" ÐghhgevkxgpguuÑ" cpf"pgeguuctkn{" coqwpv" vq" gzkuvgpeg"qh" c"State. Conversely, there could not exist a State without effectiveness.

Practice has demonstrated the inaccuracy of such notion.65 There have been cases of effective entities which were not regarded as States as well as non-effective entities which were considered States. Rhodesia and the Turkish Republic of Northern Cyprus are examples of the former, whereas entities unlawfully annexed in the period of 1936 to 1940 (Ethiopia, Austria or Poland) are illustrative of the latter.66

One explanation is that international law regulates statehood on a basis other than only effectiveness.67"Uwej"xkgy"ku"gzrtguugf."hqt"kpuvcpeg."d{"Ecp›cfq"Vtkpfcfg<"ÐVjg"rtgeqp-ditions for statehood in International Law were well captured by the 1933 Montevideo Eqpxgpvkqp"qp"vjg"Tkijvu"cpf"Fwvkgu"qh"Uvcvgu."eqortkukpi"c"rqrwncvkqp."c"fgÝpgf"vgttk-tory, a normative system and the capacity to enter into relations with other States. Such factual preconditions, as pointed out by classical doctrine, ensued essentially from the principle of effectiveness, though modern doctrine goes beyond this latter and resorts to jus cogens uq"cu"vq"fkuectf"cp{"knngicn"wug"qh"hqteg"cnuq"kp"vjg"rtgugpv"fqockp0Ñ68

vq" vjg" ghhgevkxg" gzgtekug"qh" uvcvg" cwvjqtkv{"qxgt" vjg" tgngxcpv" vgttkvqt{0Ñ" Kp<"QTCMJGNCUJXKNK."Cngzcpfgt0" Uvcvgjqqf."Tgeqipkvkqp" cpf" vjg"Wpkvgf"Pcvkqpu"U{uvgo<"C"Wpkncvgtcn"Fgenctcvkqp" qh"Independence in Kosovo. Max-Planck Yearbook of United Nations Law, vol. 12, 1–44, 2008, at p. 9. 64 CRAWFORD, The creation …, p. 97. 65" ÐCu" kpfgrgpfgpv" etkvgtkc" hqt" uvcvgjqqf." Òrgtocpgpv" rqrwncvkqpÓ" cpf" ÒfgÝpgf" vgttkvqt{Ó"ogtgn{"beg the question, since virtually all statehood claims, whether or not accepted in the international ngicn"qtfgt."ejctcevgtkuvkecnn{"kpenwfg"uwhÝekgpvn{"rtgekug"enckou"qp"dgjcnh"qh"c"rgtocpgpv"rqrwncvkqp"vq"c"fgÝpgf"vgttkvqt{0"Yjcv"ocvvgtu" kp" vjg"Montevideo Convention context is that the ‘permanent rqrwncvkqpÓ"cpf"ÒfgÝpgf"vgttkvqt{Ó"dg"wpkvgf"d{"uqog"eqooqp"cpf"fkuvkpiwkujkpi"rcvvgtp"qh"ghhgevkxg"governance. Thus, if taken as the legal standard for international personality, the Montevideo criteria would confer sovereign rights, obligations, powers, and immunities on any territorially-coherent political community found under the long-term effective control of an independent government. Jqygxgt."uwej"c"uvcpfctf"hcnnu"hct"ujqtv"qh"ecrvwtkpi"vjg"guugpeg"qh"vtcfkvkqpcn"tgeqipkvkqp"rtcevkeg0Ñ"In ROTH, B. Secession, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine. Melbourne Journal of International Law, v. 11, p. 1–47, 2010, at p. 7.66 CRAWFORD, The creation …, p. 97. Roth reminds us that in some cases, new states have been recognized without a central government ever having established effective control throughout the territory. He cites, as examples, the Democratic Republic of the Congo, in 1960, and Angola, in 1975. In ROTH, B. Secession, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine. Melbourne Journal of International Law, v. 11, p. 1–47, 2010, at p. 7. 67 See CRAWFORD, The creation …, p. 97. Note, also, that Vladimir-Djuro Degan, in his course fgnkxgtgf"cv"vjg"Jciwg"Cecfgo{"qh"Kpvgtpcvkqpcn"Ncy"vqqm"vjg"xkgy"vjcv"vjg"ÐUvcvg"ku"c"swguvkqp"qh"hcevÑ<"ÐNc"fqevtkpg"fw"ftqkv"kpvgtpcvkqpcn"guv"§"lwuvg"vkvtg"wpcpkog"rqwt"tgeqppc¶vtg"swg"nc"etficvkqp"d’un Etat est une question de fait, échappant aux règles ordinaires du droit. Ce n’est donc pas en principe un processus juridique réglementé, ni par le droit interne de l’Etat prédécesseur, ni par le ftqkv"kpvgtpcvkqpcn0Ñ"In DEGAN, Vladimir-Djuro. Création et disparition de l’Etat (à la lumière du

démembrement de trois fédérations multiethniques en Europe). Recueil des Cours, v. 279 (2007). Martinus Nijhoff Publishers, p. 197–374, at p. 227. Available at <http://www.nijhoffonline.nl>. Last xkukvgf"qp"Cwiwuv." 37vj." 42330"Jqygxgt." jg" ncvgt" eqpeggfgf" vjcv" uwej" Ðocvvgt" qh" hcevÑ" eqwnf"dg"ngicnn{"nkokvgf<"ÐCevg"fkuetfivkqppcktg"gv"rqnkvkswg."nc"tgeqppckuucpeg"rgwv"swcpf"o‒og"‒vtg"nkokvfig"rct"egtvckpgu"qdnkicvkqpu"lwtkfkswgu"qw"rct"egtvckpu"gpicigogpvu"rqnkvkswgu0Ñ"Ibidem, p. 249. 68" Kp"ECP~CFQ"VTKPFCFG."Cpv»pkq"Cwiwuvq0" Uvcvgu"Cu" Uwdlgevu"Qh" Kpvgtpcvkqpcn" Ncy" cpf"The Expansion Of International Legal Personality. International Law for Humankind. Recueil des

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60" Vjg"Swguvkqp"qh"Tgeqipkvkqp"qh"Cdmjc¦kc."Mquqxq."Pqtvj"Mqtgc."Rcnguvkpg."South Sudan and Western Sahara.

In a meeting in Vienna, in January 2012, it was decided by members of the Committee who were present to request the national reports to provide information regarding the rec-ognition of Abkhazia, Kosovo, North Korea, Palestine, South Sudan and Western Sahara.

It is not always the case that a State lays down clearly and publicly that it recognizes (or not) another entity as a State. In many cases, national reporters informed that it was not known or it was not clear whether an entity was recognized by the State on which vjg{"ygtg"tgrqtvkpi0"Vjg"vcdng"dgnqy"uwooctk¦gu"vjg"Ýpfkpiu"qh"vjg"Eqookvvgg0"Ecugu"where it was not clear whether an entity was recognized were not listed.69

STATE ENTITIES RECOGNITION AS A

STATE

Algeria Kosovo No. Palestine Yes70

South Sudan Yes

Argentina Abkhazia No71

Kosovo No Palestine Yes

Australia72 Abkhazia No73

Kosovo Yes

Cours, v. 316 (2006). Martinus Nijhoff Publishers, pp.203–219, at p. 205. Available at <http://www.nijhoffonline.nl/>. Last visited on August, 15th, 2011.69" Vjqwij"pcvkqpcn"tgrqtvgtu"jcxg"vtcpuetkdgf"ocp{"qhÝekcn"uvcvgogpvu"cpf"ekvgf"fkhhgtgpv"fqewogpvu"in their responses, due to space constraints, reference was made only to what seemed most relevant for purposes of this report. However, as previously stated, national reports will be available at < www.ssrn.com> 70" Vjg"hqnnqykpi"uvcvgogpv"rtqxkfgu"uqog"wpfgtuvcpfkpi"qh"vjg"Cnigtkcp"xkgy"qp"vjg"ÐKp"vjku"eqpvgzv"[the situation of Palestine], the International Community, in particular the co-sponsors of the peace process, must exercise the necessary pressure on Israel to apply International Law. The Palestinian Cwvjqtkv{"cpf"Rtgukfgpv"CtchcvÓu"ngikvkoce{"owuv"dg"tgurgevgf0Ñ"Cxckncdng"cv<"jvvr<11yyy0ocg0f¦1ma_fr/stories.php?story=11/07/04/999256971 Argentina mentions that Abkhazia’s unilateral declaration of independence would violate the respect for the sovereignty and territorial integrity if the republic of Georgia, in accordance with the declaration of the president of the Security Council on 2 December 1994 (S/PRST/1994/78)72 Information on the recognition of Abkhazia, Kosovo, North Korea, Palestine and South Sudan d{"Cwuvtcnkc"ycu"gzvtcevgf"htqo"NKGY."Tkem="RGTV."Cnkuqp="VWNN[."Uvgrjgp0"Cwuvtcnkcp"tgrqtv073 Australian national reporters informed that Australia considers Abkhazia a part of Georgia and cited – as an illustration – the following statement to Parliament by the Minister for Foreign Affairs: ÐOgodgtu"yqwnf"dg" cyctg" vjcv" qxgtpkijv" vjg"Twuukcp"Rtgukfgpv." Rtgukfgpv"Ogfxgfgx." kpfkecvgf"that the Russian Federation had recognized the independence of South Ossetia and Abkhazia, often known as the separatist region of Georgia. Australia does not support such recognition. That is Australia’s longstanding position. Australia recognizes the territorial sovereignty of Georgia over the rtqxkpegu"qh"Uqwvj"Quugvkc"cpf"Cdmjc¦kc0Ñ"Ceeqtfkpi"vq"vjg"Cwuvtcnkcp"pcvkqpcn"tgrqtvgtu."vjg"uqwteg"is: Commonwealth of Australia, House of Representatives, Parliamentary Debates, 27 August 2008, r0"85:70"Vjku"kphqtocvkqp"crrgctu"kp"gzvtcevgf"htqo"NKGY."Tkem="RGTV."Cnkuqp="VWNN[."Uvgrjgp0"Australian report.

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North Korea Yes Palestine No South Sudan Yes Western Sahara No74

Austria75 Kosovo Yes North Korea Yes76

Palestine Partial subject of international law77

South Sudan Yes78

74 Australian national reporters informed that Australia Australia regards Western Sahara as a Non-Self-Governing Territory and cited – as an illustration – the following statement by the Minister for Hqtgkip"Chhcktu<"ÐVjg"Yguvgtp"Ucjctc"ycu"cfokvvgf"vq"vjg"QCW"kp"Hgdtwct{"3;:4"dwv"kvu"ogodgtujkr"is disputed by Morocco and some other states. Australia does not recognize the independent State of vjg"Yguvgtp"Ucjctc"*vjg"uq/ecnngf"Ucjtcyk"Ctcd"Fgoqetcvke"Tgrwdnke+0Ñ"Ceeqtfkpi"vq"vjg"Cwuvtcnkcp"national reporters, the statement appears in Commonwealth of Australia, House of Representatives, Parliamentary Debates, 26 May 1988 (vol 161) p.3217. This information appears in extracted from NKGY."Tkem="RGTV."Cnkuqp="VWNN[."Uvgrjgp0"Cwuvtcnkcp"tgrqtv075 Information regarding recognition or non recognition of Abkhazia, Kosovo, North Korea, Palestine, South Sudan and Western Sahara by Austria was extracted from the report of Gerhard Hafner. Hafner notes that „In the case of Western Sahara Austria has not made any statements regarding recognition. One of the reasons why Austria has not made statements in this context may be uggp"kp"vjg"ektewouvcpeg"vjcv"Cwuvtkc"jcu"cfqrvgf"vjg"tqng"qh"cp"Òjqpguv"dtqmgtÓ"hqnnqykpi"WP"UE"Tgu"1871 (2009) on the situation in Western Somalia, which inter alia ‘welcomed the parties’ agreement vq"jqnf"uocnn."kphqtocn"vcnmu"kp"rtgrctcvkqp"hqt"c"Ýhvj"tqwpf"qh"pgiqvkcvkqpu0"Jcxkpi"rtqxkfgf"iqqf"qhÝegu"vq"vjg"rctvkgu."Cwuvtkc"gzrnckpgf"vjcv"Ò]f_wtkpi"vjg"kphqtocn"vcnmu"Cwuvtkc"hqewugf"fgnkdgtcvgn{"on its role as honest broker and bridge-builder and created an appropriate environment to relaunch vjg"fgcfnqemgf"WP"pgiqvkcvkqp"rtqeguu"hqt"c"rgceghwn"uqnwvkqp"qh"vjg"eqpÞkev0ÓÑ"Jg"cnuq"pqvgu"vjcv"ÐKp"vjg"ecug"qh"Cdmjc¦kc."Cwuvtkc"jcu"pqv"ocfg"cp{"uvcvgogpvu"tgictfkpi"tgeqipkvkqp0Ñ"Gzvtcevgf"from HAFNER, Gerhard. Austrian report.76 „At least since the common communiqué about the establishment of diplomatic relations and the exchange of diplomatic representatives of 1974 it can be assumed that Austria has recognized North Mqtgc"cu"c"uvcvg0Ñ"Gzvtcevgf"htqo"JCHPGT."Igtjctf0"Cwuvtkcp"tgrqtv077 „Austrian practice has been to recognize partial subject of international law, as in the case of the Palestine Liberation Organization (‘PLO’). Thus, in 1980, the Austrian Minister of Foreign Affairs explained in this context that while the PLO could not be recognized by Austria in the classical sense, i.e. as a State or government, the PLO could be recognized as a representative of the Palestinian people. This was not seen to be equal to the recognition of the PLO as a state or government. Moreover, since 1980, the head of the Palestinian mission in Austria was accredited to the Austrian Federal Government, and not to the Federal President, as would have been the case for a head of a diplomatic mission. In this case, it was also emphasized that the recognition by Austria was only of declaratory character, since the PLO was a partial subject of international law even before any act of recognition." Qp"53"Qevqdgt"4233."vjg"Igpgtcn"Eqphgtgpeg"qh"WPGUEQ"cfokvvgf"Rcnguvkpg"cu"c"ogodgt"uvcvg"rwtuwcpv"vq"Ctvkeng"KK"*4+"qh"vjg"WPGUEQ"Eqpuvkvwvkqp0"Cwuvtkc"ycu"coqpi"vjg"329"uvcvgu"vjcv"xqvgf"in favour of its admission. Moreover, as of 1 December 2011, the head of the Palestine mission in Cwuvtkc"ycu"ceetgfkvgf"vq"vjg"Hgfgtcn"Rtgukfgpv."cpf"pqv"vq"vjg"Hgfgtcn"Iqxgtpogpv."cu"rtgxkqwun{0Ñ"Extracted from HAFNER, Gerhard. Austrian report.78 „On 9 July 2011, the Austrian ambassador accredited to Ethiopia on a special mission personally delivered a letter of recognition to the Minister of Foreign Affairs of South Sudan at the time. The letter was signed by the Austrian Minister of Foreign Affairs and stated that Austria ‘recognizes


Brazil Abkhazia NoKosovo No79

North Korea Yes80

Palestine Yes81

South Sudan Yes82

Western Sahara No83

France Abkhazia NoKosovo Yes

South Sudan as an independent and sovereign member of the community of States’ and proposed the guvcdnkujogpv"qh"fkrnqocvke"tgncvkqpu0Ñ"Gzvtcevgf"htqo"JCHPGT."Igtjctf0"Cwuvtkcp"tgrqtv079 In an interview in 2008, the Minister for Foreign Affairs of Brazil, Celso Amorim, explained Dtc¦knÓu" rqukvkqp" tgictfkpi" vjg" tgeqipkvkqp" qh" Mquqxq<" ÐVjg" ncuvguv" Wpkvgf" Pcvkqpu" tguqnwvkqp"concerning the situation in Kosovo defended the territorial integrity of what came to be Serbia, which at the time was still in fact Yugoslavia. This was ignored by this unilateral declaration. This is uqogvjkpi"yjkej"ku"jcrrgpkpi"ykvjqwv"vjg"rctvkekrcvkqp"qh"]vjg_"Wpkvgf"Pcvkqpu"Î"kpfggf"kv"kipqtgu"c"Wpkvgf"Pcvkqpu"tguqnwvkqp"Î"cpf"yg"fq"pqv"Ýpf"vjku"vq"dg"c"iqqf"rtgegfgpv0"Qp"vjg"qvjgt"jcpf."it is clear that on the street the great majority of the people of Kosovo actually want this. But you have to balance these questions because if we are to seek – if each ethnic group or each culture, or each language or even each dialect were to seek – to create our own nation-state, this would be a recipe for anarchy in international relations. So how do you balance the need for more democracy in international relations with respect for the territorial integrity of States? This is a great challenge. Vjg" ecug" qh"Mquqxq" ku" eqorngz" cpf"Dtc¦kn" jcu" pqv" tgeqipk¦gf"MquqxqŁu" kpfgrgpfgpeg"dgecwug"kv" hggnu" vjcv" vjg" Ugewtkv{"EqwpeknÓu" fgekukqp" jcu" pqv" dggp" eqorngvgn{" tgurgevgf0Ñ" Ugg"DTC¥KN."Brazilian Foreign Policy Handbook<"rqukvkqpu"cfqrvgf"d{"Dtc¦kn"kp"422:Î422;0"Dtcuknkc<"HWPCI."2010, pp. 90–91.80 Diplomatic relations between Brazil and North Korea were established in March 2001 and the North Korean Embassy in Brasilia was installed in January 2005. Installation of a Brazilian Embassy in North Korea was authorized in September 2008. See BRAZIL, Brazilian Foreign Policy

Handbook<"rqukvkqpu"cfqrvgf"d{"Dtc¦kn"kp"422:Î422;0"Dtcuknkc<"HWPCI."4232."r0"334081 The following extract from a speech delivered by the Minister of Foreign Relations of Brazil at the time (Celso Amorim) provides an understanding of the Brazilian position concerning Palestine: ÐCu"nqpi"cu"vjg"Rcnguvkpkcp"rtqdngo"tgockpu"wpuqnxgf."pqpg"qh"vjg"qvjgt"rtqdngou"kp"vjg"tgikqp"yknn"be solved. It is clear that we cannot hope for the Palestinian problem to be solved so that others, such as dialogue or peace in Lebanon, may arise. However, we know that the deep-seated solution to the problems of the Middle East lie with the Palestinian people. In this situation it is recognized worldwide – and we are happy to see that leaders in all parts of the world recognize the need for a Palestinian State, that they condemn the occupation of Palestinian territories and at the same time see the solution as being the one proposed by the Arab League: the recognition of two states, along with vjg"rtqdngou"cpf"swguvkqpu"eqpegtpkpi"Kutcgn0Ñ"Kp"DTC¥KN."Brazilian Foreign Policy Handbook: rqukvkqpu"cfqrvgf"d{"Dtc¦kn"kp"422:Î422;0"Dtcuknkc<"HWPCI."4232."r0"372082 On the occasion of the Proclamation of the Republic of Sudan, on 9 July 2011, in Juba, the Dtc¦knkcp"Iqxgtpogpv"guvcdnkujgf"fkrnqocvke"tgncvkqpu"ykvj"vjg"pgy"eqwpvt{"d{"ogcpu"qh"c"ÐLqkpv"EqoowpkswfiÑ0"Vjg"fqewogpv"ku"cxckncdng"cv">"jvvr<11yyy0kvcoctcv{0iqx0dt1ucnc/fg/kortgpuc1pqvcu/a-imprensa/estabelecimento-de-relacoes-diplomaticas-com-a-republica-do-sudao-do-sul83 With regard to the situation in Western Sahara, President Lula reiterated the Brazilian support hqt"vjg"fgekukqpu"qh"vjg"Wpkvgf"Pcvkqpu"Ugewtkv{"Eqwpekn"vq"tgcej"c"pgiqvkcvgf"rqnkvkecn"ugvvngogpv."by means of dialogue between the parties involved in the dispute. Joint Communiqué of the visit to Brazil by the King of Morocco, Mohammed VI – Brasilia, November 26, 2004. In BRAZIL, Brazilian Foreign Policy Handbook0"Dtcuknkc<"HWPCI."422:."r0"39:0

http://www.itamaraty.gov.br/sala-de-imprensa/notas-a-imprensa/estabelecimento-de-relacoes-diplomaticas-com-a-republica-do-sudao-do-sul


North Korea No84

Palestine NoSouth Sudan Yes

Western Sahara Yes

Israel85 Kosovo No86

Palestine No87

South Sudan Yes88

Italy89 Abkhazia No90

Kosovo Yes91

84 France does not recognize the State of North Korea, due to three issues: nuclear issues, hostility in the relation with South Korea, and the position of North Korea in relation to humanitarian law and human rights. Nonetheless, France maintains contact with North Korea, through the General Delegation of the Democratic People’s Republic of Korea established in France since 1968. See < jvvr<11yyy0fkrnqocvkg0iqwx0ht1ht1gplgwz/kpvgtpcvkqpcwz1fghgpug/gv/ugewtkvg1etkugu/gv/eqpÞkvu1eqtgg/du-nord/la-france-et-la-coree-du-nord/>85 Information regarding recognition or non recognition of Kosovo, Palestine and South Sudan by Israel was extracted from RONEN, Yael. Israeli report.86 Israel’s minister of foreign affairs, regarding the recognition of Kosovo, has stated that „it is impossible to impose peace… We have our experience in our own region, and I think that the best way to resolve the problems and to bring about a comprehensive solution is direct talks between both sides. We are monitoring the situation between Serbia and Kosovo, and we really hope that in vjg"hwvwtg."kp"vjg"pgzv"hgy"{gctu."{qw"yknn"cejkgxg"c"tgcnn{"eqortgjgpukxg"cpf"rgceghwn"uqnwvkqp0Ñ"Available at http://www.mfa.gov.il/MFA/About+the+Ministry/Foreign_Minister/Speeches/Press_conference_FM_Liberman_Belgrade_16_Sep_2009.htm> Cited in RONEN, Yael. Israeli report. This statement was made in a visit to Serbia, in 2009.87 For a detailed analysis of the non recognition of Palestine by Israel see RONEN, Yael. Israeli tgrqtv0" Hqt" vjg" qhÝekcn" rqukvkqp" qh" Kutcgn." ugg" >" jvvr<11yyy0ohc0iqx0kn1OHC1Rgceg-Rtqeguu1Iwkfg-vq-vjg-Rgceg-Rtqeguu1C-Wpkncvgtcn-Rcnguvkpkcp-Fgenctcvkqp-qh-Uvcvgjqqf/0jvo@088 South Sudan was quickly recognized by Israel. According to the prime minister of Israel „South Sudan was established after long negotiations and with the agreement of all parties involved and vjg" kpvgtpcvkqpcn"eqoowpkv{0" Kutcgn"ycu"coqpi" vjg"Ýtuv"eqwpvtkgu" vq" tgeqipk¦g"Uqwvj"Uwfcp." nguu"than 24 hours after it was declared… I hope that everyone will see that this is the way to establish a uvcvg"Î"vjtqwij"fktgev"pgiqvkcvkqpu"cpf"pqv"xkc"wpkncvgtcn"ogcuwtgu0Ñ"Cxckncdng"cv">"jvvr<11yyy0ohc0gov.il/MFA/Government/Communiques/2011/PM_Netanyahu_meets_South_Sudan_President_22-Sep-2011.htm>. This document was cited in RONEN, Yael. Israeli report.89 Information regarding recognition or non recognition of Abkhazia, Kosovo, North Korea, Palestine, South Sudan and Western Sahara by Italy was extracted from the report of Monica Lugato and Enrico Milani.90 „Italy does not recognize Abkhazia. Moreover, it holds recognition by third States without lwuvkÝecvkqp" kp" kpvgtpcvkqpcn" ncy." crrctgpvn{" kp" eqpvtcuv"ykvj" vjg" vgttkvqtkcn" kpvgitkv{" qh"Igqtikc0"Kp" vjg" fgdcvg" jgnf" cv" vjg"Ugewtkv{"Eqwpekn" qp" 4:"Cwiwuv" 422:" *WP"fqe0" U1RX07;8;+" vjg" Kvcnkcp"representative held that the ‚Russian Government’s decision [to recognise Abkhazia] has no basis in international law’ and that ‚Georgia’s territorial integrity is an uncontestable principle, as numerous Wpkvgf"Pcvkqpu"tguqnwvkqpu"jcxg"wpfgtnkpgf0ÓÑ"Gzvtcevgf"htqo"NWICVQ."Oqpkec="OKNCPK."Gptkeq0"Italian report.91" ÐKvcn{"tgeqipk¦gf"Mquqxq"qp"43"Hgdtwct{"422:"Òkp"nkpgc"eqp"ng"Eqpenwukqpk"fgn"Eqpukinkq"fgn"3:"febbraio scorso’ (transl.: ‘in line with the Council’s conclusions of 18 February’) declaring itself tgcf{" vq" gpvgtvckp" fkrnqocvke" tgncvkqpu0Ñ" Gzvtcevgf" htqo" NWICVQ." Oqpkec=" OKNCPK." Gptkeq0"Italian report.

http://www.diplomatie.gouv.fr/fr/enjeux-internationaux/defense-et-securite/crises-et-conflits/coree-du-nord/la-france-et-la-coree-du-nord/

/www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/A+Unilateral+Palestinian+Declaration+of+Statehood-.htm


North Korea Yes92

Palestine No93

South Sudan Yes Western Sahara No94

Japan95 Abkhazia No96

92" Kp"4222"Kvcn{"ycu"vjg"Ýtuv"I/9"eqwpvt{"vq"guvcdnkuj"fkrnqocvke"tgncvkqpu"ykvj"R{qpi{cpi0"Uvtkevn{"speaking, the letter of 4 January 2000 is an act of implied recognition as it never mentions express recognition of North Korea. It is also an agreement in the form of an exchange of letters, not a unilateral act. It talks about the ‚desire to establish diplomatic relations and to exchange Ambassadors at the earliest possible time.’ Moreover, it states that ‚diplomatic relations between the two countries yknn"dg"dcugf"qp"kpvgtpcvkqpcn"ncy."cu"tgÞgevgf"tgurgevkxgn{"kp"vjg"Xkgppc"Eqpxgpvkqp"qp"Fkrnqocvke"Relations of 1961 and in the Vienna Convention on Consular Relations of 1963. While expressing satisfaction at this important development, in their relations the Italian Republic and the People’s Democratic Republic of Korea are committed to promoting them on the basis of the principles of owvwcn"tgurgev."uqxgtgkipv{."gswcnkv{."cu"gpujtkpgf"kp"vjg"Ejctvgt"qh"vjg"Wpkvgf"Pcvkqpu0ÓÑ"Gzvtcevgf"htqo"NWICVQ."Oqpkec="OKNCPK."Gptkeq0"Kvcnkcp"tgrqtv93 In 1985 the Court of Cassation (Judgment n. 1981, 28 June 1985), in criminal proceedings brought against Yasser Arafat and Kalaf Salah, did not uphold the position of the defence according to which criminal prosecution in Italy would be barred by the sovereign immunities enjoyed by the two Palestinian leaders on account of the PLO being equated to a State: Transl.: ‚It is generally accepted that international law recognises as States only those fully independent entities exercising governmental power and authority over a stable community residing on a given territory; so that it is a generally recognised principle that statehood requires the three elements of population, government and territory and that the population element and the governmental machinery must relate to the very same territorial basis. As a result of that, the PLO cannot be considered a sovereign entity equating to a State, since – as it has been correctly observed by the lower jurisdiction and by the Prosecutor during the oral pleadings – the requirement of territorial sovereignty is lacking and forms of control over refugee camps, with the consent and under the sovereignty of the host State, cannot represent a uwduvkvwvg"hqt"vjcv0ÓÑ"Gzvtcevgf"htqo"NWICVQ."Oqpkec="OKNCPK."Gptkeq0"Kvcnkcp"tgrqtv094 „Italy does not recognise the SADR, notwithstanding the fact that it supports the right of self-determination of the Saharawi people. On 12 July 2007, the Italian Parliament (Chamber of Fgrwvkgu+"cfqrvgf"tguqnwvkqp"3/2237;."yjgtgd{"kv"ecnngf"qp"vjg"Iqxgtpogpv"*vtcpun0<"Ðvq"tgeqipkug"diplomatic status to the POLISARIO delegation in Italy, similarly to what has been done in the rcuv"ykvj"qvjgt"pcvkqpcn" nkdgtcvkqp"oqxgogpvu."yjkej"jcf"dggp"tgeqipkugf"cv" vjg"Wpkvgf"Pcvkqpu"cu"qhÝekcn"kpvgtnqewvqtu"kp"rgceg"rtqeguugu="vq"wpfgtvcmg"cnn"rquukdng"uvgru"vq"tgcej"c"uqnwvkqp"vq"vjg"eqpÞkev"vjtqwij"hwnn"ceegrvcpeg"d{"vjg"rctvkgu"qh"vjg"rtkpekrng"qh"ugnh/fgvgtokpcvkqp"qh"vjg"Ucjctcyk"rgqrng."ykvjqwv"rtguwrrqukpi"kp"cp{"yc{"cp{"uqxgtgkip"tkijvu"qh"Oqtqeeq"qxgt"Yguvgtp"UcjctcÑ+0"The resolution does not go as far as requesting the Italian Government to recognise the SADR cpf."kp"cp{"ecug."kv"jcu"pqv"kpfwegf"cp{"cevkqp"d{"vjg"Kvcnkcp"gzgewvkxg0Ñ"Gzvtcevgf"htqo"NWICVQ."Monica; MILANI, Enrico. Italian report.95 Information on the recognition of Abkhazia, Kosovo, North Korea, Palestine and South Sudan by Japan was extracted from HAMAMOTO, Shotaro. Japanese Supplementary report.96 It is pointed out in the Japanese Supplementary report that Japan has recognized neither South Ossetia nor Abkhazia and that the Japanese Government underlines the relevance of Georgia’s territorial integrity. Once of the documents cited in the Japanese report is the Statement by Mr Masahiko Koumura, Minister for Foreign Affairs, on Russia’s Recognition of the Independence of South Ossetia and Abkhazia, August 27, 2008. <http://www.mofa.go.jp/announce/announce/2008/8/ 33:4;7:a32620jvon@."yjkej"tgcfu"cu"hqnnqyu<"Ð30"Lcrcp"jcu"uwrrqtvgf"eqpukuvgpvn{"c"rgceghwn"tguqnw/tion of this issue based on Georgia’s territorial integrity. It is regrettable that while international efforts are in progress for a peaceful resolution of the issue, yesterday Russia unilaterally recognized

http://www.mofa.go.jp/announce/announce/2008/8/1182958_1040.html



Kosovo Yes97

North Korea No98

Palestine No99

South Sudan Yes100

Western Sahara No

Russia101 Abkhazia Yes Kosovo No North Korea Yes102

Palestine No103

the independence of South Ossetia and Abkhazia, which is inconsistent with these international efforts. 2. Japan calls on Russia not to take unilateral actions, as it is of the view that to achieve true regional stability, the issues surrounding Georgia should be peacefully solved based on the ukz/rtkpekrng"egcugÝtg"citggogpv0"Lcrcp"uvtqpin{"jqrgu"vjcv"Twuukc"yknn"vcmg"tgurqpukdng"cevkqpu"cu"c"I:"ogodgt0Ñ97 The national reporters from Japan noted that though Japan explicitly recognized Kosovo, it was Ðwphqtvwpcvgn{"fkhÝewnv" vq"Ýpf"cp"qhÝekcn"fqewogpv"qt" uvcvgogpv" vjcv"yqwnf" kpfkecvg" vjg" tgcuqpu"qt" eqpukfgtcvkqpu" vjcv" ngcf" Lcrcp" vq" tgeqipk¦g"Mquqxq" cu" cp" kpfgrgpfgpv" Uvcvg0Ñ"Vjg" Lcrcpgug"tgrqtv"ekvgu"vjg"hqnnqykpi"fqewogpv"*coqpi"qvjgtu+<"ÐQp"Octej"3:."Lcrcp"tgeqipk¦gf"vjg"Tgrwdnke"of Kosovo as an independent state. As the Government of the Republic of Kosovo has made its kpvgpvkqp"engct"vjcv"kv"yknn"twp"vjg"eqwpvt{"rwtuwcpv"vq"vjg"ÐEqortgjgpukxg"Rtqrqucn"hqt"vjg"Mquqxq"Uvcvwu"UgvvngogpvÑ"ocfg"d{" vjg"W0P0"Urgekcn"Gpxq{." Lcrcp" gzrgevu" vjcv"MquqxqÓu" kpfgrgpfgpeg"yknn" eqpvtkdwvg" vq" vjg" nqpi/ncuvkpi" uvcdknkv{" qh" vjg" tgikqp0Ñ"Cxckncdng" cv<">jvvr<11yyy0oqhc0iq0lr1announce/announce/2008/3/0318.html>98 As indicated in documents cited in the Supplementary report from Japan, the Japanese government tgictfu"vjg"FRTM"cu"cp"Ðwptgeqipk¦gf"StateÑ0"*ugg"Ejkgh"Ecdkpgv"Ugetgvct{."Eqookvvgg"qp"Lwfkekcn"Chhcktu."Jqwug"qh"Eqwpeknnqtu." Lwpg"4." 3;88+="yjgtgcu" Lcrcp" eqpukfgtu" vjcv"Pqtvj"Mqtgc" hwnÝnnu"all the conditions of statehood, it repeatedly emphasizes that the DPRK has not been recognized d{"Lcrcp"cu"c"Uvcvg0"Cu"pqvgf"cdqxg."vjg"ockp"qhÝekcn"ctiwogpv"cickpuv"vjg"tgeqipkvkqp"qh"FRTM"ku" vjcv"ÐLcrcp"cnuq"vcmgu" kpvq"ceeqwpv"yjgvjgt" vjg"gpvkv{"jcu" vjg"yknn"cpf"vjg"ecrcekv{"vq"qdugtxg"kpvgtpcvkqpcn" ncy0Ñ"Ugg" vjg"uvcvgogpv"d{"Lwpkejktq"Mqk¦wok."Rtkog"Okpkuvgt."Ytkvvgp"Cpuygt"Pq0"322, House of Representatives, 164th Sess., June 16, 2006. <http://www.shugiin.go.jp/index.nsf/html/index_shitsumon.htm> [in Japanese, translated by the national reporter]99" Kv"ku"uvcvgf."kp"vjg"Lcrcpgug"Uwrrngogpvct{"tgrqtv."vjcv"Ð"Lcrcp"ku"kp"hcxqt"qh"vjg"kpfgrgpfgpeg"qh"Palestine but has not recognized it as a State. It is to be noted that the Foreign Minister considers that the question whether to recognize Palestine as a State does not depend only on international law. The Lcrcpgug"Iqxgtpogpv"jcu"cnuq"tgeqipk¦gf"vjg"Rcnguvkpg"Ðpcvkqpcnkv{Ñ"ukpeg"42290Ñ100 Japan has explicitly recognized South Sudan. See the Statement by the Minister for Foreign Affairs of Japan on the Independence of the Republic of South Sudan, July 9, 2011, available at <http://www.mofa.go.jp/announce/announce/2011/7/0709_01.html> and cited in the Japanese Supplementary report.101 Information on the recognition of Abkhazia, Kosovo and North Korea, Palestine and South Sudan by Russia was extracted from KREMNEV, Petr. Russian report. Information on Kosovo was extracted from th Written Statement by the Russian Federation presented to the ICJ in the Kosovo case and available at < http://www.icj-cij.org/>. Last viewed on March, 2nd, 2012.102" ãVjg" WUUT" tgeqipk¦gf" Fgoqetcvke" RgqrngÓu" Tgrwdnke" qh" Mqtgc" *Pqtvj" Mqtgc+" cpf"established diplomatic relations with it as early as 1948. Russian Federation established diplomatic tgncvkqpu"ykvj"Tgrwdnke"qh"Mqtgc"*Uqwvj"Mqtgc+"kp"3;;30"Dqvj"Mqtgcp"uvcvgu"ctg"ogodgtu"qh"WP"ukpeg"3902;03;;30Ñ"Gzvtcevgf"htqo"MTGOPGX."Rgvt0"Twuukcp"tgrqtv0103 „Russia recognizes Palestine as the nation which may realize its right to self-determination but not as sovereign and independent state0Ñ"Gzvtcevgf"htqo"MTGOPGX."Rgvt0"Twuukcp"tgrqtv0

http://www.mofa.go.jp/announce/announce/2008/3/0318.html

http://www.mofa.go.jp/announce/announce/2008/3/0318.html




http://www.icj-cij.org/


South Sudan Yes Western Sahara No104

South Africa105 Abkhazia No Palestine Yes South Sudan Yes Western Sahara Yes

Tanzania106 Palestine No107

South Sudan Yes108

United Kingdom109 Abkhazia (and South Ossetia) No110

Kosovo Yes111

North Korea Yes

104 The current position of the Russian Federation is to regard Western Sahara as non- self-governing

territory. See KREMNEV, Petr. Russian report.105 Information regarding recognition or non recognition of Abkhazia, Palestine, South Sudan and Western Sahara by South Africa was extracted from SCHOLTZ, South African Report.106 Information on the recognition of Palestine and South Sudan was extracted from KAMANGA, Khoti. Tanzanian report.107 The Tanzanian national reporter noted that „Recognition of the Sahrawi Government, however is an exception to this general practice and so too, is recognition of the Palestine Liberation Qticpkucvkqp" *RNQ+" wpfgt"[cuukt"Ctchcv." cpf" uwdugswgpvn{." vjg" Rcnguvkpkcp"Cwvjqtkv{" *RC+0Ñ" In KAMANGA, Khoti. Tanzanian report.108 „It was further emphasized that the act of recognizing a State/Government is often done by way of a congratulatory message to the newly sworn in authorities and the example of the Government of South Sudan was given. A congratulatory message was delivered to Juba the day after Salva Kiir vqqm"vjg"uqngop"qcvj"qh"qhÝeg0Ñ"In KAMANGA, Khoti. Tanzanian report.109 All the information regarding recognition or non recognition of Abkhazia, Kosovo, Palestine, Uqwvj"Uwfcp"cpf"Yguvgtp"Ucjctc"d{"vjg"Wpkvgf"Mkpifqo"ygtg"gzvtcevgf"htqo"vjg"tgrqtvu"qh"Ocvjgy"HAPPOLD and Daud ILYAS.110" ãVjg"Wpkvgf"Mkpifqo"fqgu"pqv"tgeqipk¦g"vjgug"vyq"gpvkvkgu0"Kp"c"ytkvvgp"uvcvgogpv"vq"Rctnkcogpv"kp"Hgdtwct{"422;"c"Hqtgkip"cpf"Eqooqpygcnvj"QhÝeg"Okpkuvgt"qh"Uvcvg"uckf<"ÐÈTwuukcÓu"wug"qh"disproportionate force and its violation of Georgia’s sovereignty and territorial integrity had no lwuvkÝecvkqp0" TwuukcÓu" cevkqpu" ygtg" kp" fgÝcpeg" qh" uweeguukxg" Wpkvgf" Pcvkqpu" Ugewtkv{" Eqwpekn"Resolutions…The general criteria we apply for recognition of an independent state remain as fguetkdgf"kp"vjg"ytkvvgp"cpuygt"fcvgf"38"Pqxgodgt"3;:;"d{"vjgp"Rctnkcogpvct{"Wpfgt/Ugetgvct{"qh"State for Foreign and Commonwealth Affairs. We consider that South Ossetia and Abkhazia have pqv"ogv"vjgug"etkvgtkc0ÓÑ"Gzvtcevgf"htqo"KN[CU."Fcwf0"Dtkvkuj"tgrqtv0111" Vjg"WM"tgeqipk¦gf"Mquqxq"cu"c"Uvcvg"vjg"fc{"chvgt"MquqxqÓu"fgenctcvkqp"qh"kpfgrgpfgpeg"qp"39"February 2008." Cp" cppgz" vq" vjg" uvcvgogpv" qh" vjg" WM" tgrtgugpvcvkxg" kp" vjg" Ugewtkv{" Eqwpekn" fgdcvg" qp" vjg"declaration of independence by Kosovo on 18 February 2008 explained that:" ÐMquqxq" ku" c" urgekcn" ecug" cu" c" eqpugswgpeg" qh" vjg" xkqngpv" cpf" pqp/eqpugpuwcn" dtgcm/wr" qh"[wiquncxkc." cpf" kp" rctvkewnct" vjg" jwocpkvctkcp" etkuku"yjkej" ngf" vq" vjg" eqpÞkev" kp" 3;;;." vjg" nqpi"rgtkqf" qh" kpvgtpcvkqpcn" cfokpkuvtcvkqp." cpf" vjg" Ýpcn" uvcvwu" rtqeguu" ecnngf" hqt" kp" WPUET" 34660"Recognition of its independence, which is a matter for individual States to decide, is not therefore a rtgegfgpv"hqt"cp{"qvjgt"ukvwcvkqp0Ñ"Gzvtcevgf"htqo"JCRRQNF."Ocvvjgy0"Dtkvkuj"tgrqtv0"Vjg"pcvkqpcn"reporter cited the following source: Annex to statement in the Security Council, 18 February 2008, ÒMquqxq<"Ngicn"KuuwguÓ."tgrtqfwegf"cv"WMOKN"]422:_"9;"D[KN"8290


Palestine No112

South Sudan Yes113

Western Sahara No114

United States115 Abkhazia No116

112" Vjg"WM" fkf" pqv" tgeqipk¦g" Rcnguvkpg" cu" c" Uvcvg" hqnnqykpi" vjg" Rcnguvkpkcp"Pcvkqpcn"EqwpeknÓu"proclamation of the State of Palestine on 15 November 1988. Responding to the Palestinian crrnkecvkqp"hqt"ogodgtujkr"qh"vjg"Wpkvgf"Pcvkqpu."qp";"Pqxgodgt"4233"vjg"WM"Hqtgkip"Ugetgvct{"made the following statement to the House of Commons:" ÐVjg"WM"lwfigu"vjcv"vjg"Rcnguvkpkcp"Cwvjqtkv{"nctign{"hwnÝnu"etkvgtkc"hqt"WP"ogodgtujkr."kpenwfkpi"statehood as far as the reality of the situation in the Occupied Palestinian Territories allows, but its ability to function effectively as a State would be impeded by that situation. A negotiated end to the occupation is the best way to allow Palestinian aspirations to be met in reality and on the ground. We will not vote against the application because of the progress the Palestinian leadership has made towards meeting the criteria. But nor can we vote for it while our primary objective remains a return vq"pgiqvkcvkqpu"vjtqwij"vjg"Swctvgv"rtqeguu"cpf"vjg"uweeguu"qh"vjqug"pgiqvkcvkqpu0"Hqt"vjgug"tgcuqpu"kp"eqooqp"ykvj"Htcpeg"cpf"kp"eqpuwnvcvkqp"ykvj"qwt"Gwtqrgcp"rctvpgtu."vjg"Wpkvgf"Mkpifqo"yknn"cduvckp"qp"cp{"xqvg"qp"hwnn"Rcnguvkpkcp"ogodgtujkr"qh"vjg"WP0"Yg"tgugtxg"vjg"tkijv"vq"tgeqipk¦g"a Palestinian state bilaterally at a moment of our choosing and when it can best help bring about rgceg0Ñ"Gzvtcevgf"htqo"JCRRQNF."Ocvvjgy0"Dtkvkuj"tgrqtv0"Vjg"fqewogpv"ekvgf"ku"cxckncdng"cv">"jvvr<11yyy0heq0iqx0wm1gp1pgyu1ncvguv/pgyu1Axkgy?RtguuU(kf?8:;58:::4@0113" ãVjg"Wpkvgf"Mkpifqo" tgeqipkugu" vjg" pgy"Tgrwdnke" qh"Uqwvj"Uwfcp0"Vjg"Ugetgvct{" qh"Uvcvg"hqt"Hqtgkip"cpf"Eqooqpygcnvj"Chhcktu"tgrtgugpvgf"vjg"WM"cv"vjg"Kpfgrgpfgpeg"Egtgoqp{"kp"vjg"ecrkvcn"Lwdc"qp";"Lwn{"42330"Kp"jku"urggej"cv"vjg"egtgoqp{"jg"uckf<"ÐÈKp"Dtkvckp"yg"ctg"rtqwf"vq"dg"coqpi"vjg"Ýtuv"pcvkqpu"kp"vjg"yqtnf"vq"tgeqipkug"vjg"pgy"Tgrwdnke"qh"Uqwvj"UwfcpÈYg"nqqm"hqtyctf" vq"Uqwvj"Uwfcp" vcmkpi" kvu"rnceg" cu" c" hwnn"ogodgt"qh" vjg"Wpkvgf"PcvkqpuÈÑ"Vjg"Dtkvkuj"codcuucfqt" vq"Uqwvj"Uwfcp" vqqm"wr"jku" crrqkpvogpv" kp" Lwdc"qp";" Lwn{Ñ"Gzvtcevgf" htqo ILYAS, Daud. British report.114" ÐVjg" Wpkvgf" Mkpifqo" tgictfu" vjg" rqnkvkecn" uvcvwu" qh" Yguvgtp" Ucjctc" cu" wpfgvgtokpgf0" Kv"recognises neither the ‘Saharan Arab Democratic Republic’ as a State, nor Moroccan sovereignty qxgt"Yguvgtp"Ucjctc0Ñ"Gzvtcevgf"htqo"JCRRQNF."Ocvvjgy0"Dtkvkuj"tgrqtv0"Vjg"pcvkqpcn"tgrqtvgt"ekvgf"vjg"hqnnqykpi"uqwteg<"JE"Fgdu0."xqn0"535."eqn0"55;."5"Lwpg"3;;:="tgrtqfwegf"kp"WMOKN"]3;;:_"69 BYIL 478.115" Kphqtocvkqp"qp"vjg"tgeqipkvkqp"qh"Cdmjc¦kc."Mquqxq."Rcnguvkpg"cpf"Uqwvj"Uwfcp"d{"vjg"Wpkvgf"Uvcvgu"ycu"gzvtcevgf"htqo"DQTIGP."OEIWKPPGUU"cpf"TQVJ0"W0U0"tgrqtv0116 The following statement – made by the Chargé d’Affaires"qh"vjg"Wpkvgf"Uvcvgu"Okuukqp"vq"vjg"OSCE, Kyle Scott, on 4, 2009, in the wake of Russia’s recognition of South Ossetia and Abkhazia as uvcvgu"ekvgf"kp"vjg"W0U0"tgurqpug."rtqxkfgu"c"dtkgh"uwooct{"qh"vjg"W0U0"rqukvkqp<"ÐEngctn{."jqygxgt."vjg"Wpkvgf"Uvcvgu"cpf"Twuukc"jcxg"octmgfn{"fkhhgtgpv"xkgyu"qp"vjg"ukvwcvkqp"kp"Igqtikc0"Vjg"Wpkvgf"Uvcvgu" uvcpfu"ykvj"oquv" eqwpvtkgu" kp" eqpfgopkpi"TwuukcÓu" tgeqipkvkqp"qh" vjg" ÐkpfgrgpfgpegÑ"qh"the separatist regions of South Ossetia and Abkhazia, and strongly supports the sovereignty, independence, and territorial integrity of Georgia within its internationally recognized borders. We tgockp"eqookvvgf"vq"nqpi/vgto"eqpÞkev"tguqnwvkqp."cpf"uggm"vq"guvcdnkuj"rgceg"vjtqwijqwv"Igqtikc0Ñ"W0U0"pcvkqpcn" tgrqtvgtu"ekvg" vjg" hqnnqykpi"uqwteg<"Ugetgvct{"qh"Uvcvg"Eqpfqngg¦¦c"Tkeg."Tgoctmu"after the Meeting of the North Atlantic Council at the Level of Foreign Ministers (Aug 19, 2008), available at http://2001-2009.state.gov/secretary/rm/2008/08/108557.htm (last visited Feb. 27, 2012)." Ceeqtfkpi"vq"vjg"W0U0"pcvkqpcn"tgrqtvgtu."Ðvjg"W0U0"jcu"eqpukuvgpvn{"ockpvckpgf"vjcv"vjgtg"ku"pq"framework for assessing the status of South Ossetia and Abkhazia. Consequently, the issue is not so owej"vjgkt"fgenctcvkqpu"qh"kpfgrgpfgpeg."dwv"tcvjgt"TwuukcÓu"tqng"cu"cp"gzvgtpcn"cevqt0Ñ"In BORGEN, OEIWKPPGUU"cpf"TQVJ0"W0U0"tgrqtv0

http://www.fco.gov.uk/en/news/latest-news/?view=PressS&id=689368882

http://2001-2009.state.gov/secretary/rm/2008/08/108557.htm


Kosovo Yes117

Palestine No South Sudan Yes Western Sahara No

An analysis of the grounds for recognition (or non-recognition) reveals that international ngicn"eqpegrvu"uwej"cu"Ðvgttkvqtkcn"kpvgitkv{Ñ"cpf"Ðugnh/fgvgtokpcvkqpÑ"ctg"htgswgpvn{"kp-xqmgf"cu"c" lwuvkÝecvkqp" hqt" tgeqipk¦kpi" *qt"pqv" tgeqipk¦kpi+"c"rctvkewnct"gpvkv{0"Yjkng"there is some agreement on the existence and content of such principles, their applica-vkqp"vq"hcevu"ku"qhvgp"eqpvtqxgtukcn0"Cu"rwv"d{"c"eqoogpvcvqt<"Ð]e_jctcevgtk¦kpi"hcevu"ku"not always a straightforward exercise; seemingly uncontroversial observations can be ocpkrwncvgf"vq"uwrrqtv"eqpvtcfkevqt{"eqpenwukqpu0Ñ118

In the case of Kosovo, for instance, Argentina, Brazil and Russia invoked territorial integrity as a legal argument for not recognizing Kosovo. Russia119, citing Pellet, con-vgpfgf"vjcv"vjg"rtkpekrng"qh"vgttkvqtkcn"kpvgitkv{"jcu"Ðceswktgf"vjg"ejctcevgt"qh"c"wpkxgtucn"cpf"rgtgorvqt{"pqtoÑ0"Twuukc"uvcvgf"vjcv"Ðc"Uvcvg"vjcv"tgurgevu"vjg"tkijvu"qh"rgqrngu"nkx-ing in its territory is protected by the principle by the principle of territorial integrity from vjg"korngogpvcvkqp"qh"vjg"tkijv"vq"ugnh/fgvgtokpcvkqp"kp"vjg"hqto"qh"ugeguukqpÑ0"Twuukc"recognized that territorial integrity does not protect from the right to realizing the right to self-determination by secession from a State that does not respect the rights of peoples living in its territory .

However, Russia argued that self-determination had not been previously invoked as a lwuvkÝecvkqp"hqt"kpvgtxgpvkqp"kp"Mquqxq"kp"3;;3"qt"kp"3;;;"cpf"vjcv"Wpkvgf"Pcvkqpu"Ugewtkv{"Eqwpekn"Tguqnwvkqp"3466"jcf"cu"kvu"qdlgevkxg"vq"uchgiwctf"jwocp"tkijvu"cpf"vq"rwv"Ðcp"gpf"vq"c"ukvwcvkqp"vjcv"jcf"dggp"swcnkÝgf"cu"c"vjtgcv"vq"kpvgtpcvkqpcn"rgceg"cpf"ugewtkv{Ñ0"In Russia’s view, such goal was attained and in 2008 – when Kosovo declared its inde-rgpfgpeg"Î"vjg"ukvwcvkqp"qp"vjg"itqwpf"ycu"Ðkpeqorctcdn{"dgvvgt"vjcp"vjg"qpg"kp"3;;;Ñ."thus precluding any right to secession. Nevertheless, Albania120, Estonia121, Finland122,

117" ÐVjg" fc{" chvgt" vjg" fgenctcvkqp" qh" kpfgrgpfgpeg" d{"Mquqxq." Ugetgvct{" qh" Uvcvg"Eqpfqngg¦¦c"Tkeg" cppqwpegf" vjcv" vjg"WU" tgeqipk¦gf"Mquqxq" cu" cp" kpfgrgpfgpv" uvcvg" cpf" hwtvjgt" gzrnckpgf<"‘The unusual combination of factors found in the Kosovo situation — including the context of Yugoslavia’s breakup, the history of ethnic cleansing and crimes against civilians in Kosovo, and vjg"gzvgpfgf"rgtkqf"qh"WP"cfokpkuvtcvkqp"Ï"ctg"pqv"hqwpf"gnugyjgtg"cpf"vjgtghqtg"ocmg"Mquqxq"c"urgekcn"ecug0"Mquqxq"ecppqv"dg"uggp"cu"c"rtgegfgpv"hqt"cp{"qvjgt"ukvwcvkqp"kp"vjg"yqtnf"vqfc{0ÓÑ"Gzvtcevgf"htqo"DQTIGP."OEIWKPPGUU"cpf"TQVJ0"W0U0"tgrqtv118 GRANT, The Recognition …, pp. 121–122. 119" TWUUKCP"HGFGTCVKQP0"Ytkvvgp"Uvcvgogpv"d{" vjg"Twuukcp"Hgfgtcvkqp"rtgugpvgf" vq" vjg"KEL"in the Kosovo case on April 16, 2009 and available at < http://www.icj-cij.org/>. Last viewed on March, 2nd, 2012. 120 See Albania WS, paras. 75–85. 121" Guvqpkc" YU." rr0" 6Î34=" ÐKpfggf." vjg" rtkpekrngu" qh" uqxgtgkipv{" cpf" vgttkvqtkcn" kpvgitkv{" ctg"very important in international law, but international law also recognizes the principle of self-determination. The application of the principle of self-determination can under certain circumstances ngcf"vq"fgenctcvkqp"qh"kpfgrgpfgpeg"cpf"vq"ugeguukqp0Ñ"122" Hkpncpf" YU." rctcu0" 7Î3:0" Kp" ¸8." Hkpncpf" pqvgf" vjcv" Ðkp" rquv/3;67" ncy." ugnh/fgvgtokpcvkqp"is accompanied by a strong rule in favor of the territorial integrity of existing States. However, although the nexus is strong, it is not and has never been absolute. The cases of Namibia (1990) and East Timor (2002) exemplify situations where independence emerges as the only viable form of self-

http://www.icj-cij.org/


Ireland123, Netherlands124, Poland125, Slovenia126 and Switzerland127, while departing from a similar theoretical basis128, referring, in many instances, to the same legal documents and looking at the same facts, arrived at a conclusion diametrically opposed to that of Russia, i.e., that Kosovo was entitled to secede, due to self-determination.

The fact that the discussion revolved around the same legal expressions (territorial integrity and self-determination) might indicate – as argued by Borgen – that interna-tional law has become a consensual vocabulary and grammar for how states discuss in-vgtpcvkqpcn" tgncvkqpu"cpf" vjcv" Ðd{"ecdkpkpi"yjcv" ecp"dg" uckf" kp" kpvgtpcvkqpcn" tgncvkqpu."kpvgtpcvkqpcn"ncy"fgÝpgu"pqtou."ujcrgu"gzrgevcvkqpu."ugvu"vjg"dqwpfctkgu"qh"yjcv"ecp"dg"legitimized and, ultimately, can make it more or less likely that certain state actions will dg"uweeguuhwn0Ñ129

determination in response to continued oppression by the territorial State and no expectation that internal self-determination could be meaningfully realized in the foreseeable future. 123" Ugg"Ktgncpf"YU."rctcu0"49Î560"Kp"¸"52."kv"ycu"uvcvgf"vjcv"ÐKtgncpf"citggu"ykvj"vjg"xkgy"gzrtguugf"by the Canadian Supreme Court that although ‚international law expects that the right to self-determination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states’, where this is not rquukdng"kp"vjg"gzegrvkqpcn"ektewouvcpegu"fkuewuugf"dgnqy."c"tkijv"qh"ugeguukqp"oc{"ctkug0Ñ"124" Pgvjgtncpfu"YU."rctcu0"503Î50430"Kp"¸"508."Pgvjgtncpfu"uvcvgf<"ÐKv"ku"uwdokvvgf"vjcv"Î"qwvukfg"vjg"context of non-self-governing territories, foreign occupation and consensual agreement – a people must, in principle, seek to exercise the right to political self-determination with respect for the principle of territorial integrity and thus exercise its right within existing international boundaries. It is also submitted that the right to political self-determination may evolve into a right to external self-determination in exceptional circumstances, i.e. in unique cases or cases sui generis. This is an exception to the rule and should therefore be narrowly construed. The resort to external self-determination is an ultimum remedium0Ñ"125" TGRWDNKE"QH"RQNCPF."rctcu0"803Î80380"Coqpi"qvjgtu."Rqncpf"ocfg"vjg"hqnnqykpi"tghgtgpegu"vq"vgttkvqtkcn"kpvgitkv{"cpf"ugeguukqp<""ÑKv"ujcnn"dg"wpfgtnkpgf"qpeg"cickp"vjcv"vjg"gzgtekug"qh"vjg"tkijv"to self-determination of Kosovo’s people in Serbia was not longer possible and unattainable. That conclusion is validated by the scale of violations of human rights and humanitarian law by Serbia. In such a situation Kosovo could legitimately exercise its remedial right of secession from Serbia in order to protect and preserve most fundamental rights and interests of its people.Therefore, the territorial integrity of Serbia – in the consequence of its own wrongful acts against Kosovo – eroded and was undermined already in 1999. That led to the situation where Serbia lost its effective authority and control over Kosovo and has not regained it within the next years. In the consequence of the Serbian violations of human right and humanitarian law, it may also be argued, that that State could no longer have recourse to the principle of territorial integrity as protecting Ugtdkc"htqo"vjg"gzgtekug"d{"vjg"Mquqxctu"qh"vjgkt"tgogfkcn"tkijv"vq"ugeguukqpÑ126 Slovenia WS, pp. 1–2. 127 Switzerland WS, paras. 57–97. 128 As rule, all these countries used as a legal framework an opinion of the Canadian Supreme Court (Reference re Secession of Quebec, [1998] 2 S.C.R. 217). 129 See BORGEN, Christopher. The Language of Law and the Practice of Politics: Great Powers and the Rhetoric of Self-Determination in the Cases of Kosovo and South Ossetia. Chicago Journal

of Internacional Law, vol. 10, 2009–2010, pp. 1–33. Using the cases of Kosovo and South Ossetia and arguments over self-determination, Borgen explores the relationship between the language of law and the practice of politics. He argues that the rhetoric of international law provides a relevant tool in international relations, which may be used to the advantage of a State that skillfully utilizes it. Borgen adds that international law serves as both a vocabulary and a grammar for diplomacy, fgÝpkpi"pqv"qpn{"yjkej"yqtfu"ecp"dg"wugf."dwv"cnuq"jqy"vjg{"ecp"dg"eqodkpgf0"Jg"gzgornkÝgu"vjcv"


5. Recognition: a political or legal matter?

Although governments have considerable leeway in recognizing an entity as a State, it may be argued that law plays a role in recognition (see item 3 of this report). Additionally, although members of the committee have different perceptions as to the nature of recog-nition, replies to the questions clearly indicated the consensus that relevant legal conse-quences derive from recognition130.

Some national reporters referred to recognition as a political matter. For instance, vjg"Cwuvtcnkcp"tgurqpug"ycu"vjcv"Ðvjg"cev"qh"tgeqipkvkqp"ku"igpgtcnn{"gzrtguugf"vq"dg"c"question of policy rather than a legal act per seÑ0"Qpg"Dtkvkuj"pcvkqpcn"tgrqtvgt"uvcvgf"vjcv"vjg"Wpkvgf"Mkpifqo"rqukvkqp"Ðcrrgctu"vq"dg"vjcv"tgeqipkvkqp"ku"c"rqnkvkecn"ocvvgt."kpuqhct"as it that decisions whether or not to recognize entities claiming Statehood are at the kpfkxkfwcn"fkuetgvkqp"qh"UvcvguÑ0"Vjg"Lcrcpgug"tgrqtv"cfqrvgf"vjg"xkgy"vjcv"Ðtgeqipkvkqp"ku"guugpvkcnn{"c"rqnkvkecn"ocvvgt"ykvj"rgtjcru"egtvckp"ngicn"ghhgevu0Ñ

Other national reporters, however, contended that recognition is political and legal. Kv"ycu"chÝtogf"kp"vjg"Kutcgnk"tgrqtv"vjcv"ÐKutcgn"jqnfu"vjcv"tgeqipkvkqp"oc{"dg"eqpukfgtgf"both as a legal and a political matter. Concerning the legal aspect, it would be illegal (and kpxcnkf+"vq"tgeqipk¦g"uvcvgjqqf"vjcv"hqnnqyu"c"xkqncvkqp"qh"c"ngicn"eqookvogpv0Ñ"Vjg"ngicn"and political character was also adopted in the Italian report.131

The Austrian report was also closer to the view that recognition is political and legal, cu"kv"chÝtogf"vjcv"ÐCwuvtkcp"fkrnqocvke"rtcevkeg"rtqeggfu"htqo"vjg"xkgy"vjcv"tgeqipkvkqp"is a political matter since the decision to recognize is generally within the political discre-tion of a state. However, it cannot be excluded that recognition may have certain legal ghhgevu."tgpfgtkpi"tgeqipkvkqp"cnuq"c"ngicn"ocvvgt0Ñ

vjg"gzrtguukqp"Ðyg"yknn"wug"qwt"tkijv"vq"cvvcem"{qwÑ"fqgu"pqv"Ýv"kpvq"vjg"itcooct"qh"kpvgtpcvkqpcn"law or international politics. 130" Kp"vjku"ugpug."ugg"cnuq"vjg"hqnnqykpi"uvcvgogpv."d{"Xncfkokt/Flwtq"Fgicp<"ÅGpÝp."vqwv"gp"fivcpv"wp"acte discrétionnaire et politique la reconnaissance produit des conséquences juridiques importantes fcpu"vqwvgu"ngu"ekteqpuvcpegu0Ñ"In DEGAN, Vladimir-Djuro. Création et disparition de l’Etat (à la

lumière du démembrement de trois fédérations multiethniques en Europe). Recueil des Cours, v. 279 (2007). Martinus Nijhoff Publishers, p. 197–374, at p. 250.131" ÐTgeqipkvkqp"ku"c"vgto"ykvj"fkhhgtgpv"ogcpkpiu<"kv"uggou"hckt"vq"uc{"vjcv"kv"ku"dqvj"c"ngicn"cpf"c"political matter. From the legal point of view recognition belongs to unilateral acts and unilateral acts are a source of legal obligation, provided that the author intended to be bound (ICJ, Nuclear experiments, par. 43, 46, 49; Burkina-Faso/Mali, par. 39); obligation is not to subsequently deny what has been recognized (statehood, government, etc.); function is to ascertain the existence of a fact or situation in the light of legal rules, and the legal consequences attaching to it; in a decentralized society it is a proper, even a necessary substitute for centralized assessment mechanisms; as such it is independent from other effects that the recognizing State pursues (establishment of diplomatic relations for ex.) (…) recognition does not necessarily imply the establishment of economic or diplomatic relations, as is often thought, and has a separate function of its own. (…) Political meaning: recognition is an act jgcxkn{"kpÞwgpegf"d{"rqnkvkecn"qdlgevkxgu."cu"yjgp"kv"ku"fktgevgf"vqyctfu"vjg"eqpuqnkfcvkqp"qh"c"uvknn"uncertain course of events or situation, by publicly expressing support of a chosen side. This is so also because of the amount of discretion involved in evaluations such as those relating, for example, vq"Ðghhgevkxkv{Ñ0"Vjg"gzcev"wpfgtuvcpfkpi"d{"Uvcvgu"qh"vjg"fg"hcevq"tgeqipkvkqp"cpf"kvu"eqpugswgpegu."cu"c"rwtgn{"rqnkvkecn"qt"ngicn"cev"uggou"vq"fgugtxg"enctkÝecvkqp0Ñ"Gzvtcevgf"htqo"NWICVQ."Oqpkec"and MILANI, Enrico. Italian report.


COMMITTEE ON RECOGNITION/NON-RECOGNITION IN INTERNATIONAL LAW

WORKING SESSION

Monday 27 August 2012, 1.30pm

Chair: Professor Stephan Hobe (Germany)

The Chair welcomed the members of the Committee and the members of the Association present in the room. He introduced Professor Czaplinski, the Chair of the Committee and the Rapporteur, Professor Aziz Saliba. The Chair recollected that the Committee on Recognition/Non-Recognition was established by the Executive Council in 2009 with the cko"qh"uvwf{kpi"Ðyjgvjgt"eqpvgorqtct{"kuuwgu"qh"ugeguukqp."dtgcm/wr"qh"uvcvgu"cpf"vjg"creation of new states have changed international law and policy with respect to recogni-vkqpÑ0"Jg"tgecnngf"vjg"oggvkpiu"qh"vjg"Eqookvvgg"kp"Vjg"Jciwg."Vckrgk"cpf"Xkgppc0

He highlighted the four pertinent questions that this committee was charged to address:

1. Did the dichotomy between the declaratory and constitutive theory still persist?2. What were the current criteria for the recognition of States?3. What role did effectiveness play in the recognition of States?4. Was recognition a political or a legal matter?

Committee members had previously been asked to provide pertinent diplomatic, ad-ministrative, judicial and parliamentary practice in response to questionnaires that had been sent out. Considerable amount of responses to the questionnaire had been received, which were listed in the First Report of the Committee drafted by the Rapporteur. Before cnnqykpi"vjg"Tcrrqtvgwt"vq"eqoogpv"qp"vjg"tgurqpugu."Rtqhguuqt"Jqdg"icxg"vjg"Þqqt"vq"the Chair of the Committee.

Professor Wladyslaw Czaplinski (Poland) thanked the Chair and welcomed everyone interested in both the theoretical and practical aspects of recognition. He anticipated in-teresting discussions on the report prepared by the Rapporteur, the preparation of which jcf"gpvckngf"vjg"fkhÝewnv"vcum"qh"eqodkpkpi"qrkpkqpu"vjcv"qhvgp"fkhhgt"qt"gxgp"qrrqug"qpg"another.

The Chair then highlighted that at this stage the task of the Committee was not to adopt a resolution, but to discuss the report and come up with new questions for the committee. Jg"vjgp"icxg"vjg"Þqqt"vq"Rtqhguuqt"Ucnkdc0

Rtqhguuqt" VwhÝ" Ucnkdc (Brazil) thanked the Chair and the other members of the Eqookvvgg"hqt"cvvgpfkpi"vjg"rtgxkqwu"uguukqpu"cpf"eqokpi"vq"vjg"eqphgtgpeg"kp"UqÝc0

Jg"dgicp"d{"uc{kpi" vjcv" vjg"uvtgpivju"cpf"ygcmpguugu"qh" vjg"tgrqtv"ujqwnf"tgÞgev" vjg"strengths and weaknesses of the Committee. He reiterated that in The Hague in 2010 it had been decided to discuss the four aforementioned questions and that the members were asked to provide pertinent practice on the recognition of a number of entities: Abkhazia, Kosovo, North Korea, Palestine, South Sudan and Western Sahara. Numerous responses were received. Professor Saliba had conducted additional research to obtain wider prac-vkeg0"Hkpfkpi"qhÝekcn"fqewogpvu"jcf"pqv"dggp"c"uvtckijvhqtyctf"vcum"cu"qhvgp"vjgtg"ygtg"pq"qhÝekcn"uvcvg"fqewogpvu"qp"vjg"tgeqipkvkqp"qh"c"rctvkewnct"eqwpvt{0


Professor Saliba stated that the report began by outlining the two main theories on rec-ognition: the declaratory and constitutive theories. He had also included a third theory, especially prevalent in French literature that combined some aspects of the declaratory and constitutive views. There had been no national reporter taking the view that his or her country had embraced the constitutive theory. However, that did not translate into the prevalence of views accepting a purely declaratory theory. Often when the practice was labelled as declaratory, the description of practice was more compatible with the third theory, combining the aspects of the declaratory and constitutive views.

The second issue discussed in the report were the current criteria for the recognition of States. In this respect, Professor Saliba highlighted that it was important to bear in mind the difference between the criteria for statehood and the criteria for the recognition of States. The former involved the basic elements for qualifying as a State. But that did not necessarily translate into the criteria for recognition since many countries have additional conditions for recognition. An entity could be a State even if it was not democratic, but other States might not want to recognise the entity if it did not have human rights guaran-tees, rule of law, etc. This was evident from State practice. Country reports had contained examples of conditions for recognition such as non-violation of international law, respect for territorial integrity, and that in the case of secession the outcome should have been a result of multilateral processes. Professor Saliba stated that other examples could be found in the national reports, which would be put online.

Regarding the criteria of statehood, the county reports had revealed that the Montevideo criteria were widely cited in national reports and in diplomatic practice, despite only a few States being parties to the Montevideo Convention. Professor Saliba also drew atten-tion to criticism of the Montevideo criteria and that one member, Dr Jean d’Aspremont, jcf"tghgttgf"vq"vjg"etkvgtkc"cu"vjg"ÐOqpvgxkfgq"knnwukqpÑ"cpf"uvcvgf"vjcv"jg"ycu"uvtqpin{"cickpuv"vjg"kfgc"vjcv"kpvgtpcvkqpcn"ncy"cwvjqtkvcvkxgn{"fgÝpgu"yjcv"uvcvgjqqf"ku0"Uvcvgjqqf."in Dr d’Aspremont’s view, was not a matter of law. Additionally, there were criticisms that the Convention had little normative reach or that it was over-conclusive by contain-ing elements that were not essential to statehood.

Professor Saliba noted that the most criticised element of the Montevideo formula was the criterion of having the capacity to enter into relations with other States. The main criticism was that this capacity could be considered a consequence of, rather than a condi-tion for, statehood. Moreover, this capacity was not exclusive to States, as other subjects, like international organisations or even sub-units of a State could conclude to enter into international relations.

Another issue discussed in the report was the role of effectiveness. The Montevideo cri-teria were essentially based on the principle of effectiveness. The Committee recognised that there were competing views on the meaning of effectiveness. The Committee had adopted the view that effectiveness is the effective control of an independent govern-ogpv"qxgt"c"rgtocpgpv"rqrwncvkqp"cpf"c"fgÝpgf"vgttkvqt{0"Vjg"pqvkqp"vjcv"c"Uvcvg"ycu"c"matter of fact ensued from the equation of effectiveness with statehood. In other words, the exercise of state authority over a certain territory and population in a territory meant effectiveness and amounted to the existence of a State. The generally accepted view was that a State could not exist without effectiveness. However, practice had shown that this is not always true. There were effective entities that had not been regarded as States


(Rhodesia, Northern Cyprus) on the one hand, and, on the other, non-effective entities that had been considered States (1940s Ethiopia, Austria and Poland).

Professor Saliba drew attention to the table in the report on the practice of recognition, with references describing statements that provided political views on recognition or re-ferred to legal documents demonstrative of State views.

An issue that came up in the country reports was the role of territorial integrity and self-determination. There seemed to be some agreement that territorial integrity might prevent recognition. And additionally, that self-determination in exceptional circumstances con-stituted a relevant exception to the rule of territorial integrity.

Finally Professor Saliba addressed the question whether recognition was a legal matter. Members had presented very different perceptions of the relationship between law and politics in relation to recognition. It could be concluded that recognition was a political matter with important legal consequences.

He concluded by soliciting comments and thanking the Chair.

The Chair thanked the Rapporteur for the summary of the positions on the four questions cpf"qrgpgf"vjg"Þqqt"hqt"swguvkqpu"cpf"uvcvgogpvu0

Dr Hans-Joachim Heintze (Germany) questioned the approach of the Committee in discussing the issue of recognition in connection with self-determination and inquired what the reason for adopting that approach had been. There were no examples of States being founded on the basis of the international law principle of self-determination, apart from the decolonisation context. Even the ICJ had avoided any statement on self-determi-nation in the Kosovo Advisory Opinion, with good reason. The opposite could open a box vjcv"eqwnf"pqv"dg"enqugf"ncvgt"qp"Î"vjku"eqwnf"ngikvkokug"vjg"enckou"qh"htggfqo"Ýijvgtu"cpf"freedom movements. It would be wise to avoid talk of self-determination.

Professor Saliba responded that the Committee had not discussed the issue of self-deter-mination at length. It had come up when discussing the recognition of Abkhazia, Kosovo, North Korea, Palestine, South Sudan and Western Sahara. In the case of Abkhazia the violation of territorial integrity would preclude recognition. The report stated what had been stated in the country reports. In the ICJ proceedings relating to the Kosovo Advisory Opinion several States mentioned self-determination and discussed this relationship be-tween territorial integrity and secession. The report had not made a strong statement on the relevance of self-determination, instead it just discussed what was contained in these reports. What was interesting was that Russia and other States had basically looked at the same legal rule – territorial integrity and its connection to self-determination – but that States had arrived at different conclusions when applying this rule in practice in concrete cases. Characterising facts was not always a straightforward exercise. Legal rules could be used to reach contradictory conclusions.

Professor Natalino Ronzitti (Italy)"vjgp"rqugf"vyq"swguvkqpu0"Vjg"Ýtuv"eqpegtpgf"vjg"connection between recognition and the law of international responsibility of States: should the subject of recognition have been approached from the point of view of the law on international responsibility? For example, if there was premature recognition of an entity, was this an internationally wrongful act or not? Would this have violated the rule of non-intervention in affairs of States? The second question related to the role of


international organisations in recognition. If there was a duty of non-recognition con-tained in a Security Council resolution, was the State obliged to abide by it? He be-lieved that if in that situation a State recognised another as such, this would constitute a violation.

Professor Czaplinski" tgurqpfgf." kp"tgncvkqp"vq" vjg"Ýtuv"swguvkqp." vjcv"tgeqipkvkqp"ycu"uwdlgevkxg<"kv"tgÞgevgf"qpg"UvcvgÓu"cuuguuogpv"qh"yjgvjgt"vjg"etkvgtkc"ygtg"hwnÝnngf0"Jg"did not believe that state responsibility would be involved in the case of premature rec-ognition. He highlighted that the First Report exclusively discussed the theoretical as-pects of recognition. The Second Report would look at the effects of non-recognition. Professor Czaplinski believed that it would not be possible (or would be extremely dif-Ýewnv+"vq"kfgpvkh{"cp"kpvgtpcvkqpcnn{"ytqpihwn"cev"kp"tgncvkqp"vq"tgeqipkvkqp0

Professor Ronzitti respectfully disagreed. If a State were to recognise an Italian province as an independent State, this would constitute interference in the affairs of Italy.

Professor Czaplinski proposed a hypothetical case in which half of the world’s States recognised and the other half did not recognise an entity as a State. He asked whether there would be an internationally wrongful act in that case. He emphasised that it would dg"gzvtgogn{"fkhÝewnv"vq"uc{"qdlgevkxgn{"kh"vjg"gpvkv{"ycu"c"Uvcvg"qt"pqv0

Professor Ronzitti (Italy) asked what would be the answer if the situation were not that controversial, and there would be an almost clear situation – would it then amount to interference in the internal affairs of the State in which the entity was located?

Dr Annemarieke Vermeer-Künzli (Netherlands) questioned whether the approach in the report was balanced enough in relation to the Montevideo Convention. If the report was meant to engage with the criticism of the Montevideo criteria, it should have done so more systematically and thoroughly. She asserted that the exceptions to the rule might not undermine the rule, which applies in 95 per cent of the cases. The report should have mentioned the fact that in the large majority of cases the Montevideo criteria were adequate and accurate. Moreover, she disagreed with the position that international law should not and could not prescribe in relation to the criteria for statehood. She found the report, as it stood at the moment, unsatisfying.

Professor Saliba"tgrnkgf"vjcv"jg"jcf"ycpvgf"vjg"tgrqtv"vq"tgÞgev"pcvkqpcn"tgrqtvu"cu"owej"as possible. He then showed how the report highlighted the different national approaches cpf"tgrqtvu0"Cffkvkqpcnn{."cnvjqwij"jg"jcf"vjqwijv"kv"yqwnf"pqv"dg"Ývvkpi"vq"fkuewuu"vjg"appropriateness of the Montevideo Convention in the report, the criticism needed to be mentioned as it was discussed in the country reports. But there was a page limit, so it was neither possible nor wise to enter into a profound discussion of the criticism of the Montevideo Convention.

Ft"Fcxkf"Dgppgvv"*Cwuvtcnkc+"asked whether there were not two separate problems in-xqnxgf"cpf"vjcv"uvcvkpi"vjcv"qpg"uk¦g"Ývu"cnn"yqwnf"dg"c"okuvcmg0"Hktuv."vjgtg"ycu"vjg"rtqd-lem of political recognition based on likes and dislikes. Secondly, there was the problem qh"Ðpwkucpeg"rgqrngÑ"Îuocnn"itqwru"qh"rgqrng"kp"c"Uvcvg"vjcv"ykujgf"vq"dg"kpfgrgpfgpv"kp"qtfgt" vq"cxqkf"rc{kpi" vczgu"qt" hqt" uqog"qvjgt"dgpgÝv"dwv"fkf"pqv"jcxg"cp{"ugtkqwu"prospect of being recognised as a State. Australia had cases where individuals claimed that their home was a foreign country and therefore they had diplomatic immunity. These cases were struck out in court, but they did succeed in wasting court time. That sort of


problem would be very suitable for some sort of general rules. Whatever that solution would be, it would not be the same as that to the diplomatic problem. He thus asked whether the Committee should not look at these two problems as separate issues and wondered whether the distinction between de facto and de jure recognition could solve some problems.

Professor Saliba wondered if the discussion should be limited to discussing which enti-vkgu"tgegkxg"koowpkvkgu."tkijvu"cpf"rtkxkngigu."cu"ygnn"cu"tgurqpukdknkvkgu."vq"dg"swcnkÝgf"as a State. The Committee had intended to discuss the issue of recognition as much as the issue of statehood, although some members had felt that they should not deal with statehood at all. Discussing which entities had privileges and rights related more to state-hood than recognition. When deciding on the questions, the committee had to limit the questions. In relation to de jure and de facto recognition, he believed that this issue was more relevant in relation to the recognition of governments. If more issues had been included in the list of questions, the answers and substantial discussion would have had to be shorter and more limited.

Professor Czaplinski recalled that two kinds of materials had been collected. First, vjg" pcvkqpcn" tgrqtvu" eqpvckpgf" ugevkqpu" tgÞgevkpi" vjg" rgtuqpcn" qrkpkqpu" qh" ogodgtu0"Ugeqpfn{."vjg"tgrqtv"kpenwfgf"vjg"qhÝekcn"rtcevkeg"qh"Uvcvgu0"Jg"pqvgf"vjcv"vjgug"vyq"okijv"not coincide. Yet the report needed to combine both elements. The report had to elaborate the current criteria for recognition. Lots of questions had been raised in country reports. He mentioned the issue of accession to international organisations. Many of these ques-tions could be addressed in the future work of the committee, as it would continue to address recognition and, especially, non-recognition.

Rtqhguuqt"Fcxkf"Tw¦kfi"*Htcpeg+ drew attention to one point he had stressed in the na-tional report of France, which he believed the report had not taken into consideration, namely the distinction between recognition of States on the one side and recognition of iqxgtpogpvu"qh"pqp/Uvcvgu"qp"vjg"qvjgt0"Wpvkn"tgegpvn{"Htcpeg"jcf"tgeqipkugf"qpn{"Uvcvgu."not governments. But in 2011 France had recognised the National Transitional Council kp"Nkd{c0"Dghqtg"vjgp"Htcpeg"jcf"eqpukuvgpvn{"cuugtvgf"pqv"vq"vcmg"cp"qhÝekcn"rqukvkqp"qp"regime changes by revolutionary groups.

Professor Saliba" gorjcukugf" vjcv" vjg" rtqdngo" jcf" dggp" vq" vt{" cpf" fgÝpg" c" rncp" qh"action and to focus merely on the particular questions that were raised in The Hague. Accordingly, the report was structured to answer those four questions. He thought the is-uwg"jkijnkijvgf"d{"Rtqhguuqt"Tw¦kfi"tgÞgevgf"c"tgngxcpv"fgxgnqrogpv"qh"rtcevkeg."kv"eqwnf"pqv"dg"Ývvgf"kpvq"cp{"qh"vjg"hqwt"swguvkqp"ctgcu0"Vjg"tgrqtv"jcf"hqewugf"qp"vjg"tgeqipkvkqp"of States, not governments.

Professor Czaplinski had some problems with the evaluation of statements of recogni-vkqp"chvgt" vjg"fkuuqnwvkqp"qh" vjg"WUUT0"Oquv"Uvcvgu."gzegrv" vjg"WU."jcf"itggvgf"rtguk-dent Yeltsin as head of Russia. Was this the recognition of the continuity of the Russian State and the recognition of the government or was it the recognition of the new State of TwuukcA"Vjku"fgoqpuvtcvgf"vjg"fkhÝewnv{"kp"fkuvkpiwkujkpi"dgvyggp"tgeqipkvkqp"qh"Uvcvgu"and the recognition of governments.

Professor Takashi Miyazaki (Japan) maintained that the recognition of governments or States was a pure act of a political nature. He had been in the diplomatic service and


yqpfgtgf"yj{"fwtkpi"vjg"Eqnf"Yct"Lcrcp"cpf"vjg"WU"jcf"pqv"tgeqipkugf"Gcuv"Igtocp{0"Vjg"WU"ycu"ygnn"cyctg"qh"vjg"gzkuvgpeg"qh"Gcuv"Igtocp{."cpf"vjcv"kv"jcf"cp"ghÝekgpv"iqx-gtpogpv."dwv"hqt"rqnkvkecn"tgcuqpu."hqt"vjg"dgpgÝv"qh"WU"hqtgkip"rqnke{."vjg"WU"yqwnf"pqv"tgeqipkug"Gcuv"Igtocp{0"Kp"vjg"ogcpvkog"Gcuv"Igtocp{"jcf"dggp"cfokvvgf"vq"vjg"WP0"Ukoknctn{."uqog"Uvcvgu"jcf"pqv"tgeqipkugf"Pqtvj"Mqtgc."dwv"kv"ycu"c"WP"ogodgt"Uvcvg0"China had recognised the existence of Taiwan by concluding a treaty with it. Recognition was a purely political act, not bound by general international law. No country had ever been sued for premature recognition or non-recognition of a State or government. There was no legal requirement to recognise or not to recognise.

The Chair"eqoogpvgf"vjcv"kp"vjg"3;72u"kv"jcf"dggp"qhÝekcn"rqnke{"kp"Yguv/Igtocp{"vjcv"any State recognising East Germany as a State would commit an unfriendly act towards West Germany (so-called ‘Hallstein-doctrine’).

Professor Czaplinski believed that this was the core of the problem. If recognition is purely political then no criteria can be set for recognition.

Professor Saliba responded that many domestic court decisions showed that not recog-nising a certain country makes a difference in legal terms. Law can attribute special con-ugswgpegu"vq"vjg"cev"qh"tgeqipkvkqp"cpf"ncy"rnc{u"c"xgt{"ukipkÝecpv"tqng"kp"tgeqipkvkqp0"But this did not mean that recognition was not a political matter. Political acts interacted with the law.

He also disagreed with the claim that China explicitly or implicitly had recognised Taiwan as a State. China was very careful not to do so. China and Taiwan maintained relations through two private foundations controlled by the State. This showed that China was at pains not to recognise Taiwan as a State.

Professor Miriam šmtm"*Unqxgpkc+ made two observations. First, while there was some State practice according to which non-recognised States have no standing before domes-tic courts, this did not amount to a rule of customary international law. Secondly, there were practical examples (for instance, an agreement between a State and an unrecognised entity) in favour of a future examination by the committee of the de facto and de jure

recognition of States.

Professor Saliba emphasised that there was a difference between national State prac-tice and international law. However, national practice could be extremely relevant to international law, especially in relation to the formation of customary international law. He noted that it was easier to see the effects of non-recognition in decisions of national courts.

Professor Saliba explained that de facto and de jure recognition was a relevant topic, but had been excluded from the discussion. The idea had been to focus on only a few issues, in detail. There were also other relevant issues relating to recognition. These could be presented to the committee to get their views on whether the issues should be included in the work of the committee.

Dr Aristoteles Constantinides (Greece) thought that it could be helpful to clarify that recognition as a term operates in a variety of contexts – e.g. recognition of States, of governments, on the domestic level, by international organisations – because there was a lot of confusion surrounding the term. When it came to recognition being of political or


legal nature, it would have been helpful to clarify and emphasise that recognition within the context of statehood was a political act, whereas non-recognition also operated as a ngicn"fwv{"kp"vjg"Ýgnf"qh"Uvcvg"tgurqpukdknkv{0"Vjwu."kv"eqwnf"jcxg"dggp"oqtg"ceewtcvg"vq"State that recognition was a political act unless (and to the extent that) there was a collec-tive duty of non-recognition in the case of entities, however effective, which had come into being as a result of a violation of (peremptory) international law (for example, use of force, self-determination etc.).

Professor Czaplinski reiterated the very limited nature of the Committee’s mandate. Accordingly it was not appropriate to go into other areas of recognition. He noted that the scope of the obligation of non-recognition was much larger than in the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts and that this could be dis-cussed among the issues of non-recognition at the next conference in Washington, DC.

A member of the British Branch tgkvgtcvgf"vjcv"kv"ycu"fkhÝewnv"vq"ugrctcvg"vjg"kuuwg"qh"recognition from the non-recognition of States, particularly in discussing the Kosovo

Advisory Opinion. He stated that if recognition and non-recognition were dealt with sepa-rately, the issue might end up looking skewed.

He agreed with colleagues that the issue of recognition could be political, but the issue of non-recognition could be legal. He noted that there was a clearer obligation not to recog-nise a State in particular circumstances, for instance when there was a Security Council resolution on the situation or the entity had violated a norm of international law. In the case of Kosovo, the question was whether there were acts in contravention of Security Council Resolution 1244 (1999) rather than whether there was any obligation or right to recognise.

Professor Saliba agreed that separating the issues of recognition and non-recognition ycu"ctvkÝekcn0"Vjku"ugrctcvkqp"jcf"dggp"pgeguuct{"hqt"qticpkucvkqpcn"tgcuqpu0"Vjg"cko"jcf"been to focus on certain issues and consider whether international law had changed in relation to those issues.

The Chair emphasised the political nature of the questions connected to recognition and invited more questions.

Professor Matthew Happold (UK) commented that recognition was political and to the discretion of States, but that was not to say that there were no legal criteria for recogni-tion. The country reports given to the committee indicated that there were such criteria. Jqygxgt." vjcv" fkf" pqv"ogcp" vjgtg"ycu" c" fwv{" vq" tgeqipkug" cp" gpvkv{" vjcv" hwnÝnu" vjgug"criteria. It was also necessary to pay attention to what States stated as reasons for not recognising States. A decision not to recognise could be inspired by various reasons:

30" cp"gpvkv{"fqgu"pqv"hwnÝn"vjg"*ngicn+"etkvgtkc"hqt"uvcvgjqqf=40" cp"gpvkv{"eqwnf"*qt"fkf+"hwnÝn"vjgug"etkvgtkc"dwv"c"Uvcvg"fkf"pqv"ycpv"Î"hqt"rqnkvkecn"

reasons – to recognise the entity as a State;50" cp"gpvkv{"hwnÝnngf"vjg"etkvgtkc"dwv"dgecwug"kvu"etgcvkqp"dtgcejgf"qvjgt"ngicn"pqtou"kv"

could not (legally) be recognised as a State.

Even ignoring the third option, the existence of legal criteria meant it did seem to be possible for a State to act unlawfully if it prematurely recognised an entity claiming state-jqqf"*k0g0"kh"vjcv"gpvkv{"fkf"pqv"hwnÝn"vjg"etkvgtkc"hqt"uvcvgjqqf+0"C"iqqf"gzcorng"ycu"vjg"


recognition of Biafra by various States prior to Nigeria’s suppression of Biafra’s attempt at secession. If a State was recognised, but unable to maintain its status, the recognition could be considered an unfriendly act.

Professor Czaplinski noted that there was a distinction between the legal criteria for recognition and the political decision to recognise. He gave the example of the EC guidelines for recognition adopted in 1991, which had not necessarily been followed in practice by EC member States. He considered that Croatia had been recognised without following the criteria.

Professor škrk recalled that the report contained the text of the EC guidelines. She stated that Croatia had passed a constitutional law on minorities in order to be recog-nised. Relevant to the evaluation of the customary status of these guidelines was that they had not been used for the recognition of other States in the area – FRY, Montenegro or Kosovo.

Professor Saliba asserted it was evident from the country reports that law played a part in recognition and non-recognition. He agreed that the EC guidelines were meant for a particular situation. However, he had mentioned in the report that some of the criteria in the EC guidelines might have been used by other States in other situations.

Professor Shotaro Hamamoto (Japan) asserted that in analysing State practice it was important to keep in mind that the real but hidden intention of a State could well be very fkhhgtgpv"htqo"lwuvkÝecvkqpu"hwtpkujgf"d{"vjg"Uvcvg0

He noted that it was incorrect to equate recognition criteria with the criteria for statehood. C"Uvcvg"eqwnf" hwnÝn" vjg"etkvgtkc" hqt"uvcvgjqqf"cpf"{gv"pqv"dg" tgeqipkugf0"Hqt"gzcorng."Japan had never recognised North Korea as the Japanese government took into account whether the entity was willing to abide by international law. The Japanese government recognised that this requirement was not part of international law, but still required this. Criteria of recognition in this case did not coincide with the criteria of statehood.

Rtqhguuqt"Jcocoqvq"cnuq"icxg"vjg"gzcorng"vjcv"vjg"WU."Htcpeg"cpf"WM"jcf"eqpukfgtgf"vjcv"vjg"Igtocp"Fgoqetcvke"Tgrwdnke"jcf"pqv"hwnÝnngf"vjg"eqpfkvkqpu"qh"uvcvgjqqf"dg-cause it lacked an independent government.

Professor Saliba strongly agreed that one must not mix up the different criteria. States ygtg"pqv"qdnkigf"vq"tgeqipkug"cp"gpvkv{"vjcv"hwnÝnngf"vjg"etkvgtkc"qh"uvcvgjqqf="vjg{"eqwnf"have additional criteria.

In relation to the hidden intentions of States, he noted that States furnished their declara-tions of recognition in terms of law, even if the thought-process behind it was not based on legal rules. He highlighted that it was evident from the country reports that there was widespread acceptance of some rules, but the actual application of the rules of interna-tional law was not consistent.

The Chair asked the Rapporteur about the effect of the Kosovo Advisory Opinion – what was the view of the International Court of Justice on recognition?

Professor Saliba responded that the Opinion had very little to say in relation to the cur-rent discussion. It could add to the discussion on self-determination, but not to the issue of recognition.


Dr Heintze drew attention to the fact that the Stimson Doctrine had not been mentioned in the report. What was the Committee’s opinion on the doctrine? Was there any obliga-tion in international law on States not to recognise States that came into existence in con-nection with a violation of international law? Was there any such rule under customary international law?

Professor Czaplinski noted that he would not draw much attention to the Stimson doc-vtkpg0"Kv"jcf"dggp"lwuv"qpg"fgenctcvkqp"d{"vjg"WU."pqv"pgeguuctkn{"hqnnqygf"d{"qvjgt"Uvcvgu0"Jg"dgnkgxgf"vjcv"vjg"eqpugswgpegu"qh"vjcv"fqevtkpg"hqt"WP"ncy"ygtg"owej"oqtg"kpvgtguv-ing. These issues could be considered later on when discussing non-recognition.

Professor Saliba explained that the only country report that discussed the Stimson doc-trine was the American report. He stated that the issue of unlawful secessions would come up frequently in subsequent discussions, in the context of non-recognition.

Professor Czaplinski added that when this had been discussed in the committee, the initial problem had been whether to deal with the recognition of States, the recognition of States and governments, or recognition in international law in general. The Stimson fqevtkpg"tgncvgf"vq"c"xgt{"urgekÝe"uwdlgev"cpf"c"xgt{"urgekÝe"ukvwcvkqp0"Jg"pqvgf"vjcv"vjg"report concentrated on the recognition of States, not of governments. He reiterated that the issue of recognition itself is much wider than with what the committee was dealing with. He found it interesting that there had not been any formulation of the criteria for unlawful secession and wondered what that meant.

Professor Hamamoto asserted that the Stimson doctrine would not be necessary if it was used simply to say that recognition of Manchukuo was an unlawful act in relation to Ejkpc0"Kv"uwhÝegf"vq"uc{"vjcv"uwej"tgeqipkvkqp"eqpuvkvwvgf"cp"kpvgtxgpvkqp"kp"vjg"fqoguvke"affairs of China. A new obligation not to recognise an entity such as Manchukuo was not needed. An obligation not to recognise a State could be meaningful only in relation to States other than those directly affected and therefore it presupposed an obligation erga

omnes.

Professor Czaplinski observed that problems of non-recognition were not necessarily related to jus cogens violations. He noted the connection between non-recognition and State responsibility. Even in the case of the Stimson doctrine the breach of international law included any type of violation, not just a violation of a peremptory norm.

Professor Hamamoto reiterated that there was no need for a new doctrine of recognition.

Professor Czaplinski" dgnkgxgf" vjcv" vjg"rtqdngo"ycu" vjg" kfgpvkÝecvkqp"qh" vjg" cev" vjcv"was the basis of recognition. If that act was unlawful, then there was an obligation not to recognise the State. The question was how far this obligation would go. Someone needed to decide whether the breach was serious enough to give rise to an obligation of non-recognition.

Ou" Pcvkc" Mcncpfctkujxknk/Owgnngt" *Uykv¦gtncpf+ highlighted the problems with Abkhazia and South Ossetia in relation to the issue of effectiveness. She requested the Rapporteur to elaborate more on the issue of effectiveness. She drew attention to the fact vjcv"Cdmjc¦kc"cpf"Uqwvj"Quugvkc"ygtg"wpfgt"jgcx{"kpÞwgpeg"qh"Twuukc0


Professor Saliba reiterated that the Stimson doctrine had been made for one situation. It constituted only one example of practice and not a general rule.

He noted that the general view that the State was a matter of fact was based on an equation of statehood and effectiveness. If an independent government ruled over a population in c"fgÝpgf"vgttkvqt{."kv"ycu"c"Uvcvg0"Qpg"ogodgt"qh"vjg"eqookvvgg"jcf"uggp"ghhgevkxgpguu"as a different element from the Montevideo criteria, but he disagreed. There had been entities that were not regarded as States (Manchukuo, Northern Cyprus), though nobody argued that they were ineffective. However, there were entities which were not effective but were widely recognised (Austria, Poland in the 1940s). There were even cases where one could argue that the State was recognised without a government having established control over a territory (the Democratic Republic of the Congo in the 1960s, Angola in 1975). Effectiveness had a very important role, but did not explain everything. If they took the view that the State was a matter of fact as an absolute rule, they would not be able to explain some important cases.

Professor Ruzié underlined the differences between the recognition and the non-recog-nition of a State, taking as an example the French practice with respect to North-Vietnam (when there were two Vietnams before 1975). The French government had never recog-nised North-Vietnam (nor had it, more recently, recognised North Korea) but accorded State immunity to this entity. The difference was that whereas recognition gives a legal basis to State immunity, in a case of non-recognition the entity could receive State im-munity on the basis of a unilateral political decision, not based on international law. Vjgtg"ycu"c"mkpf"qh"ÐghhgevkxgÑ"ogcpkpi" kp" tgeqipkvkqp0"Uvcvg" koowpkv{"eqwnf"pqv"dg"taken away after a State had been recognised. However, if there was no recognition, State immunity could be revoked.

Professor Czaplinski noted that the criteria of recognition were not used to justify rec-ognition, but to justify non-recognition. For example, in practice the lack of effectiveness ycu"qhvgp"wugf" cu" lwuvkÝecvkqp" hqt" pqv" tgeqipkukpi0"Vjku" pgicvkxg" crrtqcej"jcf"oqtg"practical importance.

Dr Constantinides commented on equating effectiveness with statehood. He noted that a more pertinent contemporary example of effective entities not considered (or recognised) as States were Somaliland and Puntland, which showed that statehood did not necessarily equate with effectiveness.

Professor Saliba agreed that Somaliland was an example of an entity that would be regarded effective, as it had a population, territory and government.

Professor Anne Peters (Switzerland) remarked that the view that a State was as a matter of fact was a purely legal positivist view, putting the State outside the law. She pointed out that there was a different way of looking at it. International lawyers looked at States as international legal subjects. The emergence of international legal persons was a legal phenomenon.

She also held that the principle of effectiveness was a legal principle. The principle had two aspects. First, it prevented the existence of purely virtual things, which was unde-sired by international lawyers as the discrepancy between law and reality would under-mine the former. Secondly, effectiveness was a condition for legitimacy. She considered


these aspects to be interlinked. When the effectiveness of an entity was questionable it was more likely to be recognised if it was perceived as more legitimate (though not as effective as some other less legitimate entity).

Professor Czaplinski noted that effectiveness could also relate to other entities, not just States. Recognition was one of the tools for distinguishing between States and non-State actors. Did Professor Peters suggest that effectiveness was something different from the criteria of statehood?

Professor Saliba added that practice did not support the view that effectiveness played a very important determinative role. There were entities that were not effective but were recognised. That was one clear conclusion from their work. It was necessary to get a clearer notion of what exactly the role of effectiveness was.

Ou"Mcncpfctkujxknk/Owgnngt thought that the discussion was walking in circles around the principle of self-determination. One Montevideo criterion was the existence of peo-ple. She believed that in the case of Abkhazia and South Ossetia the right to self-determi-nation had been ignored – national minorities had been ousted from the territories, their villages had been destroyed and they were not allowed to return. She considered that this constituted a collision between the principles of self-determination and effectiveness, as effectiveness was exercised by de facto authorities that had muted the right to self-determination of the people.

Professor Saliba was not sure he understood how effectiveness collided with self-de-termination. He urged caution so as not to confuse notions. One was the notion of the State. In the country reports the most widespread answer utilised the Montevideo criteria. These criteria were formulated on the basis of effectiveness. It was possible for a State that did not respect human rights to come to existence, whether it should or should not was another matter.

The second notion was self-determination, which was quite controversial. The principle had been addressed in a Canadian Supreme Court decision. This decision was heavily used in the Kosovo Advisory Opinion. States that participated in the Kosovo hearings were very careful to state that Kosovo constituted a unique case. The general rule was that of territorial integrity and only in exceptional circumstances could the principle of self-determination play a role. It would have been a stretch to see a connection between self-determination and effectiveness. A State could decide not to recognise an entity that violates human rights, but that was not a criterion for statehood, but a criterion for recog-nition. Those were different matters and should be treated separately.

Ou"Mcncpfctkujxknk/Owgnngt insisted that in the case of Abkhazia and South Ossetia these matters should have been treated as a whole. The approach needed to depend on the circumstances of the case.

Professor Czaplinski remarked that the issue of self-determination was much more eqornkecvgf0"Ugnh/fgvgtokpcvkqp" tgncvgf" vq" vjg"rqrwncvkqp"qh" c" urgekÝe" vgttkvqt{0" Kh" vjg"population in a territory was granted the right to become a State, rights would be vested in all the people there – populations could not be shifted out to in order for the entity to become more effective.


The Chair inquired from the Rapporteur whether there was further evidence of the exist-ence of more implicit criteria.

Professor Saliba replied that national reports had mentioned some preconditions for recognition, or implied criteria, which were the non-violation of international law and respect for territorial integrity. He asserted that the criteria seemed to be much clearer in the case of non-recognition – States referred to Montevideo criteria when they chose not to recognise an entity.

Rtqhguuqt"Qxg"Dtkpi"*Uygfgp+"elaborated on the discussion in Sweden regarding a shift kp"vjg"tgeqipkvkqp"rtcevkeg"qh"GW"ogodgt"Uvcvgu0"Vjg"ghhgevkxg"eqpvtqn"etkvgtkqp"jcf"dggp"balanced in European practice by other considerations grounded in international law. He referred to two recent examples – the recognition of Croatia in 1992 and of Kosovo in 2008. In the case of the former the principle of ex injuria jus non oritur was used to compensate for limited effectiveness. In the case of the latter, it had been argued that the authorities of Kosovo did not have effective control as they were dependent on assistance from international organisations and the wider context and European values had been taken into account in deciding whether to recognise it.

Professor Czaplinski reiterated the problem of the political nature of recognition.

Professor Saliba noted that most people had not analysed State practice on the rule of effectiveness, which was why some argued that the Montevideo criteria were of real normative relevance. State practice did not fully support this.

The Chair thanked the participants for the discussion inspired by the report. He noted that not all problems had been solved. He was looking forward to more discussion, in 2014, if not before.

Professor Saliba concluded by thanking the Chair.

Reporters: Dr Tiina Pajuste and Nengye Liu

Documents

ILA SofiaRpt RecogCmte164 98 Excerpt Libre