PROBLEM 1
Difficult words
- Unilaterally
o Eenzijdig
- Electorate
o Electoraat, kiesgerechtigden
- Condemned
o Veroordeeld, verworpen
- Adduce
o Aanvoeren, aandragen
- Arbitrary
o Willekeurig
o On a whim
Parties
• Ukraine
• Luhansk
• Donetsk
• Russia
Learning objectives
1. What is (internal and external) self-determination and what are the conditions thereof?
2. Is a declaration of independence lawful under international law?
3. Is secession lawful under international law?
4. In which way is succession of the rights and duties of the new States arranged?
Case: declaration of independence Kosovo
,4.2
4.2.2 Recognition
The recognition of states is a crucial issue in international law, as it determines the legal and political
status of new states. However, this topic is controversial due to differing views on the importance of
recognition by other states.
Distinction Between Recognition of a State and a Government
It is essential to differentiate between recognizing a state and recognizing its government. A state is a
legal entity, while a government is its representative. Therefore, refusing to recognize a government does
not necessarily mean denying the existence of the state itself. For example, the Taliban were widely
unrecognized as Afghanistan’s government in both the 1990s and 2021, but Afghanistan itself remained a
recognized state.
Competing Theories of Recognition
Two primary approaches dominate the doctrinal debate on the effects of recognition:
1. Declaratory Theory – This view holds that statehood is a matter of law and is based on fulfilling
specific legal criteria. An entity becomes a state once it meets these criteria, regardless of whether
other states recognize it. The key criterion is effectiveness—meaning that the entity must have a
functioning government, a defined population, territory, and the capacity to enter into relations
with other states.
2. Constitutive Theory – This approach argues that recognition by other states is a prerequisite for
statehood. An entity, even if it meets the criteria for statehood, is not a state in international law
unless other states acknowledge it as such. This view became dominant in the 19th century with
the rise of positivism and state consent, allowing Western states to exclude non-Western entities
from the international system.
Problems with the Constitutive Approach
The constitutive approach faces several challenges:
• Relativism: If statehood depends on recognition, an entity’s existence as a state becomes
subjective and dependent on the perspectives of other states.
• Uncertainty: It is unclear how many recognitions are needed for statehood. Additionally, the
weight of recognition from certain states over others raises further complications.
Contemporary Legal Perspective
Modern international law primarily follows the declaratory approach.
• Montevideo Convention (1933) affirms that a state’s political existence is independent of
recognition.
• International Legal Practice: A 1920 advisory opinion found that Finland’s recognition by
multiple states did not determine its statehood, but rather its fulfillment of legal conditions did.
Similarly, in 1991, the Arbitration Commission on Yugoslavia’s dissolution ruled that state
existence is a factual matter, and that recognition has a declaratory effect.
Recognition and Non-Recognized States
States that are not universally recognized still engage in legal disputes. For instance, Arab states that
refuse to recognize Israel frequently accuse it of violating international law.
However, recognition trends change over time:
• Arab-Israeli Recognition: UAE, Bahrain, and Sudan recognized Israel in 2020, joining Egypt
(1979) and Jordan (1994).
, Limitations of the Declaratory Approach
While the declaratory theory dominates, recognition remains significant in practice:
1. Ex Injuria Jus Non Oritur: The legal principle that rights cannot arise from wrongful acts
sometimes leads to the denial of statehood to entities that otherwise meet formal criteria.
2. Evidentiary Role: Recognition signals that other states believe an entity qualifies as a state. This
is particularly relevant for UN membership, which is limited to states. Although Palestine has
been granted non-member observer status and joined the International Criminal Court in 2015,
full UN membership is not a strict requirement for statehood (as demonstrated by Switzerland,
which only joined in 2002).
3. Practical Importance: Recognition is often a prerequisite for diplomatic and treaty relations.
States may impose additional conditions for recognition beyond legal criteria. For example, after
the Cold War, the US and the European Community required new states from the Soviet and
Yugoslav breakups to commit to democracy and the rule of law before granting recognition.
Conclusion
While international law leans towards the declaratory theory of statehood, recognition remains politically
and diplomatically significant. It serves as evidence of statehood, influences interstate relations, and can
be used strategically to promote political goals. However, statehood itself is primarily a matter of legal
and factual criteria rather than mere recognition by other states.
4.2.3 The Montevideo Criteria
The Montevideo Convention on the Rights and Duties of States (1933) establishes the most widely
accepted criteria for statehood under Article 1. According to this legal framework, an entity qualifies as a
state if it possesses:
a) A Permanent Population
b) A Defined Territory
c) Government
d) The Capacity to Enter into Relations with Other States
These criteria are based on effectiveness, meaning that an entity must function as a state in practice rather
than just claim statehood.
1. Permanent Population
- A state must have people living in its territory, but there is no minimum population size.
- Small states such as Tuvalu (10,000 people) and Nauru (11,000 people) still qualify as states
under international law.
- Microstates in Europe, like Liechtenstein and San Marino, further demonstrate that size is not a
determining factor.
- The requirement of permanence raises questions about whether a population composed entirely
of nomadic tribeswould suffice for statehood.
2. Defined Territory
- A state must have some territorial control, but precise boundaries are not required.
- Small states such as San Marino and Tuvalu demonstrate that land size does not determine
statehood.
- Border disputes do not prevent statehood—for example, Israel's undefined borders have not
affected its recognition as a state.
- Similarly, Palestinian statehood is not negated by territorial uncertainties between Israel and
Palestine.
Difficult words
- Unilaterally
o Eenzijdig
- Electorate
o Electoraat, kiesgerechtigden
- Condemned
o Veroordeeld, verworpen
- Adduce
o Aanvoeren, aandragen
- Arbitrary
o Willekeurig
o On a whim
Parties
• Ukraine
• Luhansk
• Donetsk
• Russia
Learning objectives
1. What is (internal and external) self-determination and what are the conditions thereof?
2. Is a declaration of independence lawful under international law?
3. Is secession lawful under international law?
4. In which way is succession of the rights and duties of the new States arranged?
Case: declaration of independence Kosovo
,4.2
4.2.2 Recognition
The recognition of states is a crucial issue in international law, as it determines the legal and political
status of new states. However, this topic is controversial due to differing views on the importance of
recognition by other states.
Distinction Between Recognition of a State and a Government
It is essential to differentiate between recognizing a state and recognizing its government. A state is a
legal entity, while a government is its representative. Therefore, refusing to recognize a government does
not necessarily mean denying the existence of the state itself. For example, the Taliban were widely
unrecognized as Afghanistan’s government in both the 1990s and 2021, but Afghanistan itself remained a
recognized state.
Competing Theories of Recognition
Two primary approaches dominate the doctrinal debate on the effects of recognition:
1. Declaratory Theory – This view holds that statehood is a matter of law and is based on fulfilling
specific legal criteria. An entity becomes a state once it meets these criteria, regardless of whether
other states recognize it. The key criterion is effectiveness—meaning that the entity must have a
functioning government, a defined population, territory, and the capacity to enter into relations
with other states.
2. Constitutive Theory – This approach argues that recognition by other states is a prerequisite for
statehood. An entity, even if it meets the criteria for statehood, is not a state in international law
unless other states acknowledge it as such. This view became dominant in the 19th century with
the rise of positivism and state consent, allowing Western states to exclude non-Western entities
from the international system.
Problems with the Constitutive Approach
The constitutive approach faces several challenges:
• Relativism: If statehood depends on recognition, an entity’s existence as a state becomes
subjective and dependent on the perspectives of other states.
• Uncertainty: It is unclear how many recognitions are needed for statehood. Additionally, the
weight of recognition from certain states over others raises further complications.
Contemporary Legal Perspective
Modern international law primarily follows the declaratory approach.
• Montevideo Convention (1933) affirms that a state’s political existence is independent of
recognition.
• International Legal Practice: A 1920 advisory opinion found that Finland’s recognition by
multiple states did not determine its statehood, but rather its fulfillment of legal conditions did.
Similarly, in 1991, the Arbitration Commission on Yugoslavia’s dissolution ruled that state
existence is a factual matter, and that recognition has a declaratory effect.
Recognition and Non-Recognized States
States that are not universally recognized still engage in legal disputes. For instance, Arab states that
refuse to recognize Israel frequently accuse it of violating international law.
However, recognition trends change over time:
• Arab-Israeli Recognition: UAE, Bahrain, and Sudan recognized Israel in 2020, joining Egypt
(1979) and Jordan (1994).
, Limitations of the Declaratory Approach
While the declaratory theory dominates, recognition remains significant in practice:
1. Ex Injuria Jus Non Oritur: The legal principle that rights cannot arise from wrongful acts
sometimes leads to the denial of statehood to entities that otherwise meet formal criteria.
2. Evidentiary Role: Recognition signals that other states believe an entity qualifies as a state. This
is particularly relevant for UN membership, which is limited to states. Although Palestine has
been granted non-member observer status and joined the International Criminal Court in 2015,
full UN membership is not a strict requirement for statehood (as demonstrated by Switzerland,
which only joined in 2002).
3. Practical Importance: Recognition is often a prerequisite for diplomatic and treaty relations.
States may impose additional conditions for recognition beyond legal criteria. For example, after
the Cold War, the US and the European Community required new states from the Soviet and
Yugoslav breakups to commit to democracy and the rule of law before granting recognition.
Conclusion
While international law leans towards the declaratory theory of statehood, recognition remains politically
and diplomatically significant. It serves as evidence of statehood, influences interstate relations, and can
be used strategically to promote political goals. However, statehood itself is primarily a matter of legal
and factual criteria rather than mere recognition by other states.
4.2.3 The Montevideo Criteria
The Montevideo Convention on the Rights and Duties of States (1933) establishes the most widely
accepted criteria for statehood under Article 1. According to this legal framework, an entity qualifies as a
state if it possesses:
a) A Permanent Population
b) A Defined Territory
c) Government
d) The Capacity to Enter into Relations with Other States
These criteria are based on effectiveness, meaning that an entity must function as a state in practice rather
than just claim statehood.
1. Permanent Population
- A state must have people living in its territory, but there is no minimum population size.
- Small states such as Tuvalu (10,000 people) and Nauru (11,000 people) still qualify as states
under international law.
- Microstates in Europe, like Liechtenstein and San Marino, further demonstrate that size is not a
determining factor.
- The requirement of permanence raises questions about whether a population composed entirely
of nomadic tribeswould suffice for statehood.
2. Defined Territory
- A state must have some territorial control, but precise boundaries are not required.
- Small states such as San Marino and Tuvalu demonstrate that land size does not determine
statehood.
- Border disputes do not prevent statehood—for example, Israel's undefined borders have not
affected its recognition as a state.
- Similarly, Palestinian statehood is not negated by territorial uncertainties between Israel and
Palestine.
