Seventy-Fifth Conference: International Law Association

THE
INTERNATIONAL LAW ASSOCIATION

(FOUNDED 1873)
Charles Clore House, 17 Russell Square, London WC1B 5DR
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MULTIS MELIOR PAX UNA TRIUMPHIS
REPORT
OF THE
SEVENTY-FIFTH CONFERENCE
HELD IN
SOFIA
August 2012
London
2012
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 Sidleys 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
The Mavor of Soha Municipalitv
THE CONFERENCE WAS SUPPORTED BY:
The Ministry of Justice of the Republic of Bulgaria
The Institute for Legal Studies Bulgarian Academy of Sciences
Sofa University 'St. Kliment Ohridski
National Art Gallery
GENERAL SPONSORS:
Corporate Commercial Bank
Boliarka JSC
SPONSORS:
Delibaltov, Milkova, Ivanova Law Society; Grand Lodge of the Ancient Free and
Accepted Masons oI Bulgaria; Nova Prints JSC (Plovdiv); Domaine Boyar (Sofa);
Helikom LTD. (Sliven); Vangard LTD (Sliven); Bukovets (Tvarditsa JSC); Ale House
(Sofa); Hunting House; IBC Student Exchange; Stobi Winery; Marker JSC
EXHIBITORS:
Brill | Martinus Nijhoff Publishers
The Netherlands
OxIord University Press
United Kingdom
Cmabridge University Press
United Kingdom
Hart Publishing Oxford
United Kingdom
Edward Elgar Publishing
United Kingdom
Ashgate Publishing Group
United Kingdom
Springer
United States of America
ROUTLEDGE, Taylor & Francis Group
United Kingdom
Editors: Professor Christine Chinkin; Professor Marcel Brus; Dr Sarah Nouwen;
Christopher Ward
Assistant Editor: Juliet Fussell
Reporters: Christiane Ahlborn; Farzana Akter; Vivian Anozie; Freya Baetens;
Khaled Bashir; Sky Bennett; Viviane Contin Williams; Sherif Elgebeily;
Mohamed Janaby; Paulius Jurcys; Alexander Kunzelmann; Nengye Liu;
Rita Matulionyte; Robin Morris; Sarah Nouwen Tiina Pajuste; Surabhi Ranganathan;
Ila Sharmma; Benedetta Ubertazzi; Andrea Varga; Chris Ward.
PUBLISHED BY THE INTERNATIONAL LAW ASSOCIATION,
CHARLES CLORE HOUSE, 17 RUSSELL SQUARE, LONDON WC1B 5DR
PRINTED IN ABERYSTWYTH, WALES, UK BY CAMBRIAN PRINTERS
ISSN 0074-6738
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
!"##$%%&&'
INTERNATIONAL PROTECTION OF CONSUMERS
Committee Report .......................................................................................... 113
Working Session ............................................................................................. 153
RECOGNITION/NON-RECOGNITION IN INTERNATIONAL LAW
Working Session ............................................................................................. 187
INTERNATIONAL HUMAN RIGHTS LAW
Working Session ............................................................................................. 215
CULTURAL HERITAGE LAW
Working Session ............................................................................................. 233
ISLAMIC LAW & INTERNATIONAL LAW
Working Session ............................................................................................. 272
SPACE LAW
Working Session ............................................................................................. 314
INTERNATIONAL CIVIL LITIGATION AND THE INTERESTS OF THE PUBLIC
Working Session ............................................................................................. 374
BASELINES UNDER THE INTERNATIONAL LAW OF THE SEA
Working Session ............................................................................................. 429
LEGAL PRINCIPLES RELATING TO CLIMATE CHANGE
Working Session ............................................................................................. 490
RIGHTS OF INDIGENOUS PEOPLES
Working Session ............................................................................................. 546
COMMITTEE ON INTERNATIONAL SECURITIES REGULATION
Working Session ............................................................................................. 574
REPARATION FOR VICTIMS OF ARMED CONFLICT
Working Session ............................................................................................. 603
INTERNATIONAL TRADE LAW
Working Session ............................................................................................. 650
NON STATE ACTORS
Working Session ............................................................................................. 694
NUCLEAR WEAPONS AND NON-PROLIFERATION
Working Session ............................................................................................. 710
FEMINISM IN INTERNATIONAL LAW
Working Session ............................................................................................. 747
COMMITTEE ON INTERNATIONAL MONETARY LAW
Working Session ............................................................................................. 778
INTELLECTUAL PROPERTY AND PRIVATE INTERNATIONAL LAW
Working Session ............................................................................................. 814
INTERNATIONAL LAW ON SUSTAINABLE DEVELOPMENT
Working Session ............................................................................................. 868
'%()* ,-"(.'
RESPONSIBILITY OF INTERNATIONAL ORGANISATIONS
Working Session ............................................................................................. 880
UNITED NATIONS REFORM
Working Session ............................................................................................. 960
ENGAGEMENT OF DOMESTIC COURTS WITH INTERNATIONAL LAW
Working Session ............................................................................................. 984
PRIJATE LAW PRINCIPLES, INTERNATIONAL LAW
Working Session ............................................................................................. 994
SOCIALLY RESPONSIBLE INJESTMENT
Working Session ............................................................................................. 1000
SOFT-LAW INSTRUMENTS IN INJESTMENT LAW
Working Session ............................................................................................. 1017
SOJEREIGN INSOLJENCY
Working Session ............................................................................................. 1027
THE CONDUCT OF HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW
IN THE 21
ST
CENTURY
Working Session ............................................................................................. 1037
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TEACHING OF INTERNATIONAL LAW
Working Session ............................................................................................. 1046
CLOSING CEREMONY ........................................................................................1051
Recognition/Non-recognition in Contemporary International Law
Rapporteur: Aziz TuIf Saliba
FIRST REPORT
Introduction
The Committee on Recognition/Non-recognition of States was established by the
Executive Council in May, 2009, with the purpose oI examining 'whether contemporary
issues of secession, break-up of states and the creation of new states have changed inter-
national law and policy with respect to recognition. The Committee frst met at the 2010
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
ProIessor Aziz TuIf Saliba (Brazil): Rapporteur
Professor Nisuke Ando (Japan)
Alternate: Professor Shotaro Hamamoto
ProIessor Christopher Borgen (USA)
Dr Jean dAspremont (Belgium)
Alternate: Dr Eric de Brabandere
(Belgium)
ProIessor Matthew Happold (UK)
Mr Daud Ilyas (UK)
Dr Khoti Kamanga (East Africa)
Mr Petr Kremnev (Russia)
Nicholas Levrat (Switzerland)
Rick Liew (Australia)
Professor Monica Lugato (Italy)
ProIessor Margaret McGuiness (USA)
Professor Stefan Oeter (Germany)
Dr Alison Pert (Australia)
Alternate: Stephen Tully
Dr Olivier Ribbelink (Netherlands)
Dr Yael Ronen (Israel)
ProIessor Brad Roth (USA)
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 DAspremont), France (David Ruzi), Italy (Monica Lugato and Enrico
Milani), Israel (Yal Ronen), Japan (Nisuke Ando and Shotaro Hamamoto), Russia (Petr
Kremnev), South AIrica (Werner Scholtz), Tanzania (Khoti Kamanga), United Kingdom
(Matthew Happold and Daud Ilyas), United States (Christopher Borgen, Margaret
McGuinness and Brad Roth). Additional research was conducted on Algeria, Argentina,
and Brazil
1
.
Where possible, members reIerred to oIfcial documents oI the State on which they
were reporting.
Only selected excerpts from the replies received have been transcribed below, as re-
ports must conform to a page limit
2
. However, the Committee will soon post the full
responses on SSRN (Social Science Research Network)
3
.
1. Constitutive or Declarative Character of Recognition
When 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?
These questions are intertwined and have received conficting answers over the years.
For instance, Oppenheim stated that 'Ior every State that is not already, but wants to be,
a member [of the family of nations], recognition is therefore necessary. A State is and
becomes an International Person through recognition only and exclusively.
4
Oppenheim, however, also admitted that 'many writers do not agree with this
opinion.
5
Indeed, early writers had expressed the opposite view. The notion of sovereignty as
suprema potestas superiorem non recognoscens was incompatible with the concept of
a Ioreign recognition, as illustrated by PuIendorI, : '. he |the king| owes his dignity
and empire to no foreign power, so he need not obtain the consent and approval of other
kings or states, in order to the assuming the actions or character proper to his oIfce (.)
a Foreigner could not dispute his Right to the Government, without a maniIest injury.
6
1
The rappourter expresses his gratitude to his research assistants Maria Clara Cardoso, Tain
Garcia Maia, Priscila Viola Foureaux and Alice Fabris for their research on the practices of Algeria,
Argentina, Brasil and France.
2
See ILAs Director of Studies Circular Note ILA 2012 Preparations.
3
< www.ssrn.com>.
4
OPPENHEIM, Lassa. International Law: a treatise. New York and Bombay: Longmans, Green &
Co., 1905. Vol. 1 (Peace), p. 109.
5
OPPENHEIM, International Law, p. 109.
6
PUFENDORF, Samuel. Of Law and Nature. 4
th
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,
in the positivists view, derives Irom State consent. A 'new State could exist beIore
recognition, but it could not have rights in the international arena before its acceptance
by the 'Iamily oI nations. Oppenheim explains that 'International Law does not say that
a State is not in existence as long as it is not recognized, but it takes no notice of it before
its recognition.
8
Therefore, the positivist approach saw recognition as the admission to a select club, a
'juristic baptism
9
. Recognition created international personality, which meant creating
a State Irom a legal standpoint. BeIore recognition, the State was 'a matter oI Iact, not oI
law.
10
This possible division between the 'Iact oI statehood and the 'legality oI state-
hood is emblematic of the debate over whether recognition is constitutive or declaratory.
The Constitutive Theorys 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
International Community and to deprive newer entities oI entry into 'the Iamily oI na-
tions. Furthermore, it seems to be inconsistent with the principle oI sovereign equality
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
diIfcult circumstances oI Iact and law, there must be someone to perform that task. In the
absence of a preferable solution, such as the setting up of an impartial international organ
to perIorm the Iunction, the latter must be Iulflled by States already existing. The valid
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 statehood
13
. 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
Such willingness 'does not constitute any concrete legal obligation
15
, although
it may have relevant economic, social and political consequences.
16
7
CRAWFORD, James. The creation of States in International. 2
nd
edition. OxIord: OUP, 2006,
p. 13.
8
OPPENHEIM, International Law, p. 110.
9
CRAWFORD, The creation , p. 16.
10
11
CASSESE, Antonio. International Law. OxIord: OUP, 2001.
12
LAUTERPACHT, Recognition oI States in International Law. The Yale Law Journal, vol. 53,
number 3, pp. 385458, at p. 437.
13
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 Pblico. Tomo II. Montevideo: FCU, 1995, pp. 4549; FAUCHILLE, Paul.
Beginning with de Visscher
17
, some writers adopted a combined version of the
Declaratory and Constitutive views. In his reply to the Committee, dAspremont ob-
served that, in accordance with this third approach, 'recognition is said to be neither
declaratory nor constitutive. It simply is a political act which has signifcant legal eIIects
in the international and domestic legal orders. This approach is premised on the idea
that the dichotomy between declaratory and constitutive is insuIfcient to explain the
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
domestic law).
18
The frst question posed to members oI the Committee regarded the current relevance
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
'The dichotomy is largely reIerred to, but its importance is possibly overemphasized, or
altogether misleading,
19
whereas one British report noted that 'the diIIerences between
Trait de Droit International Public. 8e d. Tome 1er. Premire Partie. Paris: Rousseau & Cie.
1922, p. 307; ; SEARA VAZQUEZ, Modesto. Derecho Internacional Pblico. Mxico, DF: Porra,
2009, p. 103; BRIERLY, J.L. The Law of Nations. Sixth edition, edited by Humphrey Waldock.
OxIord: OUP, 1936, p. 139. Brierly stated that 'The better view is that the granting oI recognition
to a new state is not a constitutive but a declaratory act; it does not bring into legal existence
a state which did not exist beIore. It is also relevant noticing that, in 1936, the Institut de Droit
International adopted a resolution on the 'Recognition oI new States and new governments. The
resolution expressly opted Ior a declaratory view oI State recognition, as indicated in its frst article
(italics added): 'La reconnaissance dùn Etat nouveau est làcte libre par lequel un ou plusieurs Etats
constatent lexistence sur un territoire dtermin dune socit humaine politiquement organise,
indpendante de tout autre Etat existant, capable dobserver les prescriptions du droit international
et manifestent en consquence leur volont de la considrer comme membre de la Communaut
internationale. La reconnaissance a un effet dclaratif. Lexistence de lEtat nouveau avec tous les
effets juridiques qui sattachent cette existence nest pas affecte par le refus de reconnaissance
dùn ou plusieurs Etats. INSTITUT DE DROIT INTERNATIONAL. La reconnaissance des
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
International Law (1976) 48 (1) pp. 93182, p.105106: 'It is sometimes suggested that the great
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
oI recognition, although the qualifcations already made suggest that the diIIerences between the
declaratory and constitutive schools are less in practice than might have been expected. See also
CRAWFORD, The creation , pp. 2627.
18
DASPREMONT, Jean. DAspremont 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. dAspremont,
LEtat non dmocratique en droit international. Etude critique du droit international positif et de la
pratique contemporaine, Paris, Pedone 2008.
19
LUGATO, Monica and MILANI, Enrico. Italian report.
declaratory and constitutive doctrines may well be less stark in practice than is often
supposed.
20
The Russian reply brought the strongest objection to the relevance of the Constitutive/
Declaratory debate: 'Constitutive and declarative theories oI recognition seem to have
lost their practical signifcance and in its pure Iorm are unlikely to be useIul. Probably,
it is more appropriate to use these theories in a scientifc and historical aspect, or as
purely doctrinal concepts, but not as a refection oI the practice oI modern international
relations.
21
The Belgian response noted that whereas English legal literature has kept reason-
ing along the lines oI the declaratory and constitutive doctrines, a signifcant number oI
French authors have backed away from this dichotomy, embracing the third approach
mentioned above.
Responses from Australia
22
, Austria
23
, France
24
, Italy
25
, South Africa
26
and the United
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
'recognition does not have a constitutive eIIect.
28
The U.S. reply expressed doubts whether U.S. practice can be said to refect either
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
LIEW, Rick; PERT, Alison; TULLY, Stephen. Australian report. In the Australian response it
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
on recognition.
23
HAFNER, Gerhard. Austrian report. The Austrian reply stated that: 'Austria proceeds Irom the
view that recognition is merely of declaratory nature. Thus, Austrian diplomatic practice consistently
shows that recognition oI another state is only declaratory and does not have constitutive eIIect.
Later in the report, HaIner explained that '(.) AlIred Verdross, whose view has become established
legal doctrine in Austria, considered that recognition was declaratory, but could have constitutive
eIIects iI accompanied by Iurther measures such as the establishment oI diplomatic relations. He
cited as a source Alfred Verdross, Vlkerrecht, (1964) 246.
24
RUZIE, David. French report. Ruzi stated that 'the dichotomy exists but on State recognition (on
the contrary oI custom recognition) the declaratory doctrine prevails.
25
LUGATO, Monica and MILANI, Enrico. Italian report.
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
support among scholars and states.
27
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
ConIerence on Yugoslavia also stated that 'the existence or disappearance oI the State is a question
oI Iact; that the eIIects oI recognition by other States are purely declaratory (Opinion No. 1, 31
International Legal Materials, 1495).
hand, it notes that the Restatement of the Law (Third) of the Foreign Relations Law of the
United States explains, inter alia, that |a| state is not required to accord Iormal recogni-
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
by then U.S. Secretary oI State James Baker in September 1991, regarding criteria Ior
recognition of new states in Central and Eastern Europe that seemed to include further
criteria beyond those of Montevideo.
30
The U.S. national reporters stated that such variety oI practice 'refects political pre-
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
criteria. This raises questions about whether U.S. practice can be said to refect straight-
Iorwardly either the declaratory or the constitutive view.
31
The Japanese
32
and the South African
33
responses noted that neither legal doctrine is
capable of explaining state practice satisfactorily.
29
Though not an oIfcial U.S. government document, the Restatement is meant to be an accurate
distillation of the then-current state of the law.
30
In his speech, the Secretary oI State conditioned recognition on 'fve internationally accepted
principles: (a) determination oI the Iuture in peaceIul and democratic processes; (b) respect Ior all
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; Bakers 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
this Administration, toward the Soviet Iuture will be guided by the Iollowing fve principles.
First, the Iuture oI the Soviet Union is Ior the Soviet peoples to determine themselves, peaceIully
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
In BORGEN, MCGUINNESS and ROTH. U.S. report.
32
'In my view, neither doctrine alone can explain state practice satisIactorily. Declaratory doctrine,
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.
On the other hand, although Turkey recognized the Republic oI North Cyprus, the United Nations
decided that Member States should not recognize it, as a result of which the Turkish recognition has
Iailed to create a new State. Extracted Irom ANDO, Nisuke. Japanese report.
33
' The discourse concerning the diIIerent theories is clearly oI a very complex nature. In theory,
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
translate into upholding a 'pure declaratory doctrine. It may even be argued that in some
instances, though the practice was denominated 'declaratory, its description was closer
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 recognition
34
. Different criteria have been suggested
Ior statehood, but no defnition has been generally agreed upon yet.
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
Iollowing qualifcations: (a) permanent population; (b) defned territory; (c) government;
and (d) capacity to enter into relations with other States.
36
Despite the fact that only sixteen States
37
have ratifed the Montevideo Convention
(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 Australia
38
,
Austria
39
, Japan, South Africa
40
, Tanzania
41
and the United Kingdom
42
none of which is
accommodated by one oI the relevant legal theories. Extracted Irom SCHOLTZ, Werner. South
African Report.
34
35
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,
Nicaragua, Panama, United States and Venezuela. Further inIormation about the Montevido treaty
can be found at < http://www.oas.org/juridico/english/sigs/a-40.html>. Access on March, 2nd, 2011.
38
'The Australian government requires satisIaction oI the Iollowing criteria: a permanent
population, a defned territory, a capacity Ior eIIective government and a capacity to have relations
with other nation-states in this note reIerred to Ior convenience as the Montevideo criteria (.).
39
'Certain statehood criteria are unanimously required in the practice oI states. They include a
permanent population, a defned territory, a government and the capacity to enter into relations with
the other states and are expressed in Article 1 of the Montevideo Convention. Austrian diplomatic
practice has invoked these criteria in the context oI statehood.
40
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
only fIteen States and the United States are parties to this Convention, it is generally accepted as
refecting the requirements oI Statehood under customary international law. See DUGARD, John.
BETHLEHEM, D. L., PLESSIS, Max Du, and KATZ Anton. International Law: A South
African Perspective. Lansdowne, South Africa: Juta, 2007, p. 84.
41
'AIrican policy makers are no doubt Iamiliar with the criteria oI statehood as set out in the
Montevideo Convention, 1933, that is to say, permanent population, defned territory, government,
and fnally, the capacity to enter into relations with other States. Extracted Irom KAMANGA,
Khoti. Tanzanian report.
42
Happold observes in his report ' The criteria which the UK Government purports to apply Ior
the recognition of States were set out in a Written Answer dated 16 November 1989 by the then
Parliamentary Under-Secretary oI State Ior Foreign and Commonwealth AIIairs, and are that: 'It
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

or the United States
43
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. DAspremont, in his reply to the Committee, referred to the
Montevideo criterion as 'Montevideo illusion and stated that he is strongly against 'the
idea that international law authoritatively defnes what Statehood is. In his book on rec-
ognition, Thomas Grant inIorms that some have 'argued that the Convention is oI limited
law-making force and therefore, regardless of the quality of its content, has little norma-
tive reach.
45
Additionally, the Montevideo Convention has been called 'over-inclusive,
Ior authors who believe it contains elements which are not 'essential to statehood.
46
'In
short, writes Grant, ' there has arisen a body oI scholarly opinion that calls into question
should have, and seem likely to continue to have, a clearly defned territory with a population, a
Government who are themselves able to exercise effective control of that territory, and independence
in their external relations. Other Iactors, including some United Nations resolutions, may also be
relevant. It can be seen that the frst sentence oI the answer largely reproduces the Montevideo
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-
recognition. However, the UK has always been careIul to note that: 'Each case oI the recognition oI
a state is considered on its own merits.
43
As noted by the national reporters Borgen, McGuinness and Roth in the US response 'Section
201 oI the Restatement (Third) oI Foreign Relations Law states: Under international law, a state
is an entity that has a defned territory and a permanent population, under the control oI its own
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
Restatement indicate, largely refects the declaratory view: This section (Section 201) tends towards
the declaratory view, but the practical differences between the [declaratory and constitutive] have
grown smaller. Even Ior the declaratory theory, whether an entity satisfes the requirements oI
statehood is, as a practical matter, determined by other states.` In BORGEN, MCGUINNESS and
ROTH. U.S. report.
44
See, Ior instance, the Italian reply ' State practice shows adherence to certain classic criteria
(effective and independent government, territory, population, will to be considered a State). The
demand Ior territorial stability has also led to a clear aIfrmation oI the principle oI uti possidetis in
diIIerent contexts (.); the Japanese report transcribes an oIfcial document which brings as criteria
' eIIective political authority over the population living in a certain territory. The Israeli report, by
ProIessor RONEN, points to an oIfcial document, which, by its turn, reIers to the 'The traditional
criteria Ior statehood. The criteria are contained in the document are 'EIIective and independent
governmental control, the possession oI defned territory, the capacity to Ireely engage in Ioreign
relations and eIIective control over a permanent population. See ' http://www.mfa.gov.il/MFA/
PeaceProcess/GuidetothePeaceProcess/AUnilateralPalestinianDeclarationoIStateho
od-.htm>
45
GRANT, T. Defning Statehood: The Montevideo Convention and its Discontents. Columbia
Journal of Transnational Law, v. 37, p. 403457, 1998, p. 434.
46
past reliance on the Montevideo Convention as an authoritative pronouncement on the
characteristics oI the state.
47
The most criticized of the four elements of the Montevideo formula is probably the
'capacity to enter into relations with other States.
48
There are different grounds for ob-
jection. It may be said that such capacity 'is, in eIIect, a consequence, rather than a
condition oI statehood.
49
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-
inces
51
, lnder or 'state members oI a Iederation, may also conclude treaties.
52
Whereas some believe that the Montevideo Iormula is 'over-inclusive, others have
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
recognize only entities which Iulfll certain conditions. There is relevant international
practice in this regard.
Besides the practice oI the United States mentioned above
55
, there are other ex-
amples oI States demanding the Iulfllment oI certain conditions Ior recognition. On
47
48
ROTH oIIers the Iollowing explanation Ior such element: 'The reIerence in Article 1 to 'the
capacity to enter into relations with other states thus appears to have been intended, not as
conditioning statehood on the entitys 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
in external aIIairs (e.g.,'associated statehood arrangements, such as the relationship oI the Cook
Islands to New Zealand). In ROTH, B. Secession, Coups and the International Rule oI Law:
Assessing the Decline of the Effective Control Doctrine. Melbourne Journal of International Law,
v. 11, p. 147, 2010, at p. 7.
49
DETTER DELUPIS, Ingrid. The international legal order . Dartmouth: Aldershot, US, 1994, p.
43. James CrawIord observes that 'Capacity to enter into relations with States at the international
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
but depends on the situation oI particular States. In CRAWFORD, James. The Creation p. 61.
50
Journal of Transnational Law, v. 37, p. 403457, 1998, p. 435. Grant argues that 'Even iI capacity
were unique to states, the better view seems to be that, though capacity results from statehood, it is
not an element in a state`s creation.
51
COT Charles-Emmanuel. La rception du droit international en droit canadien. Supreme Court
Law Review, v. 52, pp. 483567, 2010.
52
53
For a discussion, see GRANT, Thomas D. The recogntion of states. Westport (US): Praeger, 1999,
esp. chapter 4.
54
See GRANT, Thomas D. The recogntion of states. Westport (US): Praeger, 1999, p. 83. The
American reporters aptly called the criteria of recognition preconditions to recognition of
statehood.
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
Charter oI the United Nations, to the rule oI law, democracy and human rights, guarantees
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
Nevertheless, Grant aIfrms
that 'proIessed commitment to the December 16 Guidelines did not (.) translate into
practice uniIormly.
57
The Australian report mentions, as 'implied criteria Ior recognition oI States, non-
violation of International Law
58
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
Soviet Union` (16 December 1991)
In compliance with the European Councils request, Ministers have assessed developments in
Eastern Europe and the Soviet Union with a view to elaborating an approach regarding relations
with new states.
In this connection they have adopted the following guidelines on the formal recognition of new
states in Eastern Europe and in the Soviet Union:
The Community and its Member States confrm their attachment to the principles oI the Helsinki
Final Act and the Charter oI Paris, in particular the principle oI selI-determination. They aIfrm their
readiness to recognize, subject to the normal standards of international practice and the political
realities in each case, those new States which, following the historic changes in the region, have
constituted themselves on a democratic basis, have accepted the appropriate international obligations
and have committed themselves in good faith to a peaceful process and to negotiations.
Therefore, they adopt a common position on the process of recognition of these new States, which
requires:
respect Ior the provisions oI the Charter oI the United Nations and the commitments subscribed
to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of
law, democracy and human rights
guarantees 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
Member States and to the establishment oI diplomatic relations. It could be laid down in agreements.
57
GRANT, The Recognition , p. 95.
58
The Australian report mentions the Iollow examples: ' On occasion Australia has reIused to
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
since the Unilateral Declaration oI Independence in Rhodesia Australia has regarded the Rhodesian
Government as an illegal regime and therefore of no international standing.Source: Minister
the latter, it notes, however, that Australia 'has recognised Kosovo notwithstanding the
lack oI consent Irom Serbia.
59
For Israel, it 'is illegal (and invalid) to recognize statehood that Iollows a violation oI
a legal commitment. In addition, Israel holds that as a matter of policy, recognition should
Iollow consensual rather than unilateral processes.
60
Japan, in addition to demanding ' eIIective political authority over the population
living in a certain territory, also 'takes into account whether the entity has the will and
the capacity to observe international law.
61
3. Effectiveness
As 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
Iormula and some other analogous conceptions oI statehood were 'essentially based on
the principle oI eIIectiveness
62
.
With the caveat that there are competing views of what effectiveness means, it may be
understood to as the 'eIIective control oI an independent government over a 'permanent
population and a 'defned territory.
63
representing the Minister for Foreign Affairs, statement in the Senate 7 October 1976, in 7 Australian
Yearbook of International Law (197677) p.433.
Similarly, Australia refused to recognise the South African Bantustans, based on Australias
opposition to apartheid as a philosophy and on Security Council resolutions calling on states not
to recognise them: The Australian Governments 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
4 December 1981 oI the so-called independence oI the Ciskei the United Nations Security Council
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, 25 March 1992 p.1157.
59
LIEW, Rick; PERT, Alison; TULLY, Stephen. Australian report.
60
RONEN, Yael. Israeli report.
61
HAMAMOTO, Shotaro. Second Japanese report. The report brings the following extract of
an oIfcial document: 'Mr Junichiro Koizumi, Prime Minister, Written Answer No. 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]: Generally speaking, in order for
an entity to be recognized as a State, international law requires the entity to Iulfll conditions to be a
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
law. |.| On these bases, we have not recognized North Korea as a State.` Hamamoto observes that
'The frst sentence oI the answer quoted above suggests that the general international practice as
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.
Japan thus considers that States are Iree to lay down additional criteria Ior recognition oI States.
62
CRAWFORD, The creation ., p. 97. See also CANADO TRINDADE, Antnio Augusto.
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.203219. 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. 147, 2010, at p. 7.
Orakhelashvili presents a similar notion: 'As part oI the Iactual criteria oI statehood, effectivit refers
The notion that 'a State is a matter oI Iact ensues Irom an 'equation oI eIIectiveness
with statehood.
64
In other words, the exercise of state authority over a certain territory
and population would mean 'eIIectiveness and necessarily amount to existence oI a
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
Such view is expressed, Ior instance, by Canado Trindade: 'The precon-
ditions for statehood in International Law were well captured by the 1933 Montevideo
Convention on the Rights and Duties oI States, comprising a population, a defned terri-
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 so as to discard any illegal use oI Iorce also in the present domain.
68
to the eIIective exercise oI state authority over the relevant territory. In: ORAKHELASHVILI,
Alexander. Statehood, Recognition and the United Nations System: A Unilateral Declaration oI
Independence in Kosovo. Max-Planck Yearbook of United Nations Law, vol. 12, 144, 2008, at p. 9.
64
65
'As independent criteria Ior statehood, permanent population` and defned territory` merely
beg the question, since virtually all statehood claims, whether or not accepted in the international
legal order, characteristically include suIfciently precise claims on behalI oI a permanent population
to a defned territory. What matters in the Montevideo Convention context is that the permanent
population` and defned territory` be united by some common and distinguishing pattern oI eIIective
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.
However, such a standard Ialls Iar short oI capturing the essence oI traditional recognition practice.
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. 147, 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. 147, 2010, at p. 7.
67
See CRAWFORD, The creation , p. 97. Note, also, that Vladimir-Djuro Degan, in his course
delivered at the Hague Academy oI International Law took the view that the 'State is a question oI
Iact: 'La doctrine du droit international est a juste titre unanime pour reconnatre que la cration
dun Etat est une question de fait, chappant aux rgles ordinaires du droit. Ce nest donc pas en
principe un processus juridique rglement, ni par le droit interne de lEtat prdcesseur, ni par le
droit international. In DEGAN, Vladimir-Djuro. Cration et disparition de lEtat ( la lumire du
dmembrement de trois fdrations multiethniques en Europe). Recueil des Cours, v. 279 (2007).
Martinus Nijhoff Publishers, p. 197374, at p. 227. Available at <http://www.nijhoffonline.nl>. Last
visited on August, 15th, 2011. However, he later conceeded that such 'matter oI Iact could be
legally limited: 'Acte discrtionnaire et politique, la reconnaissance peut quand mme tre limite
par certaines obligations juridiques ou par certains engagements politiques. Ibidem, p. 249.
68
In CANADO TRINDADE, Antnio Augusto. States As Subjects OI International Law and
The Expansion Of International Legal Personality. International Law for Humankind. Recueil des
4. The Question of Recognition of Abkhazia, Kosovo, North Korea, Palestine,
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
they were reporting. The table below summarizes the fndings oI the Committee. Cases
where it was not clear whether an entity was recognized were not listed.
69
STATE ENTITIES RECOGNITION AS A
STATE
Algeria Kosovo No.
Palestine Yes
70
South Sudan Yes
Argentina Abkhazia No
71
Kosovo No
Palestine Yes
Australia
72
Abkhazia No
73
Kosovo Yes
Cours, v. 316 (2006). Martinus Nijhoff Publishers, pp.203219, at p. 205. Available at <http://www.
nijhoffonline.nl/>. Last visited on August, 15th, 2011.
69
Though national reporters have transcribed many oIfcial statements and cited diIIerent documents
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
The Iollowing statement provides some understanding oI the Algerian view on the 'In this context
[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
Authority and President AraIat`s legitimacy must be respected. Available at: http://www.mae.dz/
ma_fr/stories.php?story=11/07/04/9992569
71
Argentina mentions that Abkhazias 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
by Australia was extracted Irom LIEW, Rick; PERT, Alison; TULLY, Stephen. Australian report.
73
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:
'Members would be aware that overnight the Russian President, President Medvedev, indicated
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
Australias longstanding position. Australia recognizes the territorial sovereignty of Georgia over the
provinces oI South Ossetia and Abkhazia. According to the Australian national reporters, the source
is: Commonwealth of Australia, House of Representatives, Parliamentary Debates, 27 August 2008,
p. 6385. This inIormation appears in extracted Irom LIEW, Rick; PERT, Alison; TULLY, Stephen.
Australian report.
North Korea Yes
Palestine No
South Sudan Yes
Western Sahara No
74
Austria
75
Kosovo Yes
North Korea Yes
76
Palestine Partial subject of
international law
77
South Sudan Yes
78
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
Foreign AIIairs: 'The Western Sahara was admitted to the OAU in February 1982 but its membership
is disputed by Morocco and some other states. Australia does not recognize the independent State of
the Western Sahara (the so-called Sahrawi Arab Democratic Republic). According to the Australian
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
LIEW, Rick; PERT, Alison; TULLY, Stephen. Australian report.
75
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
seen in the circumstance that Austria has adopted the role oI an honest broker` Iollowing UN SC Res
1871 (2009) on the situation in Western Somalia, which inter alia welcomed the parties agreement
to hold small, inIormal talks in preparation Ior a fIth round oI negotiations. Having provided good
oIfces to the parties, Austria explained that |d|uring the inIormal talks Austria Iocused deliberately
on its role as honest broker and bridge-builder and created an appropriate environment to relaunch
the deadlocked UN negotiation process Ior a peaceIul solution oI the confict.` He also notes that
'In the case oI Abkhazia, Austria has not made any statements regarding recognition. Extracted
from HAFNER, Gerhard. Austrian report.
76
At least since the common communiqu about the establishment of diplomatic relations and the
exchange of diplomatic representatives of 1974 it can be assumed that Austria has recognized North
Korea as a state. Extracted Irom HAFNER, Gerhard. Austrian report.
77
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.
On 31 October 2011, the General ConIerence oI UNESCO admitted Palestine as a member state
pursuant to Article II (2) oI the UNESCO Constitution. Austria was among the 107 states that voted
in favour of its admission. Moreover, as of 1 December 2011, the head of the Palestine mission in
Austria was accredited to the Federal President, and not to the Federal Government, as previously.
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 No
Kosovo No
79
North Korea Yes
80
Palestine Yes
81
South Sudan Yes
82
Western Sahara No
83
France Abkhazia No
Kosovo Yes
South Sudan as an independent and sovereign member of the community of States and proposed the
establishment oI diplomatic relations. Extracted Irom HAFNER, Gerhard. Austrian report.
79
In an interview in 2008, the Minister for Foreign Affairs of Brazil, Celso Amorim, explained
Brazil`s position regarding the recognition oI Kosovo: 'The lastest United Nations resolution
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
something which is happening without the participation oI |the| United Nations indeed it ignores
a United Nations resolution and we do not fnd this to be a good precedent. On the other hand,
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.
The case oI Kosovo is complex and Brazil has not recognized Kosovos independence because
it Ieels that the Security Council`s decision has not been completely respected. See BRAZIL,
Brazilian Foreign Policy Handbook: positions adopted by Brazil in 20082009. Brasilia: FUNAG,
2010, pp. 9091.
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: positions adopted by Brazil in 20082009. Brasilia: FUNAG, 2010, p. 112.
81
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:
'As long as the Palestinian problem remains unsolved, none oI the other problems in the region will
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
the problems and questions concerning Israel. In BRAZIL, Brazilian Foreign Policy Handbook:
positions adopted by Brazil in 20082009. Brasilia: FUNAG, 2010, p. 150.
82
On the occasion of the Proclamation of the Republic of Sudan, on 9 July 2011, in Juba, the
Brazilian Government established diplomatic relations with the new country by means oI a 'Joint
Communiqu. The document is available at http://www.itamaraty.gov.br/sala-de-imprensa/notas-
a-imprensa/estabelecimento-de-relacoes-diplomaticas-com-a-republica-do-sudao-do-sul
83
With regard to the situation in Western Sahara, President Lula reiterated the Brazilian support
Ior the decisions oI the United Nations Security Council to reach a negotiated political settlement,
by means of dialogue between the parties involved in the dispute. Joint Communiqu of the visit
to Brazil by the King of Morocco, Mohammed VI Brasilia, November 26, 2004. In BRAZIL,
Brazilian Foreign Policy Handbook. Brasilia: FUNAG, 2008, p. 178.
North Korea No
84
Palestine No
South Sudan Yes
Western Sahara Yes
Israel
85
Kosovo No
86
Palestine No
87
South Sudan Yes
88
Italy
89
Abkhazia No
90
Kosovo Yes
91
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 Peoples Republic of Korea established in France since 1968. See <
http://www.diplomatie.gouv.Ir/Ir/enjeux-internationaux/deIense-et-securite/crises-et-confits/coree-
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
Israels 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
the Iuture, in the next Iew years, you will achieve a really comprehensive and peaceIul solution.
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
report. For the oIfcial position oI Israel, see http://www.mIa.gov.il/MFA/PeaceProcess/
GuidetothePeaceProcess/AUnilateralPalestinianDeclarationoIStatehood-.htm~.
88
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
the international community. Israel was among the frst countries to recognize South Sudan, less
than 24 hours after it was declared I hope that everyone will see that this is the way to establish a
state through direct negotiations and not via unilateral measures. Available at http://www.mIa.
gov.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
justifcation in international law, apparently in contrast with the territorial integrity oI Georgia.
In the debate held at the Security Council on 28 August 2008 (UN doc. S/PV.5969) the Italian
representative held that the Russian Governments decision [to recognise Abkhazia] has no basis in
international law and that Georgias territorial integrity is an uncontestable principle, as numerous
United Nations resolutions have underlined.` Extracted Irom LUGATO, Monica; MILANI, Enrico.
Italian report.
91
'Italy recognized Kosovo on 21 February 2008 in linea con le Conclusioni del Consiglio del 18
febbraio scorso (transl.: in line with the Councils conclusions of 18 February) declaring itself
ready to entertain diplomatic relations. Extracted Irom LUGATO, Monica; MILANI, Enrico.
Italian report.
North Korea Yes
92
Palestine No
93
South Sudan Yes
Western Sahara No
94
Japan
95
Abkhazia No
96
92
In 2000 Italy was the frst G-7 country to establish diplomatic relations with Pyongyang. Strictly
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
will be based on international law, as refected respectively in the Vienna Convention on Diplomatic
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 Peoples
Democratic Republic of Korea are committed to promoting them on the basis of the principles of
mutual respect, sovereignty, equality, as enshrined in the Charter oI the United Nations.` Extracted
Irom LUGATO, Monica; MILANI, Enrico. Italian report
93
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
substitute Ior that.` Extracted Irom LUGATO, Monica; MILANI, Enrico. Italian report.
94
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
Deputies) adopted resolution 1-00159, whereby it called on the Government (transl.: 'to recognise
diplomatic status to the POLISARIO delegation in Italy, similarly to what has been done in the
past with other national liberation movements, which had been recognised at the United Nations
as oIfcial interlocutors in peace processes; to undertake all possible steps to reach a solution to the
confict through Iull acceptance by the parties oI the principle oI selI-determination oI the Saharawi
people, without presupposing in any way any sovereign rights oI Morocco over Western Sahara).
The resolution does not go as far as requesting the Italian Government to recognise the SADR
and, in any case, it has not induced any action by the Italian executive. Extracted Irom LUGATO,
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 Georgias
territorial integrity. Once of the documents cited in the Japanese report is the Statement by Mr
Masahiko Koumura, Minister for Foreign Affairs, on Russias Recognition of the Independence of
South Ossetia and Abkhazia, August 27, 2008. <http://www.mofa.go.jp/announce/announce/2008/8/
11829581040.html~, which reads as Iollows: '1. Japan has supported consistently a peaceIul resolu-
tion of this issue based on Georgias territorial integrity. It is regrettable that while international
efforts are in progress for a peaceful resolution of the issue, yesterday Russia unilaterally recognized
Kosovo Yes
97
North Korea No
98
Palestine No
99
South Sudan Yes
100
Western Sahara No
Russia
101
Abkhazia Yes
Kosovo No
North Korea Yes
102
Palestine No
103
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
six-principle ceasefre agreement. Japan strongly hopes that Russia will take responsible actions as
a G8 member.
97
The national reporters from Japan noted that though Japan explicitly recognized Kosovo, it was
'unIortunately diIfcult to fnd an oIfcial document or statement that would indicate the reasons
or considerations that lead Japan to recognize Kosovo as an independent State. The Japanese
report cites the Iollowing document (among others): 'On March 18, Japan recognized the Republic
of Kosovo as an independent state. As the Government of the Republic of Kosovo has made its
intention clear that it will run the country pursuant to the 'Comprehensive Proposal Ior the Kosovo
Status Settlement made by the U.N. Special Envoy, Japan expects that Kosovo`s independence
will contribute to the long-lasting stability oI the region. Available at: http://www.moIa.go.jp/
announce/announce/2008/3/0318.html>
98
As indicated in documents cited in the Supplementary report from Japan, the Japanese government
regards the DPRK as an 'unrecognized State. (see ChieI Cabinet Secretary, Committee on Judicial
AIIairs, House oI Councillors, June 2, 1966); whereas Japan considers that North Korea Iulflls
all the conditions of statehood, it repeatedly emphasizes that the DPRK has not been recognized
by Japan as a State. As noted above, the main oIfcial argument against the recognition oI DPRK
is that 'Japan also takes into account whether the entity has the will and the capacity to observe
international law. See the statement by Junichiro Koizumi, Prime Minister, Written Answer No.
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
It is stated, in the Japanese Supplementary report, that ' Japan is in Iavor oI the independence oI
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
Japanese Government has also recognized the Palestine 'nationality since 2007.
100
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
,The USSR recognized Democratic People`s Republic oI Korea (North Korea) and
established diplomatic relations with it as early as 1948. Russian Federation established diplomatic
relations with Republic oI Korea (South Korea) in 1991. Both Korean states are members oI UN
since 17.09.1991. Extracted Irom KREMNEV, Petr. Russian report.
103
Russia recognizes Palestine as the nation which may realize its right to self-determination but
not as sovereign and independent state. Extracted Irom KREMNEV, Petr. Russian report.
South Sudan Yes
Western Sahara No
104
South Africa
105
Abkhazia No
Palestine Yes
South Sudan Yes
Western Sahara Yes
Tanzania
106
Palestine No
107
South Sudan Yes
108
United Kingdom
109
Abkhazia (and South Ossetia) No
110
Kosovo Yes
111
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
Organisation (PLO) under Yassir AraIat, and subsequently, the Palestinian Authority (PA). 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
took the solemn oath oI oIfce. In KAMANGA, Khoti. Tanzanian report.
109
All the information regarding recognition or non recognition of Abkhazia, Kosovo, Palestine,
South Sudan and Western Sahara by the United Kingdom were extracted Irom the reports oI Mathew
HAPPOLD and Daud ILYAS.
110
,The United Kingdom does not recognize these two entities. In a written statement to Parliament
in February 2009 a Foreign and Commonwealth OIfce Minister oI State said: '.Russia`s use oI
disproportionate force and its violation of Georgias sovereignty and territorial integrity had no
justifcation. Russia`s actions were in defance oI successive United Nations Security Council
ResolutionsThe general criteria we apply for recognition of an independent state remain as
described in the written answer dated 16 November 1989 by then Parliamentary Under-Secretary oI
State for Foreign and Commonwealth Affairs. We consider that South Ossetia and Abkhazia have
not met these criteria.` Extracted Irom ILYAS, Daud. British report.
111
The UK recognized Kosovo as a State the day aIter Kosovo`s declaration oI independence on 17
February 2008.
An annex to the statement oI the UK representative in the Security Council debate on the
declaration of independence by Kosovo on 18 February 2008 explained that:
'Kosovo is a special case as a consequence oI the violent and non-consensual break-up oI
Yugoslavia, and in particular the humanitarian crisis which led to the confict in 1999, the long
period oI international administration, and the fnal status process called Ior in UNSCR 1244.
Recognition of its independence, which is a matter for individual States to decide, is not therefore a
precedent Ior any other situation. Extracted Irom HAPPOLD, Matthew. British report. The national
reporter cited the following source: Annex to statement in the Security Council, 18 February 2008,
Kosovo: Legal Issues`, reproduced at UKMIL |2008| 79 BYIL 607.
Palestine No
112
South Sudan Yes
113
Western Sahara No
114
United States
115
Abkhazia No
116
112
The UK did not recognize Palestine as a State Iollowing the Palestinian National Council`s
proclamation of the State of Palestine on 15 November 1988. Responding to the Palestinian
application Ior membership oI the United Nations, on 9 November 2011 the UK Foreign Secretary
made the following statement to the House of Commons:
'The UK judges that the Palestinian Authority largely Iulfls criteria Ior UN membership, including
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
to negotiations through the Quartet process and the success oI those negotiations. For these reasons
in common with France and in consultation with our European partners, the United Kingdom will
abstain on any vote on Iull Palestinian membership oI the UN. We reserve the right to recognize
a Palestinian state bilaterally at a moment of our choosing and when it can best help bring about
peace. Extracted Irom HAPPOLD, Matthew. British report. The document cited is available at
http://www.Ico.gov.uk/en/news/latest-news/?viewPressS&id689368882~.
113
,The United Kingdom recognises the new Republic oI South Sudan. The Secretary oI State
Ior Foreign and Commonwealth AIIairs represented the UK at the Independence Ceremony in the
capital Juba on 9 July 2011. In his speech at the ceremony he said: '.In Britain we are proud to
be among the frst nations in the world to recognise the new Republic oI South Sudan.We look
Iorward to South Sudan taking its place as a Iull member oI the United Nations. The British
ambassador to South Sudan took up his appointment in Juba on 9 July Extracted Irom ILYAS,
Daud. British report.
114
'The United Kingdom regards the political status oI Western Sahara as undetermined. It
recognises neither the Saharan Arab Democratic Republic as a State, nor Moroccan sovereignty
over Western Sahara. Extracted Irom HAPPOLD, Matthew. British report. The national reporter
cited the Iollowing source: HC Debs., vol. 313, col. 339, 3 June 1998; reproduced in UKMIL |1998|
69 BYIL 478.
115
InIormation on the recognition oI Abkhazia, Kosovo, Palestine and South Sudan by the United
States was extracted Irom BORGEN, MCGUINNESS and ROTH. U.S. report.
116
The following statement made by the Charg dAffaires oI the United States Mission to the
OSCE, Kyle Scott, on 4, 2009, in the wake of Russias recognition of South Ossetia and Abkhazia as
states cited in the U.S. response, provides a brieI summary oI the U.S. position: 'Clearly, however,
the United States and Russia have markedly diIIerent views on the situation in Georgia. The United
States stands with most countries in condemning Russia`s recognition oI the 'independence oI
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
remain committed to long-term confict resolution, and seek to establish peace throughout Georgia.
U.S. national reporters cite the Iollowing source: Secretary oI State Condoleezza Rice, Remarks
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).
According to the U.S. national reporters, 'the U.S. has consistently maintained that there is no
framework for assessing the status of South Ossetia and Abkhazia. Consequently, the issue is not so
much their declarations oI independence, but rather Russia`s role as an external actor. In BORGEN,
MCGUINNESS and ROTH. U.S. report.
Kosovo Yes
117
Palestine No
South Sudan Yes
Western Sahara No
An analysis of the grounds for recognition (or non-recognition) reveals that international
legal concepts such as 'territorial integrity and 'selI-determination are Irequently in-
voked as a justifcation Ior recognizing (or not recognizing) a particular entity. While
there is some agreement on the existence and content of such principles, their applica-
tion to Iacts is oIten controversial. As put by a commentator: '|c|haracterizing Iacts is
not always a straightforward exercise; seemingly uncontroversial observations can be
manipulated to support contradictory conclusions.
118
In the case of Kosovo, for instance, Argentina, Brazil and Russia invoked territorial
integrity as a legal argument for not recognizing Kosovo. Russia
119
, citing Pellet, con-
tended that the principle oI territorial integrity has 'acquired the character oI a universal
and peremptory norm. Russia stated that 'a State that respects the rights oI peoples liv-
ing in its territory is protected by the principle by the principle of territorial integrity from
the implementation oI the right to selI-determination in the Iorm oI secession. Russia
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
justifcation Ior intervention in Kosovo in 1991 or in 1999 and that United Nations Security
Council Resolution 1244 had as its objective to saIeguard human rights and to put 'an
end to a situation that had been qualifed as a threat to international peace and security.
In Russias view, such goal was attained and in 2008 when Kosovo declared its inde-
pendence the situation on the ground was 'incomparably better than the one in 1999,
thus precluding any right to secession. Nevertheless, Albania
120
, Estonia
121
, Finland
122
,
117
'The day aIter the declaration oI independence by Kosovo, Secretary oI State Condoleezza
Rice announced that the US recognized Kosovo as an independent state and Iurther explained:
The unusual combination of factors found in the Kosovo situation including the context of
Yugoslavias breakup, the history of ethnic cleansing and crimes against civilians in Kosovo, and
the extended period oI UN administration are not Iound elsewhere and thereIore make Kosovo
a special case. Kosovo cannot be seen as a precedent Ior any other situation in the world today.`
Extracted Irom BORGEN, MCGUINNESS and ROTH. U.S. report
118
GRANT, The Recognition , pp. 121122.
119
RUSSIAN FEDERATION. Written Statement by the Russian Federation presented to the ICJ
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. 7585.
121
Estonia WS, pp. 412; 'Indeed, the principles oI sovereignty and territorial integrity are
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
lead to declaration oI independence and to secession.
122
Finland WS, paras. 518. In 6, Finland noted that 'in post-1945 law, selI-determination
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-
Ireland
123
, Netherlands
124
, Poland
125
, Slovenia
126
and Switzerland
127
, while departing from
a similar theoretical basis
128
, 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-
ternational relations and that 'by cabining what can be said in international relations,
international law defnes norms, shapes expectations, sets the boundaries oI what can be
legitimized and, ultimately, can make it more or less likely that certain state actions will
be successIul.
129
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
See Ireland WS, paras. 2734. In 30, it was stated that 'Ireland agrees with the view expressed
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
possible in the exceptional circumstances discussed below, a right oI secession may arise.
124
Netherlands WS, paras. 3.13.21. In 3.6, Netherlands stated: 'It is submitted that outside the
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 remedium.
125
REPUBLIC OF POLAND, paras. 6.16.16. Among others, Poland made the Iollowing reIerences
to territorial integrity and secession: It shall be underlined once again that the exercise oI the right
to self-determination of Kosovos 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
Serbia Irom the exercise by the Kosovars oI their remedial right to secession
126
Slovenia WS, pp. 12.
127
Switzerland WS, paras. 5797.
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, 20092010, pp. 133. 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,
defning not only which words can be used, but also how they can be combined. He exemplifes that
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 recognition
130
.
Some national reporters referred to recognition as a political matter. For instance,
the Australian response was that 'the act oI recognition is generally expressed to be a
question of policy rather than a legal act per se. One British national reporter stated that
the United Kingdom position 'appears to be that recognition is a political matter, insoIar
as it that decisions whether or not to recognize entities claiming Statehood are at the
individual discretion oI States. The Japanese report adopted the view that 'recognition
is essentially a political matter with perhaps certain legal eIIects.
Other national reporters, however, contended that recognition is political and legal.
It was aIfrmed in the Israeli report that 'Israel holds that recognition may be considered
both as a legal and a political matter. Concerning the legal aspect, it would be illegal (and
invalid) to recognize statehood that Iollows a violation oI a legal commitment. The legal
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,
as it aIfrmed that 'Austrian diplomatic practice proceeds Irom the view that recognition
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
eIIects, rendering recognition also a legal matter.
the expression 'we will use our right to attack you does not ft into the grammar oI international
law or international politics.
130
In this sense, see also the Iollowing statement, by Vladimir-Djuro Degan: Enfn, tout en tant un
acte discrtionnaire et politique la reconnaissance produit des consquences juridiques importantes
dans toutes les circonstances. In DEGAN, Vladimir-Djuro. Cration et disparition de lEtat ( la
lumire du dmembrement de trois fdrations multiethniques en Europe). Recueil des Cours, v. 279
(2007). Martinus Nijhoff Publishers, p. 197374, at p. 250.
131
'Recognition is a term with diIIerent meanings: it seems Iair to say that it is both a legal and a
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
heavily infuenced by political objectives, as when it is directed towards the consolidation oI a still
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,
to 'eIIectivity. The exact understanding by States oI the de Iacto recognition and its consequences,
as a purely political or legal act seems to deserve clarifcation. Extracted Irom LUGATO, Monica
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
aim oI studying 'whether contemporary issues oI secession, break-up oI states and the
creation of new states have changed international law and policy with respect to recogni-
tion. He recalled the meetings oI the Committee in The Hague, Taipei and Vienna.
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
allowing the Rapporteur to comment on the responses, ProIessor Hobe gave the foor to
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
had entailed the diIfcult task oI combining opinions that oIten diIIer or even oppose one
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.
He then gave the foor to ProIessor Saliba.
Professor Tuf Saliba (Brazil) thanked the Chair and the other members of the
Committee Ior attending the previous sessions and coming to the conIerence in Sofa.
He began by saying that the strengths and weaknesses oI the report should refect the
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-
tice. Finding oIfcial documents had not been a straightIorward task as oIten there were
no oIfcial state documents on the recognition oI a particular country.
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 dAspremont,
had reIerred to the criteria as the 'Montevideo illusion and stated that he was strongly
against the idea that international law authoritatively defnes what statehood is. Statehood,
in Dr dAspremonts 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-
ment over a permanent population and a defned territory. The notion that a State was a
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
and opened the foor Ior questions and statements.
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
that could not be closed later on this could legitimise the claims oI Ireedom fghters and
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) then posed two questions. The frst concerned the
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 responded, in relation to the frst question, that recognition was
subjective: it refected one State`s assessment oI whether the criteria were Iulflled. He
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-
fcult) to identiIy an internationally wrongIul act in relation to recognition.
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 worlds 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
be extremely diIfcult to say objectively iI the entity was a State or not.
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-Knzli (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 replied that he had wanted the report to refect national reports as much
as possible. He then showed how the report highlighted the different national approaches
and reports. Additionally, although he had thought it would not be ftting to discuss the
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.
Dr David Bennett (Australia) asked whether there were not two separate problems in-
volved and that stating that one size fts all would be a mistake. First, there was the prob-
lem of political recognition based on likes and dislikes. Secondly, there was the problem
oI 'nuisance people small groups oI people in a State that wished to be independent
in order to avoid paying taxes or Ior some other beneft but did not have any serious
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-
ties receive immunities, rights and privileges, as well as responsibilities, to be qualifed
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,
the national reports contained sections refecting the personal opinions oI members.
Secondly, the report included the oIfcial practice oI States. He noted that these two might
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.
Professor David Ruzi (France) 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
governments oI non-States on the other. Until recently France had recognised only States,
not governments. But in 2011 France had recognised the National Transitional Council
in Libya. BeIore then France had consistently asserted not to take an oIfcial position on
regime changes by revolutionary groups.
Professor Saliba emphasised that the problem had been to try and defne a plan oI
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-
sue highlighted by ProIessor Ruzi refected a relevant development oI practice, it could
not be ftted into any oI the Iour question areas. The report had Iocused on the recognition
of States, not governments.
Professor Czaplinski had some problems with the evaluation of statements of recogni-
tion aIter the dissolution oI the USSR. Most States, except the US, had greeted presi-
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
Russia? This demonstrated the diIfculty in distinguishing between recognition oI States
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
wondered why during the Cold War Japan and the US had not recognised East Germany.
The US was well aware oI the existence oI East Germany, and that it had an eIfcient gov-
ernment, but Ior political reasons, Ior the beneft oI US Ioreign policy, the US would not
recognise East Germany. In the meantime East Germany had been admitted to the UN.
Similarly, some States had not recognised North Korea, but it was a UN member State.
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 commented that in the 1950s it had been oIfcial policy in West-Germany that
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-
sequences to the act oI recognition and law plays a very signifcant role in recognition.
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 !krk (Slovenia) 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
legal duty in the feld oI State responsibility. Thus, it could have been more accurate to
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 Committees 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 reiterated that it was diIfcult to separate the issue oI
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
was artifcial. This separation had been necessary Ior organisational reasons. The aim had
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.
However, that did not mean there was a duty to recognise an entity that Iulfls these
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:
1. an entity does not Iulfl the (legal) criteria Ior statehood;
2. an entity could (or did) Iulfl these criteria but a State did not want Ior political
reasons to recognise the entity as a State;
3. an entity Iulflled the criteria but because its creation breached other legal norms it
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-
hood (i.e. iI that entity did not Iulfl the criteria Ior statehood). A good example was the
recognition of Biafra by various States prior to Nigerias suppression of Biafras 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 !krk 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
diIIerent Irom justifcations Iurnished by the State.
He noted that it was incorrect to equate recognition criteria with the criteria for statehood.
A State could Iulfl the criteria Ior statehood and yet not be recognised. For example,
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.
ProIessor Hamamoto also gave the example that the US, France and UK had considered
that the German Democratic Republic had not Iulflled the conditions oI statehood be-
cause it lacked an independent government.
Professor Saliba strongly agreed that one must not mix up the different criteria. States
were not obliged to recognise an entity that Iulflled the criteria oI statehood; they could
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 Committees 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-
trine. It had been just one declaration by the US, not necessarily Iollowed by other States.
He believed that the consequences oI that doctrine Ior UN law were much more interest-
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
doctrine related to a very specifc subject and a very specifc situation. He noted that the
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
China. It suIfced to say that such recognition constituted an intervention in the domestic
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 believed that the problem was the identifcation oI the act that
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.
Ms Natia Kalandarishvili-Mueller (Switzerland) 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
that Abkhazia and South Ossetia were under heavy infuence oI Russia.
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
a defned territory, it was a State. One member oI the committee had seen eIIectiveness
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 Ruzi 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.
There was a kind oI 'eIIective meaning in recognition. State immunity could not be
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
was oIten used as justifcation Ior not recognising. This negative approach had more
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.
Ms Kalandarishvili-Mueller 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.
Ms Kalandarishvili-Mueller 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
complicated. SelI-determination related to the population oI a specifc territory. II the
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.
Professor Ove Bring (Sweden) elaborated on the discussion in Sweden regarding a shift
in the recognition practice oI EU member States. The eIIective control criterion had been
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

Seventy-Fifth Conference: International Law Association

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