Personality Statehood And Recognition - International Law

All states enjoy sovereign equality and are free to act unless they have consented to a prohibition at IL (the ‘Lotus’ presumption).

There is no accepted contemporary legal definition of statehood. However, the traditional criteria are set out in Art 1 of the Montevideo Convention on the Rights and Duties of States. This is regarded as crystallising customary law. Under Art 1, the following four criteria must be achieved to be a state. These must be attained legally. Additionally, recognition by other states will be required to enable operation as a state in the international community.

1. A state must have a permanent population.

There is no minimum number of people required (small states with 10-20K people exist: Nauru, San Marino)

2. A state must have a defined territory.

• Borders do not need to be defined or undisputed (North Sea Continental Shelf Case at 32); as long as the territory has sufficient consistency and is effectively controlled by the state, this is enough. [eg Kashmir]

3. There must be a government which exercises power over the territory and population.

• If there are competing claims (such as in the Republika Srpska) other states are unlikely to recognise the state.

• Competing governments however will not unmake a recognised state; a change in government does not affect the state itself.

4. A state must have capacity to enter into relations with other states

A state will have this capacity where it is independent of other states as a matter of law (not subservient to them).

While this is theoretically a requirement, there are many examples which can be pointed to where the criteria were not achieved lawfully and yet other states accept the state as legitimate due to pragmatism (see, eg, Turkish Republic in Northern Cyprus; Indonesia’s annexation of East Timor).

To be able to enter international relations, [X] must be recognised as a state by other states. State practice is to recognise a new government when it has effective control over the state territory

• A government will have effective control where it is carrying out governmental functions in the territory (administrative duties, enactment and enforcement of laws which the population obeys)

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States may afford governments who come to control through unconstitutional means:

• De facto recognition where the government is in possession of territory illegally or precariously

• De jure recognition where the government is found to be entitled to recognition at law, even where they do not possess sovereignty in fact.

Denial of recognition

• A state may not be recognised if it is founded on illegality (as discussed above).

• State practice does not support the assertion that a failure to meet standards of democracy creates a ban on recognition (eg Pinochet’s government was recognised).

• States may deny recognition for political reasons.

Avoidance of express recognition: Some states (including Australia) avoid formal recognition of new revolutionary or unconstitutional governments, preferring to conduct diplomatic and trade relations without reference to written evidence of status. Recognition is to be implied from treaty practices, formal communications, ministerial visits and, ultimately, by the establishment of diplomatic relations.

Legal consequences of recognition or non-recognition

Non-recognition:

• A state government has no standing before national tribunals of a non-recognising state

• No right to privileges or immunities from the non-recognising state

• Legislative and administrative acts of an unrecognised government have no legal effect in the jurisdiction of the...