CHAPTER 6

State Recognition

1. INTRODUCTION
South Sudan, Timor-Leste and Montenegro are amongst the newest
States in the world. The trend towards an increase in the number of
countries shows no sign of ceasing. Significant portions of the popula-
tion of Quebec, Venice, Catalonia and Scotland arc all vying for some
form of self-determination which presumably could lead to statehood.
However, to operate in the realm of international law and international
relations the achievement of statehood is insufficient. Entities must also
achieve recognition as a State in order to have any real engagement with
other States. At a basic level, and for many purposes, recognition in
the international law context is the acknowledgment of an entity as an
independent State by pre-existing States. Recognition is one of the more
difficult concepts in international law, particularly given its tangled rela-
tionship with politics. How is recognition obtained? Is there more than
one type of recognition? What is the legal effect of recognition and may
it be withdrawn? This chapter addresses these questions.

2. DISTINGUISHING STATEHOOD
FROM RECOGNffiON
In order to comprehend the issue of State recognition the concept of
statehood must be understood in the international law context. For the
purposes of this chapter, it is important to note that the term "State"
refers to a country as a whole and not the territorial units of which a
~ountry may be composed, which is also referred to by the term "State"
•n some domestic jurisdictions.
Some academics have postulated that the State is becoming less impor-
tant in the international legal ordcr1 and whilst there arc indeed a few
I. Su. Oscar Schachrer, "The Decline of the Nation-State and Its Implications for
lnttmational law" (1998) 31i Columbia Journal of Transnational Law 7-13; and
 no
=RODUCTION TO ruaLIC INTERNATIONAL LAW
AN 1...
ICit.,. STATE R!COONITION Ill
61
other entities, such 3S intcrnari~nal organisations, which may be •ubk:aa Thirdly, the govcm~cnt criterion holds 1har there must be 8 func•
under inrcrn3tion31 law, there is a ~o~scnsus th3t States a.re, at least'-- . 1p0litical body wh,ch governs the permanent population occording
1he fon,seeable future, the most s,~mficont a_nd uncontroversial .., uort;0 Jaws of its domestic jurisdiction. Must this governmmt exercise
hoving intemotional legal personality. Th_en, "• however, less cert~ ro' 01 over all parts of its claimed 1crri1ory? Not necessarily Al one
as to exactly whor is necessar~ for an _enuty to ~e deeme~ • State,l l\i <•~" th< Croatian government did not have full control of all.parts of
definition most often used in ,nt~rna11onal 13'~ ,s stated in Anicle I Po'""c1oimcd territory but was nevertheless cxprc,ssly r<eogniscd ., 1
the Montevideo Convention on Rights and Duties of States, 1933, ~ ih•" by• number of European Smcs acting unilaterally of the European
holds: S<at<munity and implicitly by the UN by virtue of its admiuion 10 mem•
The at.1tc as a person 0 ( intcrn;1tion.1l law should possess the fo11owinc o,m • • f
t,trship. Sueh a s1tuauon
• ' _, to as • premature recognition"
1s o t~n re,crr~
ilic.1tions: (a)• pcrm.1ncnc popol:u~oni (b~ a defined territory; (c) &Oftnt~ and dcmonstr~IC~ that so~cc,mcs dcspu_e •.II f~r of th~ Montevideo
and (d) c.a~dty 10 enter into rcbuons with the other 1tatn.> - - - ~ o,nvcnrion cntcna.not bc,~g met, an ~11~ IS 11111_ r~ogn~d as a State
Firstly, the term "permancn~ population" pcr~ains 10 the ~act that• Scare b orhcr States and m1ernat10t1al organ1sa11ons. Th111s also illustrative of
must have a population ~h,ch ".stable. Unlike the. rcqu,rc,d OUlllbcrO,
1
1itical interests superscdi~g lcgalitics. It should be noted that the excr- 1:\,
people necessory to qualify a region _as a town ~r city, there, is culltlldr ":, of governmental authority from ouuide the defined territory will not
no minimum number of people rc,quired to qualify as a permanent ~dcr an entity devoid of statehood. Thus, although the Kuwaiti gov-
ularion. Barbados, Liechte~stcin, San Marino and Tu~alu hne rei.J; ernment, for a time, cont.rolled iu territory from exile in Saudi Arabia, it
small populations, Nauru IS amongsr the smallest with less than ,000 cvcrthclcss remained a State in the eyes of the international community.
inhabitants, yet they arc recognised as States both by the UN and lade, " Finally, statehood necessitates the ability and authority 10 enter into
pendent States. In Re D11,J,y of Sta/and' the court found that what._ relations with other Stares. This criterion is also sometimes referred 10 as
, needed for this criterion was a "cohesive vibrant community•.• l'rlClb independence or sovereignty' and for some academic, it is deemed 10 be
demonstrates that where a group of people within a territory 11117 he at the top of the hierarchy of the requirements for statehood. uu1erpach1
1,-;' distinguished from others in terms of culture, identity and/or natioaalkr went so far as to say:
this may satisfy the permanent population requirement. The principal and probably the only ess,ntial condition of recognition of
(~ \ Secondly, 1he defined territory requirement simply demands thatdiat Sratcs and governments is cfftetivtncn of power within the State and of
\:;} is a geographical area, which includes not only bnd but also waterwaJI actu:il independence of other States. Other conditions are irttlevanr to the
true purposes and nature of recognition.•
and airspace, inhabited by the permanent population. There is some 8cm,
ibility here os the lntcrnorional Court of Jusrice (JCJ) has held ill die For Guggenheim, what this means is that in order to qualify as a Stale
@
.........
North Sta Contintntal Sl,e/fcastJ' that the boundaries of a State do11111
have 10 be specifically defined. This llexibili1y is indeed found in pncdllf,
the entity must not be subject to executive or legislative decisions by any
other State.' Dugard notes that, "if an entity is subject to the authority
Palestine being a prime example. Even though opinions on the tcrricodal of another state in the handling of its foreign affairs, ii fails 10 meet this
borders of Palestine differ, this has not prevented it from being nclll' requirement and cannot be described as an independent stare•.•• Further,
nised as a State by more than 130 States. sovcrc,ignty implies that there should be no competing claim 10 the ter-
ritory; where this is the case, the entity is unlikely to be recognised as a
State tegardless of whether they may meet all the other criteria or not.
Mami kosktnnicmi. •The Wondcr(ul Anificiality of Stun• in Proccedialttf~ This is currently the case with Taiwan."
AMu1I Meeting (American Society of lntmutional Law) Vol. IS. u-•f, •
2. J•mn Cnwford, Th< Cnation of SllltN in lnttmarional Ldw (snd U.. OIW 7. Stt, Hans Ktlsm, "Rccognirioo in IDtffllltional I.aw, Tb<cmical Obtcrntloos"
Unm:nity Pras, Oxford 1006) 37. • • lr,41) )}(4) American Journal of lnrcmational Law 6oJ-•7•
J. Tht Monrevidto Convention on Righu and Dubes ofStares w a s ~ - ~ ~ I. Htnch. Lauterpacht, RffOJ,.WOlf in 1111,rMlioMI Low (Cambridge UoiVtnity
and mttttd into force on 1,-11-1,.34. A copy may be found at c h ~ Prus, Cambridge 1947J 340-41.
9
iuridicoknglishltrtatin/1-,40.hanl>. • ~-Cuggmham, (1951) lo Hague Rtcucil 1, 13, 9&. HOWCYU, intm11rional lawdoes.
4. D•drJ ofS.a'4nd, re, (1979J 80 ILR 683, German Federal Admi~::;"- •n SOfflecircumstanc~ permit fomuof foreign governance ofa.a •iDdcpcndenc• State.
S. Thus, an associat.00 whose common purpose cOYcrcd merely ~ IO, Jolu, Dugan!, lnttmationol L4rtr. A So•tb A(,iun l'mP"tiw()nl Edn.,Juu & Co.
affairs: was i.nsu(6cicnt 10 conni1u1e a pmnincnc population.. r,J,t,A Ltd, Cape Town 1006).
6. North Sta C,,,rintnt11/ Shelf (Ftdtral Rtpublit: of Gmn•"1 •· o,-" ll. Crou·rdcrcnce this with brad, whose entire territory was objcaed to at the time it
Rtp•bli, of Gmnany v. Ntthe,'4nds/, 1969 ICJ Rcporu 3. was r<cognitcd as a Staie by die UN.

i ..
 ucno s TO ruauc ,,.-nRN ATION AL uw I
111 AN J~'TllOD • STAT! RlCOC NtTIO N
~. 61 113
Whilst the Montevideo Convcn~on ."'!tc'!a for statehood are ,ire into th>t great sociotJ of nations, all the mcmbcn of which rccogn
nicall binding only on i11 signatoncs, ,t IS viewed _by some as die c~ hts 10 which they arc mutually cntidc ~ and duties which iu
. .1 f re-existing legal norms. Thus, thttc: IS an argulllalt1114 :i)cd upon reciprocally to_ f~lfil: such recognition becomes
they may be
'.fi~at1_on off p a plicablc 10 all subjects of international law g1-Ql4. ,~ry '? th~ compl cte pan1ap,1t.on of the new State in all the
mcnriaUy nee•
II IS ID e cct, p 1"!t advantages of
. f• . cn·icria is dccrnc-•u to be reOcct1ve
• of Custo •..., oL
i....;
1
. our·po"mt"'hilst the Montevideo
,ts • • cmm
mary
• •a have 0
- this JOCtet)',
Convention t...._ - . 1},c act of rc<:ognition is ~~rction~ry and there is a general consen
uona11aw. "'
followed, there arc suffic,.cnt exampIcs o f when asF of ic ha.e •- hat it is poliucal. Rccognmon provides:
sus
uitc blatantly ignored. for cxam~le,_ some academics would argu 1
e~ h ability to enter into intcrnarional contracn, 10 1ign and
qN -K rabakh n,ccu the cntcna for statehood, yet - _ ~ ratify ruarjn ,
agomo a . d . ' 0'suc or be sued before intcmarion.al count and tribunal~
M bcr State has recognise 1t as sue • h u n,· d. • ..... Vft and to impose
IS 1scrct1onary •l'!llicada. ~unishmcnts in the form of unctio ns against those who viol.ire
ha~nracted criticism. Grant has ~ii ~ so'."c ~f the_ problana inrrmational
llltld- law.11
ated with the Mootcvidco Convention cnten a, mcludmg the 'riew
._ This is the reason States seek to obtain and maintain recogn
ition.
all four factors arc truly necessary for statehood." further. it Ahhough there is no legal duty 10 recognise, as a State, an entity
01
;:. reasonably argued that the criterion necessitating the capacity to th21
-, m,crs the requirement for statehood, Stares may nevertheless
into relations with other Sratcs is n?t =lly a requirement for. subject
...: hcnrsclvcs 10 sanction for breach of international law if they refuse
but rather a rcs_ult of i_t. Morcov~r, It may be argued that the caPICk ~omply with fundamental principles of international law in respec to
JID t of the
enrcr into ,clarK>IIS wrth Stares IS no longer reserved for Stata, ..... non-recognised entity. The term "recognition" in the context of
this criterion of little assistance in differentiating States &om n0lto& public
at international law relates to rwo distinct but related concepts: recogn
cnticiesY
ition
of Scates and recog nition of gover nment s.
•
The main result of statehood is the conferment of intematioaal 11111
t'
,;
personality which provides the State with the capacity to be a baara
l 4. REC OGN IDON Of STATES
righrs and duties under international law." ln other words, adiinl
is
[ statehood not only enables States to bring claims under intcm atiom
ro enforce its rights but equally enables claims to be brought apm
lla
itlir
In this contex t, •recog nition " mtans that the recognising
State views
the entity being recognised as a State and therefore is able 10 enter
into
~
alleged breaches of its international law obligations. a formal relationship with such State, Recognition refers to the
willing-
ness of a Stare to accept and respec t the legal personality, includ
ing the
geographical territory, of another state. Thus, the recognising Stale
3. UNDERSTANDING TH£ TERM will
no< seek to claim the territory of the recognised State for itself, nor
"REC OGN mON " IN INTERNATIONAL LAW will
ir, expressly or obliquely, accept 1ha1 any part of the recognised
State's
The satisfaction of the Montevideo Convention criteria does aal ttrritory belongs 10 another State.
•
cssarily translate into a relationship with other States. In ordct
blWI
or more entities to engage with each other under intcrna1ional lawlD 4.1 Constitutive and declaratory theories of recognition
needs to recognise the other. Wheaton stated that provided a,
... new Seate confines its action to in own citizens, and to The constitutive theory is based on the notion that statehood is dcpcn
the u.ia411 d-
own territory, it may wtll dispc:nse with such recognition. But if icdcli tnt upon the subjective view of the international community.
ni• Under
the constitutive approach an enrity only becomes a State, in the
12. DJ. Harris (Ed.), C.Us •nd M,1nial1 on /nkm• tion•l {Aw
legal
('<Ii Eda. ,_.a sense, when ii is recognised by othct Stares. Even if an entity meets
Maxwdl, Loodoo 1004) ,,. all
• the requirements for statehood it will not be viewed as a State
13. Only ooo-UN members ha"' rttogniscd N1gomo-1Carabakh II until it
IS-. 1fillll ':
Karabaldi Pldile-OYCnicw•. BBCN,.,. On/in, s-10,101) _-;; is recognised by other States. In other words, a new State is
.;,,, ;,- "consti-
0 turcd" by pre-existing States through the act of recogn
world -cu~1 b70J1 J>. ition. Crawford
14· Thoaw D. Grant, "Ddining Statehood: The Mont<Yidco ea,,,cadaa . . II
~ - <•ml 17(1) Columbi. Journal olTra....,riooal Law 40J" fll~ t?. II. Whcat<>n (186') S. u, p. 18 in R.H. o,.. JE4.),EJ,m,nuo{ln"
"'41.,..•ll.4 w
15• ~,◄)!• 1 (lch Edo., Ct.rmd oo Pta1, Oxfonl ,,3').
16· S..for •i;-p/, , ~ ~ • o d EA!,nrd DuncaA ,_.,A • ,( a. Adnnota Aha", '"'"""t ional l.4w: T,x,. eo., .,.J Mt1Uri41• (1nd Edn., Ox.£ord
ln,.,,,.DOM/ uw (6dr Edn., ~ ) Boob, Londoa ,,7') .,,.., UniYtttity PttSS 1014) n4.
!J,
 'P
ti 4 AN •~'TROD
UCTION TO rUBLIC INTERNATIONAL LAW
..
lc:it~ 6J STATE RECOGNITION lfj
ckarl , stores that according_ t? the constitu.tive theory "the P<>lit' A • result of such discrepancies, lauterp•cht envisioned rhe estoblish-
l .. •,s prccond,uon of the cxmcnce of legal r,· h 1Ca11ei
rccogn111on 3 • g ts: 1_ s of 30 imp3<ti•I inremoiion•l organis•tion to perform the task of
0f this implies that the very persona1,ty of a stat• "'fta
cxrr<mC fO,rm h
ical decision of or er stares. "" n h - d.......-:-
ut w y should th·-._"."'GI
11
01rnt ing whether the factual scenario meets the leg3 t requirements for
onrcpo h l'1 d II I · 'I uc"- ,ss<S~ood 3 nd if so, the granting of the title of statehood " Whilst this
case, especially given the fun .3m~nta cg• prmc,p c of the ~ tl
, t< •ppe;r •t first glance to provide a suitable solution, 11 could cre•te

,.
. f Stoics'" The conmtu11ve opprooch to recognition h ·-_-..
cqua I,1y o •
cfl'ticised." How mony Srntcs
•
must •recognise
as i..::·
an entity 1..t..""'
"''ti ms of its own. Who would constitute this intcm>tion•l organi-
hisCJ\IY 1 . • • • ""'-IQlt. pr~0 ~' If a Sweis not recognised by a number of other States would
deemed• volid State? If rccogmuon IS sub1ec1~ve, what then i11he • s"' b:tr it ( r?m ha~1ng
,h:it '" ' ~ r~p.rcsent~uvc• _inc
' Iudcd. 1•n_ this or~nis.ition?
'
for statehood requirements such 3S th~ ~on1ev1dco Convention c • 'lltol t-fo,v would, 1( poss,bl~, m_d,v,dua~s 1n this organ~at,on be independent
· crhicol or rotionol to have pre-cx1Sting St•tes act as the sen~
1t~~1international low field? These ~r• !ust • few of the questions ...~ d refrain from cons,dcnng the interests of thm State or allies when
~~termining whc~hcr to ~rant smeh~: These are perh•ps some o( the
cm:iin uo3nswcrcd under the constttut1ve theory. ..._ reasons such an mternnuonal_ orgamsauon h3s ~ot yet c??'c into exist•
r In contrast, rhc dcclorotory theory is objective and aut • However, as an alternative to Uurerpacht s proposmon of a statc--
According to the dcclorotory theory, •n entity exists as a State fOtlladc.
moment it meets rhe crireri• for stotchood. There is no requirei::
other Stoics 10 afford rccogniti?n ond w~en t~ey do, such •ondaa
t ~~-gr>nting independent organisation, there has been some discussion
around rhe collectiviz.:1rion of recognition.

mertly a "declaration" of what IS olr:ady in cx1Stence, T h i s ~ 4.2 Collective recognition

has no legal effect. I_t is sim_ply a po~it~c•l act. The declaratory theoq ..
Due in port 10 the quandary >rising from the constitutive and declar:irory
become the pr,domin~nt v,cw and IS•~ fact supp~rted by Article) al die
,heories, has arisen the idea that statehood should be granted by virtue of
Montevideo Convcnuon.11 Howe~cr,,'t too ~as Its problems. One
argue thot the existence of a State 1s virtually irrelevant if it is ignond1 becoming• member of the UN. This idea has however not gained much
ground in the discourse due to Article 4 of the UN Charter." Further, it
other States: As noted by Evon_,, "the diffi~ulty with the declaratory pod,
hos been highlighted that any such move toward using the UN to "collec-
tion is that II seeks 10 maintain both the idea that the creation of Scaiis
tivize" recognition would leave a lacuna between the moment 3n entity
is rule-governed, and that the conferral or withholding of rccogoidoai declares itself independent and the moment that the UN recognises that
an essentially pclitical and discr<tionary act"." Hence, it holds thactlla entity os • State by granting it membership." In conrrast, is the appli-
is a rule regarding such matters but then simultaneously holds diac a cation of collective non•rccognition. This occurs where the UN decides
application is discretion3'y. For example, Somaliland is not recognal that Member St3tes should not recognise a State or government due
by any other State and yet, according to the declaratory theory, lllisla to conduct which either constitutes a serious violation of international
the criteria for statehood. 13w or facilitates the maintenance of such conduct. One cx3mplc is the
Namibia exception discussed below. Collective non-recognition has been
19. James Crawford, Brownlie•s Prindplts of Public lntern11tioMI lAw (Ii U.., employed to ensure that recognition is not conferred where there has
O:dord University Pms, Oxford 10n) 14$• Stt also, William Thomal .._, bttn unlawful secession or acquisition of territory.27
"Law, Politics and the Conception of the State in State Recognicioa ThrorJ9 CsOll9I
17(1} Boston Unh·crsity lntem,nional Law Journal n,:-71.
20. Antonio Cassese, lrtttrnational lAw (Oxford Univmity Press, Oxford &CIOII. 4.3 Express and implied recognition
21. Stt, James Crawford, Brownlie's P,inciplts of P11blie ln1trn11ri0Ml UW lldaYI.
Oxford Uni~n.iry Pms, Oxford 1011) 146. Recognition may be express. For example, Sweden recently issued a pub-
22. An. 3 0£ the Montcvidto Convention ,tat«: lic statement and held an international press conference indicating its
The political cxistcnct of the Seate is independent or r«OgDicioa bf *. 2◄• Hersch Lautcrpacht, Recognition in lntnnational Law (Cambridge Uniffl'Sit1
~arcs. Even before recognition the state has the right to dcfcad ia ia,apilJ., Press, Cambridge 1,,47).
indc~d~nce, to ~rovidc for its conscrntion and prosperity, 1od ~ • 2S. By Yirtuc o( An. -4 o( 1hc UN Chaner. su1ehood is noc •~uittd by admission to the
orpnize itself 1s It'"' fit, to lq;islatc upon its intcttltS. administa'hs--
and to define _the iurisdiction and competence of its counL UN but rather admission ttRcas the fact thar an cmit1 wu 1lrtad1 aState.
26. Jur.cs Crawford, Brownlie's Prindpl,s of p,.blic lntn1'4tioMI Llw (8th Eda.,
. The cxcrose of these: rights has no other limitatioa than cbe oc:,dlrrlllr Oxford Uniwtlity Prns, Oxford 1012., r-46.
r1ghu o( other states according to international bw. 27, .kt, the duty described in upl Conuqwencn of tW Co,utrwctioN of4 Wall UI 1M
23. Malcolm Evans, lntemational L4w (-4th Edn., Oxford UniTtl'lirr Pftllt.,.... Occupitd P11kstinilln Ttrritory, 100,4 ICJ RtpOctJ ,,,, 171.
101-4) 2.J8.
 J 16 AN INTRODUCTION TO ruoLIC 1NTERNATIONAL LA\V
STATI!: RECOCNITION n7
61
• "n·1s w~s. ',o IIowed shonl L. ~ .
· P. :i Icstmc.
intention to recognise her than making an exception. Sinc:e recognition is discretion•
rccognirion.u Such action m:ikes the position of the rtcog~i7" af~ logics:::cs have free reign to d~crmine w~~n t~at recognition may be
cle.r. Less cle3C, but equally relevant, is the fact thot in th •ng St._ 2r)',. d r orn. Moreover, retroac:uve rccognmon 1s o£tcn necessary. A£ter
express recognilion, recognition may be implied from conde •~Cl(
the recognising and reco~niscd States. Lautcrpacht is of thuct ~
,pplie
3
h:s met the criteria for statehood, it is legally acceptable 10 apply
2 Sr0 ie01•• n retroactively to a time when there was a reasonable degree
recognition could only be implied where both parties have • e Vte,w that rte S u.oe scl(-government. This is done in order to avoid some lcg:i.l
eral treaty or had" a diplomatic. relationship.'°
• Lauterpachr°'.&n<d•hilat:
"•boot of effec",\al difficulties that could occur if recognition was not applied
view t h;at rccogn1uon m;iy, in dae
s~mc circumstances, be in(crred ,nd prac
t,cforc rec'ognition was actually established." !\Ii.
exchange of consulars." There IS a consensus that ncgoti t' fRJal die
tkip3tion :at intern,uional conferences will not be deemed~ IOlll or Pb. 1:
recognition. Additionally, it should be noted that a State o h ~ S. RECOGNITION OF GOVERNMENTS Iii
recognised an entity is notdccmcd to have impliedly rccog:iscd .~llat The second mc:i.ning afforded to the term •recognition" has tradition•
due to both parties being signatories to a multilateral trca .;' lllnplJ Uy been defined as an acknowledgment by the recognising S13te th•t an
in such circumstances the rights of the non-recognised cntityty. Olit"', 2 \
dminisuation is the controlling, legitimate and effective government of 3
for by the multilateral treaty arc required under intcrnatio ~ f :ation and is thus lawfully entitled to represent the citizens or th:i.t nation 1\\,
respected by non-recognising States. However it is impona IOl,e in international relations, The recognition or governments is a related but
thot the fact that there is an absence of dipl~matic relatinant IO IIOlt
~
distinct concept from the recognition of States. CDwford cl:arifies the
!WO Stat<S does not necessarily imply non-recognition by e~r difference by highlighting that "the legal entity in international law is the
Stores." erorbatti state; the government is in normal circumstances the rcprcscnt:uive of the
state, entitled to act on its behalf"." This enables the recognising State to
I~
,.·: 4.4 Conditional recognition of States engage with the recognised government on the international platform. It
;.--, should, however, be noted that provided there is no change in an entity
,~- ' Conditional recognition is only valid wh<re the condition has bcaispe,
cifically stated in a binding agreement between States. Thus, anJ other
meeting the threshold for statehood, its statehood remains intact despite
any refusal by other States to recognise its government For example,
~j assertion that a State's recognition of another State is subject IO ccnu,
conditions is devoid of legal effect and recognition will be deaned ■
China was still deemed a State despite the fact that the US government
refused ro recognise the Chinese Communist Government between 1949
valid regardless of whether the condition is satisfied or not, Althoagli and 1979. Further, a State may not recognise the territorial claims of a
there may be some political repercussions should the set conditioas 11111 nation but nevertheless recognise the administrative authority in control
have been adhered to. as the legitimate government of the people in that area, whether located
in the jurisdiction or as a govemment•in-cxile..u
4.S Retroactive recognition
Although non-rctroactivity is a general principle of law in most clocnstk
Recognition of governments, like that of States, may be express or
implied. What is important is the intention of the recognising State. !\\
Historic•lly, recognition has been conferred form•lly and expressly, for
law jurisdictions, in the context of State recognition, rctroacriff 1(1111, example, through a st31cment issued by a President. Interestingly how•
cation of statehood is accepted", but this may have more to do_. ever, according to an official smcment the UK has ceased its practice
28. Peter Bcaumon11 "'Sweden to Recognise Palestine• BBC OnUn, Jl•IO-I014....., of recognising governments and now only formally recognises States,
www.1htg:uardian.eom/world'1014/octlo3/swcdcn•rccogniu•SU~
29. •Sweden Officially Rec:ognius Srarc of Palestine• The GuordUln OnliM ~ 34• Ste for ex2mple, ALBY. A11stTUln Ftdfflll Minisr,y for tbt lnltrior, (1:,11) t ILR 10;
<hnp:J/www.cheguardi2n.c:om/world/J.or4/oct/)o/1wedcn•o£Rdall~
AC (lsratl) Y. Eicbnumn, h,61:) 36 lLR S•
ttaic-p.ales,inc>, lS. James Crawford, Brown/;,•, Principlt1 of Publi, lnternatioMI Law (8th Edn.,
JO, Hersch Lautttp.ac:ht, Reeognition in lnlernationol Law (Cambridle u.a- Oxford UniYt:rsity Press, Oxford 1011) 1s1,
Pnu, Cambridge 1947) 406. 36• For example, Serbia c:l2ims ooc ,orccognisc KosovouaStatcbutil:bas,through the
31. Ibid. _ • .. _ .. "-',1. Bru~ls Agrttment 1013, recognised the government of Koscwo. Though i, nuy be
32. Ian Bro~nl1c, Rccognmon in Theory and Practice• {1981) SJ Bridsb Y ~ a_rgucd that the very nature of the Bnwels Agreement is an indirect form o( c«ogni•
Jmcmauonal Law 197-111. tion of Kosovo .as a State.
33. Haile Selmie v. Cable and Wireless Ltd. (No,:), (1939) , Cl, 18J.
118 AN lh'TllODUCTION TO ruauc INTERNATIONAL LAW
lcitq ,, STAn llCOCNm Oll 119

leaving rhe UK courtS ro determine whether rhe alleged gov,, •

ew constitution but may also be in(~ from acquiescence. The Tobar
be recognised." rnlll<ill._, dc,Clrine, rhere(ore, res~ the legtt,macy given ro goycmmems by its
pl< even if ,r was establuhed by unconstitutional means. Under the
S.1 "De facto" and "de jure• recognition ~ar doctrine, rhe overthrow of the Mohammed Mani government in
p< on 3 July 1013 would n~ prevent a Stare from recognising rhe new
These rerms are used ro describe rhe extent of recognition affoided 111
cu 1 ,~inistrarion as t~e ~•roUm g and lqirimatc go,cmment, in light of
go,-ernmenr. When a governm~•- is recognised as the (aao
menr ir is viewed by the recognisin g St~•• as the administr.uioQ '°"!-- 1h fact that• conS11tut1onal referendu
e idenii•I elections followed less
m was held within six months and
than a year after Motsl was deposed,
is, in actuality, in control of the_ r~ogn_,sed Sr~••· In contrast, 1 ;:14 : demonstrating •cceptanc e of the political changes by the public.
government is viewed as an admm1Strat1on which, although lawfu~.t'.t
not have full or sufficient control of irs territory and thus n o r ~
of d, facto recognition. Wherhe~ there is really any practical cl~ S.l Estrada doctrine
between the two has been a subJect of debate. The fact is rbat bodi '!he Estrada doctrine also orig_inares ftom a Latin American politician,
facto and dt jurt forms of government are recognised. A number I 4,
demics have argued rhot the terms arc at best a misnomer and 11 ICI, ° Genaro Esrrad:a, a former Foreign Secretary of Mexico, whose view was
that the change of government power in a nation is a nunu entirely for
incorrect." Kelsen goes as far as saying rhot •from a jurist ic: their C0<1cern and other States should noc seek to inOuencc that pow-er,
~iew, the distinction _hen,~ dt jur, ond d, [acto recognition bas~ whether ro support or disapprove." Under this doctrine, the 'fCrf essence
importance. Any cod16ca110n of rhe norms of mrernational law rdahe of recognition is considered offensive and an unjustilied meddling in a
19
to recognition can ignore it". nation's domestic affairs. In a sense, it may be seen that the practice of
tte0gnirion is an encroachment on the independence of a nation. Thus,
S.2 Tobar doctrine S1ateS should refrain from recognising, withdrawing or withholding
This approach was named after Carlos Tobar, a former Eaiadarfaa rte0gni1ion of a political entity. Whether democrarically dected, ovcr-
Foreign Minister who advocated its application. Under the doariaedle rbrown by the military or established by a rnolution, by not expressing
prima facie position is that a political entity which has gained contnilaf recognition, the Estrada doctrine, in essence, recognises all governments.
a territory by any means in breach of the pre-existing coostitutioo wllll,I By adopring the Estrada doctrine, States may avoid rhe political conse-
nor be recognised. Consequently, States which apply the Tobu cbuilt qumces rhar come with recognising some Stares and nor ochtts. Despite
will generally not recognise governments established through mobiaa rhe neutral position inherent in the Estrada doctrine, it has been argued
or coups d'itat. that an additional advantage is that States may still benefit from opening
The Tobar doctrine does, however, apply an exception to this nlf. •diplomatic channels or otherwise dnclop relations with the new gov-
miment without issuing a prooounccment that could be construed as
The cxcqnion is rh:ir if a new government comes to power tm'OIII
approval of the new govcrnmtnt•."'• However, can this ttally be the case?
unlawful means, that government should nevertheless be recognite,lf
its citizens accept the new government. In other words, the only lillt Surely the mere engagement by a State with the political administration
of another, even without a pronouncement on recognition, demon.srr.ares
an unconstitutional change of government should be recogn ised••
an implied notion or acquiescl'l'IC'e of irs existence and authority.
the people of the relevant State recognise the government rhemleli&
This is most easily demonstrated through an election or refefflldam•~
S.4 Effective control doctrine
37. NCTCnhdcs.s, in ion. tbc Bri1ish Soffmmm t did recopusc the 5J'l1III Jrrladm
Co.al.iUOD as the lcsitimatc go,~rNMnt of Syria, ue, R.dwd Spmccr ...... The effective control doctrine is the most traditional and widely used
Shttlock •Be•••• olfi<ully <m>g11iscs n,w Syri>n ttb<I co,lition u _,-.,.. .. •pproach to the recognition.of governmems. Under this doctrine, St•rcs
inucc So"fflUDCIU' •, Tiirit Tdqrop,I, Onlin~ 10•11•1011 .
JI. Su, P. 1'."bnczulc (Ed.), Auh•m~ Modm, lntrod.ctio,, ,o I"""': "; 4o. C...n, Estr.ad,, •Estnda doctrine o/ Jl«cs,uooo• (1,31) zs Amcriaojo anul ol
(7cb l«Yiscd Edn.. Roudcdge 1,,7) II; Hans Kt'lscn, •R«ogailio ll ia
lnitrr~atioaa) Law Supp. i.oJ; ,uaJ.so. P.J~ •The Earada D«trinc• (19Jt) 1.$
I.aw, Thcomical Obsttva,;.,.,,• (1,41J 3J(4I American Joum,I ol ._....,a...
'°J-17, ,,1.. • " - a J..,..J ol lolamriou l I.aw 71,-
41. S..n D. Muq,l,y, •Danocnric, t.,pi-,. aocl me 1t«opinoo ol S..ta ,ocl
J9. H,., Kdsm, •R«ogoirica in l•tcmononal I.aw, Tbc<,m;cal 01,oerft .W..,..
Govnnmcnts• litt,J 4l(JI 1...,..riom l aocl O>mpan,ne LawQu,na t,, m-11.
JJ(4) Amtric.ao.Joumal of lncmmional law ,05-17, ,13.
 UJ. AN INTflOOUCTION TO rueuc JNT£RNATIONAL LAW
!cit.,_ 61 STAT! RECOCNlTION 11)

forcing chem 10 •dopt that form of government before they :Vherher one t:ikes the view that the act of recognition of a State is
cion to susr-1.in it may be h:irmful to their development , : in~'°"' ~ • al or technically leg•I, recognition definitely alttacts legal eonsc-
govern. further, there m•Y be competing politic•l reasons whichbitiij 111 p0fittCcs including the privilege of immunity from suit and having its acts
s13tcs from recognising so~• ~~vernmcnts despite the fact dtot~ qucnclcs•I effect in the domestic courts o( ocher Smcs.
g1«n
elected or is supported by ,rs ci11zcns; one example being the •-..
the US go,.,rnmcnl 10 recognise Ham•• in Palestine. Miny ~"'-'"
were not democracies at the rime or recognition or have since ..... 8. WITHDRAWAL OF RECOGNmON
be dcmocr.1cics nevertheless continue ro enjoy rccognitioa of~-
....,..
and in m:iny cases its govcrnmcnr, by the international comm ~ 5!-, The theoretical position has bttn rh:at it. is not possi~le to withdraw rte•
ognition.J• Jmpo~tanrly, however, there ts a strong VIC\¥ that recognition
m•Y Ics•IIY be wuhdrawn where there has been a fundamental change in
7. IS RECOGNITION A POLITICAL circumstances which justifies it.11 Lautcrpacht st:1tcs that:
DECISION OR MATIER OF LAW! fltcognition is not a contract or grant. It is a declaration of capacity as
dtttrmincd by objective facrs. TMK facts are not nectssarily enduring. A
The answer to this question depends on whom you pose it to. That• State may lose its independence or 1hc n«nsary dcgttc of cohesion as an
some proponents who strongly :assert th:ir recognition is I rnanerof._ organized community; a government mar cc.ue to witld d(ccriYC authority;
For these supportcn, the fact that Sl3tcs politicise the manor is hail, a r«ognizcd belligerent may be uncrfy dc(e2tcd. In all these a.to che basis
the point. Their argument is "3sed on !~e pr_emise th•~ provided dicl,p( of r«ognition dis:appcars and outside States arc entidcd and bound t0 ukc
criteria for statehood 3cc met, rccognmon 1s, according ro law, ...... cognizance of that fact."
tory or at least should be. The problem here is, as pointed oac-. Thus, in some circumstances recognition • ... ceases to be approprfate
th31 the criteria have been inconsistently applied. The bet is 11,ar ki and will usually be withdrawn or discontinucd".n Hence, in July 2.on
l ;·' States who dc1crminc whether the conditions of statehood arc-. "Iii
determination is subject to interpretation whlCh may be influaad, lir
1hc UK effectively ceased recognition of the G•ddafi regime with the
announcement th:it it was recognising the Nation:11 Tr.1nsirional Council

\'
politiul considcralions. Thus, if there is a leg•I duty 10 rccognisu S. as the ..sole government:il authority• of Libya."' This example supports
then m•ny S131cs •re clearly in breach, which undermines the lcgilimq rhe view th:it withdraw:11 of recognition of a State or government,
~
~ of such a rule. However, the view of the majority of intemadoaallll' ... is often obscured by the fact that, having rcprd co the citcumstancn,
experts is that, although the achievement of statehood is depcndmt..,.. it docs not take place through an express declaration announcing d,e•
a lcg•I assessment, recognition is rather (and perhaps rightly) 1 pala,I
act. Over 130 countries recognise Palestine :is a State and in 1011dieUM
General Assembly approved the de facto recognition of Pala&iac. 1WI SO. Motummcd ft.nijaoui (Ed.). I11tnrutio,,JJI t..w: AdU'WWW'ftU .,.J tto1p,«1.1
indica1cs that more than h•lf the countries in the world arc of d,c,_ (M.1ninus N'sjhor( Publuhcn. Lridm 19J1J 4SJ• For a dnailtd analJsis ol thro-
mical pouibility and usduloeu of W wilhdrawal of rttopicicm., 1«, Ccnrd
that Palestine meets the cri1cria for statehood. Yet the Europcu 1J,ia, Krriiffl, St.it~ F.iil11t~, Sovnripty •11J E/(«lwt'fl~u (Maninus Niiholf l\ablithm,.
and most EU countries, including Britain, have yet to give officialnat Lnikn100-4).
nition.•' This is a prime example dcmonstr.tting that rccogn.idca iu• 51. Yn:chtttappeartobccascswhcttdcspilca aat.c:nccolsuchch.angciacircwmtaacn,
simply a legal matter bur is affected by political consideratiaas- c;. ~tcOgnition has I\C't'ttthdn.s, i.a the political sense, bttn wichdnwn. Fot cumplt,
in c.1rlr 1014 Tuvalu withdrew its rccocniuoa ol South Ouctia ud Abkhu.ia 1nd
that there has been an inconsistent application of rccognirioa brs-r, in 10tJ Haici wi1hdrcw its r«ognition of the Sahrawi Arab Danocnric: Rtpublic
it is difficult to reconcile this fact with a finding 1h•t there ii 1 ~ (SADRI,
to recognise, which is one of th< primary reasons 1he m•joritY cl or Sl. Hmch lauccrp.i<ht, R,copi:io11 ;,. ,,.,,,.,,.,,Jo,..I Uw (Cambridgt Uniffnity
P.,.., C:.mb<Mlgo ,,.,, ,.,-,o.S«.i.o, Hans Kcbm "R«opiaoam lamaat..ul
experts take the view th•t States are not oblig•ted to recognise ID-' law~ (1,41) )J American Journal ol lDm1Wional Law MJ5-17, ,u; Sit R.obm
as a State. If one accepu that recognition is 3 political act ,1,ai d,otat Jmntngs and Sit Arthur Wans (Eds.) Opp,,..,.,,., lnunurioul UII'. Vol ~ (,ch
be no legal duty to recognise States. S3 E:dn., Longman, Harlow 1'9!.) 176. _ , .
• Sir Rob,m Jennings and Sir Arthur Wans (Eds.) OppnJ,,ri,,,' l•unubOflill Ln,.
◄8. Foraamplt, Ptoplc', RcpubHc of Olina, Onun and Cuba.
Vol 1<,th Edn., l.cngman, Hada,, lffl) 17'-
◄9. Though Britain has rcttntlr hdd a noa-binding puliamcnurJ wocc OIi
---• l◄• "UK Expck C1cld16 Oiplcnuts and R,cc¢ses Libra lt,l,ds", BBC o.llM
recognise Pak-nine. :t.7'?•1011 <http-J/www.bbc.eo.uk/ncwsluk•polirics••◄J°'J◄◄>·
114 AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW (Cit.Ii, STATt R!COCNITION US
6]
withdrawal bur through 1he :act o( re<ognition, cxprcst or im 1• •
new authority-" pied, or ... or ,ccognisc lsra~I h~s very little .consequence for Israel. In contrast,
•h• foe< thot Palcstone ~• n?t r«ogn,sed as a State by Israel continues 10
Hence, it is likely 1h01 in most coses ••press withdrawal of 1
·vcly aff«t Palcsttne 10 numerous ways, particularly in the areas of
~
will no< particulorly usefu! ~r necessary. This is P<m•psrttognidaii ncs;:
reaso~s withdrawal of r«ognmon hos not rcc<ivc:d significan:i"e °''- humon soc~rity •nd tcr'.irorial integrity.

attention. ~ eraJ-1 wcver, despite any ncganvc consequences on a non-recognised enti-

1.
~ilicy to conduct international relations, non•rtcognised States may
1:"sol•« in the fact that non•r«ognition has no !ego! effect on its
9. CONSEQUENCES OF NON-RECOGNITION ,a ;,,;gnty. In other words, provided the entity meets the criteria for
. . obligations
it will hh•ve rights and as per inrcmational law,
The Republic of Cyprus is not r«ognised by Tur~cy, Armenia is IIOI sr~tehood ,
so• S
,hough not with t c non-recog~1S1ng ta_ie.
recognised by Pakistan, more thon a dozen countries do not ~
China and Israel is not recognised by more than 30 States. What are the 1 is importont to note that m some circumstances Srares have: a duty
: 0 r«ognise as lawful a situation caused bra serious breach of inter•
con~ucnccs of non-rccognit~n? Non-r~ognition is ~j~cJy t o ~
:ional law. Such a d~ty is found in ~~-icle 41(1) of the lntcrn~tional
affect, inter a1ia, access to foreign domestic c~urts, pnvdcgcs and - - La Commission's Articles on Respons,b,luy ofStates for lntcmattonally
niiics. A few other points sh_ould be noted. :irstly,_non-recognition does w:ngful Acts and also arise by virtue of a binding UN Security Council
not render an entity non-tx1stcnt nor docs It provide grounds for lntn,. rnolution or a treaty.
sion into its territory by existing States_- Second/!, non-recognition doe,
001 noccssarily
imply 1h01 the Stotc which has wuhheld rccognitionisaf
10. EXCEPTIONS TO NON-RECOGNITION
the view that the entity in question docs not meet the criteria for s-.
hood. The decision not to recognise an entity as a State may simply 1,e 11is a serried law thar when the government of a State illegally occupies
b:tscd on political, not legal, factors such as the State having oo natiooal inochu State and seeks ro exert governmental control, the actions of
interest in having diplomotic tics with it." Thirdly, the non-rccognitia ,he occupying Srate are both illegal and void and is thus not recognised.
of a government is believed to have less dire consequences in comparisaa However, this position is subject to the N:imibia exception.
to non-m:ognition of a State." Fourthly, and perhaps most importantly,
the degree to which non-recognition minimises the international rde-, 10.l Occupied territories and the Namibia exception
vancc, rights and responsibilities is, arguably, strongly determined brdit
degree of power and induencc held by the State withholding rccopi1iao The Namibia exception arises out of the 1971 Advisory Opinion" of the
compared to the State or government not recognised. Abass rightJrbp !CJ regarding the unlawful occupation of Namibia" by South Africa.
lights the fact that, Unsurprisingly, the IC) confirmed that States were under an obligation ro
When a new State is not recognized, the constqucnccs of thil depeed •
refrain from rocognising South Africa's continued occupation of Namibia
the rc:uons for non-recognition, who is not recognizing it. the 1t1t111of'* and as per UN Resolution 176 (1970), States should not cng,gc in any
unrecognizing Srate in the community of nations, how many Stata clo• in1croaion with South Africa which would, directly or indirectly, lend
recognize the new State, and the fora in which non-recognition applies.• weight to its cl3ims over Namibia. The ICJ, however, created an excep-
tion to the rule of non-recognition pertaining to ilJegal occupations:
If a relatively uninduential State or a State without well-soughc afm
rcsourtes decides not to r«ognisc the US, this is likely 10 have V<r/ !inli In gcncnil, the non-recognition of South Africa•, admlnistnirion of tbc
impact on the US. However, any entity 1h01 the US 01 UK decides ootll Territory should nor result in depriving the people of Namibia ol any advan-
tages derived from international ~tion. In particular, while official
recognise is likely to encounter some difficulty whether in terms oftndr. acts performed by the Government o( South Africa on behalf of or concern•
tourism, or otherwise. Thus, the fact th•t Bangl•desh or Somalia docs ing Namibia after the termination o( the Mandate are illegal and invalid,
llli'falilr this in¥alidity cannot be extended to those acts, such as., for in:stanc:c, the
SS. Hmch lautc:rpacht, Rtt0pitio,r ;,, I1tlmroti011ol !Aw (Cambridsc
p,..._ C.unbridgc ,,◄1l J10-s•- n. k,J/ C.Onuq11mus for S14tn of UM eo,.,;,,.J Prnou of SoMUI A{,iu ;,.
S6. Tutoco Arbitratiort (Cos1i11 Riu ,. Grtat Britairr), (r9zJ} 1 RIAA J"- Namibia ($o11th Wtst A(riu) 110twi1h1141UU1t1 ~atrity Co,,rteil R,SOUltiott 17,
S7. A~mol., Abass, lnletnolional Law: Tut, Casts and Motni4ls (znd £do.. oJaJI ~1?7~}, Ad,isory Opinioa, ICJ Rcpons i.1-,-1,71, p. ,,. AYaiJ,bk at dtttp-J/www.
Umvns&f)' PttU 101-4),
SB. Ibid, I◄'- ,o. :~!~':'::c~!u~~!!'lrr.!~
 116 AS 1:r,."TP.ODUCTIOSTO ru1LIC INTERNATIONAL LA\V STATt 1!.COCNITION 117
[cir"'· ,1
im~cion of birchs. cw.&chs and ~.uria_gn, the cHcm ?f •hQ ea <Of1,inuing affinity to th!• practical approach was finally accepted u
~ only 10 che dc:crimc:nt of 1he inhab1tanu of the Terrnory." • le ~'1tg,I position of the English c~rts in Emio •· Ytldaf'. Nnmhelcss,
"h --•, non-rccognicion of an occupying force •hould _ lh ,n ,uempt to ~ccp the cx~pt10n nar~ and ••thtntic, the English
In Ol er \\urv • h • f • ._"'" 111
h,ve been Just as comm,ned to being clear as to when the acts of
ckr citiuns un:ablc to benefit from t e ~rot«:llon o t~r pri'fate !-.

;:~=-
1
h in the internltion:al community. The cxccpuon tnablts St._
from :appc,,ring to supP?rt the ~uthority of an illegal
,ion whils< simuh•neously protecting the 1ntcrcscs of then..~~
Co'1''\te:ogniscd entity cannoc be s:1ki to come within 1he printe acu
• non ion In the Klbrls THrk Ha"" us,", the High Coon uid:
r%'.ctpl •
,ny of the acts of the Gowrnmcnt of 1he TRNC u chcy re:late to aviation
occupied Sr:ate. •" mpublic and international in character. They :arc noc propmy dncribtd
. , arc!,ws which ngulate the day to day aff'aln of the ptoplc who rtlidc in
The English courts h:1vc_ adopted a. u'!!1lor appro:1ch, com
referred 10 ., ch< •privarc righu excepuon • In the Carl z,1., : , ~~r TRNC either as describe~ by Lord Denning MR, or Sumner J ... , Thit
Lord Wilberforce of 1he House of Lords stated: urt is obliged to refuse tog,vc effect to 1hcv1lidityol accsc.arricd out In a
• e.orriiocy which is unr«ogniud unless the acts in question can proptrly be
tn the United States some glimmc:~ings .can be ~oun~ ~ the idea ' - IC g,rckd as rqul:ating the day to day affain of the pt0plewithin thetcrritof)'
non·rte0gnirion cannot be: preswi to ,rs uh1m:ue logtCJI l1m1r andtMI: .... ~; question and can properly be rrgardcd H essentially privarc in ch.arx,cr,
private rights, or acts ol e,·eryday o«urrcnce, or ~fonctory act, of. . .
imarion 1tt ronccmtd (the scope of these uttpuons has neTtr bcca,... The extent to which this excepc:ion to non•recognirion is adopted and
ciscly de6ntd), 1hc courts may, in the _in1ettH1 of justice ind COIIUDoa.~ developed in other jurisdictk>n1 rcm2ins to be SCffl.
where no coastdention of public: pol~ to the conera'! h~ co prnaa_ Pl
recognition 10 chc actual f:ac1s or rulmes found to exist 1n t h e ~ - 11. CONCLUSION
quc:uion.... No cn,cc of :any such doetrinc is ycr to be found in Ensliat..,.
but tqually. in my opinion, thtre is nothing in those English dteisias _ Whilst 1he Montevideo Convention is the most commonly accepted crite•
which would prevent its acctptance... I ,hould wish to rtgard it 1111 c,ea ria for statehood, it is imponant to mncmbcr that regional bodies such
qun:cion, in English law, in any futurec:ase whethtrand to whatextencil:cu as the European Union have demanded additional requimncnts 10 be met
be: invoked. in order for some cntilics to be recognised as States. Wherherthis is likely
This view, although nor binding, proved ro be considerably PfflUUht 10develop into a tttnd and be implemented by ocher regional bodies such
~ in bter cases. In the Ht:s~ridts Hott/ cau'1 Lord Denning stattd, ' - as the African Union remains to be scm. The two aaain theories associ-
ated with recognition have bttn reiterated over ma.ny yean but both are
" a1ia:
now considtrcd by many as unsatisfactory and a more palatable tbtory
I would unhtJimingly hold chat the courts of this cownry can rccopbe. hu yet to emerge. Although rccognitioo has legal conscqUCDCCS i< is, io
laws or acts ol a body which is in cffccrive control of a territory na dlaaa'
it has not btta. ttrogniud by Htr Majeny•• Covernmcnt ... :acnr•II
p<aeticc, indisputable political act which is csscntial for cstablisbiog diJ>"
rq,ard to the laws -A-hicb rcgularc the day today affain of rhc people.-■ boa.tic relationships with other Starn. The more the States recognise an
thc-ir marriagn, thc.irdivOf'Cn, their leases, their occuparions.,1nd10bt.. m1i1y as a State, the more the: r,cognised State is able to exploit its rights
and privileges under international b.w and the more the other Stares will
Lord Wilberforce's view in the Carl Zeiss case was funhcrsuppomdli be able to hold the recognised St:ate accountable, with unctions if n«·
the Gur use'4 , as illustrated in the judgmentgiven by Sir John D ~ C:U3ry, for any breaches of international law obligations. These obliga•
I w:e great force in rhis (private law) rew:rva1ion, since it is one thins to• tions o(tcn include the protection or human rights and application or
a state or government as being •without the law', but quite aDOCherto• democratic principles; and although there is an appetite for making such
the inhabitanfS of its territory as 'outlaws' who c.1nnot efftetimf alll principles a determining factor, it is clear that such features are not )'et a
beget legi1ima1e children, purchase goods on credit or undcmb ~ norm of the international law of Stare recognition. Only rime wiJI reveal
day•to-day activities having legal conuquences. whether new exceptions to non•recognition emerge or whether Sraies
,1. Ltpl COflu'l"t"U• for Suus of 1M Co11ti,umJ frtu,,u of $olrli Af,11!1 • begin to more consistently apply the Mooteridco Commri011 criteria.
NndW. (So.it• Wal Afriu) notwitluundi111 .kt.t1rity Co,uaeil . . . . . . a,, '1. lMUlv. Yttdoi(AttomqCnwr-1•-'5 "1•of$uu(o,f.ordi,,.,.J~
(1J70}, ~~isory Opinic,A. ICJ ~ports 1,.,.1,,,, pp.1,. 111. AYUablr11""1fl Aff•ir1 intttw11irt,J, (1001) 1 FLR ,s'-
www.ltj-aj.o,gldockct11ik,/1Ji11,1-pdl>. "• K lo< ,i,,.,p1;,.,;,,., o(Kibri1Tm H•,.. Yolwld- CTAHoli4.J,I •.S..,. ofS,.t,
,2. C.rl b_lu Stiftwq "· l<rp,n O' Kttltr Ltd, (No.1), (1J,7) 1 AC IJJ. /or TrMSsJxttt. 100, EWHC 1 , 11 (Admio). the point was conirmed OD appeal la
'3. Hnpt:n/Ms HottU "· Atzt•11 Tt1rii#I Holid"YS l.ld., ht,I) t All ER 177, slJ. l:ih,i, Tw,, How YolU,i "· ~q. ofSuu {M T'"6po,t, 1010 EWCA CiY tOJJ·
, •• C#r eor,,,_ Y. Tnut 14"1 o/ A/rk• Ltd., (1,a7) 1 QB Jff, ,11.