When is a state, a state?

[Rania]

When is a state considered to be a state? Meaning.. what does a state have to have, according to the international law, in order for it to be legal?
Is recognition a condition for a state to be legal, or can it BE even if it is not recognized by other states?
And how is "recognition" by an other state shown/expressed?

Thank you.

Not sure if the information below will help to answer your question...

State

From Wikipedia

http://nostalgia.wikipedia.org/wiki/State

In international law and international relations, a state is a political subdivision possessing sovereignty, i.e. not being subject to any higher politicial subdivision. The problem with this definition is that states are often subject to some extent to higher politicial subdivisions, be they international organizations (the UN, the EU, the WTO) or other dominant and more powerful states. However, although states often are in practice subject in this way, they are much stronger in relation to international organizations or other states than lower (substate) political subdivisions normally are in relation to states. But the trend at the moment is for the power of superstate levels of governance to increase, and there is no sign of this increase being abated. Many (especially those who favour constitutional theories of international law) therefore reject as outdated the idea of soverignity, and view the state as just the chief politicial subdivision of the planet.

The legal criteria statehood are generally accepted as those set out in the Montevideo Convention (article 1) "The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states." (The Montevideo is a regional American convention; but the principles contained in this article have been generally recognized as an accurate statement of customary international law.) However, some have questioned whether these criteria are sufficent.

A major issue is the difference between the constitutive and declarative theories of recognition of states. According to the constitutive theory, a state exists only insofar as it is recognized by other states. The declarative theory, by contrast, holds that the existence of a state is independent of its recognition by other states. Which theory is correct is a controversial issue in international law.

The word state can also refer to the political subdivisions of some states, such as the United States,Australia, Nigeria and India. Other states call these subdivisions provinces (Canada), or departments (France).




States in international law > Statehood > Recognition

Source: http://www.britannica.com

Recognition is a process whereby certain facts are accepted and endowed with a certain legal status, such as statehood, sovereignty over newly acquired territory, or the international effects of the grant of nationality. The process of recognizing as a state a new entity that conforms with the criteria of statehood is a political one, each country deciding for...

http://www.britannica.com/eb/article...ernational-law




International Law: Recognition

Changes in State Status

Source: http://homepage.gallaudet.edu/David.Penna/Recogn.htm

-- Succession: This term means that one state "inherits" the rights and responsibilities of another state. Russia is the successor state to the USSR.
-- Secession: this means that a new state is created from part of the territory of an old state. Armenia (and many other states) seceded from the USSR.
-- Self-Determination--This concept is a right of peoples to determine their own political arrangements. It may be out of place in the current discussion. However, it is important to note that de-colonization (the granting of independence to former colonial peoples) is a more appropriate topic for discussion here. While the decolonization process is nearly "complete" in many areas of the world, there are still some examples. One of the more recent was the issue of east Timor, which has been resolved some time after the case reported in your book. If you wish to read that case, here is the website, but we will not discuss it in class.


Recognition

Recognition of a state is usually a formal act by (the executive of) one state that acknowledges that another state exists. Recognition of a government is usually a formal act by one government acknowledging that another government is the representative of a recognized state. Recognition has legal consequences in both international and domestic law. The domestic law consequences, as well as the procedures for recognition, differ from state to state.

We also must distinguish between three concepts that are often confused:

-- Recognition of States--this is whether a state exists or not. There are many good examples of this--the US recognizes the statehood of Cuba, meaning that the US recognizes that Cuba meets all the elements of statehood. The US (and the rest of the world) never recognized the statehood of the South African homelands/Bantustans (Bophuthatswana, Ciskei, Transkei, etc.) that the apartheid government of South Africa tried to create in the 1970s and 1980s. Until recently, most Arab countries refused to recognize the state of Israel, believing that the creation of that state was illegal under international law. Greece refused to recognize the state of Macedonia, created from part of Yugoslavia.
-- Recognition of Governments--when you recognize a government you are saying that you recognize a particular government as the legitimate government of that state. (This implies that you already, or simultaneously recognize the state). The best example here was that for many years the US refused to recognize the Communist government in Russia after 1917, and the Communist government in mainland China after 1949. The state continues to exist even when there is a change, even a revolutionary change in governments. While recognition of a government is normally a formal act, sometimes an informal act is sufficient. The author uses the case Bank of China v. Wells Fargo Bank & Union Trust, (1952), p. 79 to help illustrate that it is the executive decision on recognition that almost always determines the judicial outcome. In this case, it was the nationalist government that was entitled to the assets of the state-owned bank.
There are two different tests sometimes applied to the recognition of governments:
Objective Test: If the government actually has control over the administration of the territory, and there is little resistance to its authority then it should be recognized.
Subjective Test: Does the new government satisfy some ideological criteria of the recognizing government (i.e. did it come to power through elections; will it observe its international obligations, etc.)
-- Diplomatic Relations. Maintaining diplomatic relations can only occur after (or simultaneously with) the recognition of statehood and recognition of government. However, some states may choose to recognize a state and a government and yet not maintain diplomatic relations with it. The Breaking of diplomatic relations is often a symbolic act (it may also have practical consequences that make interactions between the two states difficult) that happens when one state feels that it has been insulted or deceived by another state.

Much of the confusion between these concepts occurs because very often they occur at the same time. For example, when the country of Namibia became independent, the US simultaneously recognized the state, the government and established diplomatic relations. But in any case, the thing to remember is that when all three do not occur simultaneously, there is a logical order--statehood must occur before the other two, recognition of government is next and finally diplomatic relations.

Remember that states, not only governments, are regulated by international law. That means that new governments are usually bound by the commitments of prior governments, as long as they are both governments of the same state. For example, just because the US elects a new President does not mean that the American state no longer needs to honor its commitments made by a previous President. However, new states are not necessarily bound by the agreements of predecessor states. They may elect to follow those agreements, however, if they believe they are beneficial to them.

Consequences of Recognition

-- Recognized states are treated as having the rights and duties of states.
-- Recognition of a government validates the acts of that government from its establishment.
-- Recognition of a government gives that government, normally, access to the courts of the recognizing state (since prior to recognition that government had no legal personality in the recognizing state).
-- Recognition of a government gives it the right to the property of the state within the recognizing jurisdiction (i.e. embassy, papers, bank accounts, etc.).
-- Sovereign Immunity, to the extent available under international/national law.

Questions:

1. The US and the USSR signed an agreement limiting the number of nuclear missiles. The USSR falls apart into several independent countries, 3 of which have missiles. Are the new automatically countries bound by the old agreement under international law? (Ukraine)

2. In 2004, Ross Perot is elected President of the US. He claims that the US is no longer bound by NAFTA because he always opposed it. Is he right?

3. In 2002, President Zhirinovsky of Russia says that Alaska belongs to Russia. He says that since he is the first freely elected Russian President, the previous regimes (The tsars, the Bolsheviks and Yeltsin) were illegal, and that really he has established a new state. Assume that he is right about establishing a new state. Can he successfully claim Alaska under international law?

4. Rwanda owns an embassy in Washington DC. The old government has collapsed, and a new government led by the Tutsi "rebels" comes to power. That government claims that the embassy property in DC has become theirs. The former Rwandan President has fled to the US and claims the embassy belongs to him since his government paid for it. The US recognizes the new government. Who owns the embassy?




Recognition of States: A Comment

by Danilo Türk

Source:

http://www.ejil.org/journal/Vol4/No1/art5.html


Legal issues arising from dissolution of states, emergence of new states and recognition of the latter require a thorough understanding of the relevant facts. While it is obvious that any legal discourse must proceed from firm factual foundations, it is necessary to emphasize the importance of the circumstantial dimensions of the issues, given that the views on the pertinent facts usually diverge, at least during the policy-making stage.

Assessment of facts is much easier from a historical distance. Nobody questions today the wisdom of recognizing the dissolution of the Spanish colonial empire in Latin America, or the independence of Greece from the Ottoman rule. These events belong to history and have a comfortable place in contemporary textbooks on international law. However, at their time they were among the most controversial political issues of the time and contributed considerably to the collapse of the hitherto prevailing international system which was based on the principles of the Holy Alliance. The principle of legitimacy - as understood at that time - had to give way to independence of new states. Therefore, it seems necessary to recognize that the `facts' and `policy matters' concerning dissolution of states, emergence of new states and recognition of the latter contain more than facts per se: they also contain an important contextual dimension and it is necessary to make an effort to understand it as completely as possible. It is necessary to comprehend the historical context within which they take place, as well as their effect on the functioning of the international system.

The preceding remarks are necessary as an introduction to any discussion on the issues concerning the dissolution of Yugoslavia and the Soviet Union (at the time of publication of this comment, the list of European countries recently dissolved will also include Czechoslovakia). Indeed, the dissolution of these states belongs to a broader process of disintegration of the Central and East European political, economic and security system and to the overall transformation currently under way in Europe.

Back in November 1989, immediately after the fall of the Berlin wall, George Kennan defined the European agenda as one requiring elaboration of a new political, economic and security framework for all of Central and Eastern Europe. This, according to Kennan's analysis of 1989, required the solution of problems of great historical depth. Whoever undertakes to study them, concluded Kennan,

... is going to find himself confronting situations to which better answers should have been found, but were not, at the end of the last world war, and even some arising from the break up of the Austro-Hungarian Empire left unresolved in 1918 and 1919.2
Disregard for historical context of facts may lead to serious mistakes. Legal analysts and, above all, policy makers should be aware of that. The policy of non-recognition of the changed reality in Central and Eastern Europe has been influenced by that oversight. Moreover, insensitivity to the contextual dimension often led to incorrect assessment of actual facts, and to unsuccessful policy efforts - particularly in the case of the dissolution of former Yugoslavia.

The article by Roland Rich is remarkably accurate in its presentation of complex facts and in their historical context. The war characterizing the dissolution of Yugoslavia started with the armed attack of the Yugoslav army against Slovenia on 27 June 1991. The apparent failure of the attack was followed by the Brioni Declaration of 7 July, and the Federal Presidency of the Socialist Federal Republic of Yugoslavia decided, with the obvious agreement of the Yugoslav army, to withdraw the army from Slovenia. That retreat began in the middle of July 1991 and was completed by 25 October 1991.

The defeat of the Yugoslav army in Slovenia marked the beginning of the dissolution of Yugoslavia. The war in Croatia which started in the second half of July 1991 (prior to that there were only armed incidents in Croatia, mostly resulting from Serb guerilla attacks on Croat police forces) made the process of dissolution of Yugoslavia irreversible. Yugoslavia was vitally depending on the coexistence of Serbs and Croats.3 The large armed conflict among them in the Summer of 1991 spawned two crucial consequences: it rendered the continuation of a common Serbo-Croat state of Yugoslavia impossible and made all other nations of ex-Yugoslavia, and particularly the Bosnian Muslims, the victims.

These facts would have been easily grasped by policy-makers in the Summer of 1991 had they appropriately understood their historical context. The ability to realistically face the situation and draw concrete conclusions, including those necessary for the timely recognition of the successor states of the former Yugoslavia, was lacking. Instead, the European community - until the end of September 1991 the only major international power involved in the Balkan embroilment - relied heavily on the idea of keeping the defunct Yugoslavia as a single state. Slovenia and Croatia remained unrecognized and the Belgrade government continued to be considered as holding an illusionary authority over the whole territory of the former Yugoslavia. The conference on Yugoslavia (originally defined as `Peace Conference') was convened without a clear understanding of its purpose - to many it seemed an instrument for the reconstitution of Yugoslavia and it relied on the illusion that a package solution was possible.

The policies on Yugoslavia were formulated in the Summer of 1991 under the threat of the dissolution of the Soviet Union. It is understandable (and very accurately described in the paper by Roland Rich) that the main Western states adopted an extremely cautious approach to the situation arising from the dissolution of the Soviet Union, given that it was one of the two superpowers. Therefore, it is natural that they did not wish to create any precedent in the case of the dissolution of Yugoslavia. The paradoxical aspect of this approach was that this type of caution was unnecessary, as the successor states of the former Soviet Union showed a remarkable level of political wisdom and common sense - and resolved most of the outstanding questions in 1991 by agreement.4 Although that approach was, perhaps, influenced by the example of Yugoslavia (in particular by the ugly aspects thereof which probably had a deterrent effect), there is no reason to believe that the smooth transition from Soviet Empire into the Commonwealth of Independent States in 1991 was in any significant way influenced by the approach taken by the Western states.

In short, the policy pursued by the Western states with respect to the dissolution of Yugoslavia and the Soviet Union did not contribute to solving any of the historical problems in that part of the world. The process of change took its own course and the attempts to reverse or stop it were unsuccessful. The policy makers failed in many questions posed in the process, including those concerning the recognition of new states. For example, the EC Guidelines on Recognition of New States in Eastern Europe and in the Soviet Union of 16 December 1991 contained a series of legal requirements including the declaration by the new states aspiring for recognition that they accept various international legal obligations. On the other hand, the guidelines, and the pertinent practice of Western states disregarded one of the classical criteria for recognition namely the criterion of effectiveness of the governments of the states which were aspiring for recognition.

Roland Rich accurately describes the inconsistencies characterizing the process of recognition. Although the EC and USA, together with other Western states reiterated, in various ways, their reliance on traditional international legal criteria for recognition, their policy of non-recognition of various states was far from being consistent application of legal criteria. Thus Slovenia which has fulfilled all traditional criteria since July 1991 remained unrecognized by the EC until mid January 1992, and by the USA until April 1992. Macedonia which also fulfilled these criteria, at least since the end of 1991, has remained unrecognized for a much longer period due to a dispute over its name; a dispute which carries a great deal of irrationality in conformity with the history of the Balkans.

On the other hand, Bosnia and Herzegovina - which was unable to fulfil the criterion of effectiveness - became recognized in April 1992 and was admitted to the UN on 22 May 1992. However, it would be wrong to conclude that recognition and admission of that state to the UN was necessarily a political mistake. The recognition of Bosnia and Herzegovina was not only fair and just but also - paradoxically, in accordance with state practice. In the case of Bosnia and Herzegovina it should have been clear that the emerging state would need more than formal recognition, admission to the UN and establishment of diplomatic relations. The Conference on Yugoslavia could have been - but was not - used for the purpose of creating appropriate guarantees for the independence of Bosnia and Herzegovina. This omission was probably due to (a) divergent opinions among the major powers regarding the approach to the Yugoslav crisis in general and (b) the lack of readiness to act by force, if necessary, to protect the independence of Bosnia and Herzegovina and thus to give credibility to the international support for Bosnia and Herzegovina's independence.

It is important to note that jurists did not make the mistakes which characterized most of the political dealings with the dissolution of Yugoslavia. The Arbitration Commission of the Conference on Yugoslavia (the `Badinter Arbitration Commission') rightly concluded in its Opinion No. 1 of 29 November 1991 that Yugoslavia was in the process of dissolution, given the fact that its federal organs had lost both representativity and effectiveness.5 The criterion of effectiveness was duly recognized in this context. On 4 July 1992 the Arbitration Commission concluded in its Opinion No. 8 `... that the process of dissolution of the SFRY referred to in the Opinion No. 1 of 29 November 1992 is now complete and that the SFRY no longer exists'.6

The Arbitration Commission was accurate and consistent also in its opinions on the recognition of successor states. It duly recognized that in the cases of Slovenia and Macedonia all criteria were fulfilled and that in the cases of Croatia and Bosnia and Herzegovina additional activities were necessary (respectively, provision for an appropriate status of minorities and a referendum). Finally, in its Opinion No. 8 the Commission also stated that `... - Serbia and Montenegro, as Republics with equal standing in law have constituted a new state, the "Federal Republic of Yugoslavia", and on 27 April adopted a new constitution'.7 Thus the Arbitration Commission provided a comprehensive legal interpretation of the status of successor states to former Yugoslavia.

The opinions of the Arbitration Commission were not legally binding and also did not deal with all implications of the situation of the dissolution of a state and emergence of successor states. The fact that the Arbitration Commission's opinion on recognition of Macedonia was not heeded by political fora of the EC, and that no serious action was taken to demonstrate that the Federal Republic of Yugoslavia (Serbia and Montenegro) was a new state, illustrated the difficulties involved in the political implementation of a legal opinion. Moreover, the fact that the Arbitration Commission was not invited to propose measures necessary to uphold independence of Bosnia and Herzegovina, a state with obvious shortcomings in the effectiveness of its government, is an illustration of the incomprehensiveness of the political approach which was taken. It might be argued that the Arbitration Commission should have proposed such measures independently even though this was not specifically requested. However, it remains doubtful whether such an activist approach would be wise in a situation characterized by the overwhelming prevalence of political considerations over application of legal criteria.

In short, the opinions of the Arbitration Commission of the Conference on Yugoslavia were legally consistent and correct, notwithstanding their inconsistent implementation and the silence of the Commission with regard to some questions which were of obvious relevance. The latter shortcoming was caused by political barriers and was not consequent from a decision of the Arbitration Commission itself.

On the other hand there are some questions which have not received a complete legal opinion and which were relevant to both the Yugoslav and Soviet cases of dissolution of states as discussed in Roland Rich's paper. The most important among them is the twin question of the territorial integrity of successor states and the protection of minorities on their respective territories.

The Arbitration Commission and the Conference on Yugoslavia have relied on the principle of uti possidetis with respect to the frontiers among the former republics. This was the first time that that principle was directly applied in Europe. The Arbitration Commission referred in its Opinion No. 3 to the 1986 International Court of Justice judgment in the dispute between Burkina Faso and Mali8 to argue in favour of general applicability of the uti possidetis doctrine.9 The EC and the international community have, in fact, relied on the same principle with respect to the successors of the former Soviet Union.

Roland Rich rightly highlights the difficulties involved in the realization of that approach, particularly in situations involving large minorities which are in some cases regional majorities. He concluded that it would be difficult to limit the application of that principle to a single geographic area (Europe) or to a type of nation with a particular method of internal organization (federalism). While this is generally correct it must also be recognized that both the Soviet Union and Yugoslavia were federations in which federal organization relied heavily on the ethnic component. Moreover, the federal units - the Republics - were constitutionally defined as `states' with both defined borders and a considerable amount of constitutional power, which included authority in the field of international relations.10 These were not purely formal features but also had considerable political importance, both in terms of the duration of those two federations and in the process of their dissolution. Therefore the dissolution of the Soviet Union and Yugoslavia cannot be seen as a real precedent for the situations that might arise in states with different types of history and another type of political organization.

The question of the protection of minorities and, where possible and necessary, the adjustment of frontiers, remains open. All political fora, including the EC, CSCE and the UN, along with the Arbitration Commission agreed to the principle that peaceful change of frontiers, based on the agreement of states concerned, was permissible. It seems that such a possibility would be more likely to be realized if the pertinent international organization provided an appropriate institutional framework to facilitate the process of agreement. Moreover, it also seems that international institutional support would be necessary to encourage and supervise the evolution of appropriate minority protection regimes. Such institutional arrangements, some of which have already been conceived within the framework of the CSCE would represent a contemporary realization of the concept of peaceful change - a well known notion in international law, and one that may facilitate future political change and minimize its impact on the international community.


See also...

The Recognition of States: Law and Practice in Debate and Evolution (Hardcover)

http://www.amazon.com/Recognition-St.../dp/0275963500

by Thomas D. Grant (Author) "Recognition, when debated as a matter of doctrine, was long taken to be better described as either 'constitutive' or 'declaratory' of statehood..."

Editorial Reviews

Review
“Grants is to be congratulated for recognizing and documenting the European movement toward a collective process of recognition.”–The American Journal of International Law

Book Description
Thomas D. Grant examines the "Great Debate" over state recognition, tracing its eclipse, and identifying trends in contemporary international law that may explain the lingering persistence of the terms of that debate. Although writers have generally accepted the declaratory view as more accurate than its old rival, the judicial sources often cited to support the declaratory view do not on scrutiny do so as decisively as commonly assumed. Contemporary doctrinal preference requires explanation. Declaratory doctrine, in its apparent diminution of the role state discretion plays in recognition, is in harmony, Grant asserts, with contemporary aspirations for international law. It may seem to many writers, he believes, that international governance functions better in a conceptual framework that reduces the power of states to legislate what entities are states. Grant proceeds from this analysis of the contemporary status of the old debate to ask what questions now take center stage. In place of doctrine, Grant argues, process is the chief issue concerning recognition today. Whether to recognize unilaterally or in a collective framework; whether to acknowledge legal rules or to let recognition be controlled by political calculus--as Grant points out, such questions concern how states recognize, not the theoretical nature of recognition. This is an important analysis for scholars and researchers of international law and relations and contemporary European politics.

[Rania]

Thank you for your answer... I will only stand to a couple of the things you mentioned.
1)the state as a person of international law shohould possess the fllowing qualifications...d)capacity to enter into relations with the other states.
My question on this is... Is it possible for a not recognised state to enter into relations with the other states?
2)Some have questioned wheather these crireria are sufficient.[...]Which theory is correct is a controversial issue in international law.
And I ask again... So, this means that there is such a "gap" in International Law? That after all, we can't determine when a state can be truly considered to be a state?

If you are too confused with what I am trying to say, I'm talking about the Cyprus Issue and the-so called-Turkish Republic of Northen Cyprus. The only state that recognises its existence is Turkey. No other state or international organisation, such as the UN recognise it.
Therefore, someone who is born in this so called state and has a TRNC ID and passport cannot travel or anything. He should first get a passport and official papers from an existing state (such as the Republic of Cyprus) in order to be accepted anywhere!

I wanted to know if the article you found in Wikipedia can really be trusted and the LAST THING I wanted to ask is if in the (5th revision of the) Annan Plan there is any report to the TRNC or if it only said the Turkish-Cypriot Community/ Turkish-Cypriot State(that was to be created if the plan was eventually adopted)

Thank you.