Abstract
Recognition of States is a political act with legal consequences that fulfils a double function: to determine the statehood and its precondition for the establishment of bilateral relations between the new State and the recognizing State. The recognition of States is of great importance within the framework of access to statehood, especially in the context of the new secessionist challenges because it would be a way to validate the illegal act of the declaration of independence. However, as regards the current international legal system there is an obligation not to recognize as States those applicants who have emerged from an illicit process of secession in which a peremptory norm of international law has been violated prohibition of the use of force, self-determination of peoples, territorial integrity of the parent State. An obligation of non-recognition, contained in article 41 of the ILC Draft on International Responsibility which concerned both States and international organizations. Within the framework of non-recognition, the role of international organizations is especially important, since not admitting secessionist entities as members results in their total cancellation in international relations. That being the case, their way out is to become puppets of the sponsoring State.
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Notes
- 1.
Quel López (1993), p. 43.
- 2.
Grant (1999), p. xix.
- 3.
Charpentier (1956), p. 10.
- 4.
Brownlie (2008), p. 89.
- 5.
Yearbook of IIL, 1936, p. 300.
- 6.
Oppenheim (1920), p. 175 and 373.
- 7.
Talmon (2007), pp. 6–7.
- 8.
Holsti (2004), p. 129.
- 9.
Article 13 provides that:
The political existence of the State is independent of recognition by other States. Even before being recognized, the State has the right to defend its integrity and independence, to provide for its preservation and prosperity, and consequently to organize itself as it sees fit, to legislate concerning its interests, to administer its services, and to determine the jurisdiction and competence of its courts. The exercise of these rights is limited only by the exercise of the rights of other States in accordance with international law.
And article 14 adds that:
Recognition implies that the State granting it accepts the personality of the new State, with all the rights and duties that international law prescribes for the two States.
- 10.
Award of 18 October 1923, UN RSA, vol. I, p.369. Subsequently, in the same vein, Deutsche Continental Gas Gesellschaft v. Poland, 1929.
- 11.
ICJ Reports, 1996, p. 595 and 686.
- 12.
This is the case, for example, regarding the letter of the German Federal Foreign Minister of 10 February 1994 (ZaöRV 56, 1996, p. 1007–1008). Australia’s statement to the ICJ in the East Timor case (CR 95/10, 9 February 1995, p. 52). As well as the positions taken by Guyana, Ecuador, Mexico and Algeria in the Special Committee on the Question of the Definition of Aggression (UN Doc. A/AC.134/SR.52–66, p. 66; A/AC.134/SR.79–91, p. 21 and 56).
- 13.
Opinion of 29 November 1991 (RGDIP, 1992, p. 264). In the same sense, it pronounced itself in its opinion n° 10 (RGDIP, 1993, p. 595).
- 14.
Opinion n° 8, of 4th July 1992 (RGDIP, 1993, p. 589).
- 15.
Yearbook of the International Law Commission, 2003, volume II, part one, pa.92, p. 66.
- 16.
The other States that have reportedly withdrawn their recognition of Kosovo are Burundi, Central African Republic, Comoros, Dominica, Grenada, Guinea Bissau, Lesotho, Madagascar, Nauru, Palau, Papua New Guinea, Solomon Islands, Suriname and Togo (https://www.prensa-latina.cu/index.php?o=rn&id=346747&SEO=anuncia-serbia-retirada-de-sierra-leona-del-reconocimiento-a-kosovo).
- 17.
- 18.
Let us recall that recognition is a unilateral legal act. According to point 10 of the Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations (adopted by the Commission in 2006, A/61/10), a unilateral declaration cannot be revoked arbitrarily. In determining arbitrariness, account should be taken of whether the declaration relates to revocation, the conduct of the subjects concerned, and whether there has been a fundamental change of circumstances. In line with the latter, unlike the recognition of States, the recognition of Governments is an essentially revocable act, especially in the face of unconstitutional changes.
- 19.
González Campos et al. (2008), p. 507.
- 20.
Lauterpacht (1947), p. 51.
- 21.
Crawford (2006), p. 28.
- 22.
Kelsen (1952), p. 70.
- 23.
González Campos et al. (2008), pp. 512–513.
- 24.
Although the act of recognition may be considered declaratory, it undoubtedly has important legal effects. The State undertakes to consider as such an existing factual or legal situation and to respect its legal consequences, so that it is obliged not to act against it in the future. This being so, the legal effects of recognition are mainly translated into opposability. The State accepts certain legal facts which it admits to be opposable to it. This, in turn, raises the question of their corresponding enforceability by the addressee.
- 25.
- 26.
Among others, González Campos and Sánchez Rodríguez and Andrés Sáenz de Santa María (2008), p.513; and Remiro Brotons and others (1997), p. 54.
- 27.
In fact, France was the only state to recognize the independence of the United States before England accepted it. The rest did not do so until said acceptance took place.
- 28.
It should be noted that the two cases referred to are assumptions that predate the existence of the principle of self-determination of colonial peoples, which occurred at a time when colonies were considered part of the territory of the colonial power. Following the advent of that principle, Non-Self-Governing Territories had an autonomous existence and were not part of the territory of the State administering them. For this reason, their independence cannot be considered as a case of secession, but of decolonization, not breaking the territorial integrity of the administering State.
- 29.
Jiménez de Aréchaga (1995), p. 23.
- 30.
Chaumont (1970), p. 431.
- 31.
Tal Becker (2000).
- 32.
Menon (1994), p. 28.
- 33.
Efevwerhan (2010), p. 374.
- 34.
See, in this regard, Christakis (2006), p. 130–140.
- 35.
Verhoeven (1993), p. 38.
- 36.
“Article 40. Application of this chapter
-
1.
This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law.
-
2.
A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.”
“Article 41. Particular consequences of a serious breach of an obligation under this chapter
-
1.
States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40.
-
2.
No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.
-
3.
This article is without prejudice to the other consequences referred to in this Part and to such further consequences that a breach to which this chapter applies may entail under international law.”
-
1.
- 37.
Dissenting opinion in the Advisory Opinion of 13 July 1954 on the Effect of Awards of Compensation made by the United Nations Administrative Tribunal (ICJ Reports, 1954, p. 65).
- 38.
Verhoeven (1993), p. 38.
- 39.
Chen (1951), p. 443.
- 40.
Christakis (2006), p.134.
- 41.
Australian Government Counter-Memorial, cap.2, sec.I, para. 350–359, pp. 157–161.
- 42.
This doctrine would be fully applicable today to cases of secessions with a ‘sponsor’ state (which is why they have not failed since the beginning): Abkhazia, South Ossetia and Transnistria, sponsored by Russia; Nagorno-Karabakh by Armenia; and the NCRT by Turkey.
- 43.
ILC, Commentary by the Commission on article 41, 53rd meeting, A/56/10 (2001), p. 311.
- 44.
Case of Loizidou v. Turkey (merits), Judgment of 18 December 1996, para. 44. In the same vein, Case of Cyprus v. Turkey, Judgment of 10 May 2001, para. 90.
- 45.
Costelloe (2017), p. 196.
- 46.
- 47.
According to that Report, only the United Kingdom and Australia clearly stated their opposition to the existence of such an obligation (http://www.ila-hq.org/en/committees/draft-committee-reports-washington-2014.cfm, p. 6).
- 48.
ICJ Reports, 1971, p. 58, para. 133.
- 49.
ICJ Reports, 2004, para. 155–159.
- 50.
Ibid., para. 163.
- 51.
ILM, vol.36 (2), 1997, pa.77–78.
- 52.
RGDIP, 1993, p. 595.
- 53.
The same conclusion was reached by the IHLADI Scientific Institution in the Resolution adopted at its session held in Lima, Peru, in December 2016, within the framework of its III Commission “The creation of States in contemporary international law in cases of secession: effectiveness/legality”:
6. States and international organizations should not recognize unilateral declarations of independence contrary to international law (http://ihladi.net).
- 54.
Grant (1999), p. 213.
- 55.
Tomuschat (1999), p. 13.
- 56.
Carrillo Salcedo (1976), pp. 214–215.
- 57.
Written statement of 16 April 2009. Similar statements were made by Estonia, Finland and Ireland.
- 58.
As Corten points out, it does not regulate it because it is not intended to regulate this situation; it simply ignores it (Corten (2006), p. 241).
- 59.
This is the idea behind the so-called Hallstein Doctrine established between 1955–1969, by virtue of which the Federal Republic of Germany broke off diplomatic relations with any State that recognized the German Democratic Republic. A similar ‘one China’ approach was adopted by the People’s Republic of China in relation to the Republic of China (Taiwan).
- 60.
Pellet (1994), p. 262.
- 61.
Comments d and f to section 202. See reference at http://www.ila-hq.org/en/committees/draft-committee-reports-washington-2014.cfm, p. 6.
- 62.
Text reproduced in RGDIP 1933, pp. 358–363.
- 63.
ICJ Reports, 1971, para. 122.
- 64.
Case C-432/92. Reference for a preliminary ruling by the House of Lords by order of that court of 20 May 1998 in the case of Regina v Minister of Agriculture, Fisheries and Food, ex parte: S. P. Anastasiou (Pissouri) Ltd and Others, interveners being Cypfruvex (UK) Ltd. and Cyprus Fruit and Vegetable.
- 65.
Case C-219/98. Reference for a preliminary ruling from the House of Lords: Regina v Minister of Agriculture, Fisheries and Food, ex parte: S. P. Anastasiou (Pissouri) Ltd and Others (‘Directive 77/93/EEC - Issue of phytosanitary certificates by third countries’).
- 66.
Case C-140/02. Reference for a preliminary ruling from the House of Lords): Regina, on the application of S.P. Anastasiou (Pissouri) Ltd and Others v Minister of Agriculture, Fisheries and Food, intervener: Cypfruvex (UK) Ltd. and Cypfruvex Fruit and Vegetable (Cypfruvex) Enterprises Ltd. (Approximation of laws - Plant health protection - Directive 77/93/EEC - Introduction into the Community of plants originating in third countries and subject to special requirements - Special requirements which cannot be fulfilled at places other than the place of origin - Affixing of an appropriate origin marking to the packaging of the plants - Official statement that the plants originate in an area considered to be free from the harmful organism in question).
- 67.
Pa. 44 and 56.
- 68.
Report of 8 July 1993, pp. 43–44.
- 69.
Keating (2008).
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Acknowledgement
Study carried out as a part of the Research Project DER2016-76312: Legal consequences of the secession of territorial entities from a State, with particular reference to the human rights implications. Lessons for Spain, financed by the Spanish Ministry of Economy and Competitiveness, as part of the National Plan for Scientific and Technical Research and Innovation 2013–2016.
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López Martín, A.G. (2022). The Role of Recognition in Access to Statehood and the Obligation Not to Recognize a Secessionist Entity as a State. In: Fernández de Casadevante Romani, C. (eds) Legal Implications of Territorial Secession in Spain . Springer, Cham. https://doi.org/10.1007/978-3-031-04609-4_6
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