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International Law in Domestic Courts - A Casebook edited by Nollkaemper, André; Reinisch, August; Janik, Ralph; Simlinger, Florentina

2 Statehood and Recognition

Aristoteles Constantinides

From: International Law in Domestic Courts: A Casebook

Edited By: André Nollkaemper, August Reinisch, Ralph Janik, Florentina Simlinger

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 13 November 2019

Statehood, legitimacy — Relationship between international and domestic law — Jurisdiction of states, territoriality principle — Recognition of states

(p. 32) Statehood and Recognition

I.  Introduction

International law lays down the factual criteria for statehood, that is, the conditions that must be fulfilled for an entity to qualify as a state and exist as a person in international law. Once an entity attains statehood, it possesses all the capacities of an international legal person, the entire range of powers and responsibilities on the international plane, including rights and obligations under international law. It is therefore paramount to ascertain when a territorial entity qualifies as a state.

The most common starting point for discussing the criteria for statehood is Article 1 of the 1933 Inter-American (Montevideo) Convention on the Rights and Duties of States which requires: (a) permanent population, (b) defined territory, (c) government, and (d) capacity to enter into relations with other states.1 The Montevideo formula was ‘a child of its time’ and did not reflect the self-determination, democracy, and legitimacy concerns that characterized relevant debates later in the twentieth century.2 Despite its wide acceptance in the practice of states (far beyond its sixteen parties),3 it has come under scholarly criticism, especially the fourth element (‘capacity to enter into relations with other states’).4 Many scholars do not include that condition among the elements of statehood,5 considering such capacity to be a consequence, not a condition, of statehood,6 or holding that the essence of that capacity is independence.7 Indeed, there is no doubt that the entity exercising control over territory and population should be sovereign and enjoy (formal) independence, in the sense that it is not in law dependent on or under the sovereign authority of another state.8

The controversies surrounding statehood are exemplified in those contested cases of effective entities that aspire to statehood but whose claim is recognized by none, one, a few or many states and/or international organizations (eg Abkhazia, Kosovo, Palestine, Puntland, Saharan Arab Democratic Republic, Somaliland, South Ossetia, Taiwan, Turkish Republic of Northern Cyprus, etc). The reasons for their non-recognition may vary, but it is widely accepted today—albeit not without controversy—that statehood (and recognition) is denied to effective entities meeting the factual/effectiveness criteria of statehood but having emerged in breach of peremptory norms of international law.9

(p. 33) As to recognition, there are two theories on its relevance for statehood. The constitutive theory holds that recognition is a precondition of statehood; states become international persons through recognition by other states. On the other hand, the declaratory theory maintains that a territorial entity is a state by fulfilling the criteria for statehood regardless of recognition, which is a political act falling within the discretion of states. Neither theory in its strong form satisfactorily explains modern practice,10 but it is common ground that the declaratory theory enjoys wider support, especially in academic writings.11 In any case, recognition maintains an important role in providing strong evidence that the statehood criteria have been met and in making the state effective outside its own borders.12

In addition to states, recognition has traditionally also been conferred to governments. This practice was in decline in the past decades but has recently resurged, as evidenced during the conflicts in Libya and Syria.

Questions of statehood and recognition are for the most part a matter for diplomatic intercourse. They are also, albeit less frequently, dealt with by international judicial and other bodies. When they arise before domestic courts, they often involve determinations by the Executive. In many states, particularly common law jurisdictions, courts have developed doctrines of judicial deference to the Executive and avoid making their own determinations.

The first section of this chapter deals with cases concerning the contested statehood of various territorial entities. The second section focuses on questions of (non-)recognition of states and governments and the third section surveys cases involving interrelated questions of secession, legitimacy, occupation/annexation, and state continuity.

II.  Statehood Criteria

Duchy of Sealand, Re, A German citizen by birth, First instance, Case no 9 K 2565/77, (1978) Deutsches Verwaltungsblatt 510, (1989) 80 ILR 683, ILDC 2119 (DE 1978), 3rd May 1978, Germany; North Rhine-Westphalia; Cologne; Administrative Court [VG]

This case concerned the citizenship of the so-called ‘Duchy of Sealand’, a self-proclaimed ‘state’ established in 1967 on an abandoned anti-aircraft platform, which was attached by concrete pillars to the seabed eight nautical miles off the southern coast of England. The ‘Duchy’ was permanently inhabited by thirty to forty persons and had started to issue passports. The plaintiff sought a declaration that acquisition of the Duchy’s citizenship had resulted in loss of his German citizenship. His action was dismissed on the ground that the ‘Duchy of Sealand’ did not constitute a state and he had therefore not acquired foreign nationality.

15  International law lays down three essential attributes for Statehood. The State must have a territory, that territory must be inhabited by a people and that people must be subject to the authority of a Government [ … ].

16  The ‘Duchy of Sealand’ fails to satisfy even the first condition as it does not possess a State territory within the meaning of international law.(p. 34)

17  The former anti-aircraft platform is not situated on any fixed point of the surface of the earth. [ … ]

18  [ … ] [O]nly those parts of the surface of the earth which have come into existence in a natural way can be recognized as constituting State territory. A man-made artificial platform, such as the so-called “Duchy of Sealand”, cannot be called either “a part of the earth’s surface” or “land territory” because it does not constitute a segment of the earth’s sphere. [ … ]

24  [ … ] The formation of land by the erection of dykes or dams and similar structures on the sea-shore or in coastal waters is not comparable to the construction of artificial islands such as ‘Sealand’. The positioning of dykes results in the enlargement of existing State territory by the acquisition of a new piece of the surface of the earth directly adjacent to existing State territory, which assumes the same status as that territory. By contrast, the artificial island of ‘Sealand’ did not involve the creation of any new piece of the earth’s surface.

25  In addition to the lack of State territory, the so-called ‘Duchy’ also lacks a State people within the meaning of international law. At present the ‘Duchy’ has 106 ‘citizens’. [ … ] [T]he size of a people is irrelevant to the question of whether or not it constitutes a State [ … ]. Nevertheless, in the case of the ‘Duchy of Sealand’ it cannot be accepted that there is a ‘people’ within the meaning of international law since the life of a community is lacking.

26  The State, as an amalgamation of many individuals, complements the family, which consists of only a few members, and has the duty to promote community life. This duty does not merely consist of the promotion of a loose association aimed at the furtherance of common hobbies and interests. Rather it must be aimed at the maintenance of an essentially permanent form of communal life in the sense of sharing a common destiny [ … ].

27  The so-called ‘nationals’ of the ‘Duchy of Sealand’ do not satisfy these criteria for community life. Apart from the 30 to 40 persons permanently living on the platform, who are responsible for its defence and the maintenance of its installations, the presence of the other so-called ‘nationals’ is limited to occasional visits. [ … ] [A] State community must play a more decisive role in serving the other vital human needs of people from their birth to their death. These needs include education and professional training, assistance in all the eventualities of life and the provision of subsistence allowances where necessary. The so-called ‘Duchy of Sealand’ fails to satisfy any of these requirements.

28  Regardless of the material prerequisites which an entity must have in order to constitute a ‘people’ under international law, the ‘nationals’ of the ‘Duchy’ themselves fail to satisfy an essential condition for their classification as a people. These ‘nationals’ have not acquired their ‘nationality’ in order to live with one another and handle all aspects of their lives on a collective basis, but on the contrary they continue to pursue their individual interests outside the ‘Duchy’. The common purpose of their association is limited to a small part of their lives, namely their commercial and tax affairs. This degree of common interest cannot be regarded as sufficient for the recognition of a ‘people’ within the meaning of international law.

The decision in this unusual case relied on German publicists for identifying three essential attributes of statehood, thus ignoring the controversial fourth one listed in the Montevideo Convention (‘capacity to enter into relations with other states’). As noted by the ILDC reporter, this omission was consistent with German state practice.13 In any case, this would have played (p. 35) no role in deciding the case, since the court’s analysis of the criteria of territory and people were sufficient to deny the ‘Duchy of Sealand’ any claim to statehood.

East Timor and ors v Netherlands, Decision on admissibility, ILDC 2118 (NL 1980), (1992) 87 ILR 73, 21st February 1980, Netherlands; The Hague; District Court

The Democratic Republic of East Timor (DRET) and the Revolutionary Front for an Independent East Timor (Fretilin) brought a claim against the Netherlands concerning the export of two corvettes to Indonesia in August 1975. The claim was brought a few years after Indonesia had invaded and annexed East Timor. The Netherlands challenged the locus standi of the plaintiffs, arguing that the DRET did not exist as a state and that the Fretilin Liberation Movement had no legal personality.

H1  The question as to whether the Democratic Republic of East Timor could be considered an independent state had to be answered on the basis of the law as it stood at the time of the institution of proceedings before the Court, and more specifically on the basis of the factual criteria for statehood prevailing in international law. (paragraph 3)

H2  It was not decisive that the Netherlands, as with almost the entire international community, had not recognized the Democratic Republic of East Timor as a state. However, the lack of recognition of statehood by the majority of the international community did create a presumption that the requirements for statehood had not been fulfilled. (paragraphs 3 and 4)

H3  In order to qualify as a state, a mere proclamation of independence was not sufficient. (paragraph 4)

H4  Both Fretilin and the Netherlands appeared to proceed from the assumption that at the time of the institution of proceedings the territory of East Timor was entirely under the control of the Indonesian government, with the possible exception of certain actions by groups of Fretilin supporters, and that the pretender state (ie the Democratic Republic of East Timor) did not exercise effective and stable authority. (paragraph 6)

H5  In NV Koninklijke Paketvaartmij v Republic of South Maluku, Judgment on appeal, Amsterdam Court of Appeal, 8 February 1951 (‘Republic of South Maluku’) the statehood of the Republic of South Maluku was accepted by the Court, even though it could have been anticipated that the authority of that state would not be maintained in the long run. However, Fretilin could not rely on this ruling because the Republic of South Maluku had fulfilled the requirements of statehood, notably stability and effective control, at the time of the outset of the proceedings. (paragraph 8)

H6  The Democratic Republic of East Timor did not fulfil the requirements for statehood at the time of the summons, nor at the time of this judgment. The claim was therefore inadmissible. (paragraph 7)

Fretilin’s claim was apparently premised on the assumption that DRET had achieved statehood upon its declaration of independence on 28 November 1975 and had retained statehood, notwithstanding Indonesia’s invasion of the territory on 7 December 1975 and its subsequent occupation and annexation, which was ongoing at the time of the proceedings. Indeed, it is an established rule of international law that belligerent occupation does not affect the continuity of a state.14 Permanence is also not an indispensable attribute of statehood but may be highly relevant when fulfilment of the statehood criteria is uncertain; states may have brief existence, provided of course that they have an effective independent government.15 Fretilin’s claim to DRET’s (p. 36) ten-day statehood would have been more fully answered if that aspect had also been addressed in view of Portugal’s partial (but not yet complete) withdrawal from East Timor earlier in 1975 and the domestic unrest and opposition to Fretilin during its short-lived authority. Against this background, it is doubtful whether the effective authority criterion and/or that of formal/legal independence were met. Indeed, shortly after Indonesia’s invasion, both the General Assembly and the Security Council reaffirmed the status of East Timor as a non-self-governing territory and continued to consider Portugal as the administering Power until the late 1990s, when the Indonesian troops withdrew and East Timor came under UN administration before achieving statehood in 2002.

The court summarily dismissed the claim to statehood based solely on Fretilin’s declaration of independence and focused its assessment on the situation at the time of the proceedings, when it was obvious that Fretilin was lacking effectiveness due to Indonesia’s on-going occupation of East Timor. The decision also followed the declaratory approach and regarded the non-recognition of DRET as indicative and not decisive of its claim to statehood. Interestingly as well, as noted by the ILDC reporters, there was no reference to the Montevideo Convention.16

Morgan Guaranty Trust Company of New York and ors v Palau, Appeal judgment, Docket No 89-7096, Case No 1427, ILDC 2011 (US 1991), 924 F 2d 1237 (2d Cir 1991), 4th February 1991, United States; Court of Appeals (2nd Circuit) [2d Cir]

Palau is a Pacific island state that used to be part of the US Trust Territory of the Pacific Islands. Since 1981 Palau has enjoyed substantial self-government and, following a series of inconclusive plebiscites, it ultimately ratified a Compact of Free Association with the US in 1986, marking its de jure independence in 1994. When the plaintiff banks claimed US$35 million under a loan agreement concluded with Palau in 1983, Palau pleaded sovereign immunity. In 1986, the District Court for Southern New York (at a moment when, admittedly, Palau’s independence appeared imminent) held that Palau had de facto sovereignty and was a foreign state within the meaning of the US Foreign Sovereign Immunity Act (FSIA) but was not protected by sovereign immunity in that particular instance. Palau appealed.

36  [ … ] Under international law, a state is said to be an entity possessed of a defined territory and a permanent population, controlled by its own government, and engaged in or capable of engaging in relations with other such entities. Restatement (Third) of the Foreign Relations Law of the United States § 201 (1987) (‘Restatement 3d’) [ … ]

37  According to international law, a sovereign state has certain well accepted capacities, rights and duties:

  1. (a)  sovereignty over its territory and general authority over its nationals;

  2. (b)  status as a legal person, with capacity to own, acquire, and transfer property, to make contracts and enter into international agreements, to become a member of international organizations, and to pursue, and be subject to, legal remedies;

  3. (c)  capacity to join with other states to make international law, as customary law or by international agreement. [Restatement 3d § 206] [ … ]

42  Palau simply does not have the attributes of statehood, and cannot be considered a foreign sovereign. [ … ] The Trusteeship Agreement, of course, confers upon the United States ‘full power of administration, legislation and jurisdiction over the territory,’ as well as the right to apply ‘such of the laws of the United States as it may deem appropriate.’ A more wide-ranging authority to govern is hard to imagine. The United States exercised that authority at the time of the transactions giving rise to this action, and continues to exercise it. [ … ](p. 37)

43  [Palau] is the sole remaining part of the Pacific Trust Territory remaining under the trusteeship. It seems clear that Palau must continue as a trust territory until the United Nations Security Council acts to relieve the United States of its responsibilities under the trust [ … ]. [ … ]

46  [ … ] It seems to us that a political entity whose laws may be suspended by another cannot be said to be possessed of sovereignty of any kind, de facto or de jure. That is the case with respect to the United States and Palau. Moreover, the Palauan courts are not independent of the United States. The Justices of the High Court of Palau are appointed by the Secretary of the Interior, and the court is constrained to apply the law of the United States in effect in the territory, including the executive orders of the Secretary of the Interior. [ … ] This, too, is inconsistent with the concept of sovereignty. [ … ] The reality is that the United States has ultimate authority over the governance of Palau, [ … ] and it therefore cannot be said that Palau is an entity ‘under the control of its own government,’ Restatement 3d § 201. Neither can it be said to be sovereign over its own territory, with general authority over its nationals in the manner contemplated by Restatement 3d § 206(a). [ … ]

48  [ … ] Although it is true that Palau has entered into some fisheries and marine resources treaties and has sent representatives to international conferences, it has done so with the approval of the United States, at whose sufferance it conducts foreign relations under the provisions of the Palauan Constitution. Palauan laws and treaties may not be inconsistent with United States treaties or international agreements, and this has been the case during the entire period of trusteeship. [ … ] Under the present Executive Order, even communications with foreign governments by the Republic of Palau must follow consultation with, and approval by, the Department of State. The power to maintain diplomatic ties with other sovereigns and to make international agreements and treaties, [ … ] and the capacity to join with other states to make international law, Restatement 3d§ 206(c), are rights of sovereignty not possessed by Palau. [ … ]

53  Our conclusion in this case well may have been different had the Compact of Free Association been fully approved by the parties to the Compact. Such approval would have marked the entry of Palau into the final stage of its transition to self-government and would have signalled the certain and unavoidable termination of the Trusteeship. [ … ] Subject to the control of its internal and external affairs by the United States, deficient in all the major attributes of statehood, its Compact of Free Association remaining unapproved after seven plebiscites, the Republic of Palau concedes its lack of sovereignty. We are constrained to agree.

The Court of Appeals relied on the Restatement (Third) of Foreign Relations Law and stressed the numerous factors that pointed to Palau’s lack of independence at the material time, when Palau was still a Trust territory. The court made a proper assessment of the statehood criteria and considered that independence was among the essential components of a sovereign state. This was crucial in dismissing Palau’s claim to de facto sovereignty, which was admittedly short of the FSIA requirement of de jure statehood.

The proper meaning of independence in relation to so-called ‘micro-states’ (or ‘mini-states’) had been debated for some time before their admission to the UN,17 since some of them emerged under some form of legal dependence from their former colonial powers.18 This was (p. 38) also the case with Palau; its formal independence in 1994 was coupled with a Compact of Free Association with the US, which deprived Palau, as an ‘associated state’, of the final say in several important issues. That said, it is well accepted that such a state of affairs does not necessarily affect statehood unless foreign control ‘overbear[s] the decision-making of the entity concerned on a wide range of matters of high policy and doing so systematically and on a permanent basis’.19

Kadić and ors v Karadžić (Radovan), Appeal judgment, Docket No 94-9035, Docket No 94-9069, Case No 1541, Case No 1544, ILDC 814 (US 1995), 70 F 3d 232 (2d Cir 1995), 64 USLW 2231 (1995), (1997) 104 ILR 135, 13th October 1995, United States; Court of Appeals (2nd Circuit) [2d Cir]

This case involved an ATS suit for genocide and other international humanitarian law violations against Radovan Karadžić, the leader of Srpska, the self-proclaimed (and unrecognized) state of the Bosnian Serbs within Bosnia and Herzegovina during the country’s civil war. Karadžić was served with process outside the UN headquarters in New York while visiting the US upon UN invitation in early 1993. Some of the issues raised in the case revolved around whether Karadžić had acted as a private individual or a state official. The District Court of Manhattan for the state of New York had found that the alleged violations required state action and that the ‘Bosnian-Serb entity’ headed by Karadžić did not meet the definition of a state. Upon appeal, appellants contended that Srpska satisfied the definition of a state.

36 (a)  Definition of a state in international law. The definition of a state is well established in international law: Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities. [Restatement (Third) § 201] [ … ]

38  Although the Restatement’s definition of statehood requires the capacity to engage in formal relations with other states, it does not require recognition by other states. [ … ] Recognized states enjoy certain privileges and immunities relevant to judicial proceedings, [ … ] but an unrecognized state is not a juridical nullity. Our courts have regularly given effect to the “state” action of unrecognized states. [ … ]

39  The customary international law of human rights, such as the proscription of official torture, applies to states without distinction between recognized and unrecognized states. See Restatement (Third) §§ 207, 702. It would be anomalous indeed if non-recognition by the United States, which typically reflects disfavor with a foreign regime—sometimes due to human rights abuses—had the perverse effect of shielding officials of the unrecognized regime from liability for those violations of international law norms that apply only to state actors.

40  Appellants’ allegations entitle them to prove that Karadzic’s regime satisfies the criteria for a state, for purposes of those international law violations requiring state action. Srpska is alleged to control defined territory, control populations within its power, and to have entered into agreements with other governments. It has a president, a legislature, and its own currency. These circumstances readily appear to satisfy the criteria for a state in all aspects of international law. Moreover, it is likely that the state action concept, where applicable for some violations like “official” torture, requires merely the semblance of official authority. The inquiry, after all, is whether a person purporting to wield official power has exceeded internationally recognized standards of civilized conduct, not whether statehood in all its formal aspects exists.

(p. 39) The court’s conclusion that Srpska satisfied the statehood criteria was hasty and apparently driven by its quest to overcome the state/official action concept and hold Karadžić liable. On the other hand, the court’s reliance on the Restatement’s declaratory approach to recognition was in line with the prevailing view in international law.

Knox and ors v Palestinian Liberation Organization and ors, Trial judgment, No 03 Civ 4466, ILDC 1984 (US 2004), 306 F Supp 2d 424 (SDNY 2004), 1st March 2004, United States; New York; District Court for the Southern District of New York [SDNY]

The plaintiffs were US victims of a terrorist attack in Israel in 2002. They sued the defendants under the US Anti-Terrorism Act, alleging that the Palestinian Liberation Organization (PLO) and the Palestinian Authority (PA) were implicated in the attacks by instructing or materially supporting the attacker. The PLO and the PA claimed sovereign immunity, arguing that Palestine was a state.

27  [ … ] “[A] state is an entity that has [1] a defined territory and a [2] permanent population, [3] under the control of its own government, and that [4] engages in, or has the capacity to engage in, formal relations with other such entities.” Restatement (Third) § 201. The PLO and PA do not meet, nor are they part of any entity which meets, these criteria because, first, the PLO and PA do not sufficiently “control” Palestine and, second, they do not have sufficient capacity to engage in foreign relations.

28  Defendants argue that, at least since the United Nations called for a partition of British-mandated Palestine, Palestine has had a defined territory. While acknowledging that the borders have occasionally changed and that there is some dispute as to their exact contours, Defendants maintain that it is commonly recognized that Palestine today consists of the West Bank, Gaza Strip, and East Jerusalem. Moreover, Defendants remind the Court of what is an indisputable historical fact: that there has been a permanent population in Palestine for over two millennia.

29  Plaintiffs’ briefing purports to challenge these first two requirements, but their arguments in this regard are, in essence, that neither the PLO nor PA has a defined territory under its control, nor a permanent population under its control. Accordingly, the Court moves directly to the third prong of the Restatement (Third) definition and addresses whether there is a government in Palestine in control of a defined territory and permanent population.

4.  Control Over Territory And Population

[ … ]

32  It is well-accepted under international law that, to meet the governmental control requirement, the entity “must be capable of acting independently of foreign governments.” [ … ] In other words, the entity must be “independent from direct orders from other State powers.” [ … ]

34  An examination of the [1995 Interim Agreement on the West Bank and the Gaza Strip] confirms that the Oslo Accords have not created a Palestinian state because the Interim Agreement substantially circumscribes the PA’s authority in many spheres of governance. [ … ]

35  In short, the PA’s authority is subordinate to Israel’s sovereign control, in many fundamental ways that conflict with and negate a claim of the existence of independent statehood for the Palestinian territory over which the PA exercises the limited governmental power specified in the Oslo Accords. [ … ]

37  Defendants do not dispute any of these limitations on the PA’s control, except to point out that they are the result of Israel’s illegal and oppressive occupation. It is true that “belligerent occupation does not affect the continuity of the state.” [ … ] (p. 40) However, the predicate for this principle is that a sovereign entity satisfying all of the prerequisites for statehood existed prior to the occupation. In this case, Defendants have not argued that there was an independent state of Palestine immediately before Israel’s allegedly illegal occupation. Under international law, a state will maintain its statehood during a belligerent occupation, [ … ] but it would be anomalous indeed to hold that a state may achieve sufficient independence and statehood in the first instance while subject to and laboring under the hostile military occupation of a separate sovereign. In light of the preceding discussion, the Court concludes that neither the PLO nor PA possesses sufficient control over the disputed Palestinian territories to satisfy the “control” criterion of statehood.

5.  Capacity To Conduct Foreign Relations

38  “An entity is not a state unless it has competence, within its own constitutional system, to conduct international relations with other states, as well as the political, technical, and financial capabilities to do so.” Restatement (Third) § 201 cmt. e. The capacity of a state to engage in foreign relations with other sovereigns depends, in part, “on the entity concerned being separate for the purpose of [international] relations so that no other entity both carries out and accepts responsibility for them.” [ … ] Under the Interim Agreement, the PA is expressly prohibited from conducting foreign relations:

In accordance with the [1993 Declaration of Principles on Interim Self-Government Arrangements], the [PA] will not have powers and responsibilities in the sphere of foreign relations, which sphere includes the establishment abroad of embassies, consulates or other types of foreign missions and posts or permitting their establishment in the West Bank or the Gaza Strip, the appointment of or admission of diplomatic and consular staff, and the exercise of diplomatic functions. Interim Agreement, art. IX [ … ]. The Interim Agreement permits the PLO to negotiate and enter into international agreements regarding certain economic development plans, as well as certain cultural, scientific and educational agreements, “for the benefit of” the PA. See Interim Agreement, art. IX(b) [ … ]. However, the Interim Agreement explicitly declares that these limited activities “shall not be considered foreign relations.” Id. More importantly, the Interim Agreement provides no mechanism by which the PLO could actually implement any international commitments in the spheres of power delegated to the PA. [ … ] Furthermore, neither the PLO nor the PA would be able to implement any international commitments in the spheres of authority which, as discussed above, remain with Israel, such as those relating to external threats, border control, and the movement of persons into the Palestinian territories. For this independent reason, Defendants have failed to carry their burden to demonstrate that the PLO or PA, even in combination, have sufficient capacity to conduct international relations to satisfy that criterion of statehood.

The statehood criteria under the Restatement, which was relied upon by the court, are identical to those of the Montevideo Convention. Hence, the court examined separately the third (Palestine’s control over territory and population) and the fourth (Palestine’s capacity to conduct foreign relations) criteria. It is not common to find judgments discussing the latter element. Admittedly, the limitations of the PA in the sphere of foreign relations under the Oslo Accords were a good opportunity for applying that test. As pointed out in the introductory note of this Chapter, the relevance of the fourth Montevideo element is seriously questioned by scholars as well as in state practice. In any case, as noted by the ILDC reporter, the court’s analysis of the statehood criteria as applied to Palestine was dicta because the court held that Palestine’s non-recognition by the US was conclusive for the immunity question.20(p. 41)

Ungar v Palestine Liberation Organization [PLO] and Palestinian Authority, Appeal Judgment, Docket No 04-2079, 402 F.3d 274 (1st Cir. 2005), ILDC 124 (US 2005), 31st March 2005, United States; Court of Appeals (1st Circuit) [1st Cir]

Yaron and Efrat Ungar, a US couple, were killed by members of the Hamas Islamic Resistance Movement during a terrorist attack in Israel in 1996. The administrator of the Ungar’s estates and other plaintiffs filed a suit in the US under the Anti-Terrorism Act, alleging that the PLO and the PA had engaged in international terrorism within the meaning of the Act. The district court denied the PLO and PA’s motions to dismiss and ordered a default judgment against them. On appeal, the PLO and the PA claimed sovereign immunity, arguing that Palestine was a state.

22  [ … ] The district court had access to judicially manageable standards for resolving the issue before it [ … ] and those standards did not require the court to make nonjudicial policy determinations. Both sides agreed that the definition of a “state” under the relevant statutes was informed by an objective test rooted in international law and articulated in the Restatement (Third) of Foreign Relations. Under these circumstances, the determination of whether the defendants have adduced sufficient evidence to satisfy that definition is quintessentially appropriate for a judicial body. [ … ]

56  International law defines a state as “an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.” Restatement (Third) of Foreign Relations § 201. This definition derives from the Montevideo Convention of 1933. [ … ] In applying this definition, some courts have subdivided the analysis into four parts, asking whether the putative state (i) has a defined territory and (ii) a permanent population, which (iii) is under the control of its own government, and (iv) has the capacity to engage in foreign relations. [ … ]

57  In practice, the third element is the most salient factor in the statehood calculus. [ … ] The Restatement’s explanation of this element is rather sparse; it notes only that “[a] state need not have any particular form of government, but there must be some authority exercising governmental functions and able to represent the entity in international relations.” Restatement (Third) of Foreign Relations § 201 cmt. d. To satisfy these requirements, a state’s government must, at a bare minimum, be independent and in general control of its territory, maintaining at least a modicum of law and order. [ … ] Its government must speak for the state as a whole; the mere presence of independent tribes or factions within a territory, lacking common institutions, cannot constitute a government in control. [ … ]

58  The first, second, and fourth elements are dependent on (or, sometimes, subsumed by) the third. As to the first — defined territory — the “only requirement is that the State must consist of a certain coherent territory effectively governed.” [ … ] So too the second element, which typically is satisfied by showing a permanent population within the defined territory. [ … ] The relationships of these elements with the all-important third element is readily evident. As one court put it, the question is essentially whether the entity claiming statehood has a “defined territory under its control” and a “permanent population under its control.” Knox, 306 F. Supp. 2d at 434 (emphasis in original).

59  The fourth element — “capacity to engage in foreign relations” — focuses on “competence, within [a state’s] own constitutional system, to conduct international relations with other states, as well as the political, technical, and financial capabilities to do so.” Restatement (Third) of Foreign Relations § 201 cmt. e. Again, this is a (p. 42) function of independence and effective government control. [ … ] In that sense, then, it too is dependent on the third element.

60  We add that the party who alleges sovereign immunity has the burden of proving that status. [ … ]

61  The defendants argue that the state of Palestine exists; that they constitute core elements of that state; and that, therefore, they are immune from suit under the FSIA (and, thus, under the ATA). This argument has a quicksilver quality: it is hard to pin down exactly when or how the defendants assert that Palestine achieved statehood. At various points in their briefs, they hint at three possibilities: (i) the period from the beginning of the mandate through the 1967 Arab-Israeli war; (ii) the period from the end of that war up until the creation of the Palestinian Authority (1994); and (iii) the period from 1994 forward. In an abundance of caution, we consider whether the defendants have made a prima facie showing of statehood at any such juncture.

62  [ … ] [T]he focus shifts to the third prong of the test for statehood. At that stage, the question becomes whether the defendants have shown that the identified territory and population are self-governing. In answering this question, we look separately at each period.

63  1. The Initial Period. As to the pre-1967 period, the defendants’ argument seems to be that the territory that comprised the Palestinian portion of the mandate was a state prior to, during, and after the mandate. Their support for this thesis is very weak; they assert only that throughout this interval there were local governmental institutions in place that catered to the Palestinian populace.

64  This assertion is manifestly insufficient to make the defendants’ prima facie case of statehood. The third element of the test requires governmental independence and control of a defined territory. That element plainly was not satisfied while the defined territory was part of the Ottoman Empire; even if the Palestinian people exercised operating control over domestic governmental functions in the region — and the defendants offer nothing to support such a claim — that would not be sufficient to show the existence of an independent political unit that controlled the territory.

65  The same is true for the latter portions of the period. During the currency of the mandate, the United Kingdom exercised suzerainty over the administration and laws of the defined territory. [ … ] Following the United Kingdom’s relinquishment of the mandate and the onset of the 1967 Arab-Israeli war, the Israelis occupied much of the land designated for a future Arab state, and the Egyptians and Jordanians seized the rest. The net result is that, at all times, other states had control over the defined territory.

66  The defendants resist the obvious conclusion. In particular, they rely upon United Nations General Assembly Resolution 181(II), noting that it called for an independent Arab state to come into existence no later than October 1, 1948, and that this became a reality in the sense that “Palestinian government institutions continued to function under Egyptian and Jordanian occupation much as they had under the Mandate.” [ … ] These assertions are insufficient to show that a political unit was in control of the defined territory and populace. The mere fact that the United Nations conceived an aspirational plan for Palestinian statehood does not establish the existence of a state. Nor does the fact that the Egyptians and Jordanians occupied and controlled a significant portion of the defined territory immediately following the end of the mandate aid the defendants’ cause. To the contrary, the fact is a stark reminder that no state of Palestine could have come into being at that time. [ … ](p. 43)

67  2. The Middle Period. The interval following the occupation of the West Bank and the Gaza Strip by Israel in 1967 is no more promising. With respect to this time span, the defendants rely heavily on Security Council Resolution 242 and its hortatory call for Israeli withdrawal from “territories occupied in the recent conflict” and for all states to respect and acknowledge “the sovereignty, territorial integrity and political independence of every State in the area.” That reliance is mislaid. There is a vast difference between what should be and what is; the fact that some political leaders recognize that particular territory should comprise a state does not make that territory a state under the prevailing principles of international law.

68  What counts is that the defendants have not presented any evidence indicating that Palestine actually became a state following Israel’s conquest of the lands previously occupied by Jordan and Egypt. The one circumstance to which the defendants advert — that the Israelis did not dismantle the local governmental institutions in the region — is wholly inadequate to show that there was a Palestinian state underlying the Israeli occupation. The territory went directly from Jordanian/Egyptian control to Israeli control, thus undermining the defendants’ statehood argument. [ … ]

69  To be sure, the defendants point proudly to the U.N.’s 1974 recognition of the PLO. We do not minimize the political significance of that event. The fact remains, however, that neither political recognition of the PLO nor United Nations support for self-governance is sufficient to signify that the Restatement’s conditions for statehood have been met. [ … ]

70  3. The Most Recent Period. The defendants’ argument for current statehood posits that Palestine’s changing status over the last decade marked the emergence of the defined territory from Israeli control and the establishment of a Palestinian government in its place. The PLO’s 1988 declaration of independence adumbrated the inception of this period. The period itself commenced, however, in 1994, the signal event being the creation of the PA as an entity having some lawful authority in the West Bank and Gaza. The defendants suggest that this development signified the birth of a government sufficiently in control of the defined territory to satisfy the third element of the Restatement test. We reject the suggestion.

71  Undoubtedly, the agreements to which the defendants allude vested some autonomy in the newly created PA. But the authority so transferred was limited and, during and after that transition, Israel explicitly reserved control over all matters not transferred. [ … ]. Several of these reserved powers are incompatible with the notion that the PA had independent governmental control over the defined territory. To illustrate, the interim agreement expressly denied the PA the right to conduct foreign relations [ … ]; left Israel with an undiminished ability to defend and control the territorial borders [ … ]; denied the PA the right to create or maintain either an army or a navy [ … ]; retained Israeli control over the territorial airspace [ … ]; and placed severe restrictions on the PA’s lawmaking ability (declaring, inter alia, that any laws passed in contravention of the DOP would be void ab initio) [ … ]. These restrictions remain in effect. It is, therefore, transparently clear that the PA has not yet exercised sufficient governmental control over Palestine to satisfy the third element of the Restatement test. [ … ]

72  The defendants do not deny that these limitations are incompatible with statehood, but, rather, contend that they were imposed by force and that the Israeli occupation is all that is preventing the full exercise of the prerogatives of statehood. The problem with this contention is that it presupposes that Palestine was a state before the Israeli occupation — and the defendants have not shown that it was. [ … ](p. 44)

73  We recognize that the status of the Palestinian territories is in many ways sui generis. Here, however, the defendants have not carried their burden of showing that Palestine satisfied the requirements for statehood under the applicable principles of international law at any point in time. In view of the unmistakable legislative command that sovereign immunity shall only be accorded to states — a command reflected in both the FSIA and the ATA — the defendants’ sovereign immunity defense must fail.

As observed by the ILDC reporter, unlike in Knox, the court did not decide the case based on Palestine’s non-recognition by the US because the US government had abandoned the ‘recognition test’ in the case at hand.21 The court stressed the ‘all-importance’ of the control over territory and population requirement, which it conflated with independence, and found that the exercise of authority by the Palestinians in all instances fell short of that requirement. Citing this decision as well as Knox, Crawford has concluded that an entity claiming statehood but created during a period of foreign military occupation will be presumed not to be independent.22 A less stringent test has led others to conclude that Palestine was a state.23 In the meantime, however, significant progress has been made towards Palestinian state-building under the auspices of various international organizations, which has reinforced the argument that the Palestinian Authority seems to meet—at least by a minimum standard—the criterion of government.24 In a related development, by resolution 67/19 of 29 November 2012, the UN General Assembly accorded Palestine ‘non-member observer state’ status in the United Nations.

Basha (Association of the Elon Moreh College) v Israel and ors, Administrative Decision, Case No 4049/02, ILDC 453 (IL 2006), 23rd April 2006, Israel; Jerusalem (disputed); District Court

The issue in this case, decided in the aftermath of Israeli disengagement from Gaza, was whether it was possible to sue the authorities of the Palestinian National Authority (PNA) for failure to enforce Israeli judgments in areas under the PNA’s control, as was provided in the 1995 interim agreement between Israel and the PNA. This involved a judgment on whether the PNA enjoyed sovereign immunity, hence the inquiry into the status of the PNA.

The status of the “Territories”—from territory held by Israel to territory under quasi-sovereignty

5.  Area A was never part of the territory of the State of Israel. It was part of territories held by the State of Israel. [ … ] Israel had effective control of the territories. This control was attained by military means. As a result, the powers of the government that had applied to these territories prior to their seizure by Israel were suspended, and the commander of the military forces took over the responsibilities of the previous government [ … ].

6.  [ … ] The area held was not itself part of the territory of the State of Israel and the procedures in that area were outside the jurisdiction of Israeli courts [ … ].

8.  [ … ] [T]he Interim Agreement changed the status of the Palestinian National Authority in Israeli law, by virtue of recognition of its jurisdiction over some of the territories. Recognition of this status carries with it considerable legal significance. In fact, the Palestinian National Authority acquired the status of a quasi-sovereign entity, ruling over part of a political nation, de facto. One of the clear indicators of such is the creation of a Palestinian police force (see section 1 of the Schedule to the Legal Assistance Law). Another indicator is a provision that limits Israeli judicial powers, transferring powers of governance over persons who are not Israeli, even if this is not stated explicitly, to the Palestinian legal authorities (section 2(d) of the Schedule to the Legal Assistance Law).

9.  The Palestinian National Authority’s status crystallized further when Israel exited the Gaza Strip, leaving governing of the area in the hands of the Palestinian National Authority [ … ]. In fact, the Palestinian National Authority meets the requirements that make up a state, being territory, population and government (or sovereign enforcement on population), albeit in a disjointed and unstable manner. Despite this, the Authority is not recognized by most countries of the world as being a country. But the question of recognition is mainly one of declaratory significance. What is more, international law is concerned more with substance than with form. Therefore, the more indicators of sovereignty the Palestinian National Authority might have, including having particular institutions, international status, territory under exclusive control, police forces, independent currency, etc., the more alike it will be to a political entity, and the greater the tendency will be to apply laws relating to a state to the Authority, even in the absence of formal recognition of such.

Par in parem non habet imperium

10.  Recognition of the Palestinian National Authority as having the capacity of a sovereign over part of the territories needs to be answered in terms of customary international law as well. The Palestinian National Authority exercises policing and judicial responsibilities in the territories under the control of the Palestinian National Council, pursuant to the Interim Agreement. It exercises these authorities in the Gaza Strip as well. Imposition of this responsibility almost means the affording of powers. It would not be plausible for the Palestinian National Authority to be caught in a grey area in which it was under responsibility, but without the power to exercise authority or the right to claim a sovereign status vis-à-vis any other sovereignty. The claim for such powers stems from the very fact of providing these sovereign indicators. [ … ]

These rules do not apply to the Palestinian National Authority directly, so long as it has not been recognized as a state. However, it is not possible to disregard the aspects of sovereignty that have been granted to the Authority and its territories. Some of these are stated expressly in the Interim Agreement and in the Implementation Law, by virtue of qualification of Israeli legal powers in the territories. Also, even those powers that remain, for instance in criminal law, do not originate from either the military commander or Israeli law, but rather, from the Interim Agreement. The significance of this is that even without recognition of full sovereignty, the Interim Agreement has, with regard to the relationship between Israel and the Palestinian National Authority, in fact adopted the customary international law principle of par in parem non habet imperium — one sovereign state does not control nor have jurisdiction over another sovereign entity. Although there is no express adoption of this rule in the Interim Agreement, it is the starting point for requiring Palestinian consent to any act on the part of Israel which might harm sovereignty, including execution or enforcement of criminal judgments.(p. 46)

11.  [ … ] We might say that since immunity is a right of a state, the rule applies only to states. However, the status of the Palestinian National Authority, and the fact that it is a quasi-sovereign over the territories or part of them, are what cause the logic of immunity to be applied to it. [ … ] Accordingly, a political unit within a state has also been recognized as a state for the purpose of acquiring immunity. The functional test gives rise to the result that even where a country does not recognize another entity as a country, it will not be exempt from recognizing such other entity under international law. [ … ] This examination shows that the Palestinian Authority enjoys immunity. This would have been the case even without the Interim Agreement, and it is certainly the case by virtue of the Agreement. The Agreement itself states that the powers of the State of Israel over the areas in question are, from now on, the results of the arrangement that the parties reached, and that is the legitimate source of Israel’s actions in these territories (alongside other rules of international law). This is the necessary conclusion of all of the sovereign indicators in the actions of the Palestinian National Authority, which are expressed in effective control in at least certain parts of the territories (supra, paragraph 9).

12.  In summary of this point: the territories were not under Israeli sovereignty. They were under Israeli military control. The military commander was the sovereign. The Interim Agreement altered the situation of the territories. It transferred part of them into the control of the Palestinian National Authority. This control is accompanied by indicators of sovereignty. The Implementation Law afforded Israeli recognition to this status of the Palestinian National Authority. This recognition does not amount to recognition of the Palestinian National Authority as a state. Such recognition requires a formal act by the government of Israel, which has not been put into effect [ … ]. However, even without such recognition, the Palestinian National Authority enjoys application of the relevant provisions of customary international law, including immunity. Application of this rule is not connected to answering the question of whether the Palestinian National Authority is a state or not. It is sufficient that it be a sovereign or quasi-sovereign entity, which controls territory that is deemed to be “abroad” as far as Israel is concerned. Application of this rule is the result of a purposive reading of the Interim Agreement, and of the Implementation Law. [ … ]

The court acknowledged that the PNA met the criteria of statehood but fell short of considering it as a state, partly due to its non-recognition, even though such non-recognition was not taken to be determinative. It rather considered the PNA as a quasi-sovereign entity with numerous sovereignty indicators, which was sufficient to grant it immunity and decided the case accordingly. As pointed out by the ILDC reporter, the court applied a functional test of sovereignty and reached a controversial conclusion, leaving many questions unanswered.25 However, since this decision was issued by a district court, it was not binding on the Supreme Court or other district courts.

SMZ v Khamis Ali and Others, The Revolutionary Government of Zanzibar v Khamis Ali (Machano), Appeal judgment, [2000] TZCA 1, ILDC 922 (TZ 2000), 21st November 2000, Tanzania

The main issue in this case was whether the crime of treason, which implied the breach of allegiance owed to one’s state, could be committed in Tanzania against the Revolutionary Government of Zanzibar, which was—along with Tanganyika—a constituent part of Tanzania. Tanganyika and Zanzibar merged on 26 April 1964 to become the United Republic of Tanzania. (p. 47) The court thus inquired into the status of Zanzibar under Tanzania’s Constitution as well as under international law.

12  [ … ] To focus the matter squarely to the matter before us, the questions are: is Zanzibar a state and is the Revolutionary Government of Zanzibar sovereign? [ … ]

17  [ … ] [T]here are four conditions that need to be satisfied for a state to exist. [ … ]

18  The first of the four conditions is that there must be a people. This is an aggregate of individuals of both sexes, regardless of race or colour or creed, together as a community. Secondly, there must be a country in which the people have settled down. The size of the country is immaterial. Thirdly, there has to be a Government i.e. a person or persons who are the representatives of the people who rule according to the law of the land. Lastly, the Government has to be sovereign.

19  What is sovereignty? Oppenheim says at page 113, “Sovereignty is supreme authority, an authority which is independent of any other earthly authority. Sovereignty in the strict and narrowest sense of the term implies, therefore, independence all-round, within and without the borders of the country”. [ … ]

29  [T]he constitutional set-up of the United Republic is unique. It is a union but with some elements of federalism. [ … ]

30  We can in all fairness say that The United Republic of Tanzania closely resembles a real union but for the stipulation that a real union is not itself a state. There is no speck of doubt that the United Republic of Tanzania is a state. The two parts forming the United Republic of Tanzania can neither separately go to war against a foreign power nor can war be made against one of them separately as was amply demonstrated in the war against Idi Amin Dada of Uganda. The whole of Tanzania went to war and each part contributed towards the cost of that war. The United Republic of Tanzania is the treaty-making power. This was illustrated by the abortive attempt of Zanzibar to join the Organization of Islamic Conference.

31  May be this is the proper juncture to turn to the question [ … ]: is Zanzibar a sovereign state in international law?

32  After the above exposition, we have no difficulty at all to answer that question in the negative. The International Persons called Tanganyika and Zanzibar ceased to exist as from 26th April, 1964 because of the Articles of Union. The two states merged to form a new international person called the United Republic of Tanzania.

33  [ … ] [B]oth Tanganyika and Zanzibar, and not Zanzibar alone, surrendered their treaty-making powers to the United Republic of Tanzania.

34  Thus, Zanzibar, just like its sister Tanganyika, is neither a state nor is it sovereign. The state and the sovereign is the United Republic of Tanzania.

After analysing relevant provisions of the Constitution, the court held that treason can only be committed against the sovereign, which was the United Republic of Tanzania and not the Revolutionary Government of Zanzibar, because treason was a breach of security, which was a Union (that is, a federal) matter under Tanzania’s Constitution. The court reached the right conclusion on the status of Zanzibar, by emphasizing (formal) independence as the statehood criterion (in the court’s words, ‘the Government has to be sovereign’), which was missing since Zanzibar was a constituent entity of Tanzania. The court’s emphasis on the treaty-making power resting on Tanzania, however, was rather misplaced since many constituent entities of federations do possess such power without any impact on their status or on the federal state’s statehood, as the following case also demonstrates. Lastly, there was again no reference to the Montevideo Convention and the court relied largely on publicists. The Court accepted four conditions for statehood, the fourth one being that the Government has to be sovereign.(p. 48)

Italy v D M, Final Appeal on Preliminary Question, Case No 49666, Diritto e giustizia 30 (11/2005), (2006) 2 Riv Dir Int 568, ILDC 74 (IT 2004), 28th December 2004, Italy; Supreme Court of Cassation

This case also related to the legal status of a constituent entity of a federation. The issue was whether Milo Djukanović—at the relevant time the President and then the Prime Minister of Montenegro—was entitled to head of state immunity even though Montenegro was not at that time a sovereign state, but part of the Union of Serbia and Montenegro (Montenegro became an independent state in 2006). The Tribunal of Naples granted him head of state immunity, based on Montenegro’s high degree of autonomy within the Union with Serbia as well as on the fact that Montenegro was party in international agreements, some of which had been concluded with Italy. The prosecutor’s office appealed.

13)  [ … ] [T]he Court disagrees with the opinion [ … ] that it is necessary for a State to be recognised as sovereign by Italy and other States before that State can be considered as sovereign for the purposes of the immunity of its top-ranking authorities under our law. In fact, under the general rules of international law [ … ] a government which exercises its power over a territorial community effectively and independently automatically becomes subject to international law. Therefore, a sovereign State exists as an autonomous subject of international law where there are the three elements territory—people—government and the requirements of effectiveness and independence are satisfied. However, recognition of this governmental entity by other States is not necessary. Indeed, the recognition of one State by another has no legal consequences (nor does non-recognition), and belongs in the political sphere, since it demonstrates nothing more than an intention to pursue friendly relations, to exchange diplomatic representatives and to establish cooperation of varying strength through the conclusion of agreements. Recognition therefore does not create legal personality under international law. As international legal doctrine notes, if it were otherwise, once a new government entity with characteristics of effectiveness and independence is created, pre-existing States would be able to operate a sort of power of admission to the international community over it through recognition.

14)  Therefore, in the present case, whether Italy (like other States) has recognised Montenegro as a sovereign State is totally irrelevant for the purposes of granting immunity from criminal jurisdiction to its top-ranking officials. [ … ]

17)  Although they do not create legal personality, significant factors to be considered in resolving this problem are the Constitutions of Montenegro and the Union of Serbia–Montenegro, the behaviour of other States towards Montenegro and vice versa, and in particular its participation in international treaties or conventions or intergovernmental organisations and the opinion of the Italian Ministry of Foreign affairs, which is the authority our law designates for international relationships and the observing and collection of data and relevant matters under international law. [ … ]

32)  It therefore emerges from the Constitution of the Union of Serbia and Montenegro that the Union is the only entity which can possess legal personality under international law and which can be a member of international organisations for which legal personality is a membership requirement. The two member States may maintain international relationships, conclude international agreements, establish representative offices abroad and participate in universal and regional organisations, but only if this does not require or imply legal personality under international law (which is reserved to the Union alone) and in any event does not conflict with the powers of the Union or interests of the other State.(p. 49)

33)  When compared with these decisive factors, the individual participation of Serbia in the Vienna negotiations on Kosovo and the joint request of the two States to be admitted separately to Interpol [ … ] are completely irrelevant. In fact, these are marginal and insignificant matters which are certainly insufficient for the acquisition of autonomous international legal personality, and which in any event fall completely within those international relations which are granted to the individual Member State under arts. 14 and 15 of the Constitution of the Union precisely because they do not presuppose international legal personality and do not interfere with the powers of the Union or the interests of the other member States.

34)  Equally irrelevant, for the same reasons, are other agreements [ … ], such as agreements between Montenegro and Macedonia, between Montenegro and Albania, and between a public security department of the Italian Interior Ministry and a public security department of the Montenegrin Interior Ministry. Indeed, the fact that the Defendant was only able to give these marginal and limited examples of international agreements to which Montenegro is a party is clear confirmation of the lack of sovereignty and autonomous international legal personality of that State.

35)  In conclusion, according to the evidence given in the proceedings it must be held that the State of Montenegro does not currently qualify as a sovereign State within the international community or as an autonomous and independent entity under international law. Therefore the conditions do not exist for applying [head of State immunity] to D.

This was another decision affirming the declaratory theory of recognition. In fact, as observed by the ILDC reporter, the clear statement of the court on this point represented a departure from its previous rulings.26 It is also noteworthy that, unlike other (mostly common law) courts, Italian courts did not generally seek statements or certificates from the Executive clarifying whether or not a given entity was considered to be a state.27 The court did so in the case at hand, but clarified at the same time that it did not consider itself bound by the views of the Executive. The court relied on the constitution of the Union of Serbia and Montenegro to rightly downplay any manifestations of independent treaty making and participation in international affairs by Montenegro as indications of independence and statehood.

III.  Recognition/Non-recognition

1.  Unrecognized states

The legal status of unrecognized states or other (unlawful) territorial entities and their instrumentalities has given rise to rich case law by domestic courts in past decades.28 One category of cases related to the politically motivated Cold War practice of not granting recognition to entities that obviously fulfilled the criteria of statehood (eg East Germany).29 Another category related to the non-recognition of racist regimes such as that of Ian Smith in South Rhodesia30(p. 50) or the Homelands/Bantustans created by South Africa in furtherance of its apartheid policy.31 Another issue is what acts may amount to (implied) recognition and which authority may grant it. There are common threads in the relevant jurisprudence of domestic courts but there is also room for variations. The point of departure is that unrecognized states/entities or governments do not have locus standi in domestic courts and any (governmental) acts of such entities are in principle denied recognition. However, this is not an absolute conclusion and, depending on the factual and legal context of each case, there can be space for different outcomes. In any case, any certificates by the Executive, especially in common law jurisdictions, are by and large determinative and binding on courts although some domestic courts may have more leeway than others. These issues are discussed in the following cases, with a focus on Taiwan.

Knox and ors v Palestinian Liberation Organization and ors, Trial judgment, No 03 Civ 4466, ILDC 1984 (US 2004), 306 F Supp 2d 424 (SDNY 2004), 1st March 2004, United States; New York; District Court for the Southern District of New York [SDNY]

As noted supra, although the court in this case examined and dismissed the statehood claim of the PLO and the PA, it held that even if there existed a sovereign state of Palestine the defendants would still not be entitled to immunity because such a state was not recognized by the United States. In doing so, the court dwelled on recognition and the treatment of unrecognized entities before US courts.

B.  Unrecognized State

43  [ … ] [B]ecause comity is often a function of recognition, matters concerning who is recognized as the sovereign or government of a particular territory, and whether and to what extent comity is accorded to its acts and officials, are political questions uniquely within the domain and prerogatives of the executive branch. [ … ] Guaranty Trust, 58 S.Ct. at 791 (“What government is to be regarded here as representative of a foreign sovereign state is a political rather than a judicial question, and is to be determined by the political department of the government.”); see also Sabbatino, 376 U.S. at 410, 84 S.Ct. 923 (noting that “[p]olitical recognition is exclusively a function of the Executive” and that the Court “would hardly be competent to undertake assessments of varying degrees of friendliness or its absence”) [ … ].

44  Recognition of a foreign entity of a sovereign state, or of a regime as the government of a state, may be effectuated by express declaration of the executive branch, by bilateral agreement with the foreign state, by the presentation of credentials by the United States to the authorities of the state and by the United States receiving the credentials of the diplomatic representatives of the foreign state. [ … ] Recognition may also be found to be implied, for example, through a vote by the United States to admit a foreign entity to membership in an international body open only to sovereign states. [ … ] While recognition is a matter of which courts may take judicial notice, [ … ] the “possible incongruity of judicial ‘recognition’ [ … ] would constitute an unwarranted arrogation of power. This constraint on judicial authority is especially compelling because the political discretion to recognize foreign states and governments carries with it “the power to determine the policy which is to govern the question of recognition.” [ … ] Hence, “recognition is not always absolute; it is sometimes conditional.” [ … ] Accordingly, the manner, means and timing that define the terms of any such conditions of recognition of a purported sovereign or its representatives are matters clearly beyond the realm of judicial competence.(p. 51)

45  By the same token, the effects of political nonrecognition are whatever the states involved intend the consequences to be. [ … ] In addressing claims of sovereign or governmental immunity or disputes concerning the legitimacy of the actions of unrecognized foreign states, courts have taken divergent approaches. Some have enunciated as a categorical rule that “[i]n the absence of recognition no comity exists.” Cibrario, 139 N.E. at 262 (holding that a government not recognized by the United States is not entitled to bring suit in courts in this country); [ … ].

46  This proposition is grounded on the premise that actual recognition serves as a prerequisite for a United States court to exercise jurisdiction over a claim concerning the existence of a foreign state or the legitimacy of an act of such a state. Thus, following this course, the executive branch’s decision to withhold or reject recognition would be dispositive of the judicial proceeding; regardless of the nature of the dispute, the court would not venture beyond the status of the foreign entity as an unrecognized state. [ … ].

47  More specifically, according to this doctrine, nonrecognition may result in denial of access to courts in this country. [ … ]

48  Under another approach, other courts have not been beholden solely to the status of nonrecognition and, without relying only on the executive branch’s ultimate determination in that regard, have not categorically nullified the official actions or disregarded the sovereignty claims of unrecognized entities. See Kadic, 70 F.3d at 244. Rather, in adjudicating these questions they generally have endeavored to draw certain pragmatic distinctions. First, these courts take cognizance of the difference between recognition of the existence of a particular unrecognized foreign state and the scope of any privileges and immunities that may be conferred upon it in a given case, including the treatment accorded to the purported government and representatives of the entity. Hence, while as a factual and juridical matter an unrecognized foreign entity may satisfy the criteria for statehood under the Restatement (Third)’s definition in a specific judicial proceeding, it does not follow that all of the privileges and immunities that ordinarily accompany sovereign status will necessarily be extended to the entity or its designated rulers. [ … ]

49  Second, the unrecognized foreign state is accorded de facto existence with respect to adjudications of strictly commercial transactions, adjustments of private rights, and effectuation of juridical and ministerial acts properly taken by it within the ambit of its territory incidental to sovereign or governmental functions that are deemed judicially cognizable; however, no such presumptive effect is generally given to circumstances involving political questions that fundamentally implicate the status of the foreign entity in its formal relations with the United States and that thus necessarily demand an expression from the executive branch concerning the United States foreign policy consequences of a legal determination regarding the matter at issue. [ … ]

50  A third approach adopted by the courts in some unrecognized state cases is to defer to an expression of United States foreign policy with regard to the appropriateness of entertaining the assertion of immunity or giving effect to the foreign act in question. See Sabbatino, 376 U.S. at 410, 84 S.Ct. 923 (permitting access to United States courts to a foreign entity where the executive had clearly expressed its support for the granting of such privilege) [ … ].

51  Fourth, in some cases where the executive branch has not interposed any suggestion of foreign policy interest in the prosecution of an action involving an unrecognized state, the courts have exercised jurisdiction to consider the matter if adjudication (p. 52) of the controversy would not violate domestic public policy or otherwise conflict with the interests of justice. [ … ]

52  Whatever doctrinal differences may distinguish the courts’ treatment of rights and duties asserted in claims by or against unrecognized states or governments, a reconciling principle may be discerned threading through the various approaches, either expressed or implied, about which there appears to be no judicial dispute. When the executive branch, either by word or deed, does manifest its political determination that the courts’ exercise of jurisdiction over a particular matter involving actions or privileges and immunities of unrecognized states or governments would be inimical to United States foreign policy interests or relations with the unrecognized sovereign, or when the court on its own, from demonstrable matters of public record, may readily ascertain such fundamental conflict with public policy were it to give effect to the invocation of sovereign status of the unrecognized state or government, the courts generally accept as conclusive such declared or ascertained expression of United States international relations policy. [ … ]

54  The courts have also declared, in a doctrine especially germane to the issues at hand, that an unrecognized state cannot assert its sovereign status to immunize its acts or its representatives from exercise of “jurisdiction in [actions] alleging violations of basic human rights or international law.” See Kadic, 70 F.3d at 245 (holding that customary international law of human rights “applies to states without distinction between recognized and unrecognized states”); Klinghoffer, 937 F.2d at 49 (noting that “there is no bar to suit where an unrecognized regime is brought into court as a defendant”); see also Shaw, supra, at 262 (“[A]n unrecognized state must be deemed subject to the rules of international law. It cannot consider itself free from restraints as to aggressive behaviour. …”).

The court made a very wide and useful survey of (non-)recognition in US courts and discerned various approaches to unrecognized entities: denial of access to US courts; limited (de facto) juridical personality for non-sovereign matters such as commercial transactions or private rights; deference to the Executive, especially when dealing with immunity; and, absent any direction by the Executive, acceptance of jurisdiction unless it violated public policy or the interests of justice. These approaches are, to a greater or lesser extent, also found in other jurisdictions.

Civil Aeronautics Administration v Singapore Airlines Limited, Appeal Decision, [2004] SGCA 3, [2004] 1 SLR 570, ILDC 86 (SG 2004), 14th January 2004, Singapore; Supreme Court; Court of Appeal

This case was an appeal from Woo v Singapore Airlines Limited and Civil Aeronautics Administration (joining).32 The plaintiff in that case had sued Singapore Airlines Limited (SAL) for the crash of a Singapore Airlines plane at Taipei’s Airport in Taiwan in 2000. SAL joined Civil Aeronautics Administration (CAA) of Taiwan’s Ministry of Transport and Communications as a third party. CAA claimed immunity under Singapore’s State Immunity Act (SIA). The Singapore’s Ministry for Foreign Affairs was ‘unable’ to issue a certificate confirming that Taiwan was a state for the purposes of the SIA and CAA’s application was rejected. On appeal, CAA claimed immunity even if there was no official recognition of Taiwan. It contended that Singapore had recognized Taiwan de facto, inter alia by signing a double-taxation treaty with it. CAA also argued that the court could hold its own enquiry as to the question of de facto recognition. The High Court held that the certificate was conclusive in stating that Taiwan was not a state, either de facto or de jure, for the purposes of SIA and dismissed the appeal. Upon further appeal, the ruling was confirmed and the Court of Appeal in the decision at hand took pains in finding that Singapore’s dealings with Taiwan did not amount to either de jure or de facto recognition and reaffirmed that Taiwan did not enjoy immunity.

(p. 53)

11  [ … ] To our mind, the effect of the negative answer from the Ministry is clear, ie, Taiwan is not a State for the purposes of the Act. If she is, the certificate would have been issued by the Ministry. [ … ] [T]he two replies by the Ministry to the parties are therefore conclusive on the point in issue, that is, that Taiwan is not a State to which the Act would apply. [ … ] There is no ambiguity in the answer from the Ministry of Foreign Affairs that the Republic of China is not a state, whether de facto or de jure, for the purposes of the Act. No reasons were given and none is required under the Act. [ … ]

Question within the exclusive province of the Executive

15  The above should dispose of this appeal. However, even if one were to take the view that the replies from the Ministry were ambiguous, it is not for the court to embark on an independent examination of the evidence adduced to determine whether Taiwan is a State for the purposes of the Act. The correct approach would be for the court to revert to the Ministry for a more specific answer. On a question such as this, which is a matter wholly within the Executive’s domain, it is essential that the Judiciary does not act in a manner inconsistent with the approach of the Executive. [ … ]

22  A question such as that which arises in the present case, whether an entity is a State so as to enjoy sovereign immunity in Singapore, is eminently a matter within the exclusive province of the Executive to determine, as what are involved in the question are not only matters of fact but also matters of policy. The courts are not in the best position to decide such a question. [ … ]

25  [ … ] [T]he question of sovereign immunity is special and should be treated differently from the general question whether a State has come into being. It is incongruous to say that a State is required to accord sovereign immunity to another State when the latter is not recognised by the former. Bearing in mind the pre-eminence given to recognition by virtue of s 18 of the Act, the question of sovereign immunity clearly stands on a different footing from other questions in which the existence of a State comes into issue.

Position under customary international law

29  [ … ] Assuming the reply of MFA is vague and, contrary to the views we have earlier expressed, the court has the competence to independently determine whether Taiwan is a State, has Singapore, through various transactions with Taiwan, in fact, regarded the latter as a State? In short, is there de facto recognition by conduct? [ … ]

32  The starting point in considering whether Singapore has, in fact, regarded Taiwan as a sovereign State, must be the sort of representation which each country has, by mutual consent, established in the territory of the other. [ … ]

33  It would be noted that, unlike other sovereign States, Taiwan does not have a diplomatic representation in Singapore. It only has a trade representation here, or as the representation was earlier called, “Trade Mission”. It is not an Embassy. As the website indicated, the functions of the Representative Office are only in respect of specific areas of co-operation. There is no exchange of “ambassadors”. This use of the institution of trade representation is wholly in line with the practice among States of dealing with a political subdivision of another State. It is significant to note that when Singapore established a mission in Taiwan in 1979, it was a Consulate Office to deal with consular and trade matters.

34  This approach reflects the one-China policy which has been adopted by Singapore even before formal relations were established with mainland China, the People’s (p. 54) Republic of China (“PRC”) in 1990. Singapore has not treated Taiwan in the same manner as other sovereign States. That has been its consistent stand. Thus, in 1989, when President Lee Teng-Hui of Taiwan was in Singapore for a visit, there were no flags, no guard of honour, no ceremonial trappings which would normally come with a visit by a head of State. Of course, he was accorded other courtesies of a guest. Later, in 1990, when Singapore established diplomatic relations with the PRC, the Taiwan mission in Singapore was no longer allowed to use the title “the Republic of China”.

35  Counsel for CAA is quite right to point out that Singapore has, through its departments and agencies, entered into various agreements or memoranda of understanding with similar entities in Taiwan on specific areas, ranging from air services agreements to avoidance of double taxation, the promotion and protection of investment, and tourism. There is no denying that in those areas there is close co-operation between the two territories. But co-operation with an entity in a specific area does not imply recognition as sovereign State. [ … ]

36  We agree with the submission of SIA’s counsel, that what emanates from the dealings between Singapore and Taiwan is that Singapore “has always been careful to maintain the stand of not recognising, whether formally or informally, Taiwan’s status in any way that may suggest that it is a State, consistent with its one-China policy”. For there to be implied recognition, the acts must leave no doubt as to the intention to grant it. [ … ]

49  As we see it, there is nothing seriously inconsistent with the stand of not granting recognition to an entity for purposes of state immunity and yet permitting that entity to be sued for its acts. [ … ] [N]on-recognition does not deny the existence of a foreign government: it simply denies its competence to represent the state concerned on the international plane. [ … ]

50  Reverting to the present case, once it is appreciated that the non-recognition of Taiwan is only in respect of the Act there is no reason why its effect should or need be extended to other respects. That would be completely unwarranted. The existence of Taiwan is a fact and the government of Taiwan exercises control over a specified area. The accident happened at an airport within the control of CAA and, as it does not enjoy immunity under Singapore law, it must answer the allegations made against it of having caused or contributed towards the tragedy.

Apart from being loyal to the ‘one voice’ doctrine, this decision was also interesting in relation to implied recognition (which, however, it seemed to conflate with de facto recognition).33 In line with established practice, it affirmed that cooperation by means of maintaining a representation office or even concluding agreements in specific areas did not amount to (implied) recognition in the absence of a clear intention to do so. Indeed, it is well accepted that no recognition of statehood is implied by such acts in the absence of unequivocal intention to the contrary.34

Parent and ors v Singapore Airlines Ltd and Civil Aeronautics Administration, Decision of Superior Court of Quebec, 2003 IIJ Can 7285 (QC CS), ILDC 181 (CA 2003), 22nd October 2003, Canada; Quebec; Superior Court [QCCS]

This case also arose from the air crash of Singapore Airlines in Taiwan in 2000. The court had to determine whether Taiwan was a state and thus entitled to immunity under Canada’s State (p. 55) Immunity Act. As in the previous case, the Canadian Ministry of Foreign Affairs did not issue a certificate confirming that Taiwan was or not a foreign state for the purposes of the Act.

Findings of fact: CAA and Taiwan

52  By giving the courts the power to determine whether a party to a dispute qualifies as a “foreign state” for the purposes of the Act in the light of the evidence provided (which may or may not include a certificate), the Canadian legislature separates the legal aspect from the political and the diplomatic. [ … ]

54  [ … ] [W]hen the situation cannot be officially recognised politically and diplomatically or the minister refrains from issuing a certificate, the task of evaluating the facts, and drawing the necessary legal conclusions then falls to the court dealing with the claim. [ … ]

58  The existence of a State implies the presence of four elements: “these elements are identified in Article 1 of the Montevideo Convention on the Rights and Duties of States; they are: The presence of a defined territory; The presence of a permanent population; The presence of an effective government; The capacity to enter into relations with other States.

Furthermore, to have the greatest effect in the international community, the existence of a State must be recognised by other States. This recognition is principally, but not exclusively, linked to the presence of constituent elements of the State.” [citation omitted]

59  The recognition of a State by the other States does not create the State: the birth and the existence of a State is a question of fact. [ … ]

60  The evidence in the present file is conclusive as to the four constituent elements of the State: (1) the island of Taiwan constitutes a defined territory; (2) the island of Taiwan is occupied by a permanent population; (3) an effective government exists in Taiwan and (4) the government of Taiwan enters into relations with other states. [ … ]

63  [ … ] [I]n conclusion, the Tribunal concurs with the following statement by the author Hugh M. Kindred:

“In pursuing this course [of independent judicial inquiry], the courts may find themselves granting a degree of respect or even immunity for a foreign regime that superficially may seem wholly out of accord with the government’s declarations of diplomatic distance. But the illusion will be in the denials of recognition by the government for diplomacy’s sake and no longer in the fictions of the courts.” [citation omitted]

As observed by the ILDC reporter, absent a certificate by the Executive, this was the first case in which a Canadian court took an independent course and made its own enquiry into the issue of (Taiwan’s) statehood.35 What is more, the court’s conclusion was at variance with Canada’s policy of not recognizing Taiwan. This approach was also at variance with that of Singapore’s courts (also due to different wording of the respective Immunity Acts) and undermined the ‘one voice’ doctrine. However, when the Canadian government issues a certificate, it is conclusive proof of its content.36

Wang (Chuan Pu Andrew) and ors v Office of the Federal Prosecutor, Final Appeal Judgment, Case No 1A.3/2004, ILDC 90 (CH 2004), 3rd May 2004, Switzerland; Federal Supreme Court [BGer]

This case concerned cooperation by means of mutual legal assistance in criminal matters between Switzerland and Taiwan during criminal proceedings against the appellant suspects in (p. 56) Switzerland. The Taiwanese suspects alleged that Switzerland’s non-recognition of Taiwan as a state should block any legal assistance in criminal matters between Switzerland and Taiwan.

5.2  Statehood under international law is defined according to three criteria: a territory; a population; and an effective and independent government [ … ]. With regard to the case in question, the Republic of China cannot claim to exercise sovereignty over mainland China, because her Government does not exercise effective authority over the territory and the population that makes up the People’s Republic of China [ … ]. With regard to the island of Taiwan on the other hand, the Republic of China presents all the attributes of a State: it has occupied this territory since 1945; it has a significant population (consisting of ethnic Taiwanese, mainland Chinese and their descendants, and an aboriginal minority); and Taiwan is undeniably independent, including with regard to the People’s Republic of China [ … ].

5.3  [ … ] The majority view in international law is that recognition only has a declaratory effect and is not a condition for statehood as such, in the sense that it only confirms that the criteria of existence of a State are met. International recognition, however, is not required to gain the status of a State existing in its own right [ … ].

Up until Taiwan’s exclusion from the UN on 25th October 1971, most countries recognised the Republic of China as the sole Chinese State. After 1979, a large number of them, falling in line with the United States, recognised the People’s Republic of China and broke off diplomatic relations with the Republic of China. Today only some twenty States maintain diplomatic relations with Taiwan. The status of the Republic of China is therefore ambiguous. She enjoys limited international recognition, but not so limited as to reduce Taiwan to the status of an international pariah State (such as, the Turkish Republic of Northern Cyprus, for example, which is only recognised by Turkey). Taiwan’s status is more similar to that of States whose recognition is contested by a section of the international community without this casting doubt over their status as an international legal entity (for example: Israel or the former German Democratic Republic [ … ]).

Since 1950, Switzerland has held the People’s Republic of China to be the sole legitimate representative of the Chinese people, and has established diplomatic relations with the People’s Republic of China and broken off links with Taiwan [ … ]. [ … ] Only the Swiss Federal Council (Conseil Fédéral), which has remained intransigent on this issue since 1950, can modify Switzerland’s position [ … ]. It cannot be maintained in this respect that requesting or granting mutual legal assistance in criminal matters to Taiwan equates to recognition, even implicit, of the Republic of China. This proves therefore that the argument whereby carrying out the request could be interpreted as a hostile act towards the People’s Republic of China is unfounded.

The absence of recognition and the absence of diplomatic relations does not mean that all relations relating to mutual aid with Taiwan are proscribed. The fact that the Republic of China does not belong to the UN is not crucial here. Just taking this one example, the Federal Republic of Germany was only admitted to the UN in 1973, but this did not prevent Switzerland from concluding several dozen treaties with the Federal Republic of Germany in the meantime (including treaties regarding mutual legal assistance in criminal matters).

5.4  [ … ] Furthermore the concept of Taiwan as a dissident province of the People’s Republic of China poses a delicate problem in terms of international law, because looking beyond this request, it is the government in Taipei (and not in Beijing) which exercises effective authority over the island of Taiwan. The request for mutual legal assistance relates to facts which took place within the compass of power of the Taiwanese authorities. Those charged are Chinese from Taiwan and some of them are being detained (p. 57) there. Criminal proceedings have been commenced which might lead to the accused being brought before the legal authorities in Taiwan. The mechanisms of operation of the Taiwanese institutions, especially those of her judicial institutions, are guaranteed on a continuous basis. Even if Switzerland cannot, by definition, conclude treaties with the Republic of China, which it does not recognise as a State, this does not prevent occasional co-operation between authorities, as is the case in the matter at hand. [ … ]

5.5  To conclude, the Swiss authorities can request and grant mutual legal assistance in criminal matters to the Taiwanese authorities, without this modifying the position of the People’s Republic of China, the sole Chinese State recognised by Switzerland. Because the Republic of China is not recognised, there is no contact with Switzerland on a diplomatic level. Consequently the request was not transmitted through an official representation in Switzerland, but via a cultural and economic delegation, established in the form of an association in accordance with Article 60 ff of the Swiss Civil Code (Code Civil ). This unusual modus operandi, brought about by force of circumstances, does not alter in any way the official nature of the actions of the Taiwanese authorities and does not cast doubt on the validity of the request from this respect. For the rest, contrary to what the appellants say, the requesting State can appoint a representative in Switzerland for procedural needs: this has been the case notably with Pakistan and Ethiopia. The law does not, moreover, prohibit this. The Swiss Federal Office of Justice (Office fédéral de la justice) and the Investigating Magistrate cannot therefore be reproached for communicating with the Taiwanese authorities via an informal channel.

Citing several publicists, the Swiss Supreme Court held that Taiwan fulfilled the conditions for statehood, irrespective of its non-recognition by Switzerland and most states, thus following the declaratory theory of recognition. The court identified three criteria for statehood: a territory, a population, and an effective and independent government, in disregard of the Montevideo Convention and its fourth condition. The court also affirmed the established view that (unofficial) cooperation with an unrecognized state in the form of mutual legal assistance in criminal matters did not amount to (implied) recognition.

2.  Recognition of governments

Occasions for recognition of governments arise usually in cases of civil war and/or unconstitutional assumption of power and may involve a choice between two (or more) rival authorities. Recognition of governments had been in decline, as prominently evidenced by the UK’s decision in 1980 no longer to confer such recognition.37 In such a case, there will probably be no certificate with controlling effect on the issue and it may fall to the courts to rule which entity should enjoy governmental status and lawfully bind the state in its international relations. This is what happened in the first case discussed in this section. However, the conflicts in Libya and Syria have witnessed several states (including the UK) reverting to their past practice of recognizing governments and issuing relevant certificates, as occurred in the last case of this section.

Sierra Leone Telecommunications Company Limited v Barclays Bank plc, Trial judgment, ILDC 1740 (UK 1998), [1998] All ER (D) 66, 6th February 1998, United Kingdom; England and Wales; High Court [HC]; Queen’s Bench Division [QBD]; Commercial Court

The plaintiff company (Sierratel) was a state-owned company of Sierra Leone whose board of directors was appointed by the Government of Sierra Leone. Sierratel had a bank account with the defendant bank in London and had authorized four signatories to sign payment requests on its behalf. In May 1997, there was a military coup in Sierra Leone and the democratically (p. 58) elected government fled into exile. The new regime dismissed the board of directors of Sierratel, suspended three of the original signatories, and instructed the bank not to honour payment instructions issued by them. The High Commissioner of Sierra Leone in London, who continued to act on behalf of the exiled Government, instructed lawyers to bring an action in the name of Sierratel, seeking a declaration that the bank account remained subject to instructions of the original signatories. Counsel for Sierratel argued that the military regime was not the Government of Sierra Leone and, as a result, the instructions given to the bank by the new regime were ineffective.

35  The factors to be taken into account in deciding whether a government exists as the government of a state are set out [in Republic of Somalia v. Woodhouse Drake & Carey (Suisse) S.A. and Others] by Hobhouse J as follows: [ … ]

(a)  Whether it is the constitutional government of the state

38  On 28 November 1997 the Foreign and Commonwealth Office wrote to Messrs Stephenson Harwood as follows:

“[ … ] The British Government welcomed the election in Sierra Leone of President Ahmad Tejan Kabbah in February 1996. We have consistently condemned the military coup of 25 May 1997 which overthrew the democratically elected government of Sierra Leone. We look forward to the restoration of constitutional order in that country. We continue to deal with the democratically elected government of Sierra Leone under President Kabbah. We have no dealings with the military junta in Freetown.” [ … ]

(b)  The degree, nature and stability of administrative control, if any, that it of itself exercises over the territory of the state

42  According to the Sierra Leone High Commissioner the military junta presently has no control whatsoever over the country outside of Freetown and there are civil unrest problems in Freetown. There are still defence units loyal to President Kabbah throughout the country. [ … ] The junta has very little real control over the administrative affairs of the country. [ … ]

43  According to the affidavit of Mr Berewa, Attorney General and Minister of Justice in President Kabbah’s government, it is precisely because there is in fact no semblance of order in Freetown that the expatriate community and diplomatic missions, which were evacuated following the coup, still remain out of the country. [ … ] It has been the clear aim of the junta to coerce the civil population to collaborate with them. They have failed in this aim, and to such an extent that there has been a very significant defection by members of the Sierra Leone army and civilian police to the forces of the West African Peace Keeping Force ECOMOG, and the Civil Defence Militia, which is loyal to President Kabbah.

44  Of the three tiers of superior courts (the High Court, Court of Appeal and Supreme Court), none are sitting or hearing cases. Over 80 per cent of the judges of the superior courts have fled the country since the coup. [ … ]

46  [ … ] The majority of the citizens of Sierra Leone are waiting for the democratically elected government to be restored. The infrastructure of the country has collapsed. Basic amenities such as water and electricity are virtually non-existent. Owing to the embargo on postal activities by the Universal Postal Union there is no postal communication between Sierra Leone and the outside world. Hospitals function only at the behest of Médecin Sans Frontières or the International Red Cross. The junta itself is not providing medical services. Despite strenuous attempts by the junta to reopen schools, the majority of schools have remained closed since the coup because (p. 59) parents do not co-operate with the junta and are afraid that their children may be kidnapped, harmed or raped. Petrol is in extremely short supply [ … ]. The junta has no control over more than two-thirds of the country. They do not control the country’s only international airport situated at Lungi, near Freetown, nor the main internal airfield at Hastings. Both these airfields are controlled by the forces of ECOMOG. The Port of Freetown at Queen Elizabeth II Quay is also under the control of the ECOMOG Forces. Similarly ECOMOG controls the main routes to and from the capital city, Freetown, and even members of the junta are not allowed to move freely from Freetown to the provinces and back. The civil defence units which remain loyal to President Kabbah and which are fighting for the restoration of democracy are in control of a very significant portion of the territory up-country. [ … ] The most recent reports show that forces loyal to President Kabbah are in control of the most important areas up-country.

(c)  Whether Her Majesty’s government has any dealings with it and if so what is the nature of those dealings

47  See under (a) above.

(d)  In marginal cases, the extent of international recognition that it has as the government of the state

48  The United Nations has imposed sanctions relating to the supply of arms and petroleum products to Sierra Leone: see United Nations Resolution SCR 1132 of 8 October 1997. [ … ] In addition the coup has also been condemned by the Commonwealth, the Organisation of African Unity and the European Community. [ … ] [An] ECOWAS peace plan for Sierra Leone [ … ] provides for the reinstatement of the legitimate government of President Kabbah within a period of six months. The peace plan remains operative and it is fully expected that the legitimate government of President Kabbah will be reinstated in Sierra Leone within the stated timeframe.

49  [ … ] I conclude that the military junta are not “the Government of Sierra Leone”. The mandate to Barclays of 31 July 1996 stands. Nothing that the military junta has purported to do since May 1997 affects that mandate. The letters of 22 December 1997 and 31 December 1997 from those associated with the junta to the bank are of no effect. The military junta is not the government of Sierra Leone. The “new directors” were not validly appointed. It follows that Sierratel is entitled to the declaration sought and I order accordingly.

In traditional international law, as famously held in the Tinoco Arbitration,38 governmental status was allocated to the entity enjoying effective control of the territory,39 with the apparent acquiescence of the population under its control.40 As observed by the ILDC reporter, the case at hand was not decided on that basis but considered the additional factors required by UK law,41 as these were set out in Woodhouse, a decision of 1992 concerning the legal status of the interim government of Somalia during the country’s civil war. By considering legitimacy and international recognition, the decision at hand was in line with a trend to do away with effective control as the sole factor determining governmental status as a matter of international law,42 even though it (p. 60) may still be difficult to identify sufficient state practice and opinio juris to confirm a development in the law in that direction.43

British Arab Commercial Bank plc v National Transitional Council of the State of Libya, ex parte Foreign and Commonwealth Office, Declaratory judgment, [2011] EWHC 2274 (Comm), ILDC 1807 (UK 2011), 26th August 2011, United Kingdom; England and Wales; High Court [HC]; Queen’s Bench Division [QBD]

The issue in this case was whether the National Transitional Council of Libya (NTC) or the Qadhafi government was Libya’s government during the country’s civil war and could thus control the accounts of the Libyan Embassy in the British Arab Commercial Bank in London. Following the UK government announcement on 27 July 2011 that it recognized and would deal with the NTC as the sole governmental authority in Libya, the Bank was receiving conflicting instructions from the two rivalries concerning the operation of the accounts and initiated proceedings against the NTC, asking for urgent declaratory relief.

22.  I should make one point plain at the outset. The Bank invited me to indicate that the court would be assisted by a certificate from the Foreign & Commonwealth Office. It also submitted however that absent such certificate, the court should nevertheless investigate the factual position for itself. This would have involved consideration of issues such as whether the NTC is the constitutional government of Libya, the degree, nature and stability of administrative control that it of itself exercises over the territory of the state, whether HMG has any dealings with it and, if so, what is the nature of those dealings, and the extent of international recognition that it has as the government of the state. Reliance was placed on the approach taken by Hobhouse J in Republic of Somalia v Woodhouse & Carey (Suisse) S.A. [1993] QB 54, and adopted by Cresswell J in Sierra Leone Telecommunications Co Ltd v Barclays Bank plc [1998] All ER 821. That might be a difficult exercise given the conditions that appear to prevail in Libya at the time of this judgment (26 August 2011).

23.  However it is clear that the Somalia and Sierra Leone cases are different, because the issue did not concern the position of a government recognised by Her Majesty’s Government as the government of the state in question. In any event, in the present case this submission has been overtaken by events. I indicated that the court would be assisted by a certificate as to the recognition status of the NTC and the Qadhafi regimes, and at the hearing counsel for the FCO produced a certificate dated 24 August 2011 signed by the Foreign Secretary as follows: [ … ]

  1. (1)  Her Majesty’s Government recognise the National Transitional Council as the Government of Libya.

  2. (2)  Her Majesty’s Government do not recognise any other Government in Libya. In particular, they no longer recognise the former Qadhafi regime as the Government of any part of Libya. [ … ]

24.  In the present case, there has been no investigation of the factual position in Libya as in the Somalia or Sierra Leone cases, or indeed any factual investigation other than as set out in this judgment. I should however note that the witness statement of Mr Nacua is to the effect that since the creation of the NTC, a growing number of states have recognised it as the legitimate government of Libya, and this is made out clearly in the evidence. However, for present purposes, the important point is that the government of the United Kingdom recognises it as the legitimate government of Libya. I now come to the questions for decision.(p. 61)

(1)  Is the court satisfied that the NTC is, and the Qadhafi regime is not, the Government of Libya?

25.  There can only be an affirmative answer to this question. In so far as it goes, the Foreign Secretary’s certificate of 24 August 2011 is conclusive, because in the field of foreign relations, the Crown in its executive and judicial functions speak with one voice [ … ].

(5) Should the hearing be adjourned to enable the Qadhafi regime to be present? [ … ]

32.  Further, both parties submit that the matter is academic, since the formerly recognised Libyan Government would have no locus standi in the English courts to challenge the NTC’s claim as regards the accounts. The Bank points out, I think rightly, that such adverse claim as has been made in relation to these accounts has been made on the basis that the Qadhafi Government remains the lawful government of the state of Libya. Following the Foreign Secretary’s certificate, no such proposition can be advanced in the English courts. Thus, it is established that an unrecognised state cannot sue or be sued in an English court [ … ]. As a general matter, an unrecognised government has no locus standi in the English courts [ … ]. There would, therefore, be no purpose in adjourning the hearing.

This decision illustrates the conclusive effect of a certificate by the Executive on matters of recognition. Had it not been for such certificate, it would have been extremely difficult for the court to make its own factual investigation into the complex situation then unfolding in Libya. The court also reiterated the settled doctrine that unrecognized or formerly recognized governments have no locus standi in the English courts.

IV.  Statehood—Secession, Legitimacy, Occupation/Annexation, Continuity

Secession of Quebec, Re, Reference to Supreme Court, [1998] 2 SCR 217, (1998) 161 DLR (4th) 385, (1998), 55 CRR (2d) 1, ILDC 184 (CA 1998), 20th August 1998, Canada; Supreme Court [SCC]

Quebec is the only province of Canada with a predominantly francophone population. In response to the separatism movement in the province, the Government of Quebec held a referendum in 1995 to determine whether the population was in favour of secession from Canada. A narrow majority favoured remaining part of Canada. In the wake of the referendum, the Federal Government sent three questions to the Supreme Court of Canada with a view to clarifying whether Quebec had a unilateral right of secession under Canadian law or international law.

(5)  Suggested Principle of Effectivity

106  [ … ] Although under the Constitution there is no right to pursue secession unilaterally, that is secession without principled negotiation, this does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession. The ultimate success of such a secession would be dependent on effective control of a territory and recognition by the international community. [ … ]

107  In our view, the alleged principle of effectivity has no constitutional or legal status in the sense that it does not provide an ex ante explanation or justification for an act. In essence, acceptance of a principle of effectivity would be tantamount to accepting that the National Assembly, legislature or government of Quebec may act without regard to the law, simply because it asserts the power to do so. So viewed, the suggestion is that the National Assembly, legislature or government of Quebec could purport to secede the province unilaterally from Canada in disregard of Canadian and international law. It is further suggested that if the secession bid was successful, a (p. 62) new legal order would be created in that province, which would then be considered an independent state.

108  Such a proposition is an assertion of fact, not a statement of law. It may or may not be true; in any event it is irrelevant to the questions of law before us. If, on the other hand, it is put forward as an assertion of law, then it simply amounts to the contention that the law may be broken as long as it can be broken successfully. Such a notion is contrary to the rule of law, and must be rejected.

B.  Question 2

Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? [ … ]

110  [ … ] While our response to Question 2 will address considerations raised by [the] alternative argument of “effectivity”, it should first be noted that the existence of a positive legal entitlement is quite different from a prediction that the law will respond after the fact to a then existing political reality. These two concepts examine different points in time. The questions posed to the Court address legal rights in advance of a unilateral act of purported secession. [ … ]

(1)  Secession at International Law

111  It is clear that international law does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their “parent” state. [ … ] Given the lack of specific authorization for unilateral secession, proponents of the existence of such a right at international law are therefore left to attempt to found their argument (i) on the proposition that unilateral secession is not specifically prohibited and that what is not specifically prohibited is inferentially permitted; or (ii) on the implied duty of states to recognize the legitimacy of secession brought about by the exercise of the well-established international law right of “a people” to self-determination. The amicus curiae addressed the right of self-determination, but submitted that it was not applicable to the circumstances of Quebec within the Canadian federation, irrespective of the existence or non-existence of a referendum result in favour of secession. We agree on this point with the amicus curiae, for reasons that we will briefly develop.

(a)  Absence of a Specific Prohibition

112  International law contains neither a right of unilateral secession nor the explicit denial of such a right, although such a denial is, to some extent, implicit in the exceptional circumstances required for secession to be permitted under the right of a people to self-determination, e.g., the right of secession that arises in the exceptional situation of an oppressed or colonial people, discussed below. As will be seen, international law places great importance on the territorial integrity of nation states and, by and large, leaves the creation of a new state to be determined by the domestic law of the existing state of which the seceding entity presently forms a part [ … ]. Where, as here, unilateral secession would be incompatible with the domestic Constitution, international law is likely to accept that conclusion subject to the right of peoples to self-determination, a topic to which we now turn.

(b)  The Right of a People to Self-determination

113  While international law generally regulates the conduct of nation states, it does, in some specific circumstances, also recognize the “rights” of entities other than nation states –– such as the right of a people to self-determination.(p. 63)

114  The existence of the right of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status beyond “convention” and is considered a general principle of international law. [ … ]

(i)  Defining “Peoples”

123  International law grants the right to self-determination to “peoples”. Accordingly, access to the right requires the threshold step of characterizing as a people the group seeking self-determination. However, [ … ] the precise meaning of the term “people” remains somewhat uncertain.

124  It is clear that “a people” may include only a portion of the population of an existing state. The right to self-determination has developed largely as a human right, and is generally used in documents that simultaneously contain references to “nation” and “state”. The juxtaposition of these terms is indicative that the reference to “people” does not necessarily mean the entirety of a state’s population. To restrict the definition of the term to the population of existing states would render the granting of a right to self-determination largely duplicative, given the parallel emphasis within the majority of the source documents on the need to protect the territorial integrity of existing states, and would frustrate its remedial purpose.

125  While much of the Quebec population certainly shares many of the characteristics (such as a common language and culture) that would be considered in determining whether a specific group is a “people”, as do other groups within Quebec and/or Canada, it is not necessary to explore this legal characterization to resolve Question 2 appropriately. Similarly, it is not necessary for the Court to determine whether, should a Quebec people exist within the definition of public international law, such a people encompasses the entirety of the provincial population or just a portion thereof. Nor is it necessary to examine the position of the aboriginal population within Quebec. As the following discussion of the scope of the right to self-determination will make clear, whatever be the correct application of the definition of people(s) in this context, their right of self-determination cannot in the present circumstances be said to ground a right to unilateral secession.

(ii)  Scope of the Right to Self-determination

126  The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination –– a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. External self-determination can be defined as in the following statement from the Declaration on Friendly Relations as

[t]he establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people. [Emphasis added.]

127  The international law principle of self-determination has evolved within a framework of respect for the territorial integrity of existing states. The various international documents that support the existence of a people’s right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state’s territorial integrity or the stability of relations between sovereign states.(p. 64)

128  The Declaration on Friendly Relations, the Vienna Declaration and the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations are specific. They state, immediately after affirming a people’s right to determine political, economic, social and cultural issues, that such rights are not to be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction. … [Emphasis added.] [ … ]

130  [ … ] There is no necessary incompatibility between the maintenance of the territorial integrity of existing states, including Canada, and the right of a “people” to achieve a full measure of self-determination. A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.

(iii)  Colonial and Oppressed Peoples

[ … ]

132  The right of colonial peoples to exercise their right to self-determination by breaking away from the “imperial” power is now undisputed, but is irrelevant to this Reference.

133  The other clear case where a right to external self-determination accrues is where a people is subject to alien subjugation, domination or exploitation outside a colonial context. [ … ]

134  A number of commentators have further asserted that the right to self-determination may ground a right to unilateral secession in a third circumstance. Although this third circumstance has been described in several ways, the underlying proposition is that, when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession. The Vienna Declaration requirement that governments represent “the whole people belonging to the territory without distinction of any kind” adds credence to the assertion that such a complete blockage may potentially give rise to a right of secession.

135  Clearly, such a circumstance parallels the other two recognized situations in that the ability of a people to exercise its right to self-determination internally is somehow being totally frustrated. While it remains unclear whether this third proposition actually reflects an established international law standard, it is unnecessary for present purposes to make that determination. Even assuming that the third circumstance is sufficient to create a right to unilateral secession under international law, the current Quebec context cannot be said to approach such a threshold. As stated by the amicus curiae [ … ]:


15  The Quebec people is not the victim of attacks on its physical existence or integrity, or of a massive violation of its fundamental rights. The Quebec people is manifestly not, in the opinion of the amicus curiae, an oppressed people.

16  For close to 40 of the last 50 years, the Prime Minister of Canada has been a Quebecer. During this period, Quebecers have held from time to time all the most important positions in the federal Cabinet. During the 8 years prior to June 1997, (p. 65) the Prime Minister and the Leader of the Official Opposition in the House of Commons were both Quebecers. At present, the Prime Minister of Canada, the Right Honourable Chief Justice and two other members of the Court, the Chief of Staff of the Canadian Armed Forces and the Canadian ambassador to the United States, not to mention the Deputy Secretary-General of the United Nations, are all Quebecers. The international achievements of Quebecers in most fields of human endeavour are too numerous to list. Since the dynamism of the Quebec people has been directed toward the business sector, it has been clearly successful in Quebec, the rest of Canada and abroad.

136  The population of Quebec cannot plausibly be said to be denied access to government. Quebecers occupy prominent positions within the government of Canada. Residents of the province freely make political choices and pursue economic, social and cultural development within Quebec, across Canada, and throughout the world. The population of Quebec is equitably represented in legislative, executive and judicial institutions. In short, to reflect the phraseology of the international documents that address the right to self-determination of peoples, Canada is a “sovereign and independent state conducting itself in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction”.

137  The continuing failure to reach agreement on amendments to the Constitution, while a matter of concern, does not amount to a denial of self-determination. In the absence of amendments to the Canadian Constitution, we must look at the constitutional arrangements presently in effect, and we cannot conclude under current circumstances that those arrangements place Quebecers in a disadvantaged position within the scope of the international law rule.

138  In summary, the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination. Such exceptional circumstances are manifestly inapplicable to Quebec under existing conditions. Accordingly, neither the population of the province of Quebec, even if characterized in terms of “people” or “peoples”, nor its representative institutions, the National Assembly, the legislature or government of Quebec, possess a right, under international law, to secede unilaterally from Canada.

139  We would not wish to leave this aspect of our answer to Question 2 without acknowledging the importance of the submissions made to us respecting the rights and concerns of aboriginal peoples in the event of a unilateral secession, as well as the appropriate means of defining the boundaries of a seceding Quebec with particular regard to the northern lands occupied largely by aboriginal peoples. However, the concern of aboriginal peoples is precipitated by the asserted right of Quebec to unilateral secession. In light of our finding that there is no such right applicable to the population of Quebec, either under the Constitution of Canada or at international law, but that on the contrary a clear democratic expression of support for secession would lead under the Constitution to negotiations in which aboriginal interests would be taken into account, it becomes unnecessary to explore further the concerns of the aboriginal peoples in this Reference.(p. 66)

(2)  Recognition of a Factual/Political Reality: the “Effectivity” Principle

140  As stated, an argument advanced by the amicus curiae on this branch of the Reference was that, while international law may not ground a positive right to unilateral secession in the context of Quebec, international law equally does not prohibit secession and, in fact, international recognition would be conferred on such a political reality if it emerged, for example, via effective control of the territory of what is now the province of Quebec.

141  It is true that international law may well, depending on the circumstances, adapt to recognize a political and/or factual reality, regardless of the legality of the steps leading to its creation. However, as mentioned at the outset, effectivity, as such, does not have any real applicability to Question 2, which asks whether a right to unilateral secession exists.

142  No one doubts that legal consequences may flow from political facts, and that “sovereignty is a political fact for which no purely legal authority can be constituted …”, [citation omitted]. Secession of a province from Canada, if successful in the streets, might well lead to the creation of a new state. Although recognition by other states is not, at least as a matter of theory, necessary to achieve statehood, the viability of a would-be state in the international community depends, as a practical matter, upon recognition by other states. That process of recognition is guided by legal norms. However, international recognition is not alone constitutive of statehood and, critically, does not relate back to the date of secession to serve retroactively as a source of a “legal” right to secede in the first place. Recognition occurs only after a territorial unit has been successful, as a political fact, in achieving secession.

143  As indicated in responding to Question 1, one of the legal norms which may be recognized by states in granting or withholding recognition of emergent states is the legitimacy of the process by which the de facto secession is, or was, being pursued. The process of recognition, once considered to be an exercise of pure sovereign discretion, has come to be associated with legal norms. See, e.g., European Community Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, 31 I.L.M. 1486 (1992), at p. 1487. While national interest and perceived political advantage to the recognizing state obviously play an important role, foreign states may also take into account their view as to the existence of a right to self-determination on the part of the population of the putative state, and a counterpart domestic evaluation, namely, an examination of the legality of the secession according to the law of the state from which the territorial unit purports to have seceded. As we indicated in our answer to Question 1, an emergent state that has disregarded legitimate obligations arising out of its previous situation can potentially expect to be hindered by that disregard in achieving international recognition, at least with respect to the timing of that recognition. On the other hand, compliance by the seceding province with such legitimate obligations would weigh in favour of international recognition. The notion that what is not explicitly prohibited is implicitly permitted has little relevance where (as here) international law refers the legality of secession to the domestic law of the seceding state and the law of that state holds unilateral secession to be unconstitutional.

144  As a court of law, we are ultimately concerned only with legal claims. If the principle of “effectivity” is no more than that “successful revolution begets its own legality” [citation omitted], it necessarily means that legality follows and does not precede the successful revolution. Ex hypothesi, the successful revolution took place outside the constitutional framework of the predecessor state, otherwise it would not be characterized as “a revolution”. It may be that a unilateral secession by Quebec (p. 67) would eventually be accorded legal status by Canada and other states, and thus give rise to legal consequences; but this does not support the more radical contention that subsequent recognition of a state of affairs brought about by a unilateral declaration of independence could be taken to mean that secession was achieved under colour of a legal right. [ … ]

146  The principle of effectivity operates very differently. It proclaims that an illegal act may eventually acquire legal status if, as a matter of empirical fact, it is recognized on the international plane. [ … ] In this way, a change in the factual circumstances may subsequently be reflected in a change in legal status. It is, however, quite another matter to suggest that a subsequent condonation of an initially illegal act retroactively creates a legal right to engage in the act in the first place. The broader contention is not supported by the international principle of effectivity or otherwise and must be rejected.

This is one of the most celebrated decisions issued by a domestic court. It was also influential on other courts.44 It is widely cited for reaffirming that international law neither allows nor (explicitly) prohibits secession. It was the first to clarify the law of self-determination outside the colonial context and did so on the question of Quebec’s secession, which was widely considered as unsupported by law.45 The court held that external self-determination was a right of colonial peoples and, outside a colonial context, a right of peoples that were subject to alien subjugation, domination, or exploitation. As also noted by the ILDC reporter, the judgment reflected the general preference in international law for the territorial integrity and stability of states.46 After some hesitation (‘it remains unclear whether this third proposition actually reflects an established international law standard’), the court seemed to embrace the so-called ‘remedial secession’, at least as a last resort in the rarest of circumstances where a definable group is denied internal self-determination, in the sense of ‘meaningful access to government to pursue their political, economic, social and cultural development’. This decision is indeed among the authorities cited in support of remedial secession although that theory remains highly controversial and it is still not established that it is accepted by positive law.47 In any case, it was easy to find that Quebec’s situation within Canada by and large failed to reach the very high threshold of such an entitlement, even if applicable.

As to the principle of effectivity in the context of international law, despite expressing some disfavour (‘the existence of a positive legal entitlement is quite different from a prediction that the law will respond after the fact to a then-existing political reality’), the court acknowledged the important role it can play if a secession is successful and is recognized by states (‘Secession of a province from Canada, if successful in the streets, might well lead to the creation of a new state’). This explains the conclusion that international law does not ultimately prohibit secession,48 unless of course such secession has resulted from a serious breach of a jus cogens norm. Such a breach triggers the obligation of non-recognition,49 which vitiates and obliterates effectivity since effectivity in this sense requires and depends on recognition (‘the viability of a would-be state in the (p. 68) international community depends, as a practical matter, upon recognition by other states’). This is further illustrated in the following cases discussed in this section.

Another legacy of this landmark judgment was the controversial proposition that the legality of the secession under domestic (constitutional) law would/should be taken into account by states when considering recognition of the seceding entity. This judicious proposition was criticized for being at variance with established law and practice on recognition, still falling within the discretion of states.50

Lastly, since it concluded that Quebec was not entitled to unilateral secession, the court left unresolved the question of defining the boundaries of a seceding Quebec with particular regard to the northern lands occupied largely by aboriginal peoples. The contentious issue here was whether Quebec would have been entitled to retain its federal boundaries and thus incorporate the aboriginals, based on controversial application of the uti possidetis principle outside its original colonial context, or the affected aboriginal peoples could opt to remain part of Canada.51 Uti possidetis has given rise to thorny issues in the context of non-decolonization territorial disputes.52 In One Third of the National Assembly Deputies, the Constitutional Court of Slovenia accepted the application of uti possidetis as a general principle of international law applicable for determination of the borders of the states created upon the dissolution of the former Yugoslavia absent an agreement on border delimitation.53

Autocephalous Greek-Orthodox Church of Cyprus and Cyprus v Goldberg and Feldman Fine Arts Incorporated and Goldberg, Appeal judgment, 917 F2d 278 (7th Cir 1990), ILDC 1676 (US 1990), 24th October 1990, United States; Court of Appeals (7th Circuit) [7th Cir]

This case concerned the return of four Byzantine mosaics stolen from the Kanakaria church in Turkish-occupied northern Cyprus in the late 1970s. The defendant, an art dealer from Indiana, purchased them in 1988. The US District Court for the Southern District of Indiana awarded possession of the mosaics to the Church of Cyprus as the rightful owner. Upon appeal, one of the arguments was that the District Court had erred in not giving effect to several confiscatory decrees issued in 1975 by the Turkish Federated State of Cyprus (the forerunner of the TRNC) that had divested the church of title to the mosaics.

49  What Goldberg is claiming is that the TFSC’s confiscatory decrees, adopted only one year after the Turkish invasion, should be given effect by this court because the TFSC and its successor TRNC should now be viewed as the “de facto” government north of the Green Line. This we are unwilling to do. We draw on two lines of precedent as support for our decision. First, we note that, contrary to the New York court’s decision in Salimoff, 262 N.Y. 220, 186 N.E. 679, several courts of the same era refused to give effect to the nationalization decrees of the as-yet-unrecognized Soviet Republics. These courts relied on a variety of grounds, including especially the fact that the political branches of our government still refused to recognize these entities. [ … ] Similarly, as regards the Turkish administration in northern Cyprus, the United States government (like the rest of the non-Turkish world) has not recognized its legitimacy, nor does our government “recognize that [the Turkish administration] (p. 69) has functioned as a de facto or quasi government …, ruling within its own borders.” Salimoff, 186 N.E. at 682 (relying on the fact that the U.S. government had so “recognized” the Soviet government).

50  Second, we are guided in part by the post-Civil War cases in which courts refused to give effect to property-affecting acts of the Confederate state legislatures. In one such case, Williams v. Bruffy, 96 U.S. 176, 24 L. Ed. 716 (1878), the Supreme Court drew a helpful distinction between two kinds of “de facto” governments. The first kind “is such as exists after it has expelled the regularly constituted authorities from the seats of power and the public offices, and established its own functionaries in their places, so as to represent in fact the sovereignty of the nation.” Id. at 185. This kind of de facto government, the Court explained, “is treated as in most respects possessing rightful authority, … [and] its legislation is in general recognized.” Id. The second kind of de facto government “is such as exists where a portion of the inhabitants of a country have separated themselves from the parent State and established an independent government. The validity of its acts, both against the parent State and its citizens or subjects, depends entirely upon its ultimate success… . If it succeeds, and becomes recognized, its acts from the commencement of its existence are upheld as those of an independent nation.” Id. at 186. (The Court held that the Confederacy was a government of the second type that ultimately failed.) Goldberg argues that the TFSC and its successor TRNC have achieved the level of “ultimate success” contemplated by this standard, because they have maintained control of the territory north of the Green Line for over fifteen years. We will not thus equate simple longevity of control with “ultimate success.” The Turkish forces, despite their best efforts, did not completely supplant the Republic nor its officers. Instead, the TFSC and the TRNC, neither of which has ever been recognized by the non-Turkish world, only acceded to the control of the northern portion of Cyprus. The Republic of Cyprus remains the only recognized Cypriot government, the sovereign nation for the entire island. Rejecting Goldberg’s invitation to delve any further into facts and current events which are not of record in this proceeding, we conclude that the confiscatory decrees proffered by Goldberg do not divest the Church of its claim of title.

The court’s conclusion that the Republic of Cyprus remains the sovereign nation for the entire island reaffirmed the established rule that occupation does not affect the continuity of the state and illegal intervention does not extinguish the formal or even the actual independence of the state.54 That said, the post-Civil War case law that was applied seemed rather odd in terms of (contemporary) international law. Following that case law, the court could seem to have suggested that the Goldberg claim would have been successful if the Turkish forces had occupied the entire island of Cyprus, displaced the legitimate government altogether, and received recognition, in what could perhaps be reminiscent of debellatio, which is considered as inconsistent with contemporary international law.55 Yet, in contemporary international law there is a legal duty to withhold recognition in this kind of unlawful territorial situations resulting from the violation of peremptory rules of international law such as the prohibition of the use of force.56(p. 70)

Republic of Cyprus and ors v Dikmen, Appeal judgment, 19 U 4878/10, ILDC 2236 (DE 2013), 18th March 2013, Germany; Bavaria; Munich; Higher Regional Court [OLG]

This case also concerned restitution of cultural objects plundered from churches in northern Cyprus after the 1974 Turkish invasion. The Greek Orthodox, Armenian, and Maronite Churches of Cyprus lodged a complaint seeking restitution of many of the cultural objects found in the collection of the defendant, a Turkish antique dealer residing in Munich. The Republic of Cyprus joined the complaint, seeking restitution of the prehistoric artefacts in the same collection. Restitution was possible under German law if title to the objects was proven. In this regard, one of the issues raised was whether the occupation of northern Cyprus since 1974 and the establishment of the TRNC in 1983 had any impact on the ownership rights of the Churches.

H4  The artworks could be considered as having come from the location in northern Cyprus as asserted by the churches. The churches could prove the origins of the artworks and so could lawfully invoke their title to the property. Dikmen could neither bring any title to the goods nor prove their acquisition by any legal method. However, this was only valid for the artworks that had been plundered in the churches and monasteries, but not for the excavated prehistoric materials. Even if they had also come from the part that was controlled by the de facto authorities of the TRNC, the first instance judgment constituted an incomplete decision and the question of the prehistoric objects had not been decided. The first instance decision had not succeeded in establishing that the objects found in a territory that belonged de jure to the Republic of Cyprus, but were de facto out of its control, could be considered as the property of the legal government of Cyprus. The TRNC was not considered as a subject of international law. No state except Turkey had recognized the TRNC as a state. (paragraphs 46-48)

H5  The self-proclaimed TRNC declared its independence on 15 November 1983 and was recognized as a state on the same day by the Republic of Turkey. Northern Cyprus still belonged de jure to the Republic of Cyprus. The Security Council of the United Nations (‘UNSC’) had stated in its Resolution 541, UN Doc S/RES/541, 18 November 1983 ‘that the attempt to create a “Turkish Republic of Northern Cyprus” is invalid’, that ‘the declaration referred to above is legally invalid and calls for its withdrawal’. Furthermore, it ‘(c)alls upon all States not to recognize any Cypriot State other than the Republic of Cyprus’. This call was followed by the European Union. (paragraph 49)

The court held that the occupation of northern Cyprus since 1974 and the establishment of the TRNC in 1983 had not resulted in any lawful transfer of property rights and thus the Churches had not been deprived of their rights. As noted by the ILDC reporter, this was in line with the relevant case law of the European Court of Human Rights (ECtHR) on the property rights of displaced Greek Cypriots, which, however, the court did not cite.57

The court affirmed that the northern part of Cyprus, which is de facto administered by the TRNC, belongs de jure to the Republic of Cyprus even though the latter does not exercise de facto control over that part since 1974. As commented by the ILDC reporter, the court denied any legal personality under international law to the self-proclaimed TRNC,58 considering its non-recognition by the international community of states, except for Turkey. This could have alluded to the constitutive approach to recognition but the court also invoked Security Council (p. 71) Resolution 541, which had declared the proclamation of the TRNC as legally invalid and called upon all states not to recognize it.

A better view on the matter is that the TRNC is denied statehood (and hence recognition) due to its illegal creation, that is, as a result of Turkey’s unlawful use of force in 1974 and continued occupation of northern Cyprus since then.59 Non-recognition of the TRNC is thus a collective duty, a consequence of the breach of an obligation arising under a peremptory norm of general international law (prohibition of the use of force) in the sense of Articles 40 and 41 of the ILC Articles on State Responsibility. As stated by the ILC, ‘where a serious breach [ … ] has resulted in a situation that might otherwise call for recognition, this has nonetheless to be withheld’.60 This duty originated in the inter-war period as the so-called ‘Stimson doctrine’ in response to illegal annexation of territories,61 such as in the case that follows.

Border Treaty, Re, Kariņš and ors v Parliament of Latvia and Cabinet of Ministers of Latvia, Constitutional Review, Case No 2007-10-0102, ILDC 884 (LV 2007), 29th November 2007, Latvia; Constitutional Court

This case was brought by 21 members of the Latvian Parliament, asking the Constitutional Court to declare that the Law authorizing the conclusion of the 2007 Border Treaty between Latvia and Russia was not in conformity with Latvia’s Declaration of Independence of 1990, and that the Border Treaty, modifying Latvia’s borders, and the Ratification Law were unconstitutional. The Preamble of the Declaration of Independence established the basis of the doctrine of legal continuity of Latvia. Latvia became independent in 1920; it was then occupied and annexed by the Soviets in 1940, before regaining independence in 1990. In examining the application, the Constitutional Court made a very extensive and thorough analysis of the factual and legal background of Latvia’s statehood. The focus here is on the illegality and non-recognition of Latvia’s annexation and the continuity of the state.

29.1.  [ … ] According to the general legal principle ex iniuria ius non oritur (unlawful acts do not create rights), annexation carried out as a result of an unlawful use of force could not enjoy international legality. [ … ]

Initially being developed in the form of the so-called Stimson’s doctrine, the principle along with its application was recognized also in other situations. [ … ]

One can agree with the evaluation given in the doctrine that in the late 30s of the XX century from different international treaties and state practice, an international obligation of non-recognition of acquisition of territory, which is a result of unlawful use of force, had developed. [ … ]

32.  [ … ] As the principle of self-determination of people, as well as prohibition of the unlawful use of force or threat thereof developed, additional legal criteria crystallised in international law in accordance with the principle ex injuria ius non oritur. The effect of these rules could be different. Sometimes the principle ex injuria ius non oritur precluded (p. 72) the existence of a State in the cases when although the Montevideo criteria were met other important rules of international law were violated (e.g. in respect to observance of the rights of self-determination, racial discrimination and unlawful use of force) [ … ]. In other cases the principle ex injuria ius non oritur meant the existence or continued existence of a State when it did incompletely fulfill the Montevideo criteria (e.g. in respect to exercising the rights of self-determination or unlawful annexation) [ … ].

32.1.  [ … ] The principle ex injuria ius non oritur imposes obligations on subjects of international law not to recognize unlawful situations, including unlawful annexation of territories to other states if the annexation has taken place in breach of rules of international and domestic law or by force. The abovementioned principle raises the obligation of the international community to at least react to the illegal annexation of a State or its part to the territory of another State and not to recognize such changes as legally complete (the so-called collective non-recognition duty) [ … ] The international community does not recognize illegal annexation of a State or a part thereof to the territory of other state as accomplished. It means that the unlawfully destroyed state de iure continues existing and there consequently also exists a legal possibility to restore the respective state de facto in accordance with the rules of international law. If such state is de facto restored, it does not form a new State but continues its de facto interrupted statehood. This is the essence of the doctrine of legal continuity in international law that follows from the use of force or threat of the use of force according.

32.2.  [ … ] State continuity describes the continuity or identity of States as legal persons in international law. The basis of State continuity is subject to relevant claims and recognition of those claims determined, in principle, in accordance with the applicable international law rules or procedures when statehood is at issue [ … ].

If a state, independence of which has been illegally terminated, restores its statehood, it can under the doctrine of continuity recognize itself as the same State which had been illegally terminated. In this case it is necessary that the state itself establishes its continuity and acts in accordance with the claims of this doctrine both in international relations and domestic policy, and it is also necessary that such self-assessment of the state is accepted by the international community. [ … ]

International law does not require a restitution of international rights and obligations of the State, but instead to carry out their re-evaluation on the basis of an a priori existence, through ad hoc agreements on the necessity to terminate, amend them or by concluding their invalidity as a result of the rebus sic stantibus doctrine. In other words, changes have to take place within the framework of the doctrine of continuity, rather than outside it.

As a result of such fundamental changes, not only the self-assessment of the State is important, but also the reaction of the international community; the international community is entitled not to recognize the position of the State regarding its continuity. [ … ]

33.1.  Latvia has never recognized the conduct of the USSR against Latvia in 1940 as lawful [ … ]

The protests of [the] ambassadors of Latvia expressed the official viewpoint of Latvia, because the government of the Republic of Latvia terminated its work as a result of the aggression and occupation by the USSR. Having regard to these reports, Latvian diplomatic and consular agencies in foreign States continued their activities up to the restoration of independence of the Republic of Latvia without recognizing the annexation of Latvia to the USSR and by representing interests of the Republic of Latvia as organs of the State [ … ]. [ … ](p. 73)

33.2.  The struggle of the citizens of Latvia for the restoration of the statehood of Latvia began soon after the occupation of Latvia. [ … ] This movement involved almost all residents of Latvia and was concluded by the passage of the Declaration on Independence on May 4, 1990 and passage of the Constitutional Law on August 21, 1991. [ … ]

The Declaration on Independence establishes the de facto renewal of the Latvian independence of the Republic of Latvia, confirming the doctrine of Latvian State continuity. [ … ]

The restored Republic of Latvia identifies itself with the pre-war Latvia. The constitutional institutions of Latvia justify their position with the fact that after the events of 1940 Latvia as a subject of international law had not lost its status. After restoration of independence, Latvia continues its statehood (integratio ad integrum) [ … ].

34.  Continuity of Latvia has also been recognized by the international community. Initially this recognition manifested itself as non-recognition of the illegal incorporation of Latvia into the USSR, but after restoration of independence of Latvia it turned into recognition of continuity of the State of Latvia, namely, the international community recognized the State restored on May 4, 1990 to be the same State, independence of which had been unlawfully terminated in 1940.

34.1.  [ … ] Unlawful annexation of the Baltic States to the USSR were not recognised, along with the US, by the FRG, France, Italy, Canada, Japan and more than 50 other States of the world [ … ].

Consequently one can justifiably conclude that the international community did not recognize occupation and annexation of Latvia, as well as confirmed the de facto restoration of independence of Latvia. This position was expressed in the practice of both States and international organization, in respect to bilateral and multilateral agreements and financial and human rights obligations [ … ].

34.2.  After 1990, when the Baltic States regained their independence, most States that had never recognized their incorporation into the USSR, declared the re-establishment of their diplomatic relations. [ … ]

The most important international organizations recognized the continuity of the Baltic States [ … ]. [ … ]

The international society supported the claim of the Baltic States for their State continuity, which followed from the non-recognition of occupation and annexation by these States.

34.3.  [ … ] International law does not require all other States to recognize the State continuity. Taking into account the factual context of the unlawful annexation, almost always at least one State will consider the situation to be lawful, and it would be absurd to confer veto rights to this State or to these states of absolute minority. Approval of state continuity claim can be established when assessing reaction of the international society in general. When assessing the practice of the states in 1940 – 1990, it is possible to identify isolated opposite or contradictory opinions of States, however it is necessary to consider these exceptions in their broader legal context. The scope and content of the duty of collective non-recognition of unlawful situations has been controversial also in the later cases when it was assessed in the framework of the UN and in the International Court [ … ]. Regarding Latvia and other Baltic States, the duty of non-recognition of unlawful situations followed largely from the customary international law and it was not concretized in the framework of international organizations, therefore the precise scope, content and way of implementation of this duty (p. 74) de facto remained in the discretion of the specific states. Taking into account the decentralized model of non-recognition, the practice of the absolute majority of States, international organizations and case law has during 50 years consistently retained the position of non-recognition, in legally essential moments confirming the non-recognition of unlawful annexation and the continuation of the statehood of Latvia, that the European Court of Human Rights also recognised in the form of a judgment.

This was a quite elaborate exposition of the principle ex iniuria ius non oritur and the effects of recognition/non-recognition on a state’s claim to continuity. As noted by the ILDC reporter, the court’s conclusions were generally in line with the prevailing scholarly opinion that due to the Soviet aggression against Latvia, followed by its unlawful occupation and annexation, Latvia’s statehood only ceased de facto and Latvia continued to exist de jure.62 The obligation of non-recognition was considered as applying back to the Second World War when Latvia and the other Baltic states were annexed to the USSR. The court downplayed the opposite or contradictory views of some states toward the Soviet annexation of the Baltic states by emphasizing the reaction of the international community at large. In view of that diversity, some scholars have been more cautious on whether there was a customary obligation of non-recognition back in 1940.63

John Doe v United States, Trial judgment, ILDC 1868 (US 2010), 95 Fed.Cl. 546 (Fed. Cl. 2010), 10th November 2010, United States; Court of Federal Claims [Fed Cl]

The Iraqi plaintiff filed a suit in the US concerning the temporary occupation, due to ‘military necessity’, of his home in Fallujah, Iraq, by members of the US Marine Corps and Coalition Forces fighting Iraqi insurgents in March 2004. He alleged that the conduct of the Coalition Forces constituted a ‘taking of property without either due process or fair compensation’, as protected by the Fifth Amendment to the US Constitution, which was guaranteed to inhabitants of territories ‘in which the United States exercises sovereign power’. The plaintiff argued that he had standing as a non-US resident because, inter alia, the United States was at the time exercising sovereign authority over Iraq through the Coalition Provisional Authority (CPA) following the invasion of Iraq by the US and its allies in 2003. The US denied those claims, arguing that the US had not acquired de jure sovereignty over Iraq during the occupation.

56  Plaintiff cannot overcome the weight of law against the propositions that the United States was the sovereign in Iraq or that Iraq was an unincorporated territory of the United States at the time of the occupation of his house. First, plaintiff does not rely on any precedent, or even a single case, that establishes that the United States acquires de jure sovereignty over a country because United States military forces temporarily occupy it, even if those forces exercise some form of governmental authority during that time. [ … ] The United States may acquire territory by discovery, by agreement or treaty, and by conquest. [ … ] However, the mere possession of a territory, even by treaty, does not translate automatically into an exercise of sovereign authority. [ … ]

58  In Boumediene, trumpeted by plaintiff, Justice Kennedy distinguished between de jure and de facto sovereignty, explaining that “it is not altogether uncommon for a territory to be under the de jure sovereignty of one nation, while under the plenary control, or practical sovereignty, of another.” [ … ] Plaintiff seizes on this distinction to argue that the United States exercised de facto sovereignty over Iraq. [ … ]

59  The Court in Boumediene rejected the Government’s argument that, “as applied to noncitizens, the Constitution necessarily stops when de jure sovereignty ends,” [ … ] and concluded that “by virtue of its complete jurisdiction and control,” [ … ] over the United (p. 75) States Naval Station at Guantanamo Bay, Cuba, the United States “maintains de facto sovereignty over this territory” while Cuba retains de jure sovereignty [ … ]. Any factual counterpart, however, is absent in the present controversy. [ … ]

60  Unlike the unique “complete jurisdiction and control” exercised by the United States over Guantanamo Bay—which is provided for by treaty—or other United States territories, at no time was Iraq “acquired” by the United States or any of its Coalition partners. [ … ] Nor can plaintiff point to any UN resolution or act of Congress that recognizes the United States or the CPA as the sovereign power in Iraq. See S.C. Res. 1483, at 1 (reaffirming “the sovereignty and territorial integrity of Iraq”). Plaintiff cannot escape the reality that, while the CPA indeed may have exercised governmental and administrative functions, that role does not translate into an exercise of sovereignty because the CPA was a multinational organization. [ … ] As defendant has shown, the documents themselves cited by plaintiff attest to the multinational composition of the CPA. See S.C. Res. 1483, at 2 (recognizing that nations comprising the CPA acted as “occupying powers under unified command,” and calling upon “the Authority, … to promote the welfare of the Iraqi people through the effective administration of the territory” (emphasis added)). Nor did Iraq ever come under the “complete jurisdiction and control” of the United States the way Guantanamo Bay did following the end of the Spanish American War. [ … ]

61  In fact, defendant points to actions taken by the United States that persuasively demonstrate that neither Congress nor the President ever intended the United States to exercise sovereign power in Iraq. [ … ]

As observed by the ILDC reporter, the court’s decision relied on domestic law and jurisprudence without any discussion of international law apart from the references to Security Council Resolution 1483.64 It involved an interesting discussion of sovereignty, a concept with notoriously various meanings.65 Indeed, the circumstances surrounding the adoption of Resolution 1483 and subsequent ones on Iraq in the aftermath of the country’s invasion and occupation by the US and its allies showed that Iraqi sovereignty was central to those debates and was used in different ways by different actors.66 The court’s conclusion that the United States did not exercise sovereignty over Iraq was consistent with international law and with the presumption that occupation was considered as a temporary condition that did not bring about changes in the sovereignty of the occupied state.67

V.  Conclusion

The survey of these representative cases demonstrates that certificates issued by the Executive on statehood and recognition are by and large conclusive for domestic courts in common law jurisdictions. In other jurisdictions, as well as in exceptional cases when courts in common law jurisdictions must make their own determinations, there is space for conflicting outcomes, as illustrated by the cases concerning Taiwan, where domestic courts reached different conclusions on the statehood of Taiwan, which were even at variance with their government’s policy.

(p. 76) It is also noteworthy that domestic courts in Germany, the Netherlands, Switzerland, and Tanzania did not refer to the Montevideo Convention when making pronouncements on statehood but mostly relied on publicists, whilst the US courts relied on the Restatement, which reproduces the Montevideo formula. Thus, in most non-US cases reviewed in this chapter there is notable absence of the fourth Montevideo element of statehood (capacity to enter into relations with other states), which seems to corroborate the scholarly opinion about its irrelevance for statehood and, in its lieu, the preponderance of (formal) independence as an attribute of statehood.

The case law of domestic courts also confirms the long-established rules on implied recognition. As to recognition of governments, the elaborate criteria set out by lower courts in the United Kingdom in the 1990s were an interesting move towards upsetting the traditional predominance of effective control as the sole factor for recognition. However, the renewed practice of the UK to confer recognition on governments has put on ice that judicial venture.

When it comes to questions of legitimacy, a central theme in many decisions was the interplay between legality and effectiveness in unlawful territorial situations. The outcome is by and large a vindication for the principle of legality, corroborating the prevailing view that statehood in contemporary international law is no longer a monopoly of effectiveness.

From the viewpoint of international law, the quality of domestic decisions on statehood and recognition varies. Many courts have produced lengthy and pertinent judgments of high quality (eg, on Quebec’s secession, on Latvia’s annexation etc). Other times, when complex questions of international law were decided without much international law analysis or on purely domestic doctrines, the decisions are more relevant in terms of their outcome, as a matter and indication of state practice, rather than for the value of their analysis.


(1933) 49 Stat 3097, TS 881, 165 LNTS 19, 3 Bevans 145.

V Lowe, International Law (OUP 2007) 153.

See ILA Committee on Recognition/Non-recognition in International Law, ‘First Report’ in ILA Report of the Seventy-Fifth Conference held in Sofia (ILA 2012) 170–71.

See, eg, T D Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’ (1998) 37 Columbia Journal of Transnational Law 403.

See, eg, R Jennings and A Watts (eds), Oppenheim’s International Law Vol I (9th edn, Longman 1992) 120–23.

J Crawford, The Creation of States in International Law (2nd edn, OUP 2006) 61.

M N Shaw, International Law (7th edn, CUP 2014) 147.

Crawford (n 6) 62ff; Jennings and Watts (n 5) 122.

Crawford (n 6) 148; J Dugard, Recognition and the United Nations (CUP 1987) 131; E Milano, Unlawful Territorial Situations in International Law (Martinus Nijhoff 2006) 64; R Portman, Legal Personality in International Law (CUP 2010) 252–53; T Christakis, ‘L’obligation de non-reconnaissance des situations créées par le recours illicite à la force ou d’autres actes enfreignant des règles fondamentales’ in C Tomuschat and J M Thouvenin (eds), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Martinus Nijhoff 2005) 127–66. Contra J Verhoeven, La reconnaissance internationale dans la pratique contemporaine: les relations publiques internationales (Pedone 1975) 607–17; A Tancredi, ‘A Normative “Due Process” in the Creation of States through Secession’ in M Kohen (ed), Secession: International Law Perspectives (CUP 2006) 171, 198.

10  Crawford (n 6) 5; T Grant, The Recognition of States: Law and Practice in Debate and Evolution (Praeger 1999) 19.

11  B Roth, Governmental Illegitimacy in International Law (OUP 1999) 126; J van der Vyver, ‘Statehood in International Law’ (1991) 5 Emory International Law Review 9, 12.

12  Shaw (n 7) 150; Milano (n 9) 63.

13  P Staubach, Analysis, Duchy of Sealand, Re, A German citizen by birth, ILDC 2119 (DE 1978) A1.

14  Crawford (n 6) 688.

15  ibid, 90–91.

16  C Brölmann and M Ooms, Analysis, East Timor and ors v Netherlands, ILDC 2118 (NL 1980) A4.

17  Liechtenstein was admitted in 1990, Micronesia and Marshall Islands in 1991, San Marino in 1992, Andorra and Monaco in 1993, Kiribati, Nauru, and Tonga in 1999, and Tuvalu in 2000.

18  T Grant, ‘States Newly Admitted to the United Nations: Some Implications’ (2000) 39 Columbia Journal of Transnational Law 177, 182.

19  I Brownlie, Principles of Public International Law (7th edn, OUP 2008) 72. See also Crawford (n 6) 492.

20  R Mayor, Analysis, Knox and ors v Palestinian Liberation Organization and ors, ILDC 1984 (US 2004) A1. See below for the court’s examination of the question of recognition.

21  A McDonnell, Analysis, Ungar v Palestine Liberation Organization [PLO] and Palestinian Authority, ILDC 124 (US 2005) A1.

22  Crawford (n 6) 148.

23  For a powerful argumentation in favour of Palestine’s statehood see J Quigley, The Statehood of Palestine (CUP 2010).

24  T Megiddo and Z Nevo, ‘Revisiting Lessons on the New Law of Statehood: Palestinian Independence in a Post-Kosovo World’ in D French (ed), Statehood and Self-Determination: Reconciling Tradition and Modernity in International Law (CUP 2013) 187, 199.

25  T Kritzman, Analysis, Basha (Association of the Elon Moreh College) v Israel and ors, ILDC 453 (IL 2006) A4–A5.

26  P Palchetti, Analysis, Italy v D M, ILDC 74 (IT 2004) A3.

27  ibid, A4.

28  For case law during the inter-war period see, inter alia, N D Houghton, ‘The Validity of the Acts of Unrecognized De Facto Governments in the Courts of Non-Recognizing States’ (1928–29) 13 Minnesota Law Review 216; E Borchard, ‘The Unrecognized Government in American Courts’ (1932) 26 American Journal of International Law 261.

29  See, inter alia, Carl Zeiss Stiftung v Rayner and Keeler Limited [1967] 1 AC 853, [1966] 2 All ER 536, [1966] 3 WLR 125, [1967] RPC 497, 18 May 1966, Civil Division [EWCA Civ]; Upright v Mercury Business Machines, 213 NYS (2d) 417 (1961); 32 ILR 65; Federal Republic of Germany v Elicofon, 358 F Supp 747 (EDNY 1970).

30  Madzimbamuto v Lardner-Burke [1968] UKPC 18, [1969] AC 645, 23 July 1968.

31  Achievers Investments Incorporated and South Africa (intervening) v Karalekas and McCahill, Appeal judgment, 675 A2d 946 (DC App 1996), ILDC 943 (US 1996), 29th April 1996, Court of Appeals [DC App]; Gur Corporation v Trust Bank of Africa [1987] 1 QB 599; 75 ILR 675.

32  Appeal judgment, [2003] SGHC 190, (2003) 3 SLR 688, ILDC 547 (SG 2003), 28 August 2003, High Court.

33  According to Jennings and Watts (n 5) 155, de facto recognition is ‘a lesser degree of recognition, taking into account on a provisional basis of present realities’ when, in the view of the recognizing state, the new authority, although actually independent and effective, has not acquired sufficient stability, whereas implied recognition ‘takes place through acts which, although not referring expressly to recognition, leave no doubt as to the intention to grant it’. See Jennings and Watts (n 5) 169.

34  H Lauterpacht, Recognition in International Law (CUP 1947) 406; Jennings and Watts (n 5) 170–71.

35  H M Kindred, Analysis, Parent and ors v Singapore Airlines Ltd and Civil Aeronautics Administration, ILDC 181 (CA 2003) A2.

36  ibid, A3.

37  51 BYBIL (1980) 367.

38  [1923] 1 RIAA 369.

39  Lauterpacht (n 34) 98.

40  Jennings and Watts (n 5) 151.

41  M Saul, Analysis, Sierra Leone Telecommunications Company Limited v Barclays Bank plc, ILDC 1740 (UK 1998) A3.

42  See B Roth, ‘Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine’ (2010) 11 Melbourne Journal of International Law 1.

43  M Saul, Analysis, Sierra Leone Telecommunications Company Limited v Barclays Bank plc, ILDC 1740 (UK 1998) A5, citing S Talmon, ‘Recognition of the Libyan National Transitional Council’ (2011) 15(16) ASIL Insights.

44  See, eg, The Province of North Cotabato et al v The Government of the Republic of the Philippines et al, Supreme Court of the Philippines, 14 October 2008, which followed and reproduced large parts of Re Secession of Quebec to decide the case.

45  See, eg, A Cassese, Self-Determination of Peoples: A Legal Reappraisal (CUP 1995) 253.

46  G MacNeil, Analysis, Secession of Quebec, Re, ILDC 184 (CA 1998) A7.

47  For a convincing rejection of remedial secession in the period following Kosovo’s declaration of independence and the ICJ Advisory Opinion on Kosovo see K Del Mar, ‘The Myth of Remedial Secession’ in French (n 24) 79–108.

48  See P Dumberry, ‘Lessons Learned from the Quebec Secession Reference Before the Supreme Court of Canada’ in Kohen (n 9) 416, 437.

49  ibid, 440 n 131; Crawford (n 6) 158; Christakis (n 9) 142; Milano (n 9) 64.

50  Dumberry (n 48) 438–40.

51  ibid, 443–46. See also S Lalonde, ‘Quebec’s Boundaries in the Event of Secession’ (2003) 3 Macquarie Law Journal 129.

52  For recent thorough reviews of the debate see A Peters, ‘The Principle of Uti Possidetis Juris: How Relevant Is It for Issues of Secession?’ in C Walter, A von Ungern-Sternberg, and K Abushov (eds), Self-Determination and Secession in International Law (OUP 2014) 68–94; T Christakis and A Constantinides, ‘Territorial Disputes in the Context of Secessionist Conflicts’ in M Kohen and M Hebie (eds), Research Handbook on Territorial Disputes in International Law (Edward Elgar Publishing 2018) 343–95.

53  One Third of the National Assembly Deputies, Constitutional Review, Rm-1/00-29, Official Gazette of Slovenia, No 43/2001, ILDC 402 (SI 2001), 19 April 2001, Constitutional Court, para 24.

54  Crawford (n 6) 73.

55  E Benvenisti, The International Law of Occupation (2nd edn, OUP 2013) 163.

56  See ILC Articles on State Responsibility, Article 41 para 2, Report of the International Law Commission on the Work of its Fifty-Third Session, UN GAOR 56th Sess, Supp No 10 (2001) 43 (‘No State shall recognize as lawful a situation created by a serious breach [of an obligation arising under a peremptory norm of general international law], nor render aid or assistance in maintaining that situation’). See also Crawford (n 6) 148; Milano (n 9) 64.

57  R Caballero, Analysis, Republic of Cyprus and ors v Dikmen, ILDC 2236 (DE 2013) A4–A6.

58  ibid, A1.

59  See, eg, Crawford (n 6) 133, 159–61; A Constantinides, ‘The Cyprus Problem in the United Nations Security Council’ (2014) 19 Austrian Review of International and European Law 29, 51. This was also confirmed by the ICJ in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403, where the Court stated (at para 81, with reference to, inter alia, northern Cyprus) that ‘the illegality attached [by the Security Council] to the declarations of independence thus stemmed [ … ] from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)’.

60  ILC, ‘Report of the International Law Commission on the Work of its Fifty-Third Session: Commentary to Article 41 of the Articles on Responsibility of States for Internationally Wrongful Acts’ (2001) UN Doc A/56/10, p 115, para 8.

61  D Turns, ‘The Stimson Doctrine of Non-Recognition: Its Historical Genesis and Influence on Contemporary International Law’ (2003) 2 Chinese Journal of International Law 105.

62  E Broks, Analysis, Border Treaty, Re, Kariņš and ors v Parliament of Latvia and Cabinet of Ministers of Latvia, ILDC 884 (LV 2007) A6.

63  ibid, A20, with further reference to Jennings and Watts (n 5) 186.

64  R Mayor, Analysis, John Doe v United States, ILDC 1868 (US 2010) A5–A6.

65  Crawford (n 6) 32.

66  T Grant, ‘The Security Council and Iraq: An Incremental Practice’ (2003) 97 American Journal of International Law 823, 836.

67  R Mayor, Analysis, John Doe v United States, ILDC 1868 (US 2010) A7. Cf Crawford (n 6) 689, observing that, absent a competing government-in-exile, an occupation government regulated under Chapter VII of the UN Charter, such as the CPA, ‘may possess general status as an entity authorised to act on behalf of the State, even though it is not an indigenous government and has not been elected or otherwise chosen by the people of the State’.