Lecture 8 & 9

Criteria of Statehood

&

Territorial Sovereignty

A) Recognition of State

• When ones state recognised another entity as a ‘state’.

• The importance of being recognised: only ‘state’ can acquire international legal personality (by the recognising state)

• The time of recognition is important because at that time, the recognised state will have international legal personality by the recognizing state.

• There are 3 theories in recognition:

a)constitutive

b)declaratory

c)hybrid

• ‘formal acknowledgement or acceptance by a government of the independence and sovereignty of a newly created state or of a newly established government in another state, especially one establishing by revolution’.

a) Constitutive Theory

• The act of recognition itself will make a political entity into a state and therefore became a subject of international law. Exception to this theory – Taiwan.

• Although only 20 states recognised Taiwan (Malaysia excluding), nevertheless it has entered into international relations with almost every other states in the world.

b) Declaratory Theory

• An entity will become a state and subsequently become a subject of international law as soon as it has all the four traditional qualifications for recognition. Exception to this – Palestine.

• Recognised by more than 70 states (including Malaysia) and have observer status as United Nations (PLO) BUT it does not have a defined territory or habited by ‘permanent’ population and ‘effective’ government.

c) Hybrid Theory

• Arise because both the constitutive and declaratory theory is not widely accepted by the majority states.

• There must be a merger between these two theories.

Constitutive Declaratory

• According to hybrid theory:

a state can exist in fact as a subject of international law as soon as it satisfies the conditions of statehood, but it can only realiseits full potential (as a state) only after it has been recognised.

B) Recognition of Government

• If there’s a change of government in a state, then there’s a need to recognised the new government.

• There is no need to recognise if the new government succeeded the old government by lawful means: Election.

• Problem arise when it is done through unlawful means.

• For example revolution and non-constitutional means.

• In order for the new government to be recognised, it must:

a) be effective

b) have exclusive control over the territory of the state

c) demonstrate its ability to honour international obligations

d) be representative of all shades of opinion.