The slides discuss in detail the concept of State, State Recognition and Jurisdiction under International Law. Useful for Law Students and professionals.

1. Concept
of
STATE
-SHIVANI SHARMA, AST PROF
-SARDAR PATEL SUBHARTI INSTITUTE OF LAW

2. INTRODUCTION
 Although states are not the only entities with international legal
standing and are not the exclusive international actors, they are the
primary subjects of international law and possess the greatest range of
rights and obligations.
 Unlike states, which possess rights and obligations automatically,
international organizations, individuals, and others derive their rights
and duties in international law directly from particular instruments.
 Individuals may, for example, assert their rights under international law
under the International Covenant on Economic, Social, and Cultural
Rights and the International Covenant on Civil and Political Rights,
both of which entered into force in 1976.

3. DEFINITION OF STATE
 There is no exact definition of the term “State” in International Law.
However in this law, the essential criteria for statehood are well
settled.
 Article 1 of the Montevideo Convention on the Rights and Duties of
States of 1933 provides the following:
The state as a person of international law should possess the following
qualifications:
a. a permanent population;
b. a defined territory;
c. government; and
d. capacity to enter into relations with other States.

4. CONT…
(a) A Permanent Population
 The existence of a permanent population is naturally required as an initial
evidence of the existence of a State. This requirement suggests a stable
community.
 Evidentially it is important, since in the absence of the physical basis for an
organized community, it will be difficult to establish the existence of a
State.
 The size of the population, however, is not relevant since International Law
does not specify the minimum number of inhabitants as a requirement of
statehood.
 Nevertheless, an acceptable minimum number of inhabitants is required
with regard to self-determination criterion.

5. CONT…
(b) A Defined Territory
 The requirement of a permanent population is intended to be used in association with that of territory.
 What is required by a defined territory is that there must be a certain portion of land inhabited by a
stable community.
 A defined territory does not suggests that the territory must be fixed and the boundaries be settled since
these are not essential to the existence of a State, although in fact all modern States are contained within
territorial limits or boundaries.
 The past practice shows that the existence of fully defined boundaries is not required and that what
matters is the existence of an effective political authority having control over a particular portion of
land.
 In 1913, Albania was recognized as a State by a number of States even though it lacked settled boundaries,
and Israel was admitted to the United Nations as a State in spite of disputes over its existence and territorial
delineation.

6. CONT…
(c) A Government
 For a stable community to function reasonably effectively, it needs some sort of
political organization.
 It is required that an effective government be created, and this political authority
must be strong enough to assert itself throughout the territory of the State
without a foreign assistance.
 The existence of an effective government, with some sort of centralized
administrative and legislative organs, assures the internal stability of the State,
and of its ability to fulfill its international obligations.
 In certain cases, the requirement of an effective government was not regarded as
precondition for recognition as an independent State.

7. CONT…
 The State of Croatia and the State of Bosnia and Herzegovina were recognized as independent
States by the member States of the European Community, and admitted to membership of the
United Nations at a time when substantial areas of the territories of each of them, because of the
civil war situations, were outside the control of each government.
 Moreover, a State does not cease to exist when it is temporarily deprived of an effective
government because of civil war or similar upheavals.
 The long period of de facto partition of Lebanon did not hamper its continuance as a State.
 The lack of a government in Somalia did not abolish the international personality of the country.
 Even when all the territory of a State is occupied by the enemy in wartime, it continues to exist as
in the cases of the occupation of European States by Germany in the Second World War and the
occupation of Germany and Japan by the Allied powers after that war.

8. CONT…
(d) A Capacity to Enter into Relations with Other States
 The capacity to enter into relations with other States is an attribute of the
existence of an international legal personality.
 A State must have recognized capacity to maintain external relations with
other States. Such capacity is essential for a sovereign State; lack of such
capacity will avert the entity from being an independent State.
 Capacity distinguishes States from lesser entities such as members of
federation or protectorates, which do not manage their own foreign affairs,
and are not recognized by other States as full-members of the international
community.

9. CREATION OF STATES
 The process of creating new states is a
mixture of fact and law, involving the
establishment of particular factual conditions
and compliance with relevant rules.
 The accepted criteria of statehood were laid
down in the Montevideo Convention (1933)
 The need for a permanent population and a
defined territory is clear, though boundary
disputes—e.g., those concerning Albania
after World War I and Israel in 1948—do not
preclude statehood.

10. CONT…
 The international community (including
the UN) has recognized some states while
they were embroiled in a civil war (e.g.,
the Congo in 1960 and Angola in 1975),
thus eroding the effective-
government criterion.
 Although independence is required, it
need not be more than
formal constitutional independence.

11. CONT…
 States may become extinct through merger (North and South
Yemen in 1990), absorption (the accession of the Länder [states] of
the German Democratic Republic into the Federal Republic of
Germany in 1990), dissolution and reestablishment as new and
separate states (the creation of separate Czech and Slovak republics
from Czechoslovakia in 1993), limited dismemberment with a
territorially smaller state continuing the identity of the larger state
coupled with the emergence of new states from part of the territory
of the latter (the Soviet Union in 1991), or,
historically, annexation (Nazi Germany’s Anschluss of Austria in
1938).

13. STATE JURISDICTION
 The sovereignty of a state is confined to a defined piece of territory, which is
subject to the exclusive jurisdiction of the state and is protected by international
law from violation by other states.
 Although frontier disputes do not detract from the sovereignty or independence
of a particular state, it is inherent in statehood that there should be a core territory
that is subject to the effective control of the authorities of the state.
 Additional territory may be acquired by states through cession from other states
(the Island of Palmas case in 1928); by the occupation of territory that is terra
nullius (Latin: “the land of no one”)—i.e., land not under the sovereignty or control
of any other state or socially or politically organized grouping; or by prescription,
where a state acquires territory through a continued period of uncontested
sovereignty.

14. CONT…
 Under the UN Charter, sovereign title to territory cannot be acquired purely
and simply by the use of force.
 Express or implied consent is required under international law for
recognition of territory acquired by force, whether or not the use of force
was legal.
 When states are created from the dissolution or dismemberment of existing
countries, it is presumed that the frontiers of the new states will conform to
the boundaries of prior internal administrative divisions.
 This doctrine, known as uti possidetis (Latin: “as you possess”), was
established to ensure the stability of newly independent states whose
colonial boundaries were often drawn arbitrarily.

15. CONT…
 Jurisdiction refers to the power of a state to affect persons, property, and
circumstances within its territory. It may be exercised through legislative,
executive, or judicial actions.
 International law particularly addresses questions of criminal law and
essentially leaves civil jurisdiction to national control.
Jurisdiction
principles
Territorial
Principle
Protective
principle
Passive
personality
principle
Universality
principle

16. Cont…
 According to the territorial principle, states
have exclusive authority to deal with criminal issues arising
within their territories; this principle has been modified to permit
officials from one state to act within another state in certain
circumstances (e.g., the Channel Tunnel arrangements between
the United Kingdom and France and the 1994
peace treaty between Israel and Jordan).
 The nationality principle permits a country to exercise criminal
jurisdiction over any of its nationals accused of criminal offenses in
another state
 Ships and aircraft have the nationality of the state whose flag they
fly or in which they are registered and are subject to its jurisdiction.

17. CONT…
 The passive personality principle allows states, in limited cases, to claim
jurisdiction to try a foreign national for offenses committed abroad that
affect its own citizens.
 This principle has been used by the United States to prosecute terrorists and
even to arrest (in 1989–90) the de facto leader of Panama, Manuel Noriega,
who was subsequently convicted by an American court of cocaine trafficking,
racketeering, and money laundering.
 The principle appears in a number of conventions, including the International
Convention Against the Taking of Hostages (1979), the Convention on the
Prevention and Punishment of Crimes Against Internationally Protected
Persons (1973), and the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (1984).

18. CONT…
 The protective principle, which is included in the hostages and aircraft-
hijacking conventions and the Convention on the Safety of United
Nations and Associated Personnel (1994), can be invoked by a state in
cases where an alien has committed an act abroad deemed prejudicial to
that state’s interests, as distinct from harming the interests of nationals
(the passive personality principle).
 Finally, the universality principle allows for the assertion of jurisdiction in
cases where the alleged crime may be prosecuted by all states (e.g., war
crimes, crimes against the peace, crimes against humanity, slavery,
and piracy).

19. JURISDICTIONAL IMMUNITY
 Jurisdictional immunity exists in certain contexts. Diplomatic personnel, for example,
have immunity from prosecution in the state in which they operate.
 In the 1960s, however, the Vienna Convention on Diplomatic Relations and the Vienna
Convention on Consular Relations stipulated that the level of immunity varies
according to the official’s rank.
 Immunity is generally more extensive in criminal than in civil matters. A country’s
diplomatic mission and archives also are protected. International organizations
possess immunity from local jurisdiction in accordance with international conventions
(e.g., the General Convention on the Privileges and Immunities of the United Nations
of 1946) and agreements signed with the state in which they are based.
 Certain immunities also extend to the judges of international courts and to visiting
armed forces.

20. RECOGNITION OF STATES

21. WHAT IS RECOGNITION?
 Recognition is a process whereby certain facts are accepted and
endowed with a certain legal status, such as
statehood, sovereignty over newly acquired territory, or the
international effects of the grant of nationality.
 The process of recognizing as a state a new entity that conforms
with the criteria of statehood is a political one, each country
deciding for itself whether to extend such acknowledgment.
 Normal sovereign and diplomatic immunities are generally
extended only after a state’s executive authority has formally
recognized another state.

22. Cont…

23. THEORIES OF RECOGNITION

24. Cont…

25. MODES OF RECOGNITION
MODES
DE
FACTO
DE JURE

26. CONT…

28. FORMS OF RECOGNITION

29. CONT…

31. RECOGNITION OF GOVERNMENT

32. CONT…

33. RECOGNITION OF BELLIGERENCY

34. RECOGNITION OF INSURGENCY

35. IMPORTANCE OF RECOGNITION
 International recognition is important evidence that the factual criteria
of statehood actually have been fulfilled.
 A large number of recognitions may buttress a claim to statehood
even in circumstances where the conditions for statehood have been
fulfilled imperfectly (e.g., Bosnia and Herzegovina in 1992).
 According to the “declaratory” theory of recognition, which is
supported by international practice, the act of recognition signifies no
more than the acceptance of an already-existing factual situation—
i.e., conformity with the criteria of statehood.
 The “constitutive” theory, in contrast, contends that the act of
recognition itself actually creates the state.

36. CONT…
 Before granting recognition, states may require the fulfillment of additional
conditions.
 The European Community (ultimately succeeded by the EU), for example, issued
declarations in 1991 on the new states that were then forming in eastern Europe,
the former Soviet Union, and Yugoslavia that required, inter alia, respect for
minority rights, the inviolability of frontiers, and commitments to disarmament and
nuclear nonproliferation.
 The timing of any recognition is crucial—particularly when a new state has been
formed partly from an existing one.
 Premature recognition in a case of secession can amount to intervention in a
state’s internal affairs, a violation of one of the fundamental principles of
international law.

37. CONT…
 Recognition of governments is distinguished from the
recognition of a state. The contemporary trend is in fact no
longer to recognize governments formally but to focus instead
upon the continuation (or discontinuation) of diplomatic
relations.
 By this change, states seek to avoid the political difficulties
involved in deciding whether or not to “recognize” new regimes
taking power by non-constitutional means.
 Although states are not obliged to recognize new claimants to
statehood, circumstances sometimes arise that make it a positive
duty not to recognize a state.

38. CONT…
 During the 1930s, U.S. Secretary of State Henry Stimson propounded the
doctrine of the non-recognition of situations created as a result
of aggression, an approach that has been reinforced since the end of World
War II.
 In the 1960s, the UN Security Council “called upon” all states not to
recognize the Rhodesian white-minority regime’s declaration of
independence and imposed economic sanctions.
 Similar international action was taken in the 1970s and ’80s in response
to South Africa’s creation of Bantustans, or homelands, which were
territories that the white-minority government designated as “independent
states” as part of its policy of apartheid.

39. CONT…
 The Security Council also pronounced the purported
independence of Turkish-occupied northern Cyprus
as “legally invalid” (1983) and declared “null and
void” Iraq’s annexation of Kuwait (1990).
 The UN also has declared that Israel’s purported
annexation of the Golan Heights (conquered from
Syria in 1967) is invalid and has ruled similarly with
regard to Israel’s extension of its jurisdiction to
formerly Jordanian-controlled East Jerusalem.
U.S. Secretary of
State Henry Stimson

40. EFFECTS OF RECOGNITION
1. The recognized state becomes entitled to sue in the courts of the
recognized state.
2. The courts of the recognizing state given effect to the past as well as
present legislation and executive acts of the recognized state.
3. In case of the de jure recognition, diplomatic relation is established and
the rules of international law relating to privilege and immunity apply.
4. A recognized state is entitled to sovereign immunity for itself as well as
its property in the courts of recognized state.
5. The recognized state is also entitled to the succession and possession of
the property situated in the territory of the recognized state

41. INDIAN POLICY
OF
RECOGNITION

42. India and China
As a consequence of resolution the Nationalist
Government of China was pushed out by the
communist forces from main land China in 1949.
India promptly recognised the new regime i.e.
People’s Republic China. India was one of the
first states to recognize people’s republic of
china. (the first country, outside the communist
block, to recognize china was Burma) India
recognize china on 30th December, 1949. While
many countries in the world were still waiting or
were withholding recognition of china, India
accorded recognition. Subsequently India’s
example was followed by many other states

43. India And Afghanistan
On first 1st may 1971 Afghanistan was
proclaimed a democratic republic with Mr. Nur
Mohammad Tarakkin as president of the newly
constituted revolutionary council. This
government was established after a coup
replacing former president Daoud. India
recognized new government on 2nd may
1978. India was thus one of the first countries
to accord recognition to the new government
of Afghanistan. Soviet Union and Bulgaria also
recognized the new government on said date.

44. India And Bangladesh
 India recognized Bangladesh on 6th December
1971.Where on the one hand India’s recognition
of Bangladesh was widely welcomed inside the
country on the other hand this action was
subjected to criticism and was regarded as
premature. Thus while recognition in respect of
Israel, Spain, Vietnam and East Germany had
been delayed, India was very quick to accord
recognition to Bangladesh. This was obviously
due to expedience and political considerations.