Anthony Aust. Handbook of International Law

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was therefore blocked.

(As to the quite different question of the representation, see p. 197 below.)

The suggestion that there is an obligation to recognise an entity as a new state, on the basis that,

on an objective view, it satisfies all the criteria for recognition, has never been widely accepted.

Nor were the, scarcely practical and politically naïve, Guidelines on the Recognition of New States

in Eastern Europe and in the Soviet Union issued by the European Community on 16 December

1991.

Issued without proper consideration of the legal and political consequences, the Guidelines

required that in order to be recognised each aspirant state had to give assurances that it would

respect the rule of law, democracy and human rights, and guarantee the rights of minorities and the

inviolability of all frontiers. Not surprisingly, the assurances were quickly given. The record since

suggests that some of the new states, and indeed members of the European Community, saw the

exercise as a diplomatic figleaf to cover over-hasty recognition.

Today Taiwan (see below) operates as far as possible like a state, but is recognised by only a few

states, mostly small and poor. The reason for its international limbo is political, its government

purporting to be the government of all China, albeit in temporary exile. On the other hand, Palestine,

although recognised mainly by Arab states, is treated by other states and in the United Nations

virtually as if it were a state.

This is for good political reasons.

Membership of the United Nations is open only to ‘states’, although this term is not defined in the

Charter, and in the past countries that were not states were Members. Even when they were still

republics of the Soviet Union, the Byelorussian SSR (now Belarus) and the Ukrainian SSR (now

Ukraine) became original Members as part of a deal under which India, which gained independence

only in 1947, also became an original Member. That has now been put right by their independence.

Today admission to the United Nations is usually the shortest and quickest route to recognition of

statehood. But it amounts to recognition only by those Members supporting admission.

Nevertheless, most countries that could be regarded as states are now UN Members.

The

11. See pp. 205-6 below.

12. Shaw, pp. 372–3.

13. (1991) BYIL 559–60. See also the EC Declaration on Yugoslavia of the same date: (1991) BYIL

560–1.

14. See p. 26 below.

15. See UN Doc. S/1466 (1950), and Oppenheim, pp. 177–83.

16. Several Arab Members have declared formally that they do not recognise Israel.

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principal – though so far problematic – exceptions are the Vatican City, Taiwan and Palestine.

Vatican City

As a result of the Lateran Treaty 1929 between the Holy See and Italy,

and recognition and

acquiescence by states, the Vatican City (albeit tiny in area and with a resident population of papal

functionaries) would seem to be a state even though its sole purpose is to support the religious and

moral purposes of the Holy See. It has permanent observer status in the United Nations, is a full

member of some other international organisations, and is a party to multilateral treaties.

Taiwan

The island of Taiwan (Formosa) was surrendered by Japan to the Republic of China (RoC) in 1945.

Following the civil war in China, which left the mainland under the control of the communist forces,

the (nationalist) government of the RoC fled to Taiwan. The victorious communists proclaimed the

People’s Republic of China (PRC) in 1949, and it soon became widely recognised, though not by the

United States until 1979. The nationalist government still claims to be the government of all China,

and has therefore not claimed statehood for Taiwan. As the purported government of the RoC,

Taiwan has diplomatic relations with some small developing states. Rapprochement between

Taiwan and the PRC may one day be possible. In 2001 the RoC (under the name ‘Chinese Taipei’)

became a member of the World Trade Organization on the basis that it is a separate customs

territory, as has also the European Communities, Hong Kong, China and Macao, China.

Turkish Republic of Northern Cyprus

Unlike the preceding examples, the so-called Turkish Republic of Northern Cyprus (TRNC) is

recognised only by one state, Turkey.

Following the decision of representatives of the Turkish

Cypriot community in 1963 to cease participating in organs of the Republic of Cyprus (ROC) and

refusing to recognise its laws, there were serious civil disturbances and

17. See p. 26 below.

18. 130 BSP 791.

19. Oppenheim, pp. 325–9; Shaw, pp. 218–19.

20. See UNGA Res. 541 (1983) and Res. 550 (1984).

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UN peacekeeping forces were deployed. Extensive population movements resulted in the majority of

the Turkish Cypriots moving to the north of the island. Following the overthrow of the ROC

Government in 1974 by a coup d’état inspired by the then military regime in Greece, the Turkish

army invaded the north, and continues to occupy it.

A buffer zone (the Green Line) separates the

occupied north from the south. In separate referendums in April 2004, a UN settlement plan for

Cyprus was approved by the Turkish Cypriots but rejected by the Greek Cypriots. The Republic of

Cyprus became a member of the EU on 1 May 2004, but for the time being not in respect of those

areas in which the ROC Government does not exercise effective control (i.e. the occupied part).

Republics

Most states are republics, and this can lead to misunderstandings. The full title of the Soviet Union

was the Union of Soviet Socialist Republics, yet the many republics of the USSR were merely

provinces.

The Russian Federation

now consists of twenty-one (non-independent) republics

(including Chechnya, Ingushetia and North Ossetia), forty-nine oblasts, ten autonomous okrugs, six

krays, two federal cities and one autonomous oblast. The Republic of South Ossetia is not part of

Russia, but a renegade province of the state of Georgia, itself a former Soviet republic. Republika

Srpska is one of the two entities, the other being the Federation of Bosnia and Herzegovina,

constituting the state of Bosnia and Herzegovina.

Kosovo is a province of Serbia, itself a

constituent part of the state of Serbia and Montenegro (formerly the Federal Republic of

Yugoslavia), though since 1999 it has been under UN administration (UNMIK).

The fifty states of

the United States of America are constituent parts of the federal state of that name, sometimes

referred to as the ‘nation state’.

Yugoslavia

Even though the Federal Republic of Yugoslavia (FRY) asserted that it was the continuation of the

Socialist Federal Republic of Yugoslavia (SFRY),

21. See Oppenheim, pp. 189–90.

22. See text to n. 15 above on the even more misleading cases of Byelorussia, and Ukraine. Its title,

Commonwealth of Independent States, correctly represents the position of its former Soviet republic

members (see n. 43 below).

23. See p. 393 below on the continuation of statehood.

24. See Article (3) of the so-called Dayton Agreement, ILM (1996) 75.

25. See www.unmikonline.org.

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the other former republics of the SFRY, as well as most third states, did not accept this or the FRY’s

claim to the seat of the former Yugoslavia in the United Nations and other international

organisations.

In September 1992 the UN General Assembly decided that the FRY could not

continue automatically the membership of the SFRY; that it should apply for membership; and that

it could not take part in the work of the General Assembly.

The effect of this ambiguous decision

was that the membership of ‘Yugoslavia’ was not terminated or suspended, but its practical

consequence was that FRY representatives could no longer take part in the work of the General

Assembly, its subsidiary organs, or conferences or meetings convened by the General Assembly.

Domestic courts and unrecognised states

Nevertheless, domestic courts sometimes adopt the sensible view that, even if the government does

not recognise an entity as a state, life has to go on, and so they may give effect to laws and acts of

public authorities of unrecognised states when they concern the ordinary but essential day-to-day

aspects of life, such as births, marriages, divorces, deaths

and certain commercial matters.

Self-determination

One of the purposes of the United Nations is to develop friendly relations among nations based on

respect for the principle of equal rights and the principle of self-determination of peoples (Article

1(2) of the UN Charter), and Article 73 of the Charter declares that the interests of the

26. (1992) BYIL 655–8. See also the report of the Badinter Commission, 92 ILR 162 at 166. The ICJ

elided the question in Genocide (Bosnia v. Yugoslavia) (Provisional Measures), ICJ Reports (1993), p. 3,

at pp. 20–3; ILM (1993) 888; 95 ILR 1.

27. See UNSC Res. 757 (1992), 777 (1992), 821 (1993) and 1074 (1996), and UNSC Res. 47/1, 47/229

and 48/88; ILM (1992) 1421. See also the detailed consideration of the status of the FRY between 1992

and 2000 in Legality of the Use of Force (Serbia and Montenegro v. Belgium) (Preliminary Objections),

ICJ Reports (2004), paras. 25 and 54–91.

28. See UN Doc. A/47/485. For the problems of succession to FRY treaties and property, see pp. 399 and

402 below.

29. See Hesperides Hotels v. Aegean Turkish Holidays [1978] QB 205; 73 ILR 9, per Lord Denning obiter

(the case concerned Turkish-occupied Northern Cyprus); Caglar v. Bellingham 108 ILR 510 at 535–40;

Reel v. Holder [1981] 1 WLR 1226; 74 ILR 105.

30. Al-Fin Corporation’s Patent [1970] Ch 160; 52 ILR 68.

31. See A. Cassese, Self-Determination of Peoples, Cambridge, 1995.

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inhabitants of non-self-governing territories are ‘paramount’, and envisages, among other things, the

development of their eventual self-government. At that time independence for most territories was

not envisaged, but events moved rapidly. Paragraph 2 of the Declaration on the Granting of

Independence to Colonial Countries and Peoples of 1960

declared that all peoples have the right to

self-determination, and thus to determine freely their political status. Article 1(2) of the International

Covenant on Civil and Political Rights 1966

also provides that all peoples have the right of self-

determination, which is now a right erga omnes.

Those overseas territories that still remain have freely chosen to stay as they are, at least for the

moment. This can be illustrated by the example of Gibraltar (less than 6 sq kms).

A 1967

referendum of the inhabitants resulted in 12,138 voting for the status quo and 44 for returning to

Spain. Ignoring the referendum, and Article 73 of the UN Charter, UNGA Resolution 2429( XIII)

(1968) called for the end of the ‘colonial situation’. The resolution was adopted with sixty-seven

votes, with eighteen against and thirty-four abstentions. Although Gibraltar is still an irritant in

Anglo-Spanish relations, much has changed since then: Spain is now a democracy, and the two

states belong to the European Union. In 2002 a proposal for joint sovereignty was rejected in another

referendum by 17,900 to 187. Spain retains two small enclaves on the coast of Morocco: Ceuta and

Melilla.

Judgments in delimitation disputes can lead to a significant number of people suddenly finding

themselves living under the government of a different state and as their nationals.

A negotiated

settlement or plebiscite, or the involvement of an impartial organisation like the United Nations,

rather than resort to law, can be a better way of handling such politically and emotionally charged

matters.

32. UNGA Res. 1514 ( ).

33. 999 UNTS 171 (No. 14668); ILM (1967) 368: UKTS (1977) 6.

34. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory

Opinion, ICJ Reports (2004), para. 87; ILM (2004) 1009. On erga omnes, see p. 10 above.

35. See p. 37 below on the legal title to Gibraltar.

36. See Cameroon v. Nigeria (Merits), ICJ Reports (2002); and see Oppenheim, pp. 685–6 on the option

found in some cession treaties to retain the previous nationality.

37. For an account of the dispute over sovereignty of the Falkland Islands, which illustrates some of the

complex legal and political factors involved in resolving such disputes, see Shaw, pp. 452–3.