Unit II — States, Recognition & Territorial Sovereignty

“In 1933, twenty Latin American States gathered in Montevideo. They drew up a four-line rule that became the legal DNA of every nation on earth.” — Montevideo Convention on the Rights and Duties of States, 1933

The 4 Essentials of Statehood — Montevideo Convention, 1933

graph TD
    S[STATE - Art 1, Montevideo Convention 1933]
    S --> P[Permanent Population]
    S --> T[Defined Territory]
    S --> G[Effective Government]
    S --> C[Capacity to Enter Foreign Relations]
    P --> EX1[No minimum - Vatican 800 people still qualifies]
    T --> EX2[Boundaries may be disputed - land must exist]
    G --> EX3[Effective control - not necessarily democratic]
    C --> EX4[Independence - not controlled by another State]

Each Element Explained

Key rule: All 4 criteria must be satisfied simultaneously. Missing even one means no statehood.

Kinds of States

Recognition of States — Two Theories

flowchart LR
    REC[Recognition of a New State] --> CONST[Constitutive Theory]
    REC --> DECL[Declaratory Theory]
    CONST --> C1[Oppenheim, Anzilotti]
    CONST --> C2[Recognition CREATES legal personality]
    CONST --> C3[Without recognition - no rights under IL]
    CONST --> C4[Problem - recognition becomes political weapon]
    DECL --> D1[Brierly, Lauterpacht]
    DECL --> D2[Recognition merely ACKNOWLEDGES existing statehood]
    DECL --> D3[State exists once Montevideo criteria are met]
    DECL --> D4[Badinter Commission 1991 - Yugoslavia - adopted this]
    DECL --> PREFERRED[✅ Preferred by modern scholars and ICJ]

Criticism of Each Theory

De Jure vs De Facto Recognition

flowchart TD
    R[Recognition] --> DJ[De Jure Recognition]
    R --> DF[De Facto Recognition]
    DJ --> DJ1[Full, permanent, unconditional recognition]
    DJ --> DJ2[Full diplomatic relations established]
    DJ --> DJ3[Entitled to complete State immunity in foreign courts]
    DJ --> DJ4[Cannot be withdrawn once given]
    DF --> DF1[Provisional, conditional, tentative]
    DF --> DF2[Limited consular or trade relations only]
    DF --> DF3[Can be withdrawn if government becomes unstable]
    DF -- Over time, matures into --> DJ

Effects of Recognition

1. The recognised State can sue and be sued in domestic courts of the recognising State
2. It is entitled to diplomatic immunity and privileges
3. Its laws and acts are given effect in foreign courts
4. It can sign treaties with the recognising State
5. It can become a member of international organisations

Luther v. Sagor (1921): English Court of Appeal refused to recognise Soviet decrees until UK extended de facto recognition. Once recognition was given, the Soviet decree was treated as valid law.

Modes of Acquiring Territory

Key rule since 1945: Conquest is illegal under Art 2(4) UN Charter. Title obtained by force is not recognised (ex injuria jus non oritur).

Self-Determination of Peoples

Art 1(2) UN Charter + Art 1, ICCPR (1966): All peoples have the right to self-determination — to freely determine their political status and pursue their economic, social, and cultural development.

flowchart LR
    SD[Right to Self-Determination] --> INT[Internal Self-Determination]
    SD --> EXT[External Self-Determination]
    INT --> I1[Right to democratic governance within existing State]
    INT --> I2[Autonomy, federalism, minority rights]
    EXT --> E1[Separation and formation of a new State]
    EXT --> E2[Available only to colonial peoples or severely oppressed]
    EXT --> E3[NOT available to every disaffected minority - Kosovo Advisory Opinion 2010]

Intervention — When is it Permitted?

Nicaragua Case (ICJ, 1986): USA’s support for Contra rebels was an illegal intervention in Nicaragua’s domestic affairs. Even indirect support for armed groups violates the principle of non-intervention.

✏️ Sample Solved Problem (IRAC Method)

Problem: State A declares independence from State B. It has a population, a defined territory, and an effective government. State C refuses to recognise it for political reasons. Does State A have rights under International Law despite non-recognition?

I — Issue

Whether a State that satisfies all four Montevideo criteria has legal personality under International Law even without recognition by other States; and whether non-recognition by State C has any legal effect on State A’s statehood.

R — Rule

• Montevideo Convention, Art 1 (1933) — Statehood requires: permanent population, defined territory, effective government, capacity for foreign relations
• Declaratory Theory (Brierly, Lauterpacht) — Recognition is merely an acknowledgment; the State exists once criteria are met
• Constitutive Theory (Oppenheim) — Recognition creates legal personality — minority view
• Badinter Commission (1991) — Adopted declaratory approach on Yugoslavia’s dissolution

A — Analysis

State A satisfies all four Montevideo criteria. Under the Declaratory Theory — which is the majority and modern view, endorsed by the Badinter Commission — State A already exists as a State from the moment the criteria are met. Recognition by State C is a political act, not a legal prerequisite. The Constitutive Theory would make State A’s existence contingent on the political will of powerful States — a result modern IL rejects as dangerous. Non-recognition by C may prevent full diplomatic relations between A and C, but it does not strip A of its statehood, its right to make treaties with others, or its standing under IL.

C — Conclusion

State A has full rights under International Law. It exists as a State regardless of C’s refusal to recognise it. Non-recognition is a political act with no legal effect on objective statehood under the Declaratory Theory. State A can sue in ICJ (if admitted), sign treaties, and claim sovereign equality under Art 2(1) UN Charter.

📄 The full PDF bundle has 5 more problems for Unit II — including the Taiwan/PRC recognition dilemma, Soviet succession case, Kosovo independence scenario, and the Tinoco Arbitration. Get the Notes + Question Bank bundle — ₹199