The conditions for speaking of a State in Public International Law

In Public International Law, the State is defined by three constituent elements: a population, a territory and a governmental organisation. The population within the meaning of Public International Law consists of persons attached to the State by a legal bond: nationality. Nationality is defined by the International Court of Justice in its Nottebohm judgement of 1955 as a “legal link having at its base a social fact of attachment, effective solidarity, interests, and feelings joined to a reciprocity of rights and homework”.

The bond between members of a population is considered to be the right to be together and to want to be together. It has been the definition of the nation for the past centuries. Today, this is more in line with international law. Consequently, the right of people to self-determination is that of freely choosing the form of their political regime.

Territory, when speaking of a State in Public International Law, is defined by the fact that every State has in principle a territory delimited by borders with other States. A State has guarantees, like for example the “principle of territorial integrity” or “the principle of inviolability”. The State is protected by principles of Public International Law. State-territories can evolve. For example, France regularly renegotiates its borders for infrastructural reasons; this is particularly the case with the unfrozen Franco-German border located in the middle of the Rhine.

Governmental organisation within the meaning of Public International Law is defined as a set of political structures playing the role of political authority, that is to say that people are responsible for deciding for the whole territory; democracy being the best example of political structure to date. The only concern of Public International Law therefore remains effectiveness, that is to say the capacity of political authorities to control the territory.

If there is a lack of control in one country, there is a chance that it will spread to another country. This is what worries countries. So it is Public International Law that adds the condition of effectiveness. Whenever a country has troubles, Public International Law is worried because the conditions of effectiveness are not met.

However, the combination of these three elements is not enough to ensure that a State has a place in international society. Before being able to maintain international relations with other States, the new State must have been previously accepted as a State by the members of international society, that is, the other States. This kind of admission by the international community characterises its sovereignty and allows it recognition on the international scene. The emergence of new States can change the structure of international relations and the balance of power between different actors. The functioning of the international community may be changed. As such, States therefore have the discretion to recognise or not to recognise a new State.

When speaking of a State in Public International Law, there is therefore neither an obligation to recognise, nor a duty not to recognise for States, as recognized, for example, by the 1993 Arbitration Commission of the Conference for Peace in Yugoslavia: recognition “is a discretionary act that other States can perform at the time of their choice, in the form they decide and freely”.

There are therefore two opposing theses regarding “effective” recognition: the “declarative thesis”, on the one hand, that maintains that the conditions of State-formation have an objective character. From the moment it unites the three constituent elements, the State obviously exists, even if third States do not recognise it. Conversely, if an entity does not meet the three building blocks necessary for the formation of a State, it will not effectively be a State, even if it is recognized by a large number of countries as a State.

And, the “constitutive thesis” on the other hand, which maintains that recognition is necessary for the establishment of active legal relations between two States, that which recognises and that which is recognized. For the establishment and conduct of relations between the two States, recognition is therefore constitutive. It is the starting point for normal relations between the recognising State and the recognized one. Recognition is, in principle, a discretionary act of the State. Contemporary international practice, however, attempts to bring some limits by further orienting the appreciation of States. This diplomatic opportunism manifests itself mainly in three different ways; either the States will refuse to recognise a new State while the effectiveness of this new entrant cannot be objectively denied, or the States will recognise it late, or on the contrary, they will recognise it prematurely and even then, the constitutive conditions are not fully met.

Recognition is therefore either “express” or “implied”. It will be express when it is the subject of a unilateral act, as a declaration of recognition, and proclamation as such on the international scene, and it will be implicit, or even tacit, when it will manifest itself, for example not by an official declaration, but by diplomatic relations and a conclusion of bilateral treaties. However, because recognition has a relative effect, it therefore only obliges the States which have recognized the new State. It does not in any way oblige those who have not recognized the new State and which may refuse to maintain relations with it.

The recognized State may therefore, upon recognition, conclude treaties with States which have recognized it, accede to multilateral treaties, become a member of international organizations, make international complaints to international dispute settlement mechanisms, participate in joint votes, and to carry its voice in the same way as the other States having recognized it. Consequently, the conditions for speaking of a State in Public International Law therefore fall indirectly under the discretionary power of the States already present and recognized on the international scene, which may consider that the combination of the so-called constituent elements (population, territory and government) remains the intangible corollary to this recognition, or accept that such recognition is diplomatically and politically necessary for the future of everyone on the international scene.

This article was written by Soraya MOUHOU (Paris-Saclay).