States, recognition and succession

International Law · Subjects and territory. The idea in plain words, the rules to remember, the mistake to avoid and a worked example, written and checked by Mega Lecture.

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The idea

The Montevideo Convention of 1933 gives the classic test of a state: a permanent population, a defined territory, a government, and the capacity to enter into relations with other states. Size does not matter, and borders need not be fully settled.

Recognition is the act by which other states accept a new state or government. The declaratory theory says recognition only acknowledges a state that already exists in fact. The constitutive theory says recognition itself creates statehood in law. Recognition may be de facto (provisional) or de jure (full and final).

State succession is the replacement of one state by another in responsibility for the international relations of a territory.

Rules to remember

Montevideo Convention 1933, Article 1: permanent population, defined territory, government, capacity to enter into relations with other states.
Montevideo, Article 3: the political existence of a state is independent of recognition (declaratory view).
De facto recognition: cautious and provisional, given when permanence is in doubt. De jure: full and final.
Britain recognised the Soviet government de facto in 1921 and de jure in 1924.
Estrada Doctrine (Mexico, 1930): no formal statements recognising new governments.
Clean slate: a newly independent state is not bound by its predecessor's treaties unless it accepts them; boundary treaties continue.
1947: India continued the personality of British India; Pakistan joined the UN as a new member. 1991: Russia continued the Soviet Union's UN seat.

Common mistake

Students add recognition or UN membership to the Montevideo list. The four criteria are population, territory, government and capacity for foreign relations; under the declaratory view a state can exist before anyone recognises it.

Worked example

Territory T has a settled population, clear borders, an effective government and its own foreign ministry that concludes agreements. Only three states have recognised it. On the declaratory theory, is T a state?

Test T against Article 1 of the Montevideo Convention: population, territory, government and capacity for foreign relations are all present.
On the declaratory theory, recognition only acknowledges an existing fact and does not create the state.
The small number of recognitions therefore affects T's dealings with other states, not its legal existence. On the constitutive theory the answer would differ.

Answer: Yes. On the declaratory theory T is a state because it meets the four Montevideo criteria.

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