Lecture 5 - PUBLIC INTERNATIONAL LAW LECTURE 5 Recognition...

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PUBLIC INTERNATIONAL LAW LECTURE 5: Recognition
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SCHEDULE i. The question of statehood and its attainment/The Montevideo Criteria; ii. Recognition i. Acts of recognition; ii. Recognition of Governments; iii. Politics and functions of recognition; iv. Legal significance of recognition; v. Legal consequences of recognition.
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General Observations u Given the State’s central role in international law and international relations, it would seem evident that a clear and codified definition of a State exists in international law, so to determine which entity may be considered a State. Since 1945, several attempts have been made to agree on such a definition. u During the negotiations over the draft text on the Declaration on the Rights and Duties of States (1949), the Vienna Convention on the Law of Treaties (1956 and 1966) and the articles on Succession of States in respect of Treaties (1974), attempts were made to describe the concept of the State. None of these efforts succeeded however, as a codification of a definition of the State turned out to be too politically sensitive u Despite the lack of a clear definition of what constitutes a State, international law does provide some guidelines on how to approach the issue of statehood. For example, the existence of effective control is widely regarded as an important, perhaps even crucial, consideration in assessing the emergence of new States.
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General Observations u The so-called, “principle of effectiveness”, came to replace the commonly accepted “policy of recognition” of the 19th century, which allowed existing States to authoritatively determine whether a (new) political community possessed sufficient, “legitimacy and, “civilization” to join the existing community of sovereign (and self- proclaimed civilized) States. This subjective policy of recognition was replaced with a more objective, factual criterion: the existence of effective control over a given territory (also known as the “principle of effectiveness”) u The importance of effective control was underscored as early as 1929 by the arbitrator in the case of the Deutsche Continental Gas- Gesellschaft . The arbitrator stated that, “a] State does not exist unless it fulfills the conditions of possessing a territory, a people inhabiting that territory, and a public power which is exercised over the people and the territory.
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General Observations u Likewise, the importance of the principle of effectiveness has long been recognized in legal doctrine. A brief summary of the importance of effective control for identifying a State is given by Shaw, who observes that “[t] he ultimate control and territory is the essence of a State. u Similar formulations are found in older literature, among which special attention should be given to Jellinek’s “ Drei Elementen Lehre , which affirms that a State consist of three essential elements: a government” a territory and a population.
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General Observations u A codification of Jellinek s doctrine of the three elements can be
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  • Summer '16
  • 402
  • PUBLIC INTERNATIONAL LAW, Sovereign state, State’s central role

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