PUBLIC INTERNATIONAL LAW

UNIT II — MODEL ANSWERS

States as Subjects of International Law: States in General · Recognition · State Territorial Sovereignty
KSLU Optional Paper 8.1 · Answers built from Starke's International Law (Shearer, 11th edn., Butterworths) and S.K.
Kapoor, International Law and Human Rights (Central Law Agency)

How to use these notes

1. Part A — gives three full-length, point-wise model answers (16 marks each), each following Introduction → Body
(numbered points with case law) → Criticism → Conclusion.
2. Part B — gives five short notes, each written to a genuine 10-mark standard — not a one-paragraph summary — with
definitions, sub-points, case law and a short conclusion, exactly as much content as a 10-mark answer requires.
3. Part C — solves the five recurring 10-mark practical problems from the question bank, each in Facts → Issue → Rule
→ Application → Conclusion format.

Index
Q1. Examine the nature of State. Explain the different kinds of States and non-State entities. (covers: Define State and
kinds of states)
Q2. What is recognition? Critically examine the various theories, modes and legal effects of recognition, and distinguish
recognition de jure from de facto.
Q3. Explain the modes of acquisition and loss of territorial sovereignty under International Law.
SN. Short Notes (10 marks each): Microstates and Condominium · Theories of Recognition · Modes of Recognition ·
Implied Recognition · De Facto Recognition.
PR. Practical Problems (10 marks each): (1) Conditional recognition and breach; (2) Unrecognised State suing in
municipal courts; (3) Revocation of de facto recognition; (4) Island dispute — continuous exercise v. colonial treaty
title; (5) Indonesia–India-style fishing-island dispute.
Q1. Nature of the State and the Different Kinds of States and Non-State Entities
[16 Marks — also answers: "Define State and explain kinds of States"; "'Duties and rights of states are only the duties and rights of the
men who compose them' — Discuss"]

I. Introduction
States are the principal, though no longer exclusive, subjects of international law (Unit I, Q5). No single exact definition
of "state" is possible, but the essential characteristics required for statehood, and the various special categories of states
and state-like entities recognised in practice, are well settled and repeatedly tested.

II. Essential Characteristics of a State

1. Article 1, Montevideo Convention on the Rights and Duties of States, 1933 — lays down four qualifications a state
must possess: (a) a permanent population; (b) a defined territory; (c) a government; and (d) a capacity to enter into
relations with other states.
2. Permanent population — there is no minimum number; even a small population suffices, as the case of micro-states
shows.
3. Defined territory — a precisely fixed territory is not essential — Israel was admitted to the U.N. in 1949
notwithstanding undefined boundaries — provided there is an acceptable degree of territorial consistency; alteration
of territory (by increase or decrease) does not change the identity of the state.
4. Government — a government to which the population renders habitual obedience; the temporary exile of a
government during enemy occupation (e.g., the governments-in-exile of the Second World War) does not cause the
state to disappear.
5. Capacity to enter into international relations — the most important qualification for international law purposes — it
distinguishes full states from lesser units such as members of a federation or protectorates, which do not conduct their
own foreign affairs.
6. Kelsen's technical conception — the state is simply a technical device expressing that a body of legal rules binds a
group of individuals within a defined territory — "state" and "law" become synonymous; this echoes Locke's
observation that "a government without laws is a mystery in politics", and underlies the view (tested by the quotation
"duties and rights of states are only the duties and rights of the men who compose them") that ultimately it is
individuals, through the organs of the state, who bear rights and duties (see Unit I, Q5, Theory 2).
7. Illegality and statehood — an entity may possess all outward hallmarks of statehood yet be denied recognition where
its creation offends fundamental norms — e.g., entities created by aggression (Manchukuo), racial discrimination
(South Africa's "black homelands"), or denial of self-determination (Rhodesia after its 1965 Unilateral Declaration of
Independence).
Madzimbamuto v. Lardner-Burke (Privy Council): held the Rhodesian regime, created by UDI in 1965, to be illegal,
and its laws void, notwithstanding the de facto authority it exercised.

III. Sovereignty and Independence of States

1. Modern meaning of sovereignty — sovereignty today is best understood not as absolute, unlimited power but as the
residuum of power a state possesses within the limits laid down by international law — most states accept extensive
restrictions through membership of the U.N., the ILO, and other treaty regimes.
2. Rights flowing from independence — exclusive control of domestic affairs; power to admit/expel aliens; privileges
for its diplomatic envoys abroad; exclusive criminal jurisdiction within its territory.
3. Correlative duties — not to perform sovereign acts in another state's territory (illustrated by the Eichmann abduction
from Argentina, condemned by the Security Council, and the Rainbow Warrior affair); to prevent its territory being
used against another state's rights (Corfu Channel Case, ICJ 1949 — Albania's duty to warn of mines in its waters);
and not to intervene in the affairs of other states.

IV. The Different Kinds of States

1. Unitary states — the ordinary, most common form, possessing full external sovereignty exercised through a single
central government.
2. Federal states — a real state at international law (e.g., the U.S.A., Australia, Canada, Germany), the essential feature
being that federal organs have direct power not only over the member states but over their citizens; foreign affairs are
ordinarily conducted solely by the federal government, though historically the pre-1919 German federal states
retained limited treaty-making capacity of their own.
3. Confederations (Staatenbund) — a looser union of fully independent states bound by treaty, with common organs but
no direct power over citizens of the member states — the historic German Confederation (1815–1866) and the
modern Commonwealth of Independent States are examples; a confederation is not, itself, a state at international law.
4. Protectorates and protected states — arise where a weaker state places its most important international business in
the hands of a stronger protecting state by treaty; not based on a uniform pattern — each case turns on the specific
treaty of protection and its recognition by third powers. A protected state may still retain enough residual sovereignty
to claim jurisdictional immunity (Duff Development Co. v. Kelantan Government) and may still be a "state" for some
purposes (Rights of Nationals of the U.S.A. in Morocco, ICJ 1952). Protectorates in the strict sense have now
virtually disappeared.
5. Vassal states — a state under the complete suzerainty of another, with internationally almost no independent existence
— now an obsolete category.
6. Condominium — exists where joint dominion over one territory is exercised by two or more external powers — the
historic Anglo-French condominium over the New Hebrides (now Vanuatu, independent 1980) is the classic example
(see Short Note below).
7. Micro-states — an entity "exceptionally small in area, population and human and economic resources" (U.N.
Secretary-General's 1966–67 Report) that has nonetheless attained independence — e.g., Nauru. Minuteness of
territory/population is, in principle, no bar to statehood, though it may practically limit capacity to shoulder the full
obligations of U.N. membership (see Short Note below).
8. Members of the Commonwealth — fully sovereign states enjoying unlimited autonomy in external affairs (separate
legation, independent treaty-making, capacity to be belligerents/neutrals separately) — the Commonwealth itself is
neither a super-state nor a federation but a voluntary, functional "association" of equal states without a formal
constitution.
9. Other non-state entities with international personality — the Holy See (international personality with the right of
legation, though no territory of its own, distinct from the Vatican City State); the Sovereign Military Order of Malta
(regarded by many states as possessing personality despite minimal territory); and modern international organisations
such as the European Union, which can conclude treaties within their competence (see Unit I, Q5 on international
organisations as subjects).
Conclusion: The essential characteristics of statehood — population, territory, government, and capacity for
international relations — remain the touchstone, but international practice has produced a wide spectrum of state and
quasi-state forms (unitary, federal, confederal, protected, vassal, condominium, micro-state, Commonwealth member) as
well as non-state entities enjoying limited international personality. Modern developments — decolonisation, the break-
up of the U.S.S.R. and Yugoslavia, and the growing role of the U.N. in certifying statehood — show this typology
continuing to evolve.
Grounded in: Starke, ch. 5 ("States in general"), §§1–2; Kapoor, ch. 9 ("States as Subjects of International Law").
Q2. Recognition of States — Theories, Modes, De Jure/De Facto Distinction and Legal
Effects
[16 Marks — also answers: "Critically examine the theories of recognition"; "Discuss the legal effects of recognition"; "Distinguish De
jure and De facto recognition"; "What are the modes of recognition?"]

I. Introduction and Meaning

Recognition is the process by which existing states acknowledge that a new entity possesses the qualifications of statehood
(or that a new government possesses authority to represent an existing state), thereby signalling their intention to enter into
formal relations with it. The Institute of International Law (Brussels, 1936) defined recognition of a state as the free act by
which one or more states acknowledge the existence, on a definite territory, of a human society politically organised,
independent of any other existing state, and capable of observing the obligations of international law, thereby manifesting
their intention to treat it as a member of the international community.
1. Recognition of states v. recognition of governments — these must not be confused — recognition of the state is the
more fundamental, since the state (not any particular government) is the permanent bearer of international rights and
duties; an unconstitutional change of government does not, by itself, affect the recognised status of the state itself.
2. Predominantly political character — recognition is, in state practice, much more a matter of policy (protecting the
recognising state's own interests — trade, strategy, stability) than of strict law, though states generally try to align
their political decisions with legal principles and precedents.
3. The Estrada Doctrine — in 1930 Mexico's Foreign Minister Estrada announced Mexico would no longer issue formal
declarations recognising new governments, regarding such declarations as an insulting practice passing judgment on
another state's internal affairs; several states (and later the U.S., U.K. and Australia, from the late 1970s/1980, for
different reasons) have since abandoned the practice of formally recognising or withholding recognition of new
governments as such, confining themselves instead to deciding whether to maintain diplomatic relations.
4. No duty to recognise — the weight of precedent does not support any general legal duty on states to grant recognition
to an entity fulfilling the requirements of statehood — recognition remains, in Podestá Costa's phrase, a "facultative",
not obligatory, act, though most states try to ensure that when they do grant recognition, the legal qualifications are
genuinely met.

II. Theories of Recognition

(a) Constitutive Theory
1. Statement — the act of recognition alone creates statehood, or clothes a new government with authority in the
international sphere; until recognised, the entity possesses no international personality at all.
2. Chief exponents — Hegel, Anzilotti, Oppenheim, and Holland; Oppenheim's formulation is often quoted: a state "is,
and becomes, an international person, through recognition only and exclusively". Lauterpacht, a leading modern
supporter, went further and argued there is a legal duty on existing states to recognise any community that has, in fact,
acquired the attributes of statehood.
3. Criticism — if unrecognised entities truly had no rights or duties, an absurd position would follow whenever a new
state is recognised by some states but not others (as with the People's Republic of China for decades, or Bangladesh
initially not recognised by China, Pakistan and Albania) — it cannot seriously be argued that such an entity has no
rights or duties under international law merely because recognition is not universal; and Lauterpacht's assertion of a
legal duty to recognise is not, in fact, borne out by state practice.

(b) Declaratory (Evidentiary) Theory

1. Statement — statehood or governmental authority exists prior to, and independently of, recognition; recognition is
merely a formal acknowledgment of an existing situation of fact.
2. Chief exponents — Hall, Wagner, Brierly, Pitt Cobbett and Fisher; Brierly summarised the position succinctly:
granting recognition to a new state is not a "constitutive" but a "declaratory" act — a state may exist without
recognition, and if it exists in fact it has a right to be treated as a state whether or not formally recognised. The
(former) Soviet view also favoured this theory, treating the birth of a state as an act of internal, not international, law.
3. Support from rules of practice — (i) a court determining the date a new state came into existence looks only to the
date the factual requirements of statehood were first satisfied, not the date of any recognising treaty; (ii) recognition
 operates retroactively to the actual date of the state's/government's inception — both rules only make sense if
statehood exists independently of the act of recognition.
4. Criticism — the theory is not wholly accurate either, because the moment recognition is granted, definite constitutive
legal consequences follow in the municipal law of the recognising state (locus standi to sue, immunity from suit,
entitlement to property, etc.) — so recognition is not purely passive/declaratory in its effects.

(c) The Reconciling / Eclectic View

The better and now generally accepted view — taken by Starke, and by Oppenheim himself in later editions — is that the
truth lies between the two theories: state practice overwhelmingly supports the declaratory theory as to the existence of
statehood itself, but recognition remains constitutive in the narrower sense that it is only upon recognition that the
recognised entity acquires status and is treated as such in the municipal courts of the recognising state.

III. Modes of Recognition

1. Express recognition — a formal declaration — by diplomatic note, note verbale, personal message of the head of
state/foreign minister, parliamentary declaration, or treaty — unequivocally stating the intention to recognise.
2. Implied recognition — inferred from conduct unequivocally indicating an intention to establish relations. Conclusive
instances: (i) formal signature (ratification not required) of a bilateral treaty with the new entity; (ii) formal initiation
of diplomatic relations; (iii) issue of a consular exequatur to the new entity's consul. More equivocal instances
(recognised only exceptionally): common participation in a multilateral treaty, participation together in an
international conference, or initiation of negotiations — states often expressly reserve that such participation is not to
be construed as recognition.
3. Conditional recognition — recognition granted subject to a stipulated condition (e.g., the 1878 Berlin Congress
recognising Bulgaria, Montenegro, Serbia and Romania only on condition they impose no religious disabilities on
their subjects). Crucially, breach of the condition does not annul the recognition once given — recognition, once
granted, is (subject to the narrow exception of conditional recognition of an emerging state 'for the time being')
irrevocable; breach merely exposes the recognised state to the ordinary consequences of a breach of international law
(severance of relations, etc.), discussed further in the Problem answers below.
4. Collective recognition — recognition given jointly through an international body or conference — historically, the
Berlin Congress's recognition of the Balkan states (1878); in modern practice, admission of a state to the United
Nations, following the ICJ's Advisory Opinion on Conditions of Membership in the United Nations, is generally
treated as tantamount to collective recognition of statehood by the members voting in favour (though it does not bind
dissenting members individually).
5. De jure and de facto recognition — a distinction of degree, examined fully below.

IV. Recognition De Jure and De Facto

1. De jure recognition — means that, in the opinion of the recognising state, the recognised state/government formally
and fully satisfies the international-law requirements for participation in the international community.
2. De facto recognition — means that, in the recognising state's opinion, the entity fulfils those requirements in fact, but
only provisionally, temporarily, and with reservations as to the future — commonly used as a cautious prelude to
eventual de jure recognition, particularly where a revolutionary regime has displaced a legitimate government.
3. British illustrations — the Soviet Government was recognised de facto in March 1921 but only de jure in February
1924; Italy's conquest of Abyssinia was recognised de facto in 1936 and de jure in 1938; the Franco insurgent
administration in the Spanish Civil War was recognised de facto (progressively, as it occupied Spanish territory)
before de jure recognition followed the final Nationalist victory.
4. Municipal-law effects are largely the same — de facto recognition is, while it lasts, as conclusively binding as de
jure recognition (per Warrington L.J., A.M. Luther v. James Sagor & Co.), and also operates retroactively.
A.M. Luther v. James Sagor & Co. (1921): held that a de facto recognised government must be treated by English
courts as an independent sovereign, irrespective of any opinion on the legality of how it obtained power.
Bank of Ethiopia v. National Bank of Egypt and Liguori (1937): gave effect to the laws of the Italian government
(de facto recognised as ruling Abyssinia) in preference to the theoretical, unenforceable authority of the exiled de jure
Emperor.
 The Arantzazu Mendi (House of Lords, 1939): granted full jurisdictional immunity to the insurgent Nationalist
administration in Spain, recognised only de facto, over territory it controlled, even though the Republican government
remained recognised de jure.
5. Genuine differences of substance nonetheless remain — (a) only a de jure recognised state/government can claim
locally situated property of the old state; (b) only a de jure recognised state can represent the predecessor state for
state-succession purposes, or espouse a national's claim; (c) representatives of a merely de facto recognised entity do
not, as a rule, enjoy full diplomatic privileges; (d) de facto recognition, being provisional, can be withdrawn on wider
grounds than de jure recognition, which is (subject to narrow exceptions for still-emerging states) irrevocable; (e) if a
de jure recognised state grants independence to a dependency, the new state must be recognised de jure and not
merely de facto.

V. Legal Effects of Recognition

(a) Disabilities of an unrecognised state/government
1. Cannot sue — it cannot sue in the courts of a non-recognising state — as an American court put it, a foreign power
sues "not as a matter of right" but as "the creature of comity", which does not exist absent recognition (Russian
Socialist Federated Soviet Republic v. Cibrario).
2. No comity for its acts — its legislative/executive acts will not ordinarily be given effect by the courts of a non-
recognising state.
3. No immunity — its representatives cannot claim immunity from legal process.
4. Property may be recovered by the ousted government — property nominally due to the unrecognised entity may
actually be recovered by representatives of the displaced but still-recognised de jure government.

(b) Effects of recognition

1. Municipal law — recognition transmutes the above disabilities into full status: the newly recognised state/government
(i) acquires the right to sue in the recognising state's courts; (ii) may have effect given to its legislative and executive
acts, past and future; (iii) may claim immunity from suit for itself, its property, and its diplomatic representatives; (iv)
becomes entitled to recover/dispose of property within the recognising state's jurisdiction formerly belonging to a
preceding government.
2. International law — a de jure recognised state/government acquires the full privileges of membership of the
international community — capacity to enter diplomatic relations and conclude treaties — while other states become
subject to reciprocal obligations towards it.
3. Retroactive effect — recognition, once given, relates back to the actual date the state/government came into existence,
in order to avoid any legal "gap" during which transactions, marriages, or contracts entered into under the
unrecognised authority would otherwise be void.
Civil Air Transport Inc. v. Central Air Transport Corpn. (House of Lords, 1953): held that recognition operates
retroactively to validate acts of the new de jure government, not to invalidate the prior acts of the former de jure
government.
4. Role of the executive certificate — British and American courts treat the existence/status of a foreign state or
government as a matter primarily for the executive, not the judiciary, to determine; a certificate from the Secretary of
State (now placed on a statutory footing for certain purposes by s.21, State Immunity Act 1978, U.K.) is treated as
conclusive evidence (Duff Development Co. v. Kelantan Government).
Conclusion: Recognition remains, in substance, a predominantly political act clothed in legal consequences: the
declaratory theory best explains the underlying fact of statehood, while the constitutive theory correctly captures the
very real legal consequences that flow, in municipal and international law alike, only once recognition is actually
granted. De jure and de facto recognition differ mainly in degree of commitment and permanence, though a handful of
substantive legal distinctions between them persist, particularly as to property, diplomatic privileges, and revocability.
Grounded in: Starke, ch. 6 ("Recognition"), §§1–3; Kapoor, ch. 10 ("Recognition").
Q3. Modes of Acquisition and Loss of Territorial Sovereignty
[16 Marks — also answers: "Discuss 'Occupation' as a mode of acquisition"; "Define territorial sovereignty. State the exceptions to
exercise of jurisdiction"]

I. The Concept of Territorial Sovereignty

Territorial sovereignty was classically described by Max Huber, sole arbitrator in the Island of Palmas Arbitration (1928),
as signifying independence in respect of a portion of the globe — the right to exercise, to the exclusion of any other state,
the functions of a state there. The ICJ's Western Sahara Advisory Opinion (1975) emphasises that legal ties of territorial
sovereignty must be distinguished from mere ties of allegiance or customary rights over land; adequate state activity
demonstrating the exercise of authority is the true mark of territorial sovereignty.
1. Sovereignty is divisible in practice — though sometimes said to be indivisible, sovereignty may be shared
(condominium — see Short Note), leased (e.g., Britain's 99-year lease of Hong Kong from China, 1898–1997), or
held in trust for a population (e.g., League of Nations control over the Saar before its 1935 return to Germany).

II. Modes of Acquisition of Territorial Sovereignty

The five traditional, generally recognised modes are occupation, annexation/conquest, accretion, prescription and cession
— all essentially reducible, per the Island of Palmas Arbitration, to the display of effective control and authority. A sixth,
less classical mode is adjudication or award by a conference of states or an international tribunal (e.g., territorial
redistribution at the Versailles Peace Conference, 1919, or the ICJ's 1986 Burkina Faso/Mali frontier judgment).

(a) Occupation
1. Meaning — establishing sovereignty over territory not under the authority of any other state — classically terra nullius
(land belonging to no one); territory inhabited by socially and politically organised tribes or peoples cannot be terra
nullius (Western Sahara Advisory Opinion, 1975), though territorial sovereignty has sometimes been acquired over
such territory by agreement with the local rulers.
Eastern Greenland Case (PCIJ, 1933): laid down the two elements required for an effective occupation: (i) an
intention or will to act as sovereign, and (ii) an adequate exercise or display of that sovereignty. Denmark's proof of
both elements defeated Norway's rival claim.
2. The intention element — must be inferred from all the facts; mere transient passage is insufficient, and the
unauthorised acts of private individuals (absent state ratification) do not suffice.
Island of Palmas Arbitration (Max Huber, 1928): held that mere discovery, even with a proclamation of sovereignty
or flag-hoisting, confers only an inchoate title; it must be perfected by continuous and peaceful display of authority —
awarding the disputed island to the Netherlands over the U.S. (as successor to Spain's prior discovery) because Dutch
authority had long been actually and peacefully exercised.
Minquiers and Ecrehos Case (ICJ, 1953): preferred Great Britain's claim to disputed Channel islets over France's,
based on the long-continued actual exercise of state functions (local administration, jurisdiction, legislative acts)
rather than historic or abstract claims of title.
Clipperton Island Arbitration (1931): held that an actual, publicised manifestation of sovereignty (there, France's
declaration published in a Hawaiian journal) can outweigh a historic claim unsupported by any concrete act.
3. Extent of territory covered by occupation — two competing theories — continuity (occupation extends sovereignty
as far as necessary for the security/natural development of the area) and contiguity (sovereignty extends to
geographically adjacent territory) — underlie disputed "sector claims" to polar regions (by USSR/Canada in the
Arctic, and seven states in the Antarctic); the ICJ in the North Sea Continental Shelf Cases (1969) preferred
continuity over contiguity, and Arbitrator Huber in Island of Palmas rejected contiguity as "wholly lacking in
precision". The Antarctic Treaty, 1959, has since "frozen" all such sovereignty claims for the duration of the treaty
regime.

(b) Annexation (Conquest and Subjugation)

1. Two situations — (i) territory conquered/subjugated by the annexing state; (ii) territory already in virtual
subordination to the annexing state at the time annexation is formally declared (e.g., Japan's annexation of Korea,
1910).
2. Formal declared intention required — mere conquest is not enough; there must additionally be a formally declared
intention to annex — victorious states acquire no sovereignty over vanquished territory if they expressly disclaim an
intention to annex it (as the Allied Powers did regarding Germany in 1945).
3. Modern illegality — an annexation resulting from aggression, or effected by force contrary to the U.N. Charter, ought
not to be recognised by other states (as with the international non-recognition of Iraq's 1990 annexation of Kuwait) —
"international law does not recognise military conquest as a source of title" (Judge Jessup, South West Africa Cases,
ICJ 1966).

(c) Accretion
1. Meaning — addition of new territory, mainly through natural causes (fluvial deposit, alluvial island formation, wind-
blown sand), to territory already under a state's sovereignty; no formal act or assertion of title is necessary, whether
the process is gradual/imperceptible or the result of a sudden but embedded soil transfer.

(d) Cession
1. Meaning — transfer of sovereignty by treaty, resting on the principle that the right to transfer territory is a fundamental
attribute of state sovereignty; may be voluntary (sale of Alaska by Russia to the U.S., 1867; exchange of Heligoland
for Zanzibar, 1890) or compulsory, following defeat in war (cession of Alsace-Lorraine to Germany, 1871, later
reversed).
2. Validity requirement — under Article 52 of the Vienna Convention on the Law of Treaties, 1969, a cession procured
by the threat or use of force in violation of the U.N. Charter is void.
3. Nemo dat rule — a ceding state cannot transfer more than it possessed — the receiving state takes the territory subject
to any limitation of sovereignty that bound the ceding state.

(e) Prescription
1. Meaning — acquisition through the peaceable exercise of de facto sovereignty over territory belonging to another
state, for a sufficiently long, continuous and uninterrupted period (distinguished from occupation, which applies to
terra nullius).
2. Uncertain status — some jurists (Rivier, de Martens) deny it is recognised at all in international law; no fixed period
of years is laid down, and mere silence/inaction by the original sovereign does not, by itself, divest title (Frontier
Lands Case, Belgium v. Netherlands, ICJ 1959).

(f) Acquisition by Newly Emerged (Decolonised) States

A sui generis category: pending statehood, sovereignty is treated as vesting provisionally in "the people" of the territory (a
"jural entity", per the ICJ's Namibia Advisory Opinion, 1971), crystallising into the sovereignty of the new state upon its
formation — consistent with the U.N. General Assembly's 1970 Declaration on Friendly Relations, which treats a colony's
territory as having "a status separate and distinct" from that of the administering state until self-determination is exercised.
1. Uti possidetis juris — on decolonisation or state dissolution, pre-independence administrative/internal boundaries are
generally treated as becoming the new international frontiers (affirmed by the ICJ in the Burkina Faso/Mali Frontier
Dispute, 1986, and applied by the EC's Badinter Arbitration Commission to the former Yugoslav republics, 1991–92).

III. Loss of Territorial Sovereignty

The modes of losing sovereignty correspond, in reverse, to the modes of acquiring it:
1. Dereliction — corresponds to occupation — requires an actual abandonment of effective control coupled with an
intention to give up sovereignty (mere non-use is insufficient).
2. Conquest — loss through subjugation by another state (corresponding to annexation on the acquisitive side).
3. Operations of nature — corresponding to accretion — e.g., where territory is permanently submerged or eroded
away.
4. Prescription — loss to another state exercising sovereignty adversely over a sufficient period.
5. Revolt followed by secession — a mode of loss with no corresponding mode of acquisition in the traditional five-fold
list — the seceding territory's sovereignty is acquired sui generis, as in the case of newly emerged states above.
Conclusion: The traditional modes of acquisition — occupation, annexation, accretion, cession and prescription —
remain the analytical starting point for any territorial dispute, but each has been refined by arbitral and judicial
practice (Island of Palmas, Eastern Greenland, Minquiers and Ecrehos, Clipperton Island) into a unifying test of
effective, continuous, and peaceful display of state authority. Modern international law has added important
qualifications — the illegality of conquest by force, the uti possidetis principle on decolonisation, and the sui generis
treatment of newly emerging states — reflecting the U.N. Charter era's stronger insistence on the peaceful, consensual
acquisition of territory.
Grounded in: Starke, ch. 7 ("State territorial sovereignty and other lesser territorial rights of states"); Kapoor, ch. 11 ("State Territorial
Sovereignty").
 PART B — SHORT NOTES
(Each written to a full 10-mark standard)

Short Note 1 — Microstates and Condominium

(a) Microstates
1. Meaning — the U.N. Secretary-General's Annual Report, 1966–67, defined a "micro-state" as an entity "exceptionally
small in area, population and human and economic resources" that has nonetheless emerged as an independent state;
the pre-war League of Nations equivalent term was "Lilliputian state" ("mini-state" is also used).
2. Example — Nauru — area 8.25 square miles, indigenous population about 3,000 at independence (31 January 1968)
— is the classic illustration.
3. Statehood is not barred by size — minuteness of territory and population does not, in principle, prevent statehood,
since the right of self-determination extends to the smallest territories; the practical constraint is different — the
obligations of full U.N. membership (Article 4, U.N. Charter, requiring ability to carry out Charter obligations) may
be too onerous for a micro-state's limited resources, and full membership by many micro-states could also dilute the
effectiveness of the U.N. itself.
4. Intermediate solutions — forms of association short of full membership have been proposed/used: access to the ICJ;
participation in regional economic commissions and specialised agencies; permanent observer missions; and a
suggested (never formally adopted) special "associate membership" status requiring Charter amendment. Nauru itself
was given "special member" status of the Commonwealth.
5. Right to form groupings — micro-states may still join regional groupings, functional "communities", or international
organisations such as the IMF (over twenty small island states are IMF members) without needing full U.N.
membership.

(b) Condominium
1. Meaning — arises where joint dominion (sovereignty) over one territory is exercised by two or more external powers
together — a recognised, if unusual, category of state territorial arrangement.
2. Classic example — the Anglo-French condominium over the New Hebrides, lasting 74 years, with a complex division
of powers between a joint administration and each national authority separately; it ended on 30 July 1980 when the
territory attained independence as the Republic of Vanuatu.
3. Distinguished from division into zones — a condominium (joint authority over the whole territory) is conceptually
distinct from division of a territory into separate zones each under a different state's exclusive authority — as with the
Free Territory of Trieste, divided in 1954 into Western (Italian-administered) and Eastern (Yugoslav-administered)
zones.
4. Possible future example — Starke suggests the collaborative Antarctic Treaty regime (1959) among its twelve
original parties could conceivably evolve into a condominium-like arrangement of shared jurisdiction, though it
currently operates instead as a freeze on competing sovereignty claims.
See Q1, §IV(3)/(6)/(9) for related context on kinds of states.

Short Note 2 — Theories of Recognition

1. Two competing theories — the Constitutive theory and the Declaratory (Evidentiary) theory.
2. Constitutive theory — recognition alone creates statehood/international personality; associated with Hegel, Anzilotti,
Oppenheim, Holland, and (with the added claim of a legal duty to recognise) Lauterpacht.
3. Declaratory theory — statehood exists independently of recognition, which is merely a formal acknowledgment of
fact; associated with Hall, Wagner, Brierly, Pitt Cobbett, Fisher, and traditional Soviet doctrine.
4. Evidence favouring the declaratory theory — (i) a court determining when a new state came into existence looks
only to the date the factual requirements of statehood were met, not the date of any recognising treaty; (ii) recognition
operates retroactively to the state's actual date of inception; (iii) a single state's refusal to recognise cannot alter the
objective situation if most other states have already recognised the entity; (iv) unrecognised entities are nonetheless
expected to observe international law, implicitly acknowledging they possess some international status.
5. Evidence favouring the constitutive theory — upon recognition, the recognised state/government does acquire real,
previously absent status in the municipal courts of the recognising state (locus standi, immunity, property rights) — a
genuine constitutive legal effect.
6. Reconciling view (Starke; later Oppenheim editions) — the truth lies between the two — the declaratory theory
correctly explains the underlying existence of statehood as a fact, while the constitutive theory correctly explains the
concrete legal consequences that follow only from the act of recognition itself; "the one or the other theory may be
applicable to different sets of facts".
See Q2, §II for fuller treatment with case law and criticism.

Short Note 3 — Modes of Recognition

1. Express recognition — a formal, unambiguous declaration — by diplomatic note, note verbale, personal
ministerial/head-of-state statement, parliamentary declaration, or treaty.
2. Implied recognition — inferred from conduct that unequivocally shows an intention to establish relations;
conclusively so where there is (i) a formal bilateral treaty (ratification not required) with the new entity, (ii) formal
initiation of diplomatic relations, or (iii) the grant of a consular exequatur; more equivocally in cases of common
participation in a multilateral treaty, joint participation in an international conference, or the mere initiation of
negotiations — states frequently reserve, expressly, that such participation is not to be read as recognition.
3. Conditional recognition — recognition granted subject to a stipulated obligation (e.g., the Berlin Congress's 1878
recognition of Bulgaria, Montenegro, Serbia and Romania conditional on non-discrimination against religious
minorities); breach of the condition does not annul recognition once granted, though it may expose the recognised
state to the consequences of a breach of international law.
4. Collective recognition — recognition extended jointly by a group of states or through an international
body/conference — historically the Berlin Congress (1878); in modern practice, admission to U.N. membership is
generally treated (per the ICJ's Advisory Opinion on Conditions of Membership in the U.N.) as tantamount to
collective recognition by the states voting in favour.
5. De jure and de facto modes — recognition may further be de jure (full, formal, and treated as final) or de facto
(provisional, tentative, and usually a precursor to eventual de jure recognition) — see the next short note.
See Q2, §III for fuller treatment.

Short Note 4 — Implied Recognition

1. Meaning — recognition inferred from the conduct and surrounding circumstances of a state, rather than from any
express declaration; it is very much a question of the recognising state's actual intention, to be gathered from all the
facts.
2. Conclusive circumstances — (i) formal signature of a bilateral treaty with the recognised entity (ratification
unnecessary) — e.g., the 1928 Treaty of Commerce between Nationalist China and the United States; (ii) formal
initiation of diplomatic relations; (iii) issue of a consular exequatur by the admitting state for a consul of the
unrecognised entity.
3. Equivocal/exceptional circumstances — common participation in a multilateral treaty, joint participation in an
international conference, and the mere initiation of negotiations have occasionally been treated as implying
recognition, but only exceptionally — great powers frequently make an express reservation, when signing a
multilateral convention alongside an unrecognised entity, that their signature is not to be construed as recognising it
(as Britain and the U.S. have done on occasion).
4. What does not amount to implied recognition — recognition of the validity of laws decreed by a particular entity
does not necessarily import recognition of the law-making entity itself (Carl-Zeiss-Stiftung v. Rayner and Keeler Ltd
(No. 2)); nor does mere informal, non-committal intercourse through agents (as Britain maintained with the
Rhodesian regime after UDI, or with the People's Republic of China through consular officers before formal
recognition, and later through the Warsaw talks and Beijing/Washington liaison offices before 1979).
5. Practical significance — because implied recognition can carry the same legal consequences as express recognition,
states wishing to maintain informal contact with an unrecognised entity (for practical, diplomatic, or humanitarian
reasons) must take care that their conduct does not inadvertently amount to recognition.
See Q2, §III(2) for fuller treatment.
Short Note 5 — De Facto Recognition
1. Meaning — recognition granted where, in the recognising state's opinion, the entity fulfils the requirements of
statehood/governmental authority in fact, but only provisionally, temporarily, and with reservations as to the future.
2. Typical use — commonly used as a cautious prelude to eventual de jure recognition, especially where a revolutionary
government has displaced (but perhaps not yet permanently supplanted) a legitimate government — e.g., Britain's de
facto recognition of the Soviet Government in March 1921 (de jure only in 1924); of Italy's conquest of Abyssinia in
1936 (de jure in 1938); and of the Franco insurgent administration during the Spanish Civil War as it progressively
occupied Spanish territory.
3. Municipal-law effects are largely equivalent to de jure recognition — while it lasts, de facto recognition is as
conclusively binding as de jure recognition (A.M. Luther v. James Sagor & Co.); it also has retroactive effect; and a
de facto recognised government's acts within the territory it controls are given effect by courts of the recognising state
even in preference to the theoretical authority of an ousted de jure government (Bank of Ethiopia v. National Bank of
Egypt and Liguori) and even to the extent of full jurisdictional immunity (The Arantzazu Mendi).
4. Genuine differences from de jure recognition — (i) only a de jure recognised entity can claim locally situated
property of the old state, or represent it for state-succession purposes; (ii) representatives of a merely de facto
recognised entity do not, as a rule, enjoy full diplomatic privileges; (iii) it is not customary to receive as properly
accredited diplomatic envoys the representatives of states recognised only de facto; (iv) de facto recognition, owing to
its provisional character, can be withdrawn on wider grounds than de jure recognition.
5. Economic/practical value — de facto recognition allows a state to protect its citizens' and traders' interests in the
territory concerned without committing itself to approval of how the recognised authority came to power — a useful
diplomatic halfway house.
See Q2, §IV for fuller treatment with case law.
 PART C — PRACTICAL PROBLEMS
(10 Marks each — answered in Facts → Issue → Rule → Application → Conclusion format)

Problem 1 — Conditional Recognition and Breach of Condition

Facts: State 'A' is accorded recognition by other states on condition that it shall not impose religious disabilities on its
subjects. State 'A' subsequently breaches this condition.
Issue: Can the recognition already granted to State A be withdrawn on account of its breach of the condition attached to
it?
1. Rule — recognition, though frequently granted subject to a condition or guarantee (as in the Berlin Congress's 1878
recognition of Bulgaria, Montenegro, Serbia and Romania on condition of non-discrimination against religious
minorities), does not, on breach of that condition, automatically or even permissibly become void. Once formally
granted, de jure recognition is irrevocable — it is not, in its true legal character, a conditional legal act in the sense
that non-fulfilment renders it void.
2. Application — State A's breach of the religious-disabilities condition constitutes an independent breach of
international law (or of the specific undertaking given), for which the recognising states may pursue the ordinary
consequences of a breach — for example, severing diplomatic relations, protesting formally, or seeking other
diplomatic/legal redress — but they cannot, merely by reason of the breach, treat State A as having reverted to an
unrecognised status. To hold otherwise would make the recognised state's international personality perpetually
contingent and revocable at the will of other states, contrary to the settled principle that continuity of statehood, once
established, must not be interrupted.
3. Exception to note — the position would be different only if the recognition itself was expressly given on a provisional,
non-committal basis pending the state's future conduct (as with Britain's 1919 recognition of the Estonian National
Council "for the time being provisionally and with all necessary reservations as to the future") — such a truly
provisional recognition may be withdrawn without breach of principle, since it never ripened into a final act.
Conclusion: Recognition once formally and unconditionally granted cannot be withdrawn merely because the
recognised state later breaches an attached condition; the appropriate remedy for the recognising states lies in
diplomatic or other sanctions short of withdrawing recognition itself.
See Q2, §III(3) and Short Note 3 for the underlying doctrine.

Problem 2 — Unrecognised State Suing in the Courts of the Recognising State

Facts: State 'B' has not recognised newly emerged State 'A' (or 'Q'). The unrecognised State wishes to institute a suit
against a company in the courts of State B (the recognising/forum state).
Issue: Can the unrecognised State maintain a suit in the municipal courts of State B?
1. Rule — it is a settled principle of Anglo-American (and generally followed) municipal practice that an unrecognised
state or government cannot sue in the courts of a state that has not recognised it. As an American court explained, a
foreign power brings an action in domestic courts "not as a matter of right" — its capacity to do so "is the creature of
comity", and "until such Government is recognised... no such comity exists" (Russian Socialist Federated Soviet
Republic v. Cibrario).
2. Application — since State B has not recognised State A/Q, State A/Q suffers the standard legal disabilities of an
unrecognised entity in State B's courts: it cannot sue; its legislative/executive acts are not given effect as a matter of
comity; and its representatives cannot claim immunity from suit. The company being sued would therefore be entitled
to have the suit dismissed or set aside for want of locus standi on the part of the unrecognised claimant.
3. Possible qualification — if State B's executive has, notwithstanding formal non-recognition, engaged in some form of
implied recognition (e.g., entering a bilateral treaty, exchanging consular officers) sufficient to satisfy the tests
discussed in Short Note 4, the court might revisit the question of locus standi; absent any such implied recognition,
however, the general disability applies in full.
Conclusion: State A/Q cannot maintain the suit in State B's courts unless and until State B extends recognition (express
or implied) to it; the disability flows directly from the absence of any comity owed to an unrecognised entity.
See Q2, §V(a) for the underlying doctrine and further case law.
Problem 3 — Revocation of De Facto Recognition Alleging Violation of International
Law
Facts: State 'MR' confers de facto recognition on State 'AB'. MR subsequently purports to revoke that recognition,
alleging that AB has violated international law.
Issue: Is MR's revocation of AB's de facto recognition justifiable?
1. Rule — de facto recognition, unlike de jure recognition, is expressly provisional and given "with all due reservations
for the future"; because of this inherently tentative and non-committal character, de facto recognition can, in principle,
be withdrawn on grounds — including a later loss of the qualifications that justified the original recognition, or
serious violations of international law by the recognised entity — that would not justify withdrawing a de jure
recognition.
2. Application — provided MR can show that AB's conduct genuinely amounts to a violation of international law (for
example, a failure to maintain the stability, effective control, or capacity to fulfil international obligations that
justified the original de facto recognition, or a serious breach of an international obligation), MR is entitled to treat
this as sufficient ground to withdraw its de facto recognition. This is consistent with the underlying rationale of de
facto recognition as a cautious, non-binding acknowledgment of a factual situation rather than a final commitment.
3. Limits on the power to revoke — the withdrawal must be a bona fide response to a genuine change in, or serious
breach by, the recognised entity — a pretextual or purely political revocation, unconnected to any real change in AB's
qualifications or conduct, would attract the criticism (though not necessarily formal illegality, given the political
character of recognition generally) that MR was manipulating the flexible character of de facto recognition for
extraneous motives.
Conclusion: MR's revocation is, in principle, justifiable, precisely because de facto recognition (unlike de jure
recognition) is provisional in character and may be withdrawn where the recognising state genuinely finds that the
recognised entity has failed to maintain the qualifications, including compliance with international law, on which the
original de facto recognition rested.
See Q2, §IV(5)(d) and Short Note 5 for the underlying doctrine.

Problem 4 — Island Dispute: Continuous Exercise of Sovereignty v. Colonial Treaty

Title
Facts: State 'H' claims an island on the ground of continuous exercise of sovereignty over it. State 'N' claims the same
island on the basis of a treaty concluded with State 'A', to which the island was formerly a colony.
Issue: Which state has the superior claim to the island — the one relying on continuous exercise of sovereignty, or the one
relying on a derivative treaty (cession) title from a colonial predecessor?
1. Rule — under the Island of Palmas Arbitration (1928), sovereignty over disputed territory is determined essentially by
the display of effective, continuous and peaceful control and authority, and this consideration prevails over a merely
paper or historical title, including one derived by treaty/cession from a predecessor colonial power that never itself
exercised effective authority. A cession (State N's treaty with State A) can transfer no more sovereignty than the
ceding state actually possessed and effectively exercised (nemo dat quod non habet) — if State A's own title was
merely inchoate or nominal, State N's derivative title is equally weak. The Minquiers and Ecrehos Case similarly
preferred the party demonstrating long-continued actual exercise of state functions (administration, jurisdiction,
legislative acts) over the party relying on a more abstract or historic claim.
2. Application — if State H can show a genuine, continuous, peaceful and open exercise of state functions over the island
— administration, legislation, jurisdiction over inhabitants, and the like, satisfying the Eastern Greenland Case's twin
requirements of (i) intention to act as sovereign and (ii) adequate display of that sovereignty — its claim, resting on
effectivités, will generally prevail over State N's derivative treaty claim, particularly if State A's original title (which
State N inherited by treaty) was itself weak, nominal, or never accompanied by actual administration of the island.
Conversely, if State N (through State A's earlier administration, later continued by N) can itself show the stronger
record of effective, continuous administration, the treaty-derived title would prevail, since cession is a perfectly
legitimate mode of acquisition provided the ceding state's own title was good and effectively held.
3. Governing principle — the dispute is not resolved by mechanically preferring one mode of title
(occupation/continuous exercise) over another (cession) in the abstract; both modes are equally recognised in
international law, but whichever state can demonstrate the stronger, more continuous and effective actual exercise of
 sovereign authority over the island — rather than the mere existence of a historical or paper title — will succeed,
exactly as Arbitrator Huber decided in Island of Palmas.
Conclusion: On the facts as generally set (a colonial predecessor's title being largely nominal, contrasted with H's
demonstrated continuous exercise of sovereignty), State H's claim, resting on effective and continuous display of
authority, is the stronger one; a purely derivative treaty title inherited from a colonial power that itself lacked effective
control cannot defeat a rival state's genuine, sustained exercise of sovereign functions.
See Q3, §II(a) for the underlying doctrine (Island of Palmas, Eastern Greenland, Minquiers and Ecrehos).

Problem 5 — Fishing Island Dispute: Proximity Claim v. Century-Long Occupation

Facts: One State claims a fishing island in the ocean as part of its territory on the sole ground that the island lies close to
its coast, though a neighbouring State has occupied and administered the island for over a century, notwithstanding the
absence of any permanent population there.
Issue: Which state can legally claim sovereignty over the island — the one relying on mere geographical proximity, or the
one relying on a century of continuous occupation and administration?
1. Rule — mere geographical proximity or contiguity is not, by itself, a recognised basis for a valid claim of territorial
sovereignty. Arbitrator Huber in the Island of Palmas Arbitration expressly rejected the theory of contiguity as
"wholly lacking in precision", and the ICJ in the North Sea Continental Shelf Cases likewise preferred the principle of
continuity (an established sovereign's natural extension of authority) over mere adjacency/contiguity. By contrast,
continuous, peaceful, and effective exercise of authority over territory — even territory without a permanent settled
population — is the recognised basis of title by occupation, provided the twin Eastern Greenland Case requirements
(intention to act as sovereign, and adequate display of that sovereignty) are satisfied; absence of permanent population
does not, by itself, defeat title, since the nature and degree of state activity required varies with the character of the
territory (a remote or uninhabitable island requires a correspondingly lower threshold of administrative activity than a
populous territory).
2. Application — the claimant state relying solely on proximity has, without more, no valid legal basis for its claim —
proximity may explain why a state is interested in a territory but does not itself confer sovereignty. The neighbouring
state that has occupied and administered the island for over a century has, prima facie, satisfied the requirements for
title by occupation (or, alternatively, prescription, given the length and continuity of its adverse, peaceable
possession) — long, uninterrupted, and peaceful administration is precisely the kind of effectivité that Island of
Palmas, Clipperton Island, and Minquiers and Ecrehos treat as decisive.
3. Effect of the other state's historical silence — the fact that the claimant state making the proximity argument did not
effectively contest the century-long occupation is a further factor weighing against it — mere silence with regard to
territory does not divest an established occupier's title, but conversely a claimant's own long silence/inaction
reinforces the occupier's claim, since it did not raise the objection to the exercise of sovereignty at any material time.
Conclusion: The neighbouring State with a century of continuous, peaceful occupation and administration has the
superior and legally sound claim to the island; the rival State's claim, based on proximity alone, cannot succeed, since
geographical contiguity is not, by itself, a recognised mode of acquiring territorial sovereignty under international law.
See Q3, §II(a) for the underlying doctrine (Island of Palmas rejecting contiguity; Eastern Greenland Case on the elements of effective
occupation).