The Status of Unrecognized Quasi-States and Their Responsibilities Under the Montevideo Convention
| Author | Sascha Dov Bachmann - Martinas Prazauskas |
| Position | Dr. Sascha Dov-Dominik (Dov) Bachmann, State Exam (Ludwig Maximillians Universit¨at, Germany), Ass. Juris, LLM (Stell, RSA), LLD (UJ, RSA), FHEA, Rechtsanwalt, (Barrister/Solicitor). He joined Canberra Law School, University of Canberra, Australia as Professor in Law and Justice in 2019 after having worked as an Associate Professor at ... |
| Pages | 393-437 |
The Status of Unrecognized Quasi-States and
Their Responsibilities Under the
Montevideo Convention
S
ASCHA
D
OV
B
ACHMANN
*
AND
M
ARTINAS
P
RAZAUSKAS
**
Introduction
Since 1945, the appearance of new States was influenced by different
factors, from decolonization to the (re-)emergence of ethnic conflicts in
existing States, requiring the creation of new state entities along such ethnic
lines. Post-World War II decolonization lead to the emergence of new
States in Africa and South Asia,
1
and the collapse of the USSR in 1991
resulted in the reemergence of independent Baltic States and other States in
the formerly Soviet territories of Central and Western Asia.
2
Similarly, the
* Dr. Sascha Dov-Dominik (Dov) Bachmann, State Exam (Ludwig Maximillians
Universit¨at, Germany), Ass. Juris, LLM (Stell, RSA), LLD (UJ, RSA), FHEA, Rechtsanwalt,
(Barrister/Solicitor). He joined Canberra Law School, University of Canberra, Australia as
Professor in Law and Justice in 2019 after having worked as an Associate Professor at
Bournemouth University (UK) since 2013. Sascha was appointed as (extraordinary) Docent
(Reader) in War Studies at the Swedish Defence University, Sweden in 2016. In November
2017 he was appointed (Professorial) Research Fellow at CEMIS, Faculty of Military Science,
Stellenbosch University. Sascha was educated in Germany (Ludwig-Maximilians-Universit¨at
(LMU) M¨unchen), South Africa (Stellenbosch University and University of Johannesburg) and
the United Kingdom (University of Portsmouth). He has presented to NATO, US
CENTCOM, US AFRICOM, the Austrian Ministry of Defence, the Swedish Defence
University, the Royal Danish Defence College, the South African National Defence Force and
the Australian Defence College on the subjects of Hybrid War/Threats, Greyzone, Terrorism
Finance, Lawfare, InfoOps and Targeting. He is the author of over 70 academic publications
(articles/books and scientific submissions) and also a regular contributor to NATO’s Legal
Advisor Web (LAWFAS) with his publications often being used as NATO reference documents.
Email: sascha.bachmann@canberra.edu.au
** Martinas Prazauskas is a European researcher of international law who completed a LLM
in Law with BOURNEMOUTH University. He is also a consultant in Higher Education
presently based in Moscow, Russia.
The authors would like to thank the editors of TIL, for their professionalism in editing this
article.
1. R
OLAND
B
URKE
, D
ECOLONIZATION AND THE
E
VOLUTION OF
I
NTERNATIONAL
H
UMAN
R
IGHTS
2 – 3 (2010).
2. R
OLAND
B
URKE
, D
ECOLONIZATION AND THE
E
VOLUTION OF
I
NTERNATIONAL
H
UMAN
R
IGHTS
2 – 3 (2010); W
ILLIAM
E. O
DOM
, T
HE
C
OLLAPSE OF
T
HE
S
OVIET
M
ILITARY
298
(2000).
THE INTERNATIONAL LAWYER
A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW
PUBLISHED IN COOPERATION WITH
SMU DEDMAN SCHOOL OF LAW
394 THE INTERNATIONAL LAWYER [VOL. 52, NO. 3
breakup of Yugoslavia led to the re-emergence of six new States in the
Balkans.
3
The central problem of new States and of regions considering secession
from existing States is their recognition. The international community in
general and the United Nations (U.N.) in particular, have recognized most
former colonies and most former Socialist Republics as independent States,
including the Republic of Kosovo, whose recognition as a new State has
been sui generis.
4
Nevertheless, a large number of self-proclaimed States,
such as the Nagorno-Karabakh Republic (the NKR) or the Turkish Republic
of Northern Cyprus (the TRNC), remain unrecognized by either their
neighboring States or the wider world community
5
in the form of the UN
General Assembly, despite meeting all the criteria of Statehood under the
Montevideo Convention on Rights and Duties of the States.
6
This
ambiguity highlights some particular shortcomings of the convention and its
inability to address the contemporary challenges that seceding regions face
nowadays.
Undoubtedly, the problem of unrecognized States remains to be one of
the most crucial contemporary issues of potential conflict at the global level.
The political incidents such as the conflict in East Ukraine, the referendum
in Catalonia,
7
and even Brexit may lead to the emergence of a bigger number
of seceding entities.
8
These factors prompt the following research questions:
how are modern self-proclaimed States treated under international law and
comity? Are there any facts indicating that the existing legal framework and
3. B
RIDGET
C
OGGINS
, P
OWER
P
OLITICS AND
S
TATE
F
ORMATION IN THE
T
WENTIETH
C
ENTURY
: T
HE
D
YNAMICS OF
R
ECOGNITION
90 (2014).
4. See Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo, Advisory Opinion, 2010 I.C.J. Rep. 404 (July 22); Request for an Advisory
Opinion of the International Court of Justice on the Question “Is the Unilateral Declaration of
Independence by the Provisional Institutions of Self-Government of Kosovo in Accordance
with International Law? 9 – 10 (Apr. 17, 2009), https://www.icj-cij.org/files/case-related/141/
15638.pdf (providing an overview of the “sui generis character of the Kosovo situation”).
5. See Marc Weller, Setting Self-Determination Conflicts: Recent Developments 20 E
URO
. J. I
NT
’
L
L. 111 (2009).
6. See generally Montevideo Convention on the Rights and Duties of States, Dec. 26, 1933,
165 L.N.T.S. 19 [hereinafter Montevideo Convention].
7. Alasdair Fotheringham, Catalonia Referendum: What Actually Happens if the Spanish Region
Declares Independence?, T
HE
I
NDEPENDENT
(Oct. 4, 2017), https://www.independent.co.uk/
news/world/europe/catalonia-referendum-independence-what-happens-catalan-spain-police-
declare-a7983246.html.
8. Soon after the results of the 2016 EU Referendum in the UK had been announced, the
First Minister of Scotland Nicola Sturgeon mentioned the possibility of a new Scottish
independence referendum which means possible secession from the UK. See Severin Carrell,
Sturgeon Outlines New Scottish Independence Referendum Plans, T
HE
G
UARDIAN
(Apr. 24, 2019),
https://www.theguardian.com/politics/2019/apr/24/sturgeon-outlines-new-scottish-
independence-referendum-plans; Naimh McIntyre, Brexit: No Deal Could Trigger New
Independence Referendum, Says Scotland’s Leading EU Expert, T
HE
I
NDEPENDENT
(Oct. 14. 2017),
https://www.independent.co.uk/news/uk/politics/brexit-no-deal-scottish-independence-eu-
expert-kirsty-hughes-a8000871.html.
THE INTERNATIONAL LAWYER
A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW
PUBLISHED IN COOPERATION WITH
SMU DEDMAN SCHOOL OF LAW
2019] STATUS OF UNRECOGNIZED QUASI-STATES 395
practice cannot adequately address the issue of seceding regions? Finally,
can self-proclaimed States bear the same responsibility as recognized States?
After a thorough analysis of the problems and the background of modern
self-proclaimed States, this article will identify substantial shortcomings of
the existing version of the Montevideo Convention and makes
recommendations for its improvement. The article is divided into three
parts. Part I critically evaluates different approaches to recognition in
general. It discusses the constitutive and declaratory concepts of recognition
and analyses the legal effects of recognition on international and national
levels. Part I also highlights the basic criteria of recognition codified in
article 1 of the Montevideo Convention, and it critically evaluates territory,
population, effective government, and the capacity to enter into diplomatic
relations as factors of Statehood.
Part II analyzes modern unrecognized and partly recognized entities from
historical and legal perspectives with the focus on the Moldavian Republic of
Transdniestria, the Nagorno-Karabakh Republic, the Republic of
Somaliland, the TRNC, the Republic of Abkhazia, and the Republic of
Kosovo. Part II also discusses the problem of definition of such entities.
Part III discusses the theory of State responsibility and applies the
theoretical background on the unrecognized and partly recognized States.
This Part also analyzes Kosovo as the exceptional case of international
recognition.
The conclusion summarizes the shortcomings of the Montevideo
Convention and suggests adding specific criteria in order to make the
convention more efficient in settling the contemporary issues with the self-
proclaimed entities.
I. Statehood and Recognition
This Part discusses the theoretical background of recognition and
different interpretations of its legal power, as well as its legal effects on
international and national levels with some examples from case law. It also
analyzes the advantages and shortcomings of the traditional criteria of
Statehood.
A. R
ECOGNITION OF
S
TATES
: T
HE
B
ASICS
Recognition of States is the starting point of the analysis conducted in this
article. According to James Crawford, a legal academic and judge on the
International Court of Justice (ICJ), the term “recognition” generally means
the recognition of another entity as a State.
9
Recognition indicates that the
entity’s government is lawful and is entitled to represent the State for all
international purposes.
10
But the practical meaning of recognition is quite
9. See I
AN
B
ROWNLIE
& J
AMES
C
RAWFORD
, B
ROWNLIE
’
S
P
RINCIPLES OF
P
UBLIC
I
NTERNATIONAL
L
AW
144 n.5 (8th ed, 2012).
10. Id.
THE INTERNATIONAL LAWYER
A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW
PUBLISHED IN COOPERATION WITH
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