with other states.see inter-American convention on the riahts and duties of states Dec.26,1933,49 Stat.3097,165 L.N.T.S.19("Montevideo Convention");see alsoT. Grant,Defi ehood:The Montev o Convention and its Discontents.37 Colum J.Transnat'l L.403(1999). For the most part,these conditions continue to be taught today as the fundamental elements of statehood.With respect to the third condition,in practice the emphasis has been on the control that the government exercises over the relevant territory,to the exclusion of ot tities.The degree of control nece may be a function of the manner in which the government came to power.If the prior sovereign in the territory has consented to the creation of a new state under a new government,then a relatively lower degree of control by the new government may be tolerable in finding statehood.Sec J.Crawford,The Creation of States in International Law 44-45(19 While the conditions for statehood are broadly accepted in traditional international legal theory,the issue of who gets to decide whether these conditions have been met is less clear.Some theorists when other states decide that such conditions have been met.and consequently acknowledge the legal capacity of the new state,is a new state actually constituted (the "constitutive theory of recognition") 3-3.Dissolution of the USSR.The fragmentation of the Union of Soviet Socialist Republics(USSR)after 1989 is both an example of recognition practice and an illustration of modern trends in this area.In December 1989,the Congress of the USSR People's Deputies found that the July 1939 Molotov-Ribbentrop Accords,by which the USSR first occupied and ther d the Baltic States(Este and Lithuania),were contrary to international law.On this basis,the Baltic States held referenda in early 1991 on whether to seek independence.The overwhelming response was positive,and the Baltic States then waged a successful campaign for full independence.The State Council of the Soviet Union released the Baltic States and reo ogn nized their eptem 6.1991.The Baltic States then admitted to the United Nations on September 17,1991,Thereafter,several of the other republics of the Soviet Union held referenda on whether to secede.Al (except Kazakhstan)proclaimed their independence during 1991,while Russia proclaimed itself as the successor state to the former soviet Union.virtually all other states recognized ther ep hlics of the fo r Soviet Union as new states and they were admitted as members of the Jnited Nations. notable aspect of this recognition was the approach takenby the European Community,which on December 16,1991,issued a Declaration on the"Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union".31 l.L.M.1486(1992).In that declaration,the European C Community and its member states affirmed: their e ecognize, bject to the e normal s standa ds of international practice and the political realities in each case,those new states which,following the historic changes in the region,have constituted themselves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations
17 with other states. See Inter-American Convention on the Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, 165 L.N.T.S. 19 ("Montevideo Convention"); see also T. Grant, Defining Statehood: The Montevideo Convention and its Discontents, 37 Colum. J. Transnat'l L. 403 (1999). For the most part, these conditions continue to be taught today as the fundamental elements of statehood. With respect to the third condition, in practice the emphasis has been on the control that the government exercises over the relevant territory, to the exclusion of other entities. The degree of control necessary may be a function of the manner in which the government came to power. If the prior sovereign in the territory has consented to the creation of a new state under a new government, then a relatively lower degree of control by the new government may be tolerable in finding statehood. Sec J. Crawford, The Creation of States in International Law 44-45 (1979). While the conditions for statehood are broadly accepted in traditional international legal theory, the issue of who gets to decide whether these conditions have been met is less clear. Some theorists when other states decide that such conditions have been met, and consequently acknowledge the legal capacity of the new state, is a new state actually constituted (the "constitutive theory of recognition"). § 3-3. Dissolution of the USSR. The fragmentation of the Union of Soviet Socialist Republics (USSR) after 1989 is both an example of recognition practice and an illustration of modern trends in this area. In December 1989, the Congress of the USSR People's Deputies found that the July 1939 Molotov-Ribbentrop Accords, by which the USSR first occupied and then annexed the Baltic States (Estonia, Latvia, and Lithuania), were contrary to international law. On this basis, the Baltic States held referenda in early 1991 on whether to seek independence. The overwhelming response was positive, and the Baltic States then waged a successful campaign for full independence. The State Council of the Soviet Union released the Baltic States and recognized their independence on September 6,1991. The Baltic States were then admitted to the United Nations on September 17, 1991, Thereafter, several of the other republics of the Soviet Union held referenda on whether to secede. All (except Kazakhstan) proclaimed their independence during 1991, while Russia proclaimed itself as the successor state to the former Soviet Union. Virtually all other states recognized the republics of the former Soviet Union as new states and they were admitted as members of the United Nations. A notable aspect of this recognition was the approach takenby the European Community, which on December 16, 1991, issued a Declaration on the"Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union", 31 I.L.M. 1486 (1992). In that declaration, the European Community and its member states affirmed: their readiness to recognize, subject to the normal standards of international practice and the political realities in each case, those new states which, following the historic changes in the region, have constituted themselves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations
The Declaration then set down general conditions requiring the new state:(1)to respect the U.N.Charte,the Helsink Final Act,and the Charter of Paris, uman rights" ";(2)to guarantee right for ethnic and national groups and minorities;(3)to respect existing borders;(4)to accept relevant arms control commitments:and (5)to commit to settle by agreement all questions regarding state succession and regional disputes.The ommutyanite Statesothstatehfthep the former sed ont Thus,while the traditional ese principles. Montevideo Convention criteria still reflect the minimum requirements for the formation of a new state,in some situations the willingness of other states to recognize the new state may turn on additional requirements relating to more modern notions of human rights and democracy. 53-4.Recognition of gover ents.Under traditional in erna ional lega the establishment of a new government through normal,constit ional processe within a state does not raise questions regarding the recognition of the government. In such situations,the new government is entitled to all the rights and obligations accorded under international law.By contrast,an entity that comes to power nspape lewone ou s!sueaw leuognansuoo-uou yno tions.Rather its st tatus as th vern ent of the tate may be in d ubt until such time as it is widely recognized by other states.See gene rally M.Peterson Recognition of Governments:Legal Doctrine and State Practice,1815-1995(1997);L. Galloway,Recognizing Foreign Governments:The Practice of the United States 19781 The central(and often determinative)issue for a state when deciding whethe to recognize a newly formed government has been whether the new government is in "effective control"of its state (sometimes referred to as the "de facto control test")."Effective control"has largely been measured by the degree to which the eovernment commands the obedience of the people within the state.Although in a given case there may be extremely complicated facts concerning what factions control what p ortions of a territory,the"ffective contro test is a relatively simpl one,and allows states to proceed pragmatically in their relations with the new government. The decision by states to recognize a new government,however,has not always been dictated simple by whether the new government passes the effective control rest.For instan exp rting states such as the nited States,at one time found relevant whe ther the new government had declared its willingness to hono the international obligations of its predecessor,including debt obligations.Further states often refused to recognize a government's authority over territory that the government had acquired through aggression.States have also found relevant the political nature of the new government,including the degree to which it is democratic The notion of states "recognizing"a new government of a state,however,is anathema to those states that see it as an interference in national affairs.The 1930 Estrada Doctrine,named for the Mexican Foreign Secretary Genaro Estrada,stands 18
18 The Declaration then set down general conditions requiring the new state: (1) to respect the U.N. Charter, the Helsinki Final Act, and the Charter of Paris, "especially with regard to the rule of law, democracy and human rights"; (2) to guarantee rights for ethnic and national groups and minorities; (3) to respect existing borders; (4) to accept relevant arms control commitments; and (5) to commit to settle by agreement all questions regarding state succession and regional disputes. The European Community and United States recognized the statehood of the republics of the former Soviet Union based on these principles. Thus, while the traditional Montevideo Convention criteria still reflect the minimum requirements for the formation of a new state, in some situations the willingness of other states to recognize the new state may turn on additional requirements relating to more modern notions of human rights and democracy. § 3-4. Recognition of governments. Under traditional international legal theory, the establishment of a new government through normal, constitutional processes within a state does not raise questions regarding the recognition of the government. In such situations, the new government is entitled to all the rights and obligations accorded under international law. By contrast, an entity that comes to power through non-constitutional means is not automatically accorded such rights and obligations. Rather, its status as the government of the state may be in doubt until such time as it is widely recognized by other states. See generally M. Peterson, Recognition of Governments: Legal Doctrine and State Practice, 1815-1995 (1997); L. Galloway, Recognizing Foreign Governments: The Practice of the United States (1978). The central (and often determinative) issue for a state when deciding whether to recognize a newly formed government has been whether the new government is in "effective control" of its state (sometimes referred to as the "de facto control test"). "Effective control" has largely been measured by the degree to which the government commands the obedience of the people within the state. Although in a given case there may be extremely complicated facts concerning what factions control what portions of a territory, the "effective control" test is a relatively simple one, and allows states to proceed pragmatically in their relations with the new government. The decision by states to recognize a new government, however, has not always been dictated simple by whether the new government passes the effective control test. For instance, capital exporting states such as the United States, at one time found relevant whether the new government had declared its willingness to honor the international obligations of its predecessor, including debt obligations. Further states often refused to recognize a government's authority over territory that the government had acquired through aggression. States have also found relevant the political nature of the new government, including the degree to which it is democratic. The notion of states "recognizing" a new government of a state, however, is anathema to those states that see it as an interference in national affairs. The 1930 Estrada Doctrine, named for the Mexican Foreign Secretary Genaro Estrada, stands
for the proposition that the manner in which a new government comes to power is wholly a not seek to influence the outcome or ar internal power struggle by granting or withholding recognition.The Estrada Doctrine is attractive because many states view it as politically difficult to announce publicly whether or not they "recognize"a new government,and would prefer simply to open diplomatic channels or otherwise develop relations with the new o without issuing a pronouncement that could be const trued as approval f the new government.In such instances,determination of the legal effects of the new relationship is often left to national courts,which must pass upon the legal rights and obligations of the new government in the absence of a clear statement of recognition. blishing diplomatic relatio vernment is not required as a partst the recognition process.ago hand in hand.reaking diplomatic relations merely signifies that one state declines to deal with another's government;it does not vitiate the recognition of that government. 53-5.Recognition in U.S.practice.In the United States,the power to recognizeforeig ante is the grant to the dent of the power to assadors and other public Ministers. 3;see L.Henkin,Foreign Affairs and the United States Constitution 38(2d ed.1996) Moreover,the Supreme Court has consistently stated that whether a government should be recognized is a political question whose determination is within the exclusive prer ive of the av cutive branch See ba nco Nacional de cuba v Sabbatino,.376U5.398,410(1964Na City Ban York v.Chi 356,358(1955);Guaranty Trust Co.v.United States.304 U.S.126.137-8(1938). Rights of recognized governments in the United States include the rights(1)to bring a law suit in U.S.court;(2)to daim sovereign immunity in U.S.courts and to receive diplomatic protection to the same extent as other recognized governments; and (3)to have ess to the state's U.S.ba sits and other will not deny a recognized government the rights that it would normally have unde United States law solely because diplomatic relations with it have been broken.See Banco Nacional de Cuba.v.Sabbatino,376 U.S.398,410(1964). III.INTERNATIONAL ORGANIZATIONS GENERALLY 3-6.Nature of international organizations.While they can appear in a variety of forms,public international organizations-also known as intergovernmental organizations-typically are:(1)institutions established by a times do minated a hich serves as the"constitution" of the organiration composed of members that are states or internation organizations;(3)regulated by international law;and(4)endowed with a legal personality,and thus generally can engage in contracts,and can sue and be sued in national courts subject to certain immunities.See Advisory Opinion on Reparation
19 for the proposition that the manner in which a new government comes to power is wholly a matter of national concern. See P. Jessup, The Estrada Doctrine, 25 Am. J. Int'l L. 719 (1931). As such, states should not seek to influence the outcome of an internal power struggle by granting or withholding recognition. The Estrada Doctrine is attractive because many states view it as politically difficult to announce publicly whether or not they "recognize" a new government, and would prefer simply to open diplomatic channels or otherwise develop relations with the new government without issuing a pronouncement that could be construed as approval of the new government. In such instances, determination of the legal effects of the new relationship is often left to national courts, which must pass upon the legal rights and obligations of the new government in the absence of a clear statement of recognition. Establishing diplomatic relations with a new government is not required as a part of the recognition process, although they usually go hand in hand. Breaking diplomatic relations merely signifies that one state declines to deal with another's government; it does not vitiate the recognition of that government. §3-5. Recognition in U.S. practice. In the United States, the power to recognize foreign governments is inferred from the express grant to the President of the power to "receive Ambassadors and other public Ministers." U.S. Const. art. II, § 3; see L. Henkin, Foreign Affairs and the United States Constitution 38 (2d ed. 1996). Moreover, the Supreme Court has consistently stated that whether a government should be recognized is a political question whose determination is within the exclusive prerogative of the executive branch. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964); National City Bank of New York v. China, 348 U.S. 356, 358 (1955); Guaranty Trust Co. v. United States. 304 U.S. 126. 137-8 (1938). Rights of recognized governments in the United States include the rights (1) to bring a law suit in U.S. court; (2) to claim sovereign immunity in U.S. courts and to receive diplomatic protection to the same extent as other recognized governments; and (3) to have access to the state's U.S. bank deposits and other property. Courts will not deny a recognized government the rights that it would normally have under United States law solely because diplomatic relations with it have been broken. See Banco Nacional de Cuba. v. Sabbatino, 376 U.S. 398, 410 (1964). III. INTERNATIONAL ORGANIZATIONS GENERALLY § 3-6. Nature of international organizations. While they can appear in a variety of forms, public international organizations-also known as intergovernmental organizations-typically are: (1) institutions established by a treaty-sometimes denominated as a "charter"-which serves as the "constitution" of the organization; (2) composed of members that are states or international organizations; (3) regulated by international law; and (4) endowed with a legal personality, and thus generally can engage in contracts, and can sue and be sued in national courts subject to certain immunities. See Advisory Opinion on Reparation
for Injuries Suffered in the Service of the United Nations,1949 1.C.J.174 (Apr.Il).An international organization normally has various"organs"that collectively undertake the work of the organizatic On e standard organ is of all the membe states of the organi ization,which may meet on an annual basis.Yet other organs may exist consisting of a sub-set of the member states:such an organ may meet more frequently and be charged with handling specific matters set forth in the treaty.All international organizations have some kind of permanent secretariat or institutional which carries onthe day day funct of th nd is by a sec retary-general.See generally H. N.Blo International Institutional Law:Unity Within Diversity (3d ed.1995). $3-7.Operational legal issues.There are a wide range of legal issues that may arise concerning the operations of an international organization.Membership issues ditions und expelle thewell a the onditions nde aw from,or be which memb state's rights or privileges may be suspended.Voting issues arise with respect to actions taken by the various organs:in some instances.a unanimous or consensus vote may be required,while in other instances a super-majority or simple majority vote may be sufficient.Some provide greater weight to the votesof certain states or blocs of states.Lawyers may be alled to assess whethe organs are acting outside of the powers accorded to them by the organization's charter,in which case the ultra vires act might not be regarded as lawful.When the organization is sued (usually in national courts),issues arise regarding the organization's immunity from suit,which may be governed by the organization's charter or by a "heado ncluded be an the a host state.Important issues may arise regarding the finances of the organizatior such as how the organization's budget is adopted,how dues are apportioned among the members,and what sanctions (if any)exist for the failure to pay dues.See nerally C.Amerasinghe.Principles of the Institutional Low of International ion(p sands sp Klein Bowett's law of International lsion (5t ed.2001 3-8.Historical background. International organizations have a relatively recent history.The earliest ones date from the second half of the 19th century. among them,the International Telegraphic Union(1865)and the Universal Postal Union(1874).The League of Nations,the International Labor Organization and a ber of othe aniza re cre eated after World War 1.The United Nations and the majority of functional and regional international organizations in existence today came into being after World War ll.The dramatic growth in the number of international organizations is the result of an ever-increasing acceptance by governments of the international dimensions of the political.economic and social problems they face and of the need for inte ational cooperation in resolving them. The powers,functions,and structure of contemporary international organization reflect the tension that exists between the reality of international interdependence and the reluctance of governments to relinquish some of their governmental authority to these organizations.See D.Armstrong,L.Lloyd J.Redmond,From 20
20 for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174 (Apr. II). An international organization normally has various "organs" that collectively undertake the work of the organization. One standard organ is composed of all the member states of the organization, which may meet on an annual basis. Yet other organs may exist consisting of a sub-set of the member states; such an organ may meet more frequently and be charged with handling specific matters set forth in the treaty. All international organizations have some kind of permanent secretariat or institutional structure, which carries onthe day-to-day functions of the organization, and is often headed by a secretary-general. See generally H. Schermers & N. Blokker, International Institutional Law: Unity Within Diversity (3d ed. 1995). § 3-7. Operational legal issues. There are a wide range of legal issues that may arise concerning the operations of an international organization. Membership issues concern the conditions under which states may be admitted to, withdraw from, or be expelled from the organization, as well as the conditions under which a member state's rights or privileges may be suspended. Voting issues arise with respect to actions taken by the various organs; in some instances, a unanimous or consensus vote may be required, while in other instances a super-majority or simple majority vote may be sufficient. Some institutions provide greater weight to the votes of certain states or blocs of states. Lawyers may be called upon to assess whether organs are acting outside of the powers accorded to them by the organization's charter, in which case the ultra vires act might not be regarded as lawful. When the organization is sued (usually in national courts), issues arise regarding the organization's immunity from suit, which may be governed by the organization's charter or by a "headquarters agreement" concluded between the organization and its host state. Important issues may arise regarding the finances of the organization, such as how the organization's budget is adopted, how dues are apportioned among the members, and what sanctions (if any) exist for the failure to pay dues. See generally C. Amerasinghe, Principles of the Institutional Law of International Organizations (1996); P. Sands &P. Klein, Bowett's Law of International Institutions (5th ed. 2001). § 3-8. Historical background. International organizations have a relatively recent history. The earliest ones date from the second half of the 19th century, among them, the International Telegraphic Union (1865) and the Universal Postal Union (1874). The League of Nations, the International Labor Organization and a number of other smaller organizations were created after World War 1. The United Nations and the majority of functional and regional international organizations in existence today came into being after World War II. The dramatic growth in the number of international organizations is the result of an ever-increasing acceptance by governments of the international dimensions of the political, economic and social problems they face and of the need for international cooperation in resolving them. The powers, functions, and structure of contemporary international organizations reflect the tension that exists between the reality of international interdependence and the reluctance of governments to relinquish some of their governmental authority to these organizations. See D. Armstrong, L. Lloyd & J. Redmond, From
Versailles to Maastricht:International Organization in the Twentieth Century(1996). UNITED NATIONS s3-9.U.N.Charter.The United Nations came into being with the entry into force on October 24,1945 of the U.N.Charter,which is a multilateral treaty that also serves as the United Nation's "constitution".At the time of its founding.the United Nations had a membership of 51 states.Since then the membership has grown to some 190 states e wo See generally United Nations Legal Order (0.Schachter &C.Joyner eds.,1995)(two volumes )The Charter of the United Nations:A Commentary(B.Simma ed.,1994). $3-10.Nature and function.The United Nations is a universal organization both in terms of its membership and the purposes it is designed to advance.It is an organization charged with peace- epingresponsibitiesy h the dey velopment of friendly relations a mong nations;with the achievement of international cooperatior in solving international problems of an economic,social,cultural and humanitarian character;and with the promotion of human rights and fundamental freedoms for all human beings without discrimination.U.N.Charter.art.1.In discharging these functions,the Unite Natio s is enjoined from matters which ssentialy within the domestic jurisdiction of any state,except when acting through the Security Council to address threats to the peace.U.N.Charter,art.2(7). The meaning and significance of this prohibition has been extensively debated by legal scholars and diplomats.Article 2(7)has not,however,proved to be a serious obstacle to U.N.action despite the fact that it has been fre ently invoked in un debate ee,e.g.R.H The D nationa I Law Through the Political Organs of the United Nations 64-76,82-130(1963) 5 3-11.International constitutional supremacy.The U.N.Charter contains a supremacy clause which provides that "[i]n the event of a conflict between the obligations of the Members of the United Nations under the present charter and heir obligati under any other int national ag nder the present Charter shall prevail."U.N.Charter,art.103.This provision places the U.N.Charter at the apex in the hierarchy of international law norms,giving it a status on the international plane roughly comparable to that of a national constitution in national law. 6 3-12.U.N.organs. The principal oreans of the united nations are the General Assembly,th Security Counci the Econo nic and Social Council the International Court of Justice,and the Secretariat.(The Trusteeship Council suspended operations in 1994 after the independence of Palau,the last remaining U.N.trust territory.Some of these bodies have numerous subsidiary organs. The General Assembly is the only U.N.organ in which all member states have the right to represented and to vote.The bly ha lenary power rs in the sense that it "may discuss any questions or any matters within the scope of the Charter."U.N.Charter,art.10. The Security Council has "primary responsibility for the maintenance of international peace and security."U.N.Charter,art.24(1).It consists of Fifteen
21 Versailles to Maastricht: International Organization in the Twentieth Century (1996). IV. UNITED NATIONS § 3-9. U.N. Charter. The United Nations came into being with the entry into force on October 24, 1945 of the U.N. Charter, which is a multilateral treaty that also serves as the United Nation's "constitution". At the time of its founding, the United Nations had a membership of 51 states. Since then the membership has grown to some 190 states, which constitutes virtually all the independent states of the world. See generally United Nations Legal Order ( 0. Schachter & C. Joyner eds.,1995) ( two volumes ); The Charter of the United Nations: A Commentary (B. Simma ed., 1994). § 3-10. Nature and function. The United Nations is a universal organization both in terms of its membership and the purposes it is designed to advance. It is an organization charged with peace-keeping responsibilities; with the development of friendly relations among nations; with the achievement of international cooperation in solving international problems of an economic, social, cultural and humanitarian character; and with the promotion of human rights and fundamental freedoms for all human beings without discrimination. U.N. Charter, art. 1. In discharging these functions, the United Nations is enjoined from intervening in matters which are "essentially within the domestic jurisdiction" of any state, except when acting through the Security Council to address threats to the peace. U.N. Charter, art. 2(7). The meaning and significance of this prohibition has been extensively debated by legal scholars and diplomats. Article 2(7) has not, however, proved to be a serious obstacle to U.N. action despite the fact that it has been frequently invoked in U.N. debates. See, e.g., R. Higgins, The Development of International Law Through the Political Organs of the United Nations 64-76, 82-130 (1963). § 3-11. International constitutional supremacy. The U.N. Charter contains a supremacy clause which provides that "[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail." U.N. Charter, art. 103. This provision places the U.N. Charter at the apex in the hierarchy of international law norms, giving it a status on the international plane roughly comparable to that of a national constitution in national law. § 3-12. U.N. organs. The principal organs of the United Nations are the General Assembly, the Security Council, the Economic and Social Council, the International Court of Justice, and the Secretariat. (The Trusteeship Council suspended operations in 1994 after the independence of Palau, the last remaining U.N. trust territory.) Some of these bodies have numerous subsidiary organs. The General Assembly is the only U.N. organ in which all member states have the right to be represented and to vote. The Assembly has plenary powers in the sense that it "may discuss any questions or any matters within the scope of the . Charter." U.N. Charter, art. 10. The Security Council has "primary responsibility for the maintenance of international peace and security." U.N. Charter, art. 24(1). It consists of Fifteen