149 / 464
135
THE CREATION OF NEW STATES AND
DE FACTO
REGIMES, AND THE CASE OF CRIMEA
entity fulfills all factual criteria of statehood but breaks the general principles of
international law, it
cannot be considered a state
. For example, the so called Turkish
Republic of Northern Cyprus on Cyprus has all the features of population, territory
and government but is
not considered a state
in international law, because it was
created by illegitimate use of force by Turkey
13
in 1974. Similarly in the past,
Northern Rhodesia was not recognized as a state due to breaking of the principle of
self-determination. Another example from history is the creation of Bangladesh in
1971, which was a result of the invasion of India into Eastern Pakistan, which was
a part of the Pakistan Federation. Although India did not annexe the territory, the
result of the intervention was the creation of a new independent state of Bangladesh.
Although this state was
created by the use of force,
it was recognized
14
by more than
90 states, and the following year it was accepted as a member state of the UN.
The example of Bangladesh is
an expression of reality
in the sense that the principles
of international law do not always regulate the
behavior of the state
nor
the reaction
of the international community.
15
Apart from the standards of the international law,
political and economic circumstances play an important role.
2.1 Recognition of a state
A newly created state, although it is a subject of law in relation to all other states
considering its basic rights and duties, its
participation in activities of international
law is limited
, however
.
In order to become a full subject of international law the
new state has to be
recognized
by other states. The other states will not establish
diplomatic relations, conclude international agreements etc., unless the state has
been recognized. The
recognition of state is so far not regulated by standards of general
international law.
16
This leaves the other states the liberty to recognize the newly
created state, or not to recognize it.
In the theory of international law
there are three approaches
to the recognition of a
state. The c
onstitutive
theory says that the state exists only then when it is recognized.
This concept was applied in the period of so called traditional international law, until
approximately the First WorldWar. We can encounter this theory in the works of some
authors, for example Lauterpacht, Fitzmaurice, even after the Second World War,
when, however, the constitutive nature of recognition is softened by the
obligation
to recognize the state
as soon as the state demonstrates the three basic features. This
theory does not reflect the current situation, mainly because it was in contradiction
to the cogent prohibition of the
use or threat of force.
The second theory is the
declaratory theory
,
which reflects the
current approach
of states. By the act of recognition an existing state officially recognizes that a newly
13
Ibid.
14
Ibid
.
15
Ibid.
16
Supra
n. 7, s. 132-133.