(a) Distinguish whether 'Recognition of States' is an act of policy or of law. Also distinguish between Constitutive and…

(a) Recognition: policy or law?

• Meaning: recognition is the acknowledgement by an existing State that an entity possesses the attributes of statehood, and its willingness to treat it as a member of the international community.
• As an act of policy:
• in State practice, recognition is discretionary and political;
• States grant, delay or withhold it for strategic, ideological or security reasons;
• no State is legally obliged to recognise another, and recognition may be conditional, express or implied, de facto or de jure;
• examples:
• India recognised Bangladesh in December 1971, when its own interests were engaged;
• many States still withhold recognition of Taiwan, Kosovo or Palestine, for political reasons;
• Palestine is recognised by over 150 States, including several Western States in 2025.
• As a matter of law:
• Lauterpacht argued that once the legal criteria of statehood are met, there is a legal duty to recognise, and that recognition is a quasi-judicial act of ascertaining facts;
• law also governs recognition in other ways:
• premature recognition of a seceding entity is an unlawful intervention;
• there is a duty of non-recognition of situations created by serious breaches of law, such as the use of force. Examples are the Stimson doctrine (Manchukuo, 1932), Security Council Resolutions 216/217 (Southern Rhodesia) and 541 (Northern Cyprus), the Namibia advisory opinion (1971) and the Wall advisory opinion (2004);
• recognition has legal consequences in municipal courts, for the standing of the recognised State, sovereign immunity, and effect given to its laws (Luther v Sagor (1921)).
• Conclusion: recognition is a political act with legal consequences. The decision is policy. Its limits and effects are governed by law.

Constitutive and declaratory theories

• Constitutive theory (Hegel, Anzilotti, Oppenheim):
• nature of recognition: it creates statehood and international legal personality;
• status before recognition: the entity has no rights or duties in international law;
• basis: the consent of existing States, a positivist view;
• weaknesses: since recognition is not uniform, an entity could be a State for some and not for others. The theory also makes existence depend on the political will of others.
• Declaratory theory (Hall, Brierly, the Institut de Droit International):
• nature of recognition: it acknowledges a pre-existing fact;
• status before recognition: a State exists once it has a permanent population, a defined territory, a government and the capacity to enter into relations with other States (Art 1, Montevideo Convention, 1933). It is bound by international law, for example the prohibition of force;
• basis: the objective fact of statehood (Art 3 Montevideo: "the political existence of the State is independent of recognition");
• weaknesses: it underplays the practical importance of recognition for exercising rights.
• Cases supporting the declaratory view:
• Tinoco Arbitration (1923): non-recognition does not negate the existence of a government that exercises effective control;
• Deutsche Continental Gas-Gesellschaft v Polish State (1929);
• Badinter Commission, Opinion No. 1 (1991): the existence of a State is a question of fact, and recognition is declaratory.
• Present position:
• the declaratory theory is dominant, but recognition has evidential and constitutive effects in doubtful cases, such as Kosovo;
• the ICJ held that Kosovo's declaration of independence did not violate international law (advisory opinion, 2010), but its statehood still depends on recognition and UN membership, which is blocked;
• admission to the UN, a collective act, strongly evidences statehood.

(b) Meaning

• Definition: State succession is "the replacement of one State by another in the responsibility for the international relations of territory". This is the definition in Art 2, Vienna Conventions of 1978 and 1983.
• Forms:
• cession or transfer of part of a territory;
• separation or secession (Bangladesh, 1971);
• dissolution (the USSR, Yugoslavia and Czechoslovakia);
• unification (Germany, 1990; Yemen);
• decolonisation (newly independent States).
• Distinction from succession of governments: State succession must be distinguished from succession of governments, where the State's identity and obligations continue despite a change of regime.

Theories

• Universal succession (Grotius, drawing on Roman law's inheritance): the successor inherits all the rights and duties of the predecessor.
• Negative, or clean-slate (tabula rasa), theory: the successor begins free of the predecessor's obligations, since its sovereignty is new.
• Continuity theory: the legal order and obligations attached to the territory continue.
• Organic substitution theory: the successor takes over the territory as a going concern. Local or dispositive rights (boundaries, servitudes and transit rights) pass with the territory.
• Modern position: it is pragmatic. The Vienna Conventions combine the approaches, depending on the type of succession and the subject matter.

Rights and obligations

• Treaties (Vienna Convention, 1978, in force 1996):
• newly independent States have a clean slate (Art 16), but may notify succession to multilateral treaties (Art 17);
• in separation or dissolution, treaties in principle continue for each successor State (Art 34);
• boundary regimes and other territorial regimes are not affected (Arts 11–12); see also Gabčíkovo–Nagymaros (1997) and uti possidetis (Burkina Faso v Mali (1986)).
• State property, archives and debts (Vienna Convention, 1983, not in force):
• immovable State property passes to the successor;
• movable property passes by an equitable apportionment linked to the territory;
• State debts pass in an equitable proportion, although newly independent States are not bound, except by agreement (Art 38);
• in practice, these matters are settled by agreement, as in the India–Pakistan Partition Council arrangements of 1947.
• Nationality: the inhabitants generally acquire the successor's nationality, and statelessness is to be avoided (ILC Articles, 1999).
• Membership of international organisations:
• the continuing State keeps membership (India in 1947; Russia for the USSR in 1991);
• new States must apply (Pakistan, 1947). Ukraine and Belarus were already original members.
• Private rights and concessions: acquired rights are respected, subject to the successor's right to regulate or expropriate with compensation.
• Responsibility for wrongful acts: as a rule, this does not pass automatically.

(c) Main features of the Law of the Sea (UNCLOS, 1982)

• The Convention: UNCLOS, a "constitution for the oceans", came into force in 1994, together with the 1994 Agreement on Part XI.
• A comprehensive zonal regime:
• baselines (Arts 5 and 7; Anglo-Norwegian Fisheries (1951));
• internal waters;
• the territorial sea (12 nm);
• the contiguous zone (24 nm), for customs, fiscal, immigration and sanitary control (Art 33);
• the EEZ (200 nm);
• the continental shelf (200 nm, or up to 350 nm, on the recommendation of the Commission on the Limits of the Continental Shelf) (Art 76);
• archipelagic waters;
• the high seas;
• the Area.
• Rights of navigation:
• innocent passage;
• transit passage through international straits;
• archipelagic sea-lanes passage;
• the freedoms of the high seas (Art 87), under flag-State jurisdiction (Art 92).
• The Area and common heritage:
• the seabed beyond national jurisdiction is the common heritage of mankind (Art 136), administered by the International Seabed Authority;
• the BBNJ Agreement on biodiversity beyond national jurisdiction came into force in January 2026.
• Protection and research: protection of the marine environment (Part XII) and marine scientific research.
• Compulsory dispute settlement (Part XV, Art 287): through ITLOS, the ICJ, or Annex VII or VIII arbitration. Examples:
• South China Sea Arbitration (2016);
• the Bay of Bengal arbitration between Bangladesh and India (2014).
• India: the Maritime Zones Act, 1976 implements these zones.

Territorial sea vs EEZ

• Breadth:
• Territorial sea: up to 12 nm from the baselines (Art 3).
• EEZ: up to 200 nm (Art 57).
• Nature of the right:
• Territorial sea: sovereignty, extending to the airspace, seabed and subsoil (Art 2).
• EEZ: sovereign rights for exploring, exploiting, conserving and managing natural resources, and jurisdiction over artificial islands, marine scientific research and the environment (Art 56). These are functional rights, not sovereignty.
• How the zone arises:
• Territorial sea: it arises automatically.
• EEZ: it must be claimed or proclaimed.
• Rights of other States:
• Territorial sea: only innocent passage (Arts 17–19). Submarines must navigate on the surface. There is no freedom of overflight.
• EEZ: freedoms of navigation, overflight and laying cables and pipelines (Art 58).
• Application of the coastal State's laws:
• Territorial sea: all of its laws apply, including customs and criminal law, subject to limits on arresting foreign ships in passage (Arts 27–28).
• EEZ: only laws on resources and the other matters in Art 56. Customs law cannot be extended there (M/V Saiga (No 2), ITLOS, 1999).
• Enforcement:
• Territorial sea: full enforcement.
• EEZ: boarding, inspection and arrest for fisheries violations. No imprisonment is allowed (Art 73(3)), and the vessel must be promptly released on a bond (Art 292).
• Land-locked and disadvantaged States:
• Territorial sea: they have no special rights.
• EEZ: they have a right to participate in exploiting the surplus of living resources (Arts 69–70).