Recognition and Jurisdiction of States

A state is a permanent sovereign entity formed by a community of people living under a political authority organized over a specific territory.

The state should possess the following elements:

1) being settled on a certain piece of land;

2) a community of people capable of self-government;

3) Independent sovereignty over a country, that is, a political authority that exercises effective control in the legislative, executive and judicial spheres at all times;

4) The capacity to enter into legal relations with other international legal persons, i.e. legal independence.

A state that possesses these elements is considered to have international legal personality. This personality is composed of three elements:

1) the capacity to have and assert rights in the international arena;

2) the capacity to contract and incur liability;

3) the capacity to be held responsible for their actions and transactions.

In international law, states are juridically equal, enjoy the same rights, and have equal capacity in their exercise. Moreover, under international law, states have the right of political independence and territorial integrity, exclusive jurisdiction over their territory and self-defense, and obligations such as non-interference in the internal affairs of other states, not to resort to war, not to jeopardize international peace, to settle disputes by peaceful means, to respect human rights, to cooperate with one another, and to fulfil their international obligations in good faith.

In a unitary sovereign state, the capacity to exercise international personality is vested in a single political authority. Composite states are confederations and federations. In a confederation, states maintain their international personality and the confederation has no legal personality of its own. States come together only to achieve certain objectives such as security and economy through common policies. In federations, legislative, executive, and judicial powers are shared by the federated states and the central or federal state. Federal state as a single entity is the sole international person for the purposes of international law and federated states does not possess international personality. According to international law, the power to conclude and the responsibility to implement international treaties belong to the federal state.

Fully independent states are states that are not subject to any authority other than themselves. A dependent state (protectorate), on the other hand, is a state without international personality and subject to the authority of a patron state (suzerain), which protect and represent it in international area. However, some of dependent states can have a limited international personality pursuant to agreements entered with the protectorate state, which allow them to enter into certain international relations (commercial and technical agreements) and become a member of international organizations, including the UN.

Neutrality status is essentially a status regulated by international law, and applies to a state that does not wish to participate to a war. Such a state must ensure not to make its country and resources available to any warring party, and comply with the restrictions (blockade, prevention of desertions, etc.) imposed by them. Another variant of this is the status of a permanently neutralized state. This status is established by an international treaty. Thus, in the event of a war, compliance with neutrality is made a treaty obligation for the parties to the treaty. The parties also agree to ensure respect for the neutrality and territorial integrity of the state concerned. In this way, permanent neutrality is collectively guaranteed.

Recognition is a unilateral legal act by which a state accepts that a newly formed political entity constitutes a state with a legal personality with all the rights and duties determined by international law. 

There have been debates among happened among international lawyers on the nature of recognition. According to some (Jellinek, Triepel, Anzilotti), this transaction is a constitutive act and personality becomes valid only after the recognition. On the other hand, some other jurists (Lauterpacht) has adopted the view that recognition is both a declaratory act and a personality-constituting act. It is this view that predominates in international practice today. In accordance with this view, the non-recognition of a state does mean its nonexistence in terms of international law in its relations with other states. In other words, a non-recognized state cannot be treated as terra nullius, ie., no man’s land.

Today, the common view on recognition in international law is that it is a matter of intent, that is, it is left to the political discretion of states and a legal obligation to recognize does not exist. As it is a political decision, it is common in practice to see states granting an early recognition on political grounds to political entities that are not yet fully formed or not having fully established.

As a rule, the occupation of the territory of one state by another State does not automatically terminate the personality of the occupied state. In this respect, in the law of recognition, as a result of the practice that started with the statement known as the “Stimson doctrine” made by the USA in 1931 due to Japan’s invasion of China, a rule has been established that “states and territorial gains resulting from the use of force in violation of international law should not be recognized”.

State and government recognition can be separated in the event of the emergence of a rival government, which is working to take the control over all, or part of the territory of a state. In this respect, in the event of a change of government through unconstitutional means, such as an uprising or a coup d’état, the question of whether the states whose interests are affected should recognize the new government has been addressed in international law and different criteria have been put forward in this regard.

This distinction is again based on the criterion of effectiveness. Thus, if a rival government has taken effective control but there are doubts about its continuity or its ability to assume international obligations towards other states, other states may first grant de facto recognition. The characteristic of de facto recognition is that it can be revoked. However, if the government in question becomes permanent and duly fulfills its obligations, de facto recognition is converted into de jure recognition. Sometimes a country may have two competing governments, both de jure recognized and de facto recognized. In this case, a problem arises as to who should assume rights and obligations in the international arena. According to international law, official diplomatic relations can only be conducted with the de jure government and the de jure government has the authority to claim the property of that state in foreign countries. However, in the case of property in the hands of the de facto government, this government has the authority to dispose of it. 

In international law, jurisdiction refers to the power of a state to affect persons, property and circumstances within its territory and this power is exercised through legislative, executive or judicial actions.

The territory of a state can consist of three different areas: land territory (land, subsoil and minerals, rivers and lakes), maritime territory (including inland waters and territorial waters of coastal states - beyond which the state has certain economic rights in areas such as the continental shelf and exclusive economic zone), and air territory (airspace over land and maritime territory, excluding outer space).

Territories that are subject to the territorial sovereignty of a state and unclaimed territories may be acquired, transferred or abandoned in accordance with international law. In this respect, the methods of acquisition of territory to be examined in this section are cession, occupation, prescription and accession. The method of conquest, which was historically recognized as lawful for acquiring a territory, is prohibited under existing international law. However, the law recognizes that acquisitions made during the period when this prohibition did not apply are valid. Cession is a method by which a state relinquishes its sovereignty over a certain territory in favor of another state through a treaty. Occupation has historically been understood as the exercise of sovereignty by a state with the intention and power to subject a country to its sovereignty. Unlike occupation, prescription may be applied both in areas subject to the sovereignty of a state and in areas belonging to the international community and open to the benefit of all states. Accretion (land formation) is the expansion of a territory subject to the sovereignty of a state due to natural phenomena (changes in the banks of a river, the formation of an island in the territorial waters of the state, etc.).

The principle of geographical proximity (or extension) is used in practice in two senses. In the first, the claim of sovereignty over a territory is based on the fact that it is a geographical continuation of the territory of the state. In the second, the claim of sovereignty is based on the principle that the geographical area in question is closer to the territory of the state. Claims based on this principle are valid only if there has been no exercise of sovereignty by other states over the territory in question. By contrast, where there are competing claims to a territory, this principle alone does not have the power to create rights.

The principle of historical continuity is a principle mostly applied in border disputes. According to this principle, the determination of borders should be based on the borders of the country before the change of sovereignty and the situation of the peoples living there. This principle, also known as uti possidetis (keep what you have), was initially applied among the Latin American states that liberated themselves from Spanish rule.

Citizenship (nationality) is defined as a permanent legal relationship that binds individuals to a particular state. In the domestic laws of states, this legal relationship is regulated according to various criteria such as blood relationship (jus sanguinis), place of birth (jus soli), place of residence (domicile), marriage, and naturalization. The relationship of citizenship empowers the state to make and enforce rules on these persons, whether or not they are present in its territory. According to the 1966 Covenant on Civil and Political Rights, citizenship is a right and a citizen of a state may leave and return to his or her country at any time in accordance with the law.

There may be groups living within the territory of a state who are citizens of that state but do not belong to the dominant population of the society and differ from it in terms of race, language, or religion. These are called minorities in international law and treaties are concluded to protect such national minorities. In these treaties concluded after the First and Second World Wars, the following principles are included:

a) everyone shall enjoy equal rights without discrimination on the basis of language, religion, race, etc.

b) make appropriate legal arrangements to protect and promote the cultural, religious and linguistic characteristics of minority groups, individually or collectively, and avoid assimilation

Sovereignty gives a state the power to make, enforce and adjudicate in its own right with respect to persons, events and things, whether domestic or foreign, found within its territory (including naval and air vessels registered in its territory and those working on them). This is called the principle of territoriality and exclusivity of jurisdiction. In this framework, a state can regulate legal relations and obligations within its territory without the interference of other states and can freely dispose of its natural resources above and below the ground.

According to international customary law, there are two exceptions to the principle that a state may not be sued before the courts of a foreign state: claims in rem relating to immovable property and the waiver of immunity. Claims in rem relating to state-owned immovable property located in the territory of a foreign state are subject to the law and jurisdiction of the courts of the state in which the immovable property is located, unless it is used as a diplomatic mission. It is also possible for states to waive the immunity from jurisdiction by conferring jurisdiction on the courts of a state by treaty or by a clause in a commercial contract with a private person, or by agreeing in advance to submit the matter to international arbitration. Again, it is possible for the state itself to waive the immunity by filing a lawsuit in another state or by a written or oral declaration in a lawsuit filed in another state. However, such a waiver of jurisdictional immunity does not also mean a waiver of the immunity from enforcement, and a separate authorization is required for the enforcement of a court judgment against the property belonging to the state in question. In this respect, in order to enforce against state property, they should not be used for the following public purposes: diplomatic missions’ property and accounts, property of a military nature and purpose, central bank accounts, cultural, historical and scientific artifacts belonging to the state, state archives and official documents.

In international law and practice, there are two approaches concerning the immunity to be granted to the acts and transactions of states, namely immunity and limited immunity. Today, in line with the limited immunity approach, acts and transactions of states are divided into “sovereign acts” and “private law acts”. In this framework, states are not granted immunity in cases concerning their obligations arising out of acts and actions that private persons could do (especially if protecting private persons’ right of access to court are involved), but only in cases where only states can do so and exercise public authority. It is not always easy to distinguish between these two types of transactions. Therefore, the determination is sometimes made in the law and sometimes in cases before the judicial authority, either based on the nature of the act or transaction, or sometimes on its purpose. In this respect, as a rule, the question of such an immunity in a case should be dealt with by the court as a preliminary procedural question before going to the merits, and it should be proved by the claimant that there is no need for an immunity. Recently, in cases concerning the enactment by some states of laws that do not grant immunity to states that support terrorism, or do not grant immunity in cases involving torture and genocide, these actions have been held to be contrary to international law.