¹ Dixon, M, McCorquodale, R and Williams, S, Cases and Materials in International Law (5th edn, OUP 2011) 158CrossRefGoogle Scholar.

² ibid.

³ Grant, T, The Recognition of States: Law and Practice in Debate and Evolution (Praeger 1999) 2Google Scholar.

⁴ Brierly, J, The Law of Nations (Clarendon Press 1963) 138Google Scholar.

⁵ See, eg, Harris, D, Cases and Materials on International Law (7th edn, Sweet & Maxwell 2010) 131Google Scholar.

⁶ Brierly (n 4) 138.

⁷ See below, section II.C.

⁸ A Peters, ‘Statehood after 1989: “Effectivités” between Legality and Virtuality’ (2010) Proceedings of the European Society of International Law 3 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1720904> accessed 20 February 2012.

⁹ See below, section II.B.

¹⁰ See International Law Commission (ILC) Articles on Responsibility of States for Internationally Wrongful Acts (28 January 2002) UN Doc A/RES/56/83 (ILC Articles on State Responsibility) arts 40 and 41. For more, see below, nn 149–51.

¹¹ See Crawford, J, The Creation of New States in International Law (2nd edn, OUP 2006) 107Google Scholar.

¹² See Talmon, S, ‘The Constitutive versus the Declaratory Doctrine of Recognition: Tertium Non Datur?’ (2004) 75 British YB Int'l L 101, 125Google Scholar.

¹³ C Hillgruber, ‘The Admission of New States to the International Community’ (1998) 9 EJIL 491, 494.

¹⁴ See, eg, Crawford (n 11) 403, recalling a number of unsuccessful attempts at unilateral secession in the UN Charter era and arguing: ‘Where the government of the State in question has maintained its opposition to the secession, such attempts have gained virtually no international support or recognition, and this has been true even when other humanitarian aspects of the situation have triggered widespread concern and action.’

¹⁵ The elaboration of the principle of territorial integrity of States in the Declaration on Principles of International Law provides:

(Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations (24 October 1970) UNGA Res 2625 annex, principle 5).

¹⁶ See Agreement on the Establishment of the Commonwealth of Independent States (1992) 31 ILM 138 (Minsk Agreement). The Minsk Agreement was adopted on 8 December 1991 by the presidents of Belarus, Russia and Ukraine. On 21 December 1991, a protocol to the Minsk Agreement was adopted by the remaining Soviet republics, with the exception of Georgia, by way of which the CIS was extended to these former republics from the moment of ratification of the Agreement.

¹⁷ See Protocol to the Agreement Establishing the Commonwealth of Independent States signed at Minsk on 8 December 1991 by the Republic of Belarus, the Russian Federation (RSFSR) and Ukraine (1992) 31 ILM 147 (Alma Ata Protocol). On the same day, 11 Soviet Republics (in the absence of Georgia), adopted the Alma Ata Declaration, which, inter alia, declared: ‘With the establishment of the Commonwealth of Independent States, the Union of Soviet Socialist Republics ceases to exist’ (Alma Ata Declaration (1992) 31 ILM 147).

¹⁸ Minsk Agreement para 1.

¹⁹ Moldova, Kazakhstan, Kyrgyzstan, Uzbekistan, Armenia, Tajikistan, Turkmenistan and Azerbaijan all became members of the UN on 2 March 1992; Georgia, which made its application belatedly, was admitted on 31 July 1992. See UNGA Res 46/223 (Moldova), UNGA Res 46/224 (Kazakhstan), UNGA Res 46/225 (Kirgizstan), UNGA Res 46/226 (Uzbekistan), UNGA Res 46/227 (Armenia), UNGA Res 46/228 (Tajikistan), UNGA Res 46/229 (Turkmenistan), UNGA Res 46/230 (Azerbaijan), UNGA Res 46/241 (Georgia). Ukraine and Belarus were original members of the UN and continued their membership. See, eg, A Aust, Handbook of International Law (CUP 2005) 18.

²⁰ Decision by the Council of Heads of State of the Commonwealth of Independent States (1992) 31 ILM 138 para 1. Russia's continued membership of the Soviet Union in the UN is, however, not uncontested by legal scholars. Indeed, this was not an example of a State's name change or secession of part of the Soviet Union's territory. Rather, it was an example of dissolution and ‘with the demise of the Soviet Union … its membership in the UN should have automatically lapsed and Russia should have been admitted to membership in the same way as the other newly-independent republics (except for Belarus and Ukraine)’ (Y Blum, ‘Russia Takes Over the Soviet Union's Seat at the United Nations’ (1992) 3 EJIL 354, 359). As argued, the former Soviet republics agreed that Russia would continue the Soviet Union's membership in the UN. However, ‘[t]he correct legal path to this end would have been for all the republics of the Soviet Union except Russia to secede from the union, thus preserving the continuity between the Soviet Union and Russia for the UN membership purposes’ (ibid 361). Nevertheless, it is questionable whether such a path was possible in the rather complicated Soviet political situation in 1991.

²¹ Stein, E, Czechoslovakia: Ethnic Conflict, Constitutional Fissure, Negotiated Breakup (University of Michigan Press, 1997) 45CrossRefGoogle Scholar.

²² See also Crawford (n 11) 402.

²³ ibid.

²⁴ ibid.

²⁵ GA Res 47/221 (19 January 1993) (Czech Republic); GA Res 47/222 (19 January 1993) (Slovakia).

²⁶ Article 1 of the Secret Additional Protocol to the Ribbentrop–Molotov Pact reads: ‘In the event of a territorial and political rearrangement in the areas belonging to the Baltic States (Finland, Estonia, Latvia, Lithuania), the northern boundary of Lithuania shall represent the boundary of the spheres of influence of Germany and U.S.S.R. In this connection the interest of Lithuania in the Vilna area is recognized by each party’ (German-Soviet Non-Aggression Pact (Ribbentrop–Molotov Pact) (23 August 1939) Secret Additional Protocol, art 1 <http://www.fordham.edu/halsall/mod/1939pact.html> accessed 20 February 2012). For more on the legal issues surrounding the re-emergence of the Baltic States as independent States, see Warbrick, C, ‘Recognition of States’ (1992) 41 ICLQ 473CrossRefGoogle Scholar, 474.

²⁷ Crawford (n 11) 394.

²⁸ UNGA Res 46/4 (17 September 1991) (Estonia); UNGA Res 46/5 (17 September 1991) (Latvia); UNGA Res 46/6 (17 September 1991) (Lithuania).

²⁹ Crawford (n 11) 394.

³⁰ See Crawford (n 11) 402.

³¹ ibid. See also UNGA Res 47/114 (5 April 1993) preamble, para 3.

³² UNGA Res 47/230 (28 May 1993).

³³ After the end of the Milošević regime in 2000, Montenegro's pro-independence forces became more prominent. However, given the armed conflict associated with the dissolution of the SFRY, the international community feared pro-independence pressures could result in Montenegro's unilateral declaration of independence and potentially lead to turmoil in Montenegro itself and more broadly in the region. In response, the EU brokered a compromise between those who favoured independence and those who advocated a continued union with Serbia. The result of this compromise was the Constitution of the SUSM. See International Crisis Group Briefing No 169 Montenegro's Independence Drive (7 December 2006) 1.

³⁴ Article 60 of the Constitution of the SUSM provided:

See the Constitution of the State Union of Serbia and Montenegro (2003) art 60 (my translation).

³⁵ Declaration of Independence of the Republic of Montenegro, Official Gazette of the Republic of Montenegro No 36/06 (3 June 2006).

³⁶ UNGA Res 60/264 (28 June 2006).

³⁷ See n 34.

³⁸ ibid.

³⁹ See n 10.

⁴⁰ See generally Singh, B, East Timor, Indonesia and the World: Myths and Realities (Singapore Institute of International Affairs 1995)Google Scholar; Krieger, H and Rauschning, D, East Timor and the International Community: Basic Documents (CUP 1997)Google Scholar; Taylor, J, East Timor: The Price of Freedom (Zed Books 1999)Google Scholar; Hainsworth, P and McCloskey, S (eds), The East Timor Question: The Struggle for Independence from Indonesia (IB Tauris 2000)Google Scholar; Martin, I, Self-determination in East Timor: The United Nations, the Ballot, and International Intervention (Lynne Rienner Publishers 2001)Google Scholar.

⁴¹ See Wilde, R, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (OUP 2008) 181CrossRefGoogle Scholar.

⁴² See UNSC Res 1236 (7 May 1999) esp paras 4, 8, 9.

⁴³ ibid.

⁴⁴ UNSC Res 1264 (15 September 1999) para 3.

⁴⁵ UNSC Res 1272 (25 October 1999) para 1.

⁴⁶ ibid para 4.

⁴⁷ ibid paras 2 and 4.

⁴⁸ UNSC Res 1338 (31 January 2001). Notably, this resolution was not adopted under Chapter VII of the UN Charter.

⁴⁹ See BBC, ‘East Timor: Birth of a Nation’ (19 May 2002) <http://news.bbc.co.uk/1/hi/world/asia-pacific/1996673.stm> accessed 20 February 2012.

⁵⁰ UNGA Res 57/3 (27 September 2002).

⁵¹ See The Comprehensive Peace Agreement (2005) <http://www.sd.undp.org/doc/CPA.pdf> accessed 20 February 2012.

⁵² The Comprehensive Peace Agreement comprises texts of previously signed agreements and protocols. These are: the Machakos Protocol (20 July 2002); the Protocol on Power Sharing (26 May 2004); the Agreement on Wealth Sharing (7 January 2004); the Protocol on the Resolution of the Conflict in the Abyei Area (26 May 2004); The Protocol on the Resolution of the Conflict in Southern Kordofan and Blue Nile States (26 May 2004); the Agreement on Security Arrangements (25 September 2003); the Permanent Ceasefire and Security Arrangements Implementation Modalities and Appendices (30 October 2004) and the Implementation Modalities and Global Implementation Matrix and Appendices (31 December 2004). For more information, see The Comprehensive Peace Agreement, Chapeau of the Comprehensive Peace Agreement xii para 2.

⁵³ Comprehensive Peace Agreement, Machakos Protocol (20 July 2002) Part A s 1.3.

⁵⁴ ibid Part B s 2.5. The six-year interim period started at the time of conclusion of the Comprehensive Peace Agreement.

⁵⁵ See Comprehensive Peace Agreement, Agreement on Permanent Ceasefire and Security Arrangements Implementation Modalities between the Government of Sudan (GOS) and the Sudan People's Liberation Movement/Sudan people's Liberation Army (SPLM/SPLA) During the Pre-Interim and Interim Periods (31 December 2004).

⁵⁶ See ibid sections 17.8, 20.1, 20.2 and 21.2.

⁵⁷ Interim National Constitution of the Republic of Sudan (2005).

⁵⁸ ibid art 222(1).

⁵⁹ Southern Sudan Referendum Act (31 December 2009) art 41, paras 2 and 3 <http://saycsd.org/doc/SouthernSudanReferendumActFeb10EnglishVersion.pdf> accessed 20 February 2012.

⁶⁰ ibid art 66.

⁶¹ ibid art 67(2).

⁶² See, eg, BBC, ‘President Omar al-Bashir Gives South Sudan His Blessing’ (7 July 2011) <http://www.bbc.co.uk/news/world-africa-14060475> accessed 20 February 2012.

⁶³ See BBC, ‘South Sudan Counts Down to Independence’ (8 July 2011) <http://www.bbc.co.uk/news/world-africa-14077511> accessed 20 February 2012.

⁶⁴ See above, n 52.

⁶⁵ See BBC, ‘South Sudan: World Leaders Welcome New Nation’ (9 July 2011) <http://www.bbc.co.uk/news/world-africa-14095681> accessed 20 February 2012.

⁶⁶ See UN Doc GA/11114 (14 July 2011).

⁶⁷ In response to the crisis, on 27 August 1991 the European Community (EC) and its Member States founded the Conference on Yugoslavia, under the auspices of which the Arbitration Commission was established. The Arbitration Commission was chaired by the President of the French Constitutional Court, Robert Badinter, therefore it is commonly referred to as the Badinter Commission. For more see Pellet, A, ‘The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-determination of Peoples’ (1992) 3 EJIL 178CrossRefGoogle Scholar, 178.

⁶⁸ The Badinter Commission held that Slovenia and Croatia became States on 8 October 1991 (the day of the expiry of the EC-imposed moratorium on their respective declarations on independence), Macedonia on 17 November 1991 (the day of the adoption of a new constitution), Bosnia-Herzegovina on 6 March 1992 (the day of the proclamation of referendum results) and the FRY on 27 April 1992 (the day of the adoption of a new constitution): Badinter Commission, Opinion 11 (16 July 1993) para 4.

⁶⁹ In Opinion 11 the Badinter Commission dealt with questions of succession after the dissolution of the SFRY had been completed; for this purpose it had to establish critical dates on which the SFRY's former republics became independent States. See Badinter Commission, Opinion 11, para 2.

⁷⁰ See UNGA Res 46/236 (22 May 1992) and UNGA Res 46/238 (22 May 1992).

⁷¹ Badinter Commission, Opinion 1 (29 November 1991) para 3.

⁷² Badinter Commission, Opinion 8 (4 July 1992) para 4.

⁷³ Badinter Commission, Opinion 1, para 2.

⁷⁴ Bosnia-Herzegovina declared independence on 15 October 1991. See Official Gazette of the Socialist Republic of Bosnia-Herzegovina 32 (15 October 1991).

⁷⁵ Macedonia declared independence on 17 September 1991. See the Declaration on the Sovereignty and Independence of the Republic of Macedonia, 17 September 1991, reprinted in Trifunovska, S, Yugoslavia through Documents: From its Creation to its Dissolution (Martinus Nijhoff 1994) 345–7Google Scholar.

⁷⁶ See Grant (n 3) 152–3: ‘Though the United States, the Soviet Union, and various West European States and organizations stated their disapproval of Croat and Slovene unilateral declarations of independence, Germany quickly began to suggest that it would extend recognition to the putative States. As early as August 7, 1991, the German government expressed support for the secessionists.’ See also Raič, D, Statehood and the Law of Self-determination (Kluwer Law International 2002) 352Google Scholar, arguing that, on 8 October 1991, the people of Croatia possessed the right to secession based on the ‘remedial secession’ doctrine.

⁷⁷ See Reference re Secession of Quebec [1998] 2 SCR 217 (Supreme Court of Canada) (hereafter Quebec case) para 155, where the Court argued that ‘[t]he ultimate success of … [unilateral] secession would be dependent on recognition by the international community’. For more, see below, text to n 106.

⁷⁸ Caplan, R, Europe and Recognition of New States in Yugoslavia (CUP 2005) 105–6CrossRefGoogle Scholar.

⁷⁹ ibid 104.

⁸⁰ Badinter Commission, Opinion 1.

⁸¹ UNSC Res 757 (30 May 1992) and UNSC Res 777 (19 September 1992).

⁸² UN Security Council resolution 777 preamble, para 2, for example, takes the view that ‘the state formerly known as the Socialist Federal Republic of Yugoslavia has ceased to exist’.

⁸³ UNGA Res 55/12 (1 November 2000). Some statements made by officials of the Republic of Serbia imply that Serbia still holds that it inherited the international personality of the former SFRY. When addressing the Security Council after Kosovo's declaration of independence, the President of Serbia, Boris Tadić made the following statement: ‘Serbia, let me recall, is a founding State Member of the United Nations’ (UN Doc S/PV.5838 (18 February 2008) 4).

⁸⁴ The EC Declaration on Yugoslavia was a document adopted at the meeting of the EC Council of Ministers on 16 December 1991 and was part of the broader EC involvement in the dissolution of the SFRY. See EC Declaration on Yugoslavia (16 December 1991), reprinted in Trifunovska (n 75) 474. The document is important because it established a procedure for granting recognition to the former republics of the SFRY.

⁸⁵ Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections) [1996], ICJ Rep 596, 622 (Bosnia Genocide case) para 45.

⁸⁶ Badinter Commission, Opinion 11, para 7.

⁸⁷ Bosnia Genocide case, para 17. The Court did not make a direct argument that the FRY became a State. This date was rather invoked in the context of the question of when the FRY became a party to the Genocide Convention, to which the SFRY was previously a party. However, the Court's acceptance that the FRY became a State Party to the Genocide Convention on the day when it adopted its new constitution means that the Court thus also accepted that this was the date when the FRY became a State.

⁸⁸ HC Deb 7 May 1996, vol 277, col 89 <http://www.publications.parliament.uk/pa/cm199596/cmhansrd/vo960507/text/60507w19.htm> accessed 22 February 2012.

⁸⁹ Dixon, McCorquodale and Williams (n 1) 163.

⁹⁰ This problem is also pointed out in Opinion 11 of the Badinter Commission: ‘There are particular problems in determining the date of State succession in respect of the Federal Republic of Yugoslavia because that State considers itself to be the continuation of the Socialist Federal Republic of Yugoslavia rather than a successor State’: Badinter Commission, Opinion 11, para 7.

⁹¹ See Badinter Commission, Opinion 6 (11 January 1992) para 4.

⁹² See Craven, M, ‘What's in a Name? The Former Yugoslav Republic of Macedonia and Issues of Statehood’ (1995) 16 Australian YB Intl'l L 199, 199–200Google Scholar.

⁹³ See Crawford (n 11) 398.

⁹⁴ UNGA Res 47/225 (8 April 1993).

⁹⁵ See Rich, R, ‘Recognition of States: The Collapse of Yugoslavia and the Soviet Union’ (1993) 4 EJIL 36, 52CrossRefGoogle Scholar.

⁹⁶ cf n 149.

⁹⁷ See the Badinter Commission, Opinion 9 (4 July 1992).

⁹⁸ EC Declaration on the Former Yugoslav Republic of Macedonia, Informal Meeting of Ministers of Foreign Affairs, Guimaracs, 1 and 2 May 1992, reprinted in Hill, C and Smith, K, European Foreign Policy: Key Documents (Routledge 2000) 376Google Scholar.

⁹⁹ See also Craven (n 92) 207–18.

¹⁰⁰ Badinter Commission, Opinion 11, para 5.

¹⁰¹ See, eg, Quebec case, para 126.

¹⁰² Consider the following argument from Orakhelashvili, A, ‘Statehood, Recognition and the United Nations System: A Unilateral Declaration of Independence in Kosovo’ (2009) 12 Max Planck Yearbook of United Nations Law 1, 13Google Scholar: ‘As soon as the principle of territorial integrity applies, it necessarily outlaws secession without the consent of the parent state. Such understanding avoids systemic inconsistency under which international law would guarantee territorial integrity yet would not prohibit secession.’

¹⁰³ See, eg, Crawford (n 11) 390, arguing that secession is ‘a legally neutral act the consequences of which are regulated internationally’.

¹⁰⁴ See above n 15.

¹⁰⁵ Quebec case, para 155.

¹⁰⁶ ibid.

¹⁰⁷ cf n 4.

¹⁰⁸ See the Declaration on Principles of International Law (n 15), annex, principle 5.

¹⁰⁹ For a thorough account of the academic support for ‘remedial secession’, see A Tancredi, ‘A Normative “Due Process” in the Creation of States Through Secession’ in M Kohen (ed), Secession: International Law Perspectives (Cambridge 2006) 171, 176.

¹¹⁰ See, eg, Buchanan, A, Justice, Legitimacy, and Self-Determination (Oxford 2004) 335Google Scholar, arguing: ‘If the state persists in serious injustices toward a group, and the group's forming its own independent political unit is a remedy of last resort for these injustices, then the group ought to be acknowledged by the international community to have the claim-right to repudiate the authority of the state and to attempt to establish its own independent political unit.’

¹¹¹ See generally Vidmar, J, ‘Remedial Secession in International Law: Theory and (Lack of) Practice’ (2010) 6 St Antony's International Review 37Google Scholar.

¹¹² Shaw, M, ‘Peoples, Territorialism and Boundaries’ (1997) 8 EJIL 478CrossRefGoogle Scholar, 483.

¹¹³ ibid 483.

¹¹⁴ See above, text to n 106.

¹¹⁵ Crawford (n 11) 501.

¹¹⁶ ibid 508.

¹¹⁷ ibid 516–22.

¹¹⁸ Weller, M, ‘Modesty Can Be a Virtue: Judicial Economy in the ICJ Kosovo Opinion’ (2011) 24 Leiden J Int'l L 127, 129–30CrossRefGoogle Scholar.

¹¹⁹ See above, text to n 4.

¹²⁰ C Warbrick, ‘States and Recognition in International Law’ in M Evans (ed), International Law (2nd edn, Oxford 2006) 262.

¹²¹ See above, n 82.

¹²² See, eg, Crawford (n 11) 141–2 and 393.

¹²³ Pavković, A and Radan, P, Creating New States: Theory and Practice of Secession (Ashgate 2007) 102Google Scholar.

¹²⁴ ibid.

¹²⁵ Crawford (n 11) 141.

¹²⁶ ibid.

¹²⁷ ibid.

¹²⁸ ibid.

¹²⁹ ibid. See also UNGA Res 3203 (XXIX) (17 September 1974).

¹³⁰ See media reports in the days before Kosovo declared independence, eg, ‘Talks on Kosovo Hit a Dead End, Rice Says’ New York Times (New York, 8 December 2007) <http://query.nytimes.com/gst/fullpage.html?res=9F06E4DB1F3EF93BA35751C1A9619C8B63&scp=94&sq=kosovo&st=nyt> accessed 22 February 2012; ‘Here Comes Kosovo’ New York Times (New York, 14 February 2008) <http://www.nytimes.com/2008/02/14/opinion/14cohen.html?scp=57&sq=kosovo&st=nyt>, accessed 22 February 2012.

¹³¹ ibid.

¹³² In this context see the following argument: ‘Statements … [of some government] that Kosovo is independent are little more than feeble attempts to substitute a constitutive approach to recognition for the widely accepted declaratory theory. Such assertions fly in the face of the consensus that Security Council Resolution 1244 continues to apply to the territory of Kosovo, and it might be noted that the “preliminary legal assessment” of the United Nations is that “the opinion does not affect the status of UNMIK or a status-neutral policy”.’ Hannum, H, ‘The Advisory Opinion on Kosovo: An Opportunity Lost, or a Poisoned Chalice Refused’ (2011) 24 Leiden J Int'l L 155CrossRefGoogle Scholar, 156 (emphasis in original).

¹³³ cf text to n 115.

¹³⁴ The ICJ specifically observed that the question posed to the Court did ‘not ask whether or not Kosovo has achieved statehood’. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) 22 July 2010, ICJ Rep 2010, para 51 (Kosovo Opinion).

¹³⁵ The unofficial parliament of Kosovo Albanians issued a declaration of independence on 22 September 1991. See Weller, M, Contested Statehood: Kosovo's Struggle for Independence (OUP 2009) 39CrossRefGoogle Scholar.

¹³⁶ After Serbia abolished Kosovo's autonomy in 1989, Kosovo Albanians created unofficial parallel state organs. In 1991, independence was declared by these organs, which were not in effective control of Kosovo. See Malcolm, N, Kosovo: A Short History (Macmillan 1998) 48Google Scholar.

¹³⁷ Kosovo remains governed by the regime of the international territorial administration, established under UN Security Council resolution 1244, adopted under Chapter VII of the UN Charter. See UNSC Res 1244 (10 June 1999) especially paras 5, 6 and 7. The limitations on independence of Kosovo's government are specifically accepted by the Constitution of the Republic of Kosovo, adopted on 9 April 2009. Article 147 of the Constitution provides: ‘Notwithstanding any provision of this Constitution, the International Civilian Representative shall, in accordance with the Comprehensive Proposal for the Kosovo Status Settlement dated 26 March 2007, be the final authority in Kosovo regarding interpretation of the civilian aspects of the said Comprehensive Proposal. No Republic of Kosovo authority shall have jurisdiction to review, diminish or otherwise restrict the mandate, powers and obligations …’. The Constitution here refers to the so-called Ahtisaari Plan, which foresees Kosovo's ‘supervised independence’, whereby institutions of Kosovo's government remain subordinated to the authority of the international territorial administration. See UN Doc S/2007/168 (16 March 2007). Kosovo thus legally accepted the continuous presence of the supreme international authority, which poses notable restraints on its sovereignty. It is therefore obvious that Kosovo does not have an independent government. ‘Government’ is, however, one of the four Montevideo criteria of statehood. A government of a State needs not only to exist as an authority but also to exercise effective control in the territory of a State, as well as to operate independently from the authority of governments of other States. See A Aust, Handbook of International Law (CUP 2005) 136–7. In this regard, the International Commission of Jurists held that the Finnish Republic in the period 1917–1918 did not become a sovereign State ‘until the public authorities had become strong enough to assert themselves throughout the territories of that State without the assistance of foreign troops’: Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question, League of Nations Official Journal spec supp 3 (1920) 8–9. In regard to Kosovo, it evidently has a government independent of Serbia. However, what is required under the criteria of statehood is a government independent of any other government and not only independent of a particular one.

¹³⁸ As of 22 February 2012, Kosovo has been recognized by 88 States. See ‘Who Recognized Kosova as an Independent State?’ <http://www.kosovothanksyou.com> accessed 22 February 2012.

¹³⁹ cf n 120.

¹⁴⁰ R McCorquodale, ‘The Creation and Recognition of States’ in S Blay, R Piotrowicz and BM Tsamenyi (eds), Public International Law: An Australian Perspective (OUP 2005) 193. See also Shaw, M, International Law (CUP 2008) 207CrossRefGoogle Scholar.

¹⁴¹ See below nn 148–151 and accompanying text.

¹⁴² Quebec case, para 155.

¹⁴³ This follows from the view that international law is neutral in regard to the question of secession (see text to n 106) and also from the position of the Supreme Court of Canada in the Quebec case.

¹⁴⁴ For discussion on illegal entities see below nn 153–5 and accompanying text.

¹⁴⁵ See, eg, Dugard, J, Recognition and the United Nations (Grotius Publications 1987) 135–7Google Scholar and 152–61 and Crawford (n 11) 105.

¹⁴⁶ Kosovo Opinion, para 81.

¹⁴⁷ Prime examples of non-recognition of illegally created effective entities are collective responses to Turkey's illegal use of force in Cyprus, and thus resulting creation of the putative State of the Turkish Republic of Northern Cyprus (TRNC), as well as responses to the declarations of independence of Southern Rhodesia and South African Homelands, which were issued in violation of the right of self-determination and in pursuance of racist policies. See resolutions on the TRNC: SC Res 541 (18 November 1983); Southern Rhodesia: GA Res 1747 (XVI) (27 June 1962), SC Res 202 (6 May 1965), GA Res 2022 (XX) (5 November 1965), GA Res 2024 (XX) (11 November 1965), SC Res 216 (12 November 1965), SC Res 217 (20 November 1965), SC Res 277 (18 March 1970); the South African Homelands: GA Res 2671F (8 December 1970), GA Res 2775 (29 November 1971), GA Res 31/6A (26 October 1976), GA Res 402 (22 December 1976), GA Res 407 (25 May 1977), GA Res 32/105 N (14 December 1977), GA Res 34/93 G (12 December 1979), GA Res 37/43 (3 December 1982), GA Res 37/69A (9 December 1982). Notably, of the relevant Security Council resolutions, only Resolution 277 on Southern Rhodesia was adopted under Chapter VII of the UN Charter, yet universal compliance was nevertheless achieved.

¹⁴⁸ ILC Articles on State Responsibility (n 10) arts 40 and 41.

¹⁴⁹ ibid art 41(2).

¹⁵⁰ Commentary to Article 40, United Nations International Law Commission, Report on the Work of its Fifty-third Session (23 April–1 June and 2 July–10 August 2001) UN Doc A/56/10/2001/283.

¹⁵¹ Commentary to Article 41, ibid 286–90.

¹⁵² The Montevideo Convention on Rights and Duties of States, in its Article 1, provides: ‘The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states’ (Montevideo Convention on Rights and Duties of States 165 LNTS 19 (1933) art 1).

¹⁵³ See, eg, Talmon (n 12) 126.

¹⁵⁴ ibid.

¹⁵⁵ ibid 148, arguing that ‘[n]on-recognition as a State in response to a violation of international law has, in contrast to the politically motivated non-recognition of a State, a clearly defined scope. In the case of non-recognition as a State, it is not the individual State's subjective will to recognize … but the objective legal status of “State” that is at issue’ (emphases in original). Crawford (n 11) 160, argues that, when the illegality in question is substantial, ‘States have a duty under customary international law not to recognize the act as legal. The norm in question must be one of the limited number of peremptory norms or, at any rate, a substantive rule of general international law, so that the illegality is one that involves the international community as a whole and not just particular States.’

¹⁵⁶ Raič (n 76) 105 (emphasis in original).

¹⁵⁷ Talmon (n 12) 138.

¹⁵⁸ Hillgruber (n 13) 494.

¹⁵⁹ See above, section II.C.

¹⁶⁰ Talmon (n 12) 125.

¹⁶¹ ibid 120–1.

¹⁶² ibid 125.

¹⁶³ ibid 126 (emphasis in original).

¹⁶⁴ ibid 180.

¹⁶⁵ ibid (emphasis in original).

¹⁶⁶ ibid.

¹⁶⁷ This does not mean that non-recognized States cannot exist. See section II.C. for examples of the FRY and Macedonia.

¹⁶⁸ UN Charter, art 2(1).

¹⁶⁹ Hillgruber (n 13) 494.

¹⁷⁰ See above, section III.A.

¹⁷¹ See above, section II.C.

¹⁷² See n 5.

¹⁷³ See n 146.

¹⁷⁴ See notes 101–106.

¹⁷⁵ See Quebec case, para 155.

¹⁷⁶ See above, section III.B.

¹⁷⁷ See notes 115–128.