The Legal Implications of Abba Ebans Statement on Statehood

This essay critically discusses the statement made by Israeli Foreign Minister Abba Eban that the existence of a State is a question of fact and not law and that the criterion of statehood is not legitimacy but effectiveness with reference to the international law on state recognition and personality. There are two aspects to the statement, the first relates to the constitution of statehood as a matter of fact and not law and the second relates to the principle of effectiveness. The statement is made with reference to the supposed effectiveness of Israel’s statehood and ineffectiveness of the Palestinian; while this essay does not delve into the merits of these issues, the question of whether the statement is justified on the basis of legal materials is central to the problem posed in this essay. While it is accepted that the historical facts and state practice shows that Palestinian statehood is recognised, the difference of the legal status of Israel and Palestine cannot be ignored. To a great extent this difference in status, as pointed out by Eban may be due to the lack of legal status of Palestine as a state and the role played by recognition in this context.

One of the seminal definitions of statehood is provided in Article 1 of the Montevideo Convention on the Rights and Duties of States (Montevideo Convention). As per this definition, a state has personality in international law and the constituent elements of statehood are permanent population, defined territory, government, and capacity to enter into relations with other states. These constituents relate to the factual basis of statehood. The problem or controversy is that despite this being a clear definition of statehood, the achievement of these constituents of statehood are in themselves not enough to constitute statehood in international law or state practice. In other words, simply because an entity has these elements, it does not mean that it is a state and simply because an entity does not have these elements, it does not mean that it is not a state. The underlying important factor that needs to be satisfied to be effectively a state under international law is that of recognition. Therein lies the nub of the problem because recognition can be given or withheld on the basis of factors that may have little to do with the entity satisfying or not satisfying the Montevideo Convention criteria. At this point, it is relevant to note that it is also argued that the Montevideo Convention does not provide a complete explanation of statehood in the contemporary period because the four criteria of statehood that are provided in the convention are no longer the only

requirements for an entity to have the status of statehood. There are additional criteria to be satisfied, which include recognition by powerful states, participation in international organisations, and the commitment to the established world order. Thus, even where entities may factually satisfy the criteria of statehood as per the Montevideo Convention, and they may declare themselves to be states and even have international relations with some other states of the world, they may still not be having status of statehood. This raises pertinent questions about the personality of the state in international law and the importance of recognition to constitute the personality of state in the legal sense. At the very least, the Montevideo Convention itself requires that states have capacity to enter into legal relations with other states, which essentially requires that states recognise each other’s legal status as states.

Abba Eban’s statement that the existence of a State is a question of fact and not law and that the criterion of statehood is not legitimacy was made in response to the request for an advisory opinion of the International Court on the status of Palestine. There are two points of significance in this statement. First, there is an appeal to the declaratory theory of law which emphasises on the existence of statehood as a matter of fact and not of law. The second is the delinking between legitimacy of statehood and effectiveness of statehood. Both these issues have proved to be problematic or controversial in international law, with little consensus in academic opinion (as this essay will show) as well as disparate state practice. It may be noted that the international community as well as the UN has evidenced disparate practice with relevance to recognition of entities as states. For instance, although it was considered that effectiveness is the criterion for recognition of statehood, the UN has recognised Congo and Angola even

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1. John Quigley, The statehood of Palestine: international law in the Middle East conflict (Cambridge University Press 2010), preface.
2. ILSA, The Montevideo Convention on the Rights and Duties of States signed at Montevideo, Uruguay, on, during the Seventh International Conference of American States (1933) at
3. Milena Sterio, ‘A Grotian moment: changes in the legal theory of statehood’ (2010) 39 Denv. J. Int'l L. & Pol'y 209, 209- 210.
4. Ibid.
5. James Crawford, The Creation of States in International Law (2nd edn, OUP 2006) 3.

when they were in the middle of civil wars. Other entities like Croatia, Bosnia and Herzegovina were recognised as states even when they did not have effective control over the territories. This does not accord with the idea of effectiveness or factual existence of states. On the other hand, the act of recognition by a large number of states like in the case of Croatia, Bosnia and Herzegovina in 1992 can lend support to the claim of statehood where the collective recognition such as through the UN could lend credence to statehood claims.

While there are divergent opinions on how far recognition is central to constituting statehood, more particularly within the declaratory and constitutive approaches to statehood, it is an essential element in establishing relations amongst states. Lauterpaucht argues that recognition is not synonymous with statehood, and it is not constituting statehood. In the case of Kosovo, which received recognition from many states, including the powerful ones, the International Court of Justice decided that entities have right to self-determination and this can be used for declaring their independence. On the other hand, many member states of the UN refused to recognise the legal status of statehood for Kosovo which means that it could not become a member state of the UN. Therefore, despite getting recognition by some of the powerful states within the UN itself, Kosovo is not for all intents and purposes a state. It is not a member of the UN or some of the other international organisations. What does this say about the factual statehood of Kosovo or the relevance of recognition of statehood? It can be said that the concept of statehood is fluid like international law and that it is difficult to say with certainty what constitution of statehood means.

Eban’s statement is in consonance with what Oppenheim has said: statehood is a matter of fact and not law. This is the approach of the declaratory theory and it is based on realism where the emphasis is on the effectiveness of statehood and not really legitimacy; it would be futile for realists to deny existence of state that exists factually. The constitutive theory takes a divergent approach arguing that statehood is a matter of law. This approach places emphasis on recognition of the entity as a state and argues that statehood is constituted on the basis of recognition. However, this raises another question. Is there a difference between capacity of statehood and status of statehood so that where an entity is factually a state this would mean that it has capacity but status would relate to the legal condition of recognition of statehood by other states. In other words, even if statehood is factual in nature, the recognition of the state by the international community would be central to its having relations with the other states. Lack of recognition may go to the root of status of statehood irrespective of the capacity. There are entities in this world that factually meet the indices of statehood but are not recognised as such. Taiwan is a good example of such an entity. It factually is a state, but due to non recognition by many countries of the world, it is not able to get membership of important international organisations like the United Nations and the World Health Organisation. This is the problem that is associated with the differences between the capacity of statehood (a factual issue) and status of statehood (a legal issue). If the argument made by Abba Eban is accepted that statehood is factual in nature, this does not answer the problem of non-recognition because even if factually the entity conforms with the elements of statehood, if other states do not recognise it as such, then its status is affected. To take the case of Taiwan or the Republic of China again, the indices of statehood are met by Taiwan. It is an independent state, with territory, government, population and the capacity to enter into relations with other states; however, only has international relations with about 14 countries in the United Nations as most countries have not recognised it as a state as yet.

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6. H Lauterpaucht, Recognition in International Law (Cambridge: Cambridge University Press 2012) 45.
7. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion), General List No. 141, 22 July 2010.
8. Jure Vidmar, ‘Kosovo: Unilateral Secession and Multilateral State-Making’ in J. Summers (ed.), Kosovo: A Precedent? The Declaration of Independence, the Advisory Opinion and Implications for Statehood, Self-Determination and Minority Rights (M Nijhoff 2011).
9. James Crawford, The creation of states in international law (Oxford University Press 2006) 3.
10. Ibid, 4.
11. Yael Ronen, ‘Entities that can be states but do not claim to be’ in Duncan French (ed.), Statehood and Self-determination: reconciling tradition and modernity in International Law (Cambridge University Press 2013) 23.
12. Eva Dou, ‘Solomon Islands Ends Diplomatic Ties with Taiwan, Stands by China’ (The Wall Street Journal, 2019) at

To come back to the statement made by Eban, this is an argument that statehood is factual with reference to the statehood of Palestine. Palestinian statehood is one of the vexing questions in international law and one on which academic consensus and state practice is not consistent. Quigley uses historical evidence related to the League of Nations arrangements on Palestine in 1924 to argue that Palestine was a state in 1924 and the Israeli annexation in 1948 did not change that status of statehood. However, if state practice with regard to Palestinian and Israeli recognition is considered, then Palestine cannot be said to have been definitely accorded recognition and Israel clearly has managed to obtain early recognition of statehood in 1948 itself from many states within the UN. It is true that the differences between Palestine and Israel with reference to recognition may be attributed to political factors as state practice indicates that there are political compulsions and reasons for why states give or withhold recognition. However, even if that is so, the fact of not receiving recognition as a state goes to affect the status of statehood. This can be seen in the case of Palestine before the International Court of Justice.

The fact that an entity is recognised as a state or recognition is withheld collectively by the international community can have a major role to play in the constitution of legal status of statehood irrespective of the factual status of the entity. Even if the argument made by Eban is accepted and it is said that statehood is factual in nature, the argument fails to account for the effects of non-recognition of statehood in international law. One of these is the possible inability of entities that are not states to approach the International Court of Justice; although this is a somewhat grey area. In the case of the Federal Republic of Yugoslavia, factual statehood was clearly allowed to constitute statehood for the purpose of appearing before the ICJ despite non recognition by other states. On the other hand, Kosovo declared itself to be a state even though it was created out of a state that already existed. It was recognised by 117 states but ICJ was silent on its status as a state in the Kosovo Advisory Opinion.



Collective recognition as a state can have a significant implication for the legal status of the state. A case in point is of the Saharan Arab Democratic Republic (SADR), declared itself to be an independent in 1976. Many members of the Organisation of the African Unity extended formal recognition to the new state and its delegation was given a seat in 1984 at the OAU Assembly of Heads of States and Governments. The Polisario received recognition from the UN in 1979. In this respect, the fact of collective withholding of recognition becomes relevant because membership to international organisations depends on collective recognition of the right to such membership by existing members. This is the reason why Taiwan, despite factually satisfying the indicia of statehood is not able to have membership of the UN.

The idea that state is factually so is also related to the personality of the state. Firstly, state is a subject in international law with direct rights and responsibilities, ability to bring international claims for violations of responsibilities, and participation in international law development. When does an entity have a legal personality of this nature in international law; is it factually constituted or does recognition play a role? In the Reparations Case, the International Court of Justice explained this as follows:

“An entity has international legal personality if it has direct international rights and responsibilities, can bring international claims, and is able to participate in the creation,

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13. Hans Agné, Jens Bartelson, Eva Erman, Thomas Lindemann, Benjamin Herborth, Oliver Kessler, Christine Chwaszcza, Mikulas Fabry, and Stephen D. Krasner, "Symposium ‘The politics of international recognition’ (2013) 5 (1) International Theory 94.
14. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J Reports 2004 (I), pp. 171-172.
15. Jure Vidmar, ‘Statehood And Collective Recognition’ in Routledge Handbook of State Recognition (Routledge 2019).
16. Stefan Talmon, ‘The constitutive versus the declaratory theory of recognition: Tertium non datur?’ (2005) 75 (1) The British Year Book of International Law 101.
17. Kosovo Advisory opinion, ICGJ 423 (ICJ 2010), judgment of 22nd July 2010.
18. Malcolm N. Shaw, International Law (Cambridge: Cambridge University Press 2014) 171.
19. Committee on the United Nations, The Legal Issues Involved In The Western Sahara Dispute and The Principle of Self-Determination and the Legal Claims of Morocco (New York: NYCB 2012) 2.
20. Timothy S Rich, ‘Status for sale: Taiwan and the competition for diplomatic recognition’ (2009) 45 (4) Issues & Studies 159.

development, and enforcement of international law i.e. if it is a subject of the international legal system.”

In international law, the concept of state sovereignty becomes central to determination of effective statehood. For instance, only sovereign entities can participate in the creation of international law as noted in the Reparations case above. Furthermore, in Case of S.S. Wimbledon, it was held that the right of entering into international engagements is an attribute of State sovereignty. How can states enter into international engagements unless they are recognised as states? Declaratory theory argues that the act of recognition is a mere formal acknowledgement of what already exists and does not bring an entity into statehood. In other words, statehood is factual in nature. However, without recognition there cannot be existence of international legal relations, and without the ability to enter into such legal relations, the very idea of the statehood of an entity may be suspect. This can be seen in the following example. In the case of Biafra, the indices of statehood were met (as per the Montevideo Convention) and declaration on

independence took place in 1967. However, international recognition for the entity was not obtained and eventually Biafra became a part of Nigeria. This does not support the argument made by Eban that statehood is a matter of fact and not of law. If that were the case then the statehood of Biafra would be constituted by the facts of it being an entity with a territory, permanent population, government and sovereignty. However, the fact that it did not receive recognition of international community meant that it could not exercise its ability to enter into legal relations with the other states. Therefore, its factual satisfaction of the indices of statehood did not do much to constitute effective statehood in international law.

The second leg of the argument made by Eban is that criterion of statehood is not legitimacy but effectiveness. Effectiveness as a principle itself has undergone important changes in the 20th century; seen earlier as an alternative to the legitimacy of the monarchical states, the principle of effectiveness underwent important changes with the Stimpson doctrine under which League of Nations refused to recognise the legality of the annexed territories like Manchuria. Therefore, there was a deliberate move to deny recognition to factual situations with the development of the Stimson doctrine in reference to what were seen as illegitimate declarations of statehood. Moreover, the process of decolonisation as well as the increased accceptance of the right of self-determination of the peoples has also led to the watering down of the effectiveness principle and brought some focus on to legitimacy. The right to self-determination contradicts the emphasis on the effectiveness principle. Some of the legal materials adopted in the 20th century do support this diminishing of the effectiveness principle. One of these is the Declaration on the granting of independence to colonial countries and peoples, which has led to the modification of the principle that concept of state is based on effectiveness and not legitimacy.

Another reason why the principle of effectiveness is giving way to legitimacy is the factor of human rights and minority rights. The principle of self-determination can be part of this aspect as well. Therefore, entities that factually are states, that is, are effectively states, may not be recognised as such because of the principles of human rights values or minority rights values that may see the international community refuse to recognise the entity as states. At least two examples belie the argument made by Eban that statehood is based on effectiveness and not legitimacy and support the argument that there have been important changes made to the effectiveness principle’s application for the constitution of statehood. The first relates to Rhodesia and the second to Northern Cyprus. Both the examples demonstrate that even if the entity meets the criteria of statehood and can be said to be states factually, they may not be able to obtain recognition of statehood from the international community on the basis of lack of legitimacy or

breach of international law. Rhodesia had all the indices of statehood, but the fact that it had a government of White minority based on Apartheid led to the other states denying recognition to it. Lack of recognition meant that even if effectively a state, it could not enter into legal relations with other states, become members of international organisations and have generally the status of state in the international community. With relevance to Northern Cyprus, illegal invasion and occupation by Turkey in 1974 led to the denial of recognition from the majority of the states of the world. The Rhodesian case exemplifies the refusal of states to recognise statehood of a new entity or government because it is thought to be illegitimate on the grounds of human rights.

Legitimacy of the entity as a state can also depend on the immediate factors responsible for how statehood was created. This is particularly true in the context of unilateral declarations of independence. Once again, the question of Kosovo is relevant here. Kosovo’s claims of statehood is based on the Kosovo’s Declaration of Independence which was unilateral in nature. Prior to the declaration of independence however, Kosovo had already received promises from a number of powerful states that it would receive recognition as a state. There were decided legal effects of the international involvement in the state-making process in Kosovo and it has been argued that while unilateral declaration of independence may not constitute statehood, collective international endorsement can have the desired effects of constitution. Nevertheless, the uncomfortable fact of possible precedent for future secessionist movements, self-declaration of statehood and the effects of recognition for the constitution of statehood do remain. The question of legitimacy is deeply involved in this question. Eban argues that legitimacy is not relevant, effectiveness is. If that were true, then Kosovo could have been a member of the UN. However, the question of legitimacy does arise in the event of self-declaration of independence especially in secessionist contexts. Take the example of Quebec, where certain questions of statehood independent from Canada have been raised before the Supreme Court of Canada. The Supreme Court posed the following question which also relates to unilateral declaration of independence:

“Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?”The opinion of the Supreme Court appears to answer this question in the negative wherein the court was of the view that while people have the right to self-determination, it does not extend to external self-determination, which belongs to Canada and not to Quebec. Therefore there is a clear rejection of Quebec’s claim to statehood. To conclude, it can be said that state practice and even the decisions of international organisations like the UN indicate that it is not entirely correct to say that statehood is always factual. Even with reference to the principle of effectiveness, there is a change in this and a definite move towards legitimacy as the many examples in this essay have shown. Statehood therefore is a matter for both law and fact and also involves questions of legitimacy and not just effectiveness.

The opinion of the Supreme Court appears to answer this question in the negative wherein the court was of the view that while people have the right to self-determination, it does not extend to external self-determination, which belongs to Canada and not to Quebec. Therefore there is a clear rejection of Quebec’s claim to statehood. To conclude, it can be said that state practice and even the decisions of international organisations like the UN indicate that it is not entirely correct to say that statehood is always factual. Even with reference to the principle of effectiveness, there is a change in this and a definite move towards legitimacy as the many examples in this essay have shown. Statehood therefore is a matter for both law and fact and also involves questions of legitimacy and not just effectiveness.

Books

Committee on the United Nations, The Legal Issues Involved In The Western Sahara Dispute

The Principle of Self-Determination and the Legal Claims of Morocco (New York: NYCB 2012).

Crawford J, The Creation of States in International Law (2nd edn, OUP 2006).

Lauterpaucht H, Recognition in International Law (Cambridge: Cambridge University Press 2012).

Quigley J, The statehood of Palestine: international law in the Middle East conflict (Cambridge University Press 2010).

Ronen Y, ‘Entities that can be states but do not claim to be’ in Duncan French (ed.), Statehood and Self-determination: reconciling tradition and modernity in International Law (Cambridge University Press 2013).

Shaw MN, International Law (Cambridge: Cambridge University Press 2014).

Vidmar J, ‘Statehood And Collective Recognition’ in Routledge Handbook of State Recognition (Routledge 2019).

Vidmar J, ‘Kosovo: Unilateral Secession and Multilateral State-Making’ in J. Summers (ed.), Kosovo: A Precedent? The Declaration of Independence, the Advisory Opinion and Implications for Statehood, Self-Determination and Minority Rights (M Nijhoff 2011).

Journals

Agné H, Bartelson J, Erman E, Lindemann J, Herborth B, Kessler O, Chwaszcza C, Fabry M, and Krasner SD, ‘Symposium ‘The politics of international recognition’ (2013) 5 (1) International Theory 94.

Amamkpa AW and Mbakwe PU, ‘Conflict Early Warning Signs and Nigerian Government Response Dilemma: The Case Of Increasing Agitations for Statehood by Indigenous People of Biafra (IPOB) and Movement for the Actualization of Sovereign State of Biafra (MASOB)’ (2016) 1 African Journal of History and Archaeology 10.

Eggers AK, ‘When is a State a State? The Case for Recognition of Somaliland’ (2007) 30 B.C. Int. Comparative Law Rev. 211.

Ijalaye DA, ‘Was “Biafra” at Any Time a State in International Law?’ (1971) 65(3) American Journal of International Law 551.

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