CYIL 2015

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.

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