6 Recognition of States and Governments PDF

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Recognition of States ● Even when States meet the Montevideo criteria, difficultto enjoy meaningful international legal personality of other States do not recognize it or refuse to enter into relations with it (same goes for governments of a State)Theories Declaratory Theory ● An entity's statehood ...

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Recognition of States ● Even when States meet the Montevideo criteria, difficult to enjoy meaningful international legal personality of other States do not recognize it or refuse to enter into relations with it (same goes for governments of a State) Theories Declaratory Theory ● An entity's statehood is independent of its recognition by other states → State exists as long as it meets the Montevideo criteria (exists as a matter of fact → normative criteria) ● There may be a gap between declaring independence and being recognized by the recognizing state ● Natural law view of international law as an objective order ● Brierly, The Law of Nations ○ State may exist without being recognized, and if it does exist in fact, then whether or not it has been formally recognized by other states, it has a right to be treated by them as a state ● Opinion No.1 ○ Effects of recognition by other States are purely declaratory ● Opinion No.8 ○ Declarative value that confers on the State certain rights and obligations under international law ● Opinion No.10 ○ Declaration is a discretionary act that other States may perform when they choose and in a manner of their own choosing Constitutive Theory ● State must be recognized by other States in order to have legal status as a matter of international law ○ Satisfaction of the Statehood criteria is necessary, but not sufficient ● Favour given to big, existing countries → more politicized ● Recognition can be express or implicit → depends on intention ● Confusion: ○ when some states recognise a new entity, but other states do not ■ Palestine, Kosovo ○ Leaves the non-recognized state without rights and obligations with regards to the States that do not recognize it ○ One state deciding upon another state’s personality in international law is at odds with the fundamental principle of sovereign equality Middle Way ● Recognition can serve as evidence to support a claim that an entity has satisfied the criteria for Statehood Collective Recognition / Non-Recognition ● Acceptance/rejection by a significant portion of the ‘international community’ that an entity is a State ○ Ex. UN system through the UN General Assembly and the UN Security Council ● Curative effect - even if the State does not quite meet the Montevideo criteria, the ‘defect’ in the statehood can be cured by collective recognition ● Stimson Doctrine - suggests that in certain conditions, a factual situation will not be recognized because of strong reservations as to the morality or legality of the actions adopted to bring about that factual situation ○ US response to invasion of Manchuria by Japan when in fact, it belongs to China ● Security Council resolutions may also oblige non-recognition → ex. Called all States not to recognize the Iraqi invasion of Kuwait

EC Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union ● Recognition was not only dependent on the Statehood criteria, but on acceptance of certain minimum internal standards ○ international obligations to the rule of law, democracy, and human rights ○ Minority rights ○ Respect for existing boundaries ○ Acceptance of relevant commitments with regard to disarmament and recourse to arbitration

Recognition of Governments Determining Governmental Status ● Usually no doubt who the Head of State is and presumed to act on behalf of the State in international relations ● However, armed conflict = competing entities to be seen as government → practice is usually to determine who has “effective control” over the territory ● Tinoco Arbitration ○ Tinoco ousted Government of Costa Rica → was Tinoco recognized? ○ Many leading powers refused to recognize the Tinoco government → “non-recognition by other nations of a government claiming to be a national personality is usually appropriate evidence that it has not attained the independence and control entitling it by international law to be classified as such” ○ Non-recognition however cannot outweigh the evidence of the peaceful de facto character of Tinoco’s government according to the standard set by international law ○ Employed the declaratory not constitutive theory of recognition Form of Recognition ● De facto recognition - some doubt as to the stability or nature of the government in question ● De jure recognition - when the recognizing state is certain that the government has effective control, is permanent, and in the absence of anything else seen as detracting from this status ● UK - 1980’s statement announced they would no longer recognize governments as distinct from States → concern that recognizing a government could be seen as implying approval of that government’s policies and practices ○ Previous Executive recognized a government through Foreign Office certificate ● US - attempts to separate recognition from approval of policies Recognition (or Non-Recognition) of Governments/ States in UK Domestic Law ● State recognition → conclusive on the question of Statehood ● Governments → see the next two cases below ● Republic of Somalia v Woodhouse Drake and Carey Suisse SA ○ Identity of the government on Somalia and whether they were entitled to the proceeds from the sale of a cargo of rice to be paid out (Court was holding it right now) ○ Hobhouse J - Rigorous test established when looking for recognition of governments: ■ Has the government been constitutionally established? ■ Does it have effective control? ■ Has the UK dealt with it officially? ■ In marginal cases, has the international community had dealings with it? ○ Decision: interim government did not satisfy all these conditions ● British Arab Commercial Bank plc v National Transitional Council of Libya

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Woodhouse approach not applied Bank provided banking services for the Libyan embassy in London Civil war in Libya → UK Government announced they would only recognize and deal with the National Transitional Council (NTC) → no longer recognizes the Gaddafi regime ○ At the request of the court, UK Foreign and Commonwealth Office provided an official certificate stating this ○ Court granted the bank a declaration to the effect that it should operate the embassy accounts on the instructions of the NTC ○ Exceptional circumstance that because of this certificate recognition → executive and judicial functions had “one voice” Normally in the absence of recognition, the Woodhouse case applies Re Al-Fin Corporation’s Patent ○ Patents Act 1949 allows for an extension of the patent if losses suffered during “hostilities between His Majesty and any foreign state” → Claimant seeks extension for loss during Korean War ○ North Korea → letter from the Foreign Office indicating that North Korea was not recognized as a state ○ Nonetheless, there is a difference between recognizing a State in general and recognizing a State for the purposes of a particular Act of Parliament ■ Act of Parliament → analyzes the intention of Parliament

*The Montevideo Convention, the constitutive and the declaratory theories have informed debates and practices of statehood, but they are informative rather than definitive…”...