Principle of Recognition PDF

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Principle of Recognition Recognition: A Definition = acknowledge/acceptance = it can refer to the act of reacting to another State’s acts (= acknowledge that sth happens/exist + react to it), and more specifically, to two related but distinct categories of State acts: -> recognition of an entity as a State and -> recognition of that entity’s government as the lawful or legitimate government Restatement Third = Recognition of a State may be independent of the recognition of its government, though the reverse is not true -> if you recognize the government then you have to recognize the state - by recognizing a State we declare it`s existence Recognition of States => is it necessary that the international community recognize a State in order for a state to exist? Declaratory Recognition - Recognition is merely a declaration of a state of law or fact previously legally established - State practice supports the declaratory view -> Montevideo Convention, Article 3: The political existence of a State is independent of recognition by other States => recognition by the existing states is merely a formal acknowledgement of the statehood - not the condition => moreover the statehood depend on some prior conditions => the state also exist even if there is no recognition The Role of Human Rights -> Guidelines on the Recognition of States in Eastern Europe + the Soviet Union (European Community, 1991) => criteria to be recognized by other states (they go beyond Montevideo Convention)

Constitutive Recognition - Political recognition = precondition for the existence of legal rights - Taken literally, this Theory is against sovereign equality; -> existing states whether a new state can become a state -> the existing states got more power -> may be against equality - Problems: how many States? Does the State exist only for recognising States? - It would allow unrecognised States to disregard PIL in its entirety -> bc then they would have no duties bc they are not states - positive aspect: unrecognised States cannot claim rights in municipal courts of unrecognising States => a new entity shall only be called a state when the existing states acknowledges about its statehood

Respect for the provisions of the UN Charter + the Commitments in the Final Act of Helsinki + in the Charter of Paris, especially with regard to the rule of law, democracy and human rights ) Guarantees for the rights of ethnic + national groups and minorities Respect for the inviolability of all frontiers -> they can only be changed by peaceful means + by common agreement Acceptance of all relevant commitments with regards to - disarmament (Abrüstung) - nuclear non-proliferation (Nichtverarbeitung von Kernwaffen) - security + regional stability ) Disputes have to be solved peacefully Collective Recognition = Recognition by means of international decision = While membership of UN constitutes evidence of statehood, individual MSs are not bound by it, + retain the right to withhold recognition (especially of government) Recognition of Governments -> depend on the existence of States - Related but conceptually distinct from recognition of States - only relevant when unconstitutional changes of government takes place -> e.g the change of the government takes place as a result of a revolution

- Political considerations crucial in recognition of governments - standard in PIL is secure de facto control of all or most of State territory (Tinoco Arbitration: GB v Costa Rica, 1923) => recognition of new government means that the existing states are satisfied that the new government has a capacity to control + is willing to perform international duties and obligations De Facto Recognition = preliminary (vorläufig) - Political acknowledge of the situation on the ground - Determination of existence of government, with reservations as to permanence or viability - Does not in itself include diplomatic exchanges

De Jure Recognition = new state is recognized - Recognition of effective control (government) without reservations as to permanence + viability - Could be finalisation of a de facto recognition (Soviet Union, Spain etc.) - only de jure government can present claims in municipal courts of recognising State

Withdrawal of Recognition a) of de facto recognition = is instrinsic in the distinction = possible if the recognized state failed to fulfill the conditions for statehood b) of de jure recognition = is supposed to be permanent + its withdrawal not allowed, unless in cases of change of government, when it is implied c) of previous governments recognition and non recognition of successor is possible as is the de-recognition of previous government following recognition of new government d) Interruption of diplomatic relations does not imply withdrawal of recognition Non Recognition Ex injuria jus non oritur = illegal acts don`t create law = unlawful things are not be recognized - Under certain conditions, a factual situation will not the morality or legality (ex injuria jus non oritur) - relevant in this case: collective non-recognition Non-Recognition and State Responsibility - Duty of non-recognition: -> Article 41(2) ICL DARSIWA „No State shall recognise as lawful a situation created by a serious breach within the meaning of Article 40“ Wall Advisory Opinion (ICJ 2003) - Conclusion of the court -> states under obligation a) not to recognize the illegal situation resulting from the construction of the wall b) not to render aid or assistance in maintaining the situation...