STAIES AND GOVERNMENTS

42 Mhle

3, Montevideo Convention.

States. Even before recognition the State has the right to defend its integrity independence, to provide for its conservation and prosperity, and consequen[y organise itself as it sees fit, to legislate upon its interests, administer its serviceq. and to define the jurisdiction and competence of its courts. The exercise ofthcsa

/*l

see text below

{{
{5

8H.
EPl[ 1 0

See Chapter 2 above, 28,

G. Hoffrnann, Pr0tectorates,

(1984,336-9.

t6
47 /|8 49

See Chapter'19

below,327-32.

rights has n0 other limitation than the exercise of the rights of other Ststss
according to international law.42

See also M.N. Sha\N, lnternati1nal

LawS.dedn 1991,138,
See text

below,82-90. 393-5.

See Chapter 22 below,

Although this statement is more directly relevant to the disputc

various theories of the legal effect of recognition,a3 it also implies that existence of a state does not primarily rest on its relations to other and its own foreign policy capacity.

There are several examples of dependent states, which have a limited capacity to enter into international relations and are mentioned as a special category. For example, colonies in the process becoming independent# often had a limited capacity to enter into int national relations. In practice, the formal grant of independence
usually preceded by a period of training, during which the colonial delegated certain international functions to the colony, in order to give local leaders experience of international relations. Protectorates another example.ls The basic feature of a protectorate is that it control over most of its internal affairs, but agrees to let the state exercise most of its international functions as its agent. However, exact relationship depends on the terms of the instrument creating relationship, and no general rules can be laid down. Protectorates generally a by-product of the colonial period, and most of them have become independent. Trusteeships and 'associated territories' that placed under the control of the United Nations after the Second WorH War were also limited in their capacity to conduct foreign relations.a6
Self-determination and recognition as additional criteria

Some authors refer to other additional factors that may be relevant rs criteria for states, such as self-determination and recognition. These, however, are not generally regarded as constitutive elements for a state and it is agreed that what matters in essence is territorial effectiveness.aT For reasons which will be explained later,+8 the better view appears to be that recognition is usually no more than evidence that the three requirements listed above are satisfied. In most cases the facts will be so clear that recognition will not make any difference, but in borderline cases recognition can have an important effect. For instance, recognition of very small states such as Monaco and the Vatican City is important, because otherwise it might be doubted whether the territory and population of such states were large enough to make them states in the eyes of international law. Similar considerations apply in the case ofsecessionary struggles; outright victory for one side or the other will create a situation which international law cannot ignore, and no amount of recognition or non-recognition will alter the legal position; but in borderline cases such as Rhodesia (now Zimbabwe) between 1965 and 1979, where the mother state's efforts to reassert control are rather feeble, recognition or non-recognition by other
states may have a decisive effect on the legal position.+e

GOVERNMENTS

81

states

50
see
(1

For the internalional law aspects

of states can take several forms, but one of the most important nowadays is the federal state (or federation), as exemplified, for
by the constitutional systems of the United States, Canada, AusSwitzerland and Germany.50 There is no uniform model of federal many of which are 'federal' in name only, due to effective centralizabut the basic feature of a federal state is that authority over internal is divided by the constitution between the federal authorities and member states of the federation, while foreign affairs are normally solely by the federal authorities.5r International law is concerned only with states capable of carrying on relations; consequently the federal state is regarded as a state 6e purposes of international law, but the member states of the federare not. If a member state of the federation acts in a manner which is rpatible with the international obligations ofthe federal state, it is the state which is regarded as responsible in international law. For when a mob lynched some Italian nationals in New Orleans in , dre United States admitted liability and paid compensation to Italy though the prevention and punishment of the crime fell exclusively ir the powers of the State of Louisiana, and not within the powers of

W Rudolf, Federal States, EPI

ll

995), 362-75; R. Dehousse,

Fid'ralisme et Relations
lnternationales, 1 991
.

51

For the situation in the United

States see Eeslalelrent

(Thiril,Vol.1

para. 202, Beporters' Notes,76.

52

J.B. Moorc, A Digest of lnternational

Vol. 6, 837-41 .
1

larx 1 906,
cqL7,

0n state
7 below,

responsibility see Chapter

53

See J.N, Hazard, Soviet Republics

in lnternational Law,

EPI 10 (1987),

418-23.

54

See P Malanczuk, European Affairs

and the

Republic ol Germany, CMLR

'Landef (States) 0f the Federal 22 (1985),

237-72; D. Bauschning, The

Authorities of the German Lander in
Foreign Relations, Hague

ff

2 0989),

131-9; A. KleffnerBiedel, Die

Miilvirkung der Lander und Regionen im EU-Ministerrat, BayVBl. 1 26 (1995\,
1

04-8.
Bestatement (Third),Vol.1 , pata.
R. Lane/P Malanczuk,

#
56

ftderal authorities.sz

201, Reporters' Notes, 76.

Verfassungskrise

tlrhough the normal practice is for foreign affairs to be handled by the federal authorities, there are a few federal constitutions il give member states of the federation a limited capacity to enter irternational relations. For instance, in 1944 the constitution of the
USSR was amended so as to allow the Ukraine and Byelorussia member states of the USSR) to become members of the United alongside the USSR; the purpose and effect of this device was the USSR three votes instead of one.s3 There has been no other example of a member state of a federation exchanging dipon this level. The representation of the German Bundeslinder on European level in Brussels is of a different nature.s{ The constitution tc United States permits a constituent state to make compacts or ts with foreign powers - with certain minor exceptions - only

und Probleme des

Ftideralismus in Kanada, Der Staat20

(1

981), 539-70; on recent secessionist

tendencies see S. Dion, The Dynamic of Secessions: Scenarios After a ProSeparatist Vote in a Quebec

Beferendum, CJPS 28
FA

(1

995), 53F51

Ch. F Doran, Will Canada Unravel?,

75

(1

996), 97-1 09, n

57

U. Beyerlin, Rechtsproblene der

gre n zliberschre ite nde
1

lokl e n

Zusanmenarbeit,

988; N. Levrat,

le

Droit applicable aux accords de

m@ration
1

transfrontiCre entre

mllectivitds publiques 994.

infra

ebilques,

6e consent of Congress, but these are limited in scope and conIt does not allow the exchange of ambassadors (only commercial tives) or to generally engage in relations with a foreign

t.ss In recent years the province of Qrebec has signed treaties on questions with France and other French-speaking countries, powers reluctantly delegated by the federal authorities of Canada.s6 Europe, however, there have been interesting developments of transfrontier cooperation between entities on the local and regional

cannot exist flor long, or at least cannot come into existence, unless a government. But the state must not be identified with its governthe state's international rights and obligations are not affected by a

STAIES AIiID GOVERNMENTS

58

BrrtAl 369, 375. See H. Bulck,

Concessions Arbifialion, EPIL 2

lirm
(1981),
of

27F6.

For turther drscussion

the Tinooocase, see text below,

change of government. Thus the post-war governments of West and Italy have paid compensation for the wrongs inflicted by the Nazi Fascist regimes. The same principle is also illustrated by the Tinoco

a*.

84,88. 59 0n arbitralion see Chapler 18

Tinocq the dictator of Costa Rica, acting in the name of Costa Ri

granted concessions to British companies and printed banknotes, some which were held by British companies. After his retirement, Costa Ri declared that the concessions and banknotes were invalid. The U Kingdom protested on behalf of the British companies, and the two referred the case to arbitration.se The arbitrator held that Tinoco had the effective ruler of Costa Rica, and that his acts were therefore bi on subsequent governments; the fact that his regime was unconstitu under Costa fucan law, and that it had not been recognized by states, including the United Kingdom, was dismissed as irrelevant.

il *e tlanis CMIL, 139-51 ; H.

Lauterpacht, Recog nitio n i n lnternational Law,
'1947;

beloil,293-.

l, Brownlie,

Recognition in Theory and Practice, in R.St.J. Macdonald/D.M. Johnston (eds),

Ihe Structue and Process of

lnternational Law,
1

983, 627-42; J.A.

Frowein, Recognition, EPlt 10

(1984,

34H;

Frowein, Non-Remgnition, ibid,

314-6; C. Warbrick, Recognition of

States, /ct0 41 (1992), 473-82; Part 2, DLA 42 0s93), 43342; J.
Verhoeven, La Reconnaisssance

Recognition of states and governments in intemational law

Recognition is one of the most difficult topics in international law.60 It b of politics, international law and municipal law. legal and political elements cannot be disentangled; when granting r withholding recognition, states are influenced more by political than by legal considerations, but their acts do have legal consequences. What fo not always realized,, however, is that the legal effects of recognition in international law are very different from the legal effects of recognitim in municipal law.6r Once this distinction is grasped, the whole topic of recognition should become easier to understand; apparent conflictr between two sets of cases will be easily resolved when it is realized th* one set is concerned with international law and the other with national
a confusing mixture
law.62

inlemationale: d6clin ou renouveau?,

FDI

39 (1993), 7-40; PK. Menon, r/le

P rincipl es,

Law ot Recognition in lnternational Law: Basic

1

994.

61

ln other countries the legal effects

0f recognition are not the same as in Great Britain: D,P 0'Connell,

lntemational Law, 2nd edn 1 970,

72-

83. For the legal effects of recognition

under English law, see Akehurst, 6th edn oI this book,

67-9. See also

F,A.

Mann, The Judicial Rectgnition 0f an Unrecognised State,

/Cl0 39 (1990),

348 et seq. and text below, 86-8.

62 0n the
Chapter 4

relation between

international law and national law see

above,6174.
below,154-5.

fil
64

See Chapter 10

E.H. Riedel, Recognition of

Belligerency, EPIL 4 11s82\, 1 67-71, Riedel, Recognition 0f lnsurgency, lDld,

1

71-3. See also Chapters 6, 10,s-5

See F.L.M. van de Craen, Palestine

and 1 9, 31 9-22, below.

65

Liberation organization, EPlt 12

27H2 and Chapters 19,33H below.

66
See

0990), 6, 104-5 and

W Meng, Recognition ot
1

Foreign and Legislative Acts, EPll

(1987), 348-52; K, Lipstein,

Recognition and Execution of Foreign

Judgments and Arbitral Awards, FPI

tl

0 986), 322-6. See Restatenent [hnd,Uol. 1,

Another reason why recognition is a difficult subject is because it deah with a wide variety of factual situations; in addition to recognition of states and governments, there can also be recognition of territorial claimsr6r tlrc recognition of belligerency or of insurgents,6a the recognition of nationd liberation movements, such as the Palestine Liberation Organization,6s or the recognition of foreign legislative and administrative acts.66 In the present section of the book it is proposed, for purposes of simplicity, to concerrtrate on recognition of states and governments. Today a clear distinction must be made between the recognition of e state and the recognition of a got)ernmenl. The recognition of a state acknowledges that the entity fulfils the criteria of statehood. The recognition of a government implies that the regime in question is in effective control of a state. The basic difference is that the recognition of a govern-

ftra.202,84-5,

ment necessarily has the consequence of accepting the statehood of the entity which the regime is governing, while the recognition of a state can be accorded without also accepting that a particular regime is the government of that state.u'
Becognition of states

When a new state comes into existence, other states are confronted with the problem of deciding whether or not to recognize the new state-

RECOGNITION OF STATES AND GOVEBNMENTS

83

tte

means a willingness to deal with the new state as a member international community. The first example in history was the ition in 1648 by Spain of the United Netherlands, which had their independence in 1581. Another well-known example is the between France and Britain on the status of the United States it declared its independence. At that time Britain took the view that to territory could never be established by revolution or war without pition by the former sovereign. It was the view of France, however,

ition

68

Frowein

(1984, op, cit.,341. 11-12

@
70

Lauterpacht, op. cit., 47.

See ChaDter 2 above,

was based on the

doctrine of effectiveness, that became the accepted in the nineteenth century.68

of rwognition in infumational law question of the legal effects of recognition has given rise to a bitter ical quarrel. According to the constitutive theory, advanced in by Anzilottii and Kelsen, a state or Bovernment does not exist 6e purposes of international law until it is recognized; recognition has a constitutive effect in the sense that it is a necessary condition fte 'constitution' (that is, establishment or creation) of the state or concerned. Thus, an entity is not a state in international until it has secured its general recognition as such by other states. onstitutive theory is opposed by the declaratory theory, according hich recognition has no legal effects; the existence of a state or

is a question of pure fact, and recognition is merely

an

of the facts. If an entity satisfies the requirements of a obiectively, it is a state with all international rights and duties and states are obliged to treat it as such. An intermediate position was by Lauterpacht whq on the basis of the constitutive theory,
that other states had an obligation to recognize an entity meeting iteria of a state.6e y the constitutive theory has more to be said for it than one suppose. During the nineteenth century, international law was often as applying mainly between states with a European civilization; ountries were admitted to the 'club' only if they were 'elected' by der 'members' - and the 'election' took the form of recognition. were also occasions (for example, during the period of the Holy immediately after l8l5) when some states tended to treat revogovernments as outlaws, which were likewise excluded from the

until they were recognized.To today recognition can sometimes have a constitutive effect,
state practice is not always consistent. If the establishment of a government is a breach of international law, the state or governfo often regarded as having no legal existence until it is recognized. kncg for many years the Western powers refused to recognize the of the German Democratic Republic (East Germany), mainly they considered that its establishment by the Soviet Union was a of the Soviet (Jnion's obligations under treaties made between the ning the administration of Germany after the Second World The recognition of the German Democratic Republic by the Western m 1973 had a constitutive effect as far as the Western powers were

(r

u
n
(1

STAIES AI,ID GOVEENM ENTS

See G. Ress,

&rmany, Legal Status

Schweisfurth,

After

tle

Secmd Wotldwa\ EPlLll

; T.

!X6), 567-1

Gemarry, occupation After the Second World Ular, rbld,582-90; T. Eitel,

Germany, Federal Republic of, Treaties

wih Socialist Stales (1970-q, ibid.,

561-7;
G.v. Well, Germany and

the
l,

United Nations,

in Wolfrum UNLPP

558-65. 0n the reunification of

Germany and the problems of state

succession see chapter

1 below,

167-.

72

See text above, 78 and Chapter

19 below,326+0,

73

nnococase,op.cit,
op.

74 lbid.,at381. 75 See Frowein (1 987\,

cit.,342,

Restatenent (Thid),Vol. 1, para. 202, Comment b, at 77-8, noting, however, 'As a practical matter, however, an entity will fully enjoy the status and
benefits of statehood only if a signilicant

numbr of other states consider lt to be

a state and treat it as such, in bilateral

relations or by admitting it to maj0r international organizations,'

76
oq

Article 3, see text above, 79-80.

Chapter

T7 0n the 0AS see

6 below,

78

Frowein (1987), op.

cit.343.

concerned; recognition cured the illegality of the German Republic's origins, and converted it from a legal nullity into a state.Tl However, in most cases the establishment (even the violent establi ment) of a new state or government is not a breach of international there is no general rule of international law which forbids a group people from overthrowing the government of their state, or to break and form a new state, ifthey have the strengh to do so.72 In such cases existence of a state or government is simply a question of fact, and tion and non-recognition usually have no legal effects. For instance, in Tinoco case, Chief Justice Taft, the arbitrator, held that Tinoco's regl was the government of Costa Rica because it was clearly in effective trol of Costa Rica, and the fact that it had not been recognized by states, including the United Kingdom, made no difference. N Chief Justice Taft indicated that recognition or non-recognition have assumed greater importance if the effectiveness of Tinoco's over Costa Rica had been less clear, because'recognition by other powers an important evidential factor in establishing proof of the existence of government'.73 Similarly, recognition can play an evidentiary role when is uncertain whether a body claiming to be a state fulfils the requirements of satehood. Where the facts are clear, as in the Tinoco the evidential value of recognition or non-recognition is not strong to affect the outcome; in such circumstances recognition is declaratory. in borderline cases, where the facts are unclear, the evidential value recognition can have a decisive effect; in such circumstances recognition semi-constitutive. On the other hand, recognition has little evidential value if the g or withholding of recognition by other nations is not based on an ass* ment of the government's conrol over the country:
when recognition vel non of a government is by such nations determined by
inquiry, not into its . . . governmental control, but into its illegitimacy or irregular-

ity of origin [as in the Tinococasel, their non-recognition loses something of

evidentialweight on the issue with which those applying the rules of international law are alone concerned.T4

The prevailing view today is that recognition is declaratory and does not create a state." This was already laid down in the Montevideo Convention of 1933 on the Rights and Duties of StatesT6 and has also been taken up in Article 12 of the Charter of the Organization of American States:
The political existence of the State is independent of recognition by other States. Even belore being recognized, the State has the right to defend its integrity and
independence.TT

It

has been observed that the two theories are

of little

assistance

in

explaining recognition or determining the position of non-recognized entities in practice, and that the practical differences between them are not very significant.78 Under the declaratory theory, it is still in fact left to other states to decide whether an entity satisfies the criteria of statehoodThe declaratory theory leaves unresolved the difficulty of who ultimately

RECOGNITION OF STATES AND GOVERNMENTS

85

whether an entity meets the obiective test of statehood or not. formal recognition to another state is a unilateral act which is in left to the political discretion of states, mostly to the executive which national courts generally tend to follow.Te The relevance of the constitutive theory, on the other hand, has been inished by the acceptance of the obligation of other states to treat an with the elements of statehood as a state.8o The main reasons in state ice for delays in recognition have been, in particular, the question the new state was viable, really independent from another state i:h had helped to create it, or established in violation of Article 2(4) of UN Charter prohibiting the use of force.sr The viability of a new state is especially at issue in cases of secession to a longer period of civil war. Premature recognition in such cases even constitute a violation of international law and of the rights of the country. Most states refused to recognize the secession of Biafra Nigeria in1967-,,70. On the other hand, in the decolonizrtion process were many examples of the recognition of a territory as a new state the colonial power was still in military control of it (e.g. Algeria, ).82 In the case of Rhodesia, where a white minority govt declared independence without the consent of the colonial power backing of the whole population, the United Nations Security Council upon 'all states not to recognize this illegal act'.83 This was a mandadocision taken under Chapter VII of the Charter and binding upon all of the UN under Article 25 of the Charter. The Smith regime ined unrecognized for a long period until the state of Zimbabwe was and accepted under a majority government in 1979-80. .f.rrmples of the perceived lack of independence of a new entity are the ition by other states of the pre-war puppet-state of Manchukuo by Japan, of Croatia established by Nazi Germany, the long delay states in recognizing East Germany due to the influence of the and the refusal of the international community to recognize the African homelands declared to be sovereign states by South Africa.s+ cases of the independence of Transkei, declared by South Africa,ss of the independent state in northern Cyprus in 1983 by Turkish bt authorities,86 the UN Security Council called for non-recognition, was generally followed by the international community. most of the relatively few cases in which entities claiming statehood allegedly come into existence by an illegal threat or use of force by state, the dispute often cannot be resolved authoritatively. The ion of Bangladesh from Pakistan, supported by India's armed interim, gave rise to different views on the legality of the intervention, but
nevertheless generally recognized or treated Bangladesh as a state,

7g 80

Restatement

(lhiril,

Vol. 1, para.

202, BeporteB' Notes, 80.

But see, in view of recent developments, C, Simmler, Kehrt die

Staatengemeinschatt zur Lehre von der konstitutiven Anerkennung zurlick?,

Scht -Beihe Dt.

Grupe

MLg

11994'|

75-102.

81

See Chapters 10,

154-5 and 19,

1

309-1 1 below.

Ul
&l

Bes:tateneil [hird), Vol.

SC Res. 216 and 217 ot

81.

12 and 20 November 1965, Frowein (1984, op.

clt, at 342, notes that the lack 0f selfdetermination by the whole population was seen as justilying non-recognition.
See also Chapter 22

below,39F5.

84 85

See Chapter

22 below, 394.

SC Res.402 (1976). See E. Klein,

South Alrican Bantustan Policy,

EPI 1 0

(1984,39F7. 86 SC Res.541 87

(1983). See Chapter

22below,420-2.
See Restatenent

qhnq, vol. 1,

81-2 with lurher references; and

Chapter
1

below, 31

9-22.

88

Frowein

(1984, op. cit.,342and

347,

was also admitted

h.87

to the United

Nations and the British

should be emphasized that non-recognition as a state by other states not imply that a de facto regime is entirely outside the realm of ntional law. Many rules are applicable in spite of non-recognition, as the prohibition of the use of force.88 Although the United States, was in control of the unified command of the UN forces, refused to

STATES AI'ID GOVERNMENTS

80

See CtEpter 22

below,351-2. RetuEnerrt (hird), Vol. 1, 81, See

J. Kokott, Pueblo lncident, EP|L1l

0 989),

recognize North Korea as a state - as well as the governments of North Korea - this was no bar to signing an armistice agreement

9l gl

268-71 . Fro{ein (198n, op. cit,343, See

1

also Chapter 8 below

23-4.

9. *e

1953.8e The non-recognition of North Korea ws no obstacle in the later Pueblo incident to the contention raised br United States that North Korea had violated international law by

the Korean War in

Hatris CM|L,151-72.

See Akehurst, 6th edn of this book,

US

ship.eo

Chapter 5. See also the Statement of

Recognition of another state does not lead to any obligation to

lnterest, dated 29 November

995, of

the US Department 0I Slale tn Meridien lnternattonal Bank Ltd v. Govemment

(second) Liberian National Transitional Government (LNTG ll) access to

ol

full diplomatic relations or any other specific links with that This remains a matter of political discretion. Nor does the terminati
diplomatic relations automatically lead to de-recognition.
Legal eltecF in domestic law

tlbe,a which declared that allowing the

American courts was consistent with US loreign policy, M. Nash (Leich),

(1

/J[

90

996), 263-5.
See texl above,

9{

82,84.

lf state A recognizes state B, this usually entails that the courts of stac will apply the law of state B and give effect to its sovereign acts.e2 In case of non-recognition, national courts will not accept the right of
foreign state or government to sue or claim other rights of
a

nature, but as regards private parties (for example, whether

recognition extends to the registration of births, deaths and marriages the foreign state), the situation varies to some extent, depending on
national framework.

Courts in Swizerland and Germany have always applied the law governing a foreign territory even if it was not recognized as a st lEEnglish and American courts originally had a tendency to completely dbregard the law and sovereign acts of a foreign state, unless it was reqi nized by their governments. However, changes in the United States ml Britain then went in the direction that courts could apply the law of a nr recognized entity if the executive confirmed that this was not harmful o the foreign policies behind the non-recognition.e3
Recognition of govemments

International law allows states to exercise great discretion when granting or withholding recognition, especially when a new government comes inb power in an existing state by violent means. Recognition is accorded to thc head of state, and so no problem of recognition arises when a revolution does not affect the head of state (for example, the military coup in Greeoe in April 1967, which overthrew the Prime Minister but not the King). Na does any problem of recognition arise when there is a constitutional change in the head of state, for example, when a British monarch dies and is succeeded by the eldest son, or when a new President of the United States is elected. States have often used recognition as an instrument of policy; for instance, the United States has often regarded recognition as a mark of approval, and in President Wilson's time it withheld recognition from Latin American regimes which had come to power by unconstitutional means, such as Tinoco's regime in Costa Rica.e+ A refusal to recognize is sometimes based on a belief that the new state or government is not in effective control of the territory which it claims, but a refusal to recognize can also be based on other factors; for instance, the United States at one time refused to recognize foreign governments simply because it disapproved of them; in the eyes of the United States,

RECOGNITION OF STATES AND GOVERNMENTS

87

mmgdtion was a mark of approval. The United Kingdom, on the other

95

M. Whiteman,

,/gesf of

hd, ftir

usually recognized all governments which were in actual control of territory, without necessarily implying any approval of such

lnternational Law,Vol. 2, 1 963, at 85.

Practice of lnternational 1aw,1977 , 19 House of Lords Debates, Vol. 408,

Eurrrnments. Secause non-recognition of foreign governments has often been used as emrk of disapproval, recognition of a foreign government has sometimes lcn misinterpreted as implying approval, even in cases where no approval m intended. In order to avoid such misinterpretations, some states have Jryted the policy of never recognizing governments (although they confue to grant or withhold recognition to foreign states). This policy orilirtd in Mexico, where it is known as the Estrada Doctrine. In 1930, the of Foreign Relations of Mexico declared that: 'the Mexican is issuing no declarations in the sense of grants of recognisince that nation considers that such course is an insulting practice.'es 'This statement reflects the fact that the change of government in a state lcgelly an internal matter, whether in conformity with the national conion or not, and does not concern international law or other states. same policy has been applied in recent years by several other states, ding France, Spain and the United States; io 1977 the Department of Bulletin noted that

gl

cols l l 21-2, announcement made on 28 April

1

980.

rccent years US practice has been to deemphasize and avoid the use of Eognition in cases of changes of governments and t0 concern ouftielves

fr h

Fmad]

with the question of whether we wish to have diplomatic relations with

new governments.s6

1980 the British Foreign Secretary announced that the United also would adopt this policy:
have decided that we shall no longer accord recognition to governments. The British government recognise states . .
.

*Iere

an unconstitutional change of rdgime takes place in a recognised state,

trernments of other states must necessarily consider what dealings, if any, they

firkl

have with the new r6gime, and whether and to what extent it qualifies to as the government of the state concerned. Many ol our partners and

Eteated

G * t
d

take the position that they do not recognise governments and that therefore

lqtestion

of recognition arises in such cases. By contrast, the policy 0f succes-

Bdtish governments has been that we should make and announce a decision

:rmJly'recognising' the new government.

fhb

practice has sometimes been misunderstood, and, despite explanations to about the violation
an

contrary, our 'recognition' interpreted as implying approval. For example, in

liumstances where there may be legitimate public concern

luman rights by the new regime . . . it has not sufficed to say that
of 'recognition' is simply a neutral formality.

mmcement

Ue have therefore concluded that there are practical advantages in following

policy of many other countries in not according recognition to governments.

tsI

*t

!ft

fiem, we shall continue to decide the nature of our dealings with r6gimes
come to power unconstitutionally in the light of our assessment ol whether

are able . . . t0 exercise effective control of the territory 0f the state

and seem likely to continue to do s0.s7

@erned,

STATES AND GOVERNMENTS

98

The Foreign Secretary seems to

have ad0pted this interpretation in his

At first sight the Estrada Doctrine appears to abolish the entire of recognition of governments. In practice, however, it probably
substitutes implied recognition for express recognition; recognition is announced expressly, but can be implied from the existence of di relations or other dealings with a foreign government.e8 In fact, i recognition is a long accepted practice. However, recognition should be deduced from acts which clearly show an intention to that effect.

subsequent stalement on 23 May

1 980. For a discussion of British practice see Akehurst, 6th edn 0f this

book, Chapter 5 and M. Aristodemou, Choice and Evasion in Judicial Recognition of Governmenlsr Lessons

from Somalia, EJlf 5 (1994), 532-55;

S. Talmon, Recognltion

0f Governments:

An Analysis of the New British Policy

and Practice, BYIL 63 (1992), 231-97,

and the literature cited above.

0n the

practice in New Zealand, for example,

see S, Davidson, Recognition 0f Foreign Governmenls in New Zealand,

/40

40

(1991), 162 elseq.

99

Frowein

(1984, op. cit.,34z.See

establishment of full diplomatic relations is probably the only unequivocal act from which full recognition can be inferred. All forms of contact do not necessarily imply recognition.ee Most states which have adopted the Estrada Doctrine in the past hat-e applied it consistently; sooner or later they succumb to the temptation announcing recognition of a foreign government, in order to their support for it, or in the hope of obtaining its goodwill.r00
De

also J.A. Frowein, De lacto Bdgime,

fPlr r0992),96H. 100 Ch. Rousseau, Droit intemati1nal

public, 1977, Uol. 3,

jure and de facfo recognition

55t1.
l0,152
and

101 102 103

See also Chapters

11,'165-6below.
See Chapter 10 below, 155. See text above.82, 84, 86.

One of the most confused aspects of recognition is the distinction dejure and deJh,cto recognition. For a start, the expressions'dejure recogi tion' and 'd,e Jacto recognition', although commonly used, are technicaf,y incorrect; 'de jure recognition' really means recognition of a de jure ga* ernment; the words de jure or de /actr describe the government, not the ad

of recognition. The terminology implies that a de Jacta government dc not have the same legal basis as a de jure government. But it is difficult o
find any body of legal rules by which this legal basis can be determined.
The distinction between d.e .jure and, de Jacto recognition usually arises L the case of governments. It is sometimes said that a state can be recognized only de jure, but there are a few examples of states being recognized k

facto;for instance, Indonesia was recognizeddeJacto by several states whih it was fighting for its independence against the Dutch in 1945-9. Similar\ there are a few examples of territorial claims being given only d.e J'acto recognition; the United Kingdom, for example, granted only de Jacto rw' ognition to the Soviet annexation of Estonia, Latvia and Lithuania in 1940.10' De facto recognition of states and territorial claims is governed by

roughly the same rules, and gives rise to roughly the same problems, as & Jacto recognition of governments. When recognition is granted by an express statement, it should probably always be treated as de jure recognition, unless the recognizing state announces that it is granting only de facto recognition. When recognition is not express, but implied, there will often be uncertainty as to the intentions of the recognizing state: did it intend to grant d,e jure recognition, or did it intend to grant de laL'to recognition? Whatever the basis for the distinction between de jure and de Jacto recognition, the effects of the two types of recognition are much the same. However, if a state or Bovernment has been established (or a territorial change brought about) in violation of international law, it seems that onlv rle jure recognition can cure the illegality; de Jitctn recognition is insufficient to cure it.r02 Iq like Chief Justice Taft inthe Tinoco case,'n3 one thinks of recognition as having an evidential value, then presumably dejure recognition would have greater evidential force than de Jh.cto recognition; but the difference is probably not very great.

RECOGNITION OF STATES AND GOVERNMENTS

89

In reality, the distinction between de jure and de Jitcto recognition has Jsays been a sou{ce of difliculty, and in practice in most cases of the rognition of states it will not be qualified in either of these terms.r0+ In
of the recognition of governments the distinction has also become dsolete.r05 The Restatement (Thirrt) thus avoids these uncertain terms.106 A separate matter altogether that has become more important since llt5 is the impact of the United Nations and other international organizatims on the recognition of states and governments.'u' The developments i Eastern Europe, the Soviet Union and in former Yugoslavia induced the f,u,opean Community and its member states to adopt a common position mguidelines for the formal recognition of new states in these areas on 16 I)ocember 1991.r08 These guidelines start from reaffirming the principles dthe Helsinki Act of 197510e and of the Charter of Paris of 1990,rr0 'in lrticular the principle of self-determination'.rrl The Community and its
case

104

16 16
107
4;

Frowein \1987), op,

cit.,342.
Vol. 1, 80.

tbid.,345.
Restatement See Frowein

(Thidl
(1

987J, op, cit,,

fie

343-

34'{;

J. Dugard, Recognition and

the United Nations,'l 987;

V Gowlland-

Debbas, Collective Responses to the lJnilateral Declarations 0f lndependence

of Southern Rhodesia and Palestine: An Application of the Legitimizing Function

of the united Nations,
1

Brt 6l

(1990),
UN,

35 et seq, 0n membership in the

see Chapter

2'l

below,

36F73.

108

See European Community:

Declaration on Yugoslavia and 0n the Guidelines 0n the Recognition of New States,

[M31

(1

992), 1485-7; A.'

Pellet, The opinions of the Badinter

Enber ffrm

states their readiness to recognize, subject to the normal standards of inter-

Arbitration Committee, A Second Breath tor the Self-Determination 0f Peoples,

EJIL 3 (1592].,
1

78-5; L.S. Eastwood,

national practice and the political realities in each case, those new states which,

Secession: State Practice and

International Law atter the Dissolution

of the Soviet Union and Yugoslavia, Duke

frIowing the historic changes in the region, have constituted themselves on a Gnocratic basis, have accepted the appropriate international obligations and Iwe committed themselves in good laith to a peaceful process and t0

JCIL3 0993),299-349, M.M.

Kelly, The Rights of Newly Emerging

qotiations. Specific requirements laid down in the European Community guidefor recognition and the establishment of diplomatic relations are:
rspect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and

Democratic States Prior to International

Recognition and the Serbo-Croatian

ConflicI, fenple ICLJ 23 (1 993), 6388i R. Rich, Becognition 0f Statesr The

Collapse 0f Yugoslavia and the Soviet Union, EJIL

h e

(1

993), 36-65; D, Iiirk,

Becognition of States: A Comment,

ibid.,66-71; P Hilpold, Die

Anerkennung der Neustaaten auf dem
Balkan, AVR

in the Charter of Paris, especially with regard to the rule of

31

(1

S93),

387-408;

law,

WelleLop. clt; Radan, op. c,fl; S. Hille, Mutual Recognition of Croatia and
Serbia (& lvontenegro),

democracy and human rights; guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the Famework of the CSCE;

EJlf 6 (1S95),

598-61 0. See also text above, 78 and Chapters 11 ,165-7 and 22, 409 1 5 below.

respect

for the inviolability of all frontiers which can only

be

109
1

Text in

lLM14 (1975),1292-

changed by peaceful means and by common agreement;

325. See NL Coccia/K. 0ellers-Frahm,

Helsinki Conlerence and Final Act on Security and Cooperation in Europe,

rceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as well as to security and
regional stability; ommitment to settle by agreement, including where appropriate br recourse to arbitration, all questions concerning state succession end regional disputes.rI

fPlr ll (1995), 633_705.

below,94.

See also

Chapter 3 above, 54 and Chapter

110 Charter 0f Paris lor a New Europe. /rM30 0991), 190-228. 111 Guidelines on the Recognition 0f
al 1 487. 0n lhe principle of self determination. see
New States, op. cit.,

lecognition of 'entities which are the result of aggression' is expressly and the'effects ofrecognition on neighbouring states'are also to den into account. While non-recognition of 'entities which are the
of aggression' reflects the principle of not accepting the acquisition rritorl' by the use of force,"'] the meaning of the phrase that the Union also intended to take into account the 'effects of recognion neighbouring states' remains rather cryptic. At any rate, these ines, as applied by the Badinter Arbitration Commission, served to

Chapter 19 below. 326-40.

112 lbid..al148l. 113 See Chapter 10 below,151-5.

STATES AND GOVERNMENTS

114

The Ad,isory Opinion No. 6

ol 1'l

January 1 992 ol the Arbitration

(Badinter) Commission of the European

Community (Canington) Conference on

Peace in Yugoslavia concerning the

status ol Macedonia is in

[M31

(1992),1507.

115

See D.M. Poulakides, Macedonia:

Far l\,lore Than a Name to Greece, Hastings

lct R 18 (1995), 39/-{43.

(ntroductory

116

determine the policy of European Union member states with regard the recognition of the new states emerging from the break-up of Yugoslavia. Without entering into the complicated details of the nition process on this basis, it should only be noted that, as far as Serbian-controlled Federal Republic of Yugoslavia was concerned, 1995 the European Union made it one of the conditions for its that all successor states to former Yugoslavia had recognized each otherThe case of the former Yugoslav Republic of Macedonia is instructi
Macedonia had held a referendum on independence on 8 September and confirmed this on 17 November l99l.r14 Greece was concerned the name of the new state and the use of the Star of Vergina on the republic's flag because it feared possible claims to its own province Macedonia.rrs The former Yugoslav Republic of Macedonia was admi to the UN on 8 April 1993, however, leaving the dispute over the name of the country undecided.rr6 Greece and the former Yugoslav lic of Macedonia finally settled their dispute by an Interim Accord of September 1995 and a Memorandum of l3 October 1995.1t7 Greece sequently lifted the embargo it had imposed upon Macedonia and European Commission withdrew the case it had filed with the Court of Justice on 22 April 1994 challenging the legality of the

UN Doc. GA471225.

117 /tM34(1995), I461

Note by PC. Szasz).

118

ECJ Case No. C-120/94

R,order

of 29 June 1994.

119

FAZof 18 April 1996, 1, 7. TtE

text of the Agreement between

Macedonia and the Federal R@ublic Yugoslavia is in

0f

/fiv35 0996),

1246.

0n the normalizalhn of rehlifiis

between Croatia and he Federal
Republic of Yugoslavia

w,

itid., 1219.

120

See Chapters

1, 167, 21, 372-3

and 22, 409-1 5 below.

under Community law.rr8 On

8 April

1996, the Federal Republic

Yugoslavia and Macedonia accorded each other mutual recognition. Federal Republic of Yugoslavia was subsequently recognized by France, then by Britain and other EU member states, includir,s tt Germany on 17 April l996.tte The difficult problems of 'state successiod in the case of former Yugoslavia will be dealt with in a broader perspectir in chapters below.r2o