5 RECOGNITION OF STATES AND GOVERNMENTS’ 1, RECOGNITION AS A GENERAL CATEGORY Whenever state acts in a way which may or does affect the legal rights or , the question arises ofthe legal in the Eastern Greenland case of her Foreign Minister, accepted Dani46 PERSONALITY AND RECOGNITION RECOGNITION OF STATES AND GOVERKMENTS oa ‘ofthe continental shelf), and actually illegal activity (apart from issues involving fun- M_ since recognition is a mere declaration or acknowledgement of an existing state of damental principles, jus cogens)* within which issues are most sensibly settled on law and fac, legal personality having been conferred previously by operation of lw. ad lateral bass: indeed, cases concerned with relatively well-setied areas of {MPAs Hall says ‘States being the persons governed by international law, communities law are often decided on the basis of facts, including elements of acquiescence, estab- MB _are subjected to law...from the moment, and from the moment only, at which they ing 2 special content of obligation between the pasties, and this quite apart from #Escquie the marks of Sate” Thus, ina relatively objective forum, such as an interna ygition may be 7 ‘would be entirely proper to accept the existence ofa state although of other states,a rd states, recognize it. The award inthe that case Great By sessions granted by the former rev 2. STATES AND GOVERNMENTS IN RELATION TO RECOGNITION tions determined by inguty, not nto its defacto sovereignty and sgularty oF origin, the fsue with which those applying re of the non-tecognition of to government under Tinoco mn by her Allies inthe ot outweigh the evi er of Tinoco government, inent aspect of the general legal writing has edopted the emphasis and terminology of political relations. The ‘of the category ‘recognition’ has led to some perverse doctrine. When & in dispute over legal tite to teritory, for exarnple, a legal forum will examine all he legally significant conduct and declarations of either party. A declaration ty IMF according othe standard set by international hw fone parry that ‘The reasoning employed here applies also to recogition of states. In addition there isa substantial state practice behind the declaratory view. Unrecognized sates are ‘ite commonly the cbject of international claims, charges of aggression, and other he slatemcnt haves specific egal signticance ME beaches ofthe United Nations Chater, by the very state refusing recognition existence states and government is “The declaratory theory of recognitions opposed tothe constitutive view. According ous tothe latter, the pol 3 the existence of legal right: in ts exten form thi two matters are interdependent)* govern de ue poverent ‘on these ops are the eneral wor so clegt Rees 198 Cour dppl de Pai GD Woh RSS (928, 294NY 372: Solo Nasional Cy Bark [MANY 220 Desh Continental Gas Geshu "0 Opiion Net i, 206 Cle yd {Ava charges pint rs, Une Stes charges gust Noct Vet ruktd he Vier War and ltrntinal Law (1968), 383 See otha cn mpied recognition Serle the Montrieo Conon Right and Dues of ite, 1938, AC 3 Hodson. It. Le is 62, rigs. Tn atbtace es deeas PERSONA’ "Y AND RECOGNITION to accept itis clearly shany competence of other states whi ‘does not depend on agreement or concession." Brierly comment possible that different states shold act on (of fats. This does not mean only that there exist a present from the lack of centelized dent dc tothe stage’ ute ofthe system. it doctrine creates a great many difficulties. Its adherents may feel a jon ofthe uncecognized state and in doing som leads to various difficulties gn knowledge ofthe facts? Cogent arguments of principle and the preponderance of state practice thus dictate a preference for declaratory doctrine, yet to reduce 0 feduce the issues to. choice between the two opposing theories is to greatly oversimn- plity he legal situation, 3. THE VARIED LEGAL CONSEQUENCES OF ACTS OF RECOGNITION AND POLICIES OF NON-RECOGNITION farm type of recognition or non-recognition. The te ications and declaratior "de facto recognition, 'f recognition, for Ii any ease ‘recognition’ isnot aterm of art. The term pr 3S farther Chen, The Intrrtiona 7 ibducenet unequally Spe Ec theviewsof River Fauhile ond Hyde: 16 [RECOGNITION OF STATES AND GOVERNMENTS fo and thus recognition may takethe form ofenagreement,or ns, oF a congratulatory message on inment of independence, The typical act of recognition has two legal functions, . the determination of statehood, a question of law: such individual determina: Secondly, the act is a condition ns, including diplo. matic relations and the conclusion of teates. It is this second function which has been described by some jurists as ‘constitutvist’, although here itis nota condi of statehood ! Since states cannot be required by the law (apart from treaty) actually tomake public declaration of recognition, and since they are obviously not required ‘to-undertake optional relations, the expression of state ‘will’ involved is political in sense of being vol ay alo be political in a more obvious sense. An ition may not rest on any legal bass at all there being no attempt to the egal question of statehood as such, Non-recognition may simply be part spproval and boycott. Again, recognition may be part of a legal consequences will here policy of aggression a from the breaches: term ‘recognition’ daes not absolve the lawyer from inqui Ihe government concerned and then placing thisin the context ofall the relevant facts and rules of aw. 4, IS THERE A DUTY OF RECOGNITION? ‘Lauterpacht”” and Guggenheim adopt the view that recognition is constitutive, but has been vigorously criticized" sansstency, since in an oblique ile the legal duty can only be valid ‘marks of statehood and (although Lauterpacht does rot express it thus) it is owed tothe entity concerned. The argument postulates personality on an objective basis. However, discussion of Lauterpacht’s ews often reveals a certain confusion among the critics. Recognition, as « public on and Gage mia eat ecg so exiseace bat oastaive of reper pcan: sad Cll Peper 321 Ser ae UK comment nth raf Dec fhe Right90 PERSONALITY AND RECOGNITION legally if they ignore the thatthe Arab neighbou non-ent le United Nations organs and individual have taken the view that ted, and bound, by the principles ofthe United Nations (Charter governing the use of force. In this context of state conduct there is duty to accept and apply ce rues of international lew: there isa legal duty jut no duty tomake an express, public, and declare readiness to enter into diplomat ter type of recognition remains poli iplomatic relations 5, RECOGNITION OF GOVERNMENTS” In principle most of the considerations set out previously apply equally to recognition ‘of tates and governments. Ithas been seen elsewhere that the ex ‘and independent government is the essence of statehood, and, tion of states may take the form of recognition ofa government. Thus Foreign Office declared that the British Government recognized the Estonian National 8 de facto independent body with the capacity to set up a prize cot zation of the recognizing government and the relevant state may be closely related, NECOGNITION OF STATES ANP GOVERNMENTS o undertakings, for ‘and voluntary lations, an 1 acceptance of particular claims, or the giving ‘The sphere of optional rela ‘aneecognized government is no etter off than an unrecognized 6. DE JURE AND DE FACTO RECOGNITION between dejureand defacto recognition are wg depends onthe inten jaternent may be intended to be or to include a legal govern cognition can be withdrawn.” In the po inays be withdrawn: in the legal sense itcannot be unless a change of circu warrants it, Ofcourse ifa statemento DrRSONALETY AN! Iner10% [RECOGNITION OF STATES AND {OVERNMENTS 98 of international organizations ofthe type ofthe League ns and United Nations provides a variety of occasions for recognition, of one sort or another, of states, Recognition by individual members of other members, or of non-members, may occur in the course of voting on admission to membership and consideration of complaint involving threats to or breaches ofthe peace. Indeed, thas been argued that admission fo the League and the United Nations entailed rec- ‘ognition by operation of law by all other members, whether or not they voted agai admission, The position, supported by principle and state practice, would seem to be 25 follows. Admission to membership is prima facie evidence of statehood, sing members are at risk ifthey ignore the basic rights of existence ofa recognition. United 10, NON-RECOGNITION AND SANCTIONS ‘One form of collective non-recognition commonly seen in practice isthe resolution oF ‘ofan organ of the League of Nations, and now the United Nations, based ona determination thatan illegal acthas occurred. Its possible, though by no means nec essay, to refer to such practice as collective non-recognition There is no doubt a duty les patties toa system ofc tral conventions not te support or condone acts or situations contrary to the treaty concerned. *In some beassociated with meacures recommended or commanded by an organ of saga form ofeanction or enforcementagainsta wrongdoer. The Secu 11, ISSUES OF RECOGNITION BEFORE binding with NATIONAL COURTS® ‘Whether, and to what exte general purposes Criteria employed in a given cage.” Attitudes of non-recognition may depend on the ical prejudices of individwal members and the view that in any case the special membership contained in Article 4 are not fulfilled: statehood may be necessary but is not sufficient. The approval cf the credentials of state represents wves by organsof the notidentical wit, Within the sphere of domestic law, recognition may have important practical conse- ‘quences. Where th local courts are willing or are, a a matter of public law obliged 10 fallow the advice ofthe executive, the unrecognized state or government cannot 5 Se Laerpucht Coll Paper, 221; de Vibe, Three als en dei internation eof btenationa ae Cn en 5-6 Mager. ta Sorensen, changes ough abou bythe ose of Cal Paper 57-48 rest, 4 BY (48-6 where eal cnseguecer ofan eegnton te 9b 10849 (Europ Ce of LD sec gncaly Merely 30 ACLQ 71), 476-98 Ned, 50 1CLO (SD. 38-41 Vetoes, 19296 oN OF STATES AN MENTS 7 ALITY AND RECOGNITION nee MAILE SELASSIE V, CABLE AND WIRELESS LTD. (NO. 2)** imed the annexation of Ethiopia fol . through an agent had made & contract 37 he commenced proceedings to recover money due under the i recognized authorities and imported ve goods were their prop: from dealing with them, and damages hem. The def recognized the Soviet Government 2s the ‘de facto Government of Russi’, the former Provisional Government, recognized by the British Government, had bet dispersed on 13 December f Appeal found for the defendants. On sues concerning recognition the Court held that forthe present purpose no di ction was to be drawn between defacto and de jure recognition. Bankes, country having...recognized the Soviet Government ession of the powers of sovereignty in Russer master and the managing director of the owners agreed to hold the vessel was in the London docks under arrest by the Admiralty Marshal, atthe disposal ofthe ‘Nationalist authorities. At that stage the Republican Government issued the present ler which they claimed to have possession of the ship adjudged to them. The ist authorities moved to set aside the writ on the ground that it implesded a foreign sovereign state The judge at frst instance directed that inquiry be made of the Foreign Office asto the status ofthe Nationalist authorities. In reply” it was stated that British Government recognized Spain asa foreign sovereign state and recogs the Government ofthe Spanish Republic as the only de jure Government of Spain oF ‘any part oft It was also stated that: 5. His Majesty’s Government recogolses the Nationalist Government asa Government ‘whieh at present exercises de facto ada oF itcative control over the larger po Spain 6, His Majesty's Government recognizes exercises effective administrative control overall the Basque Provinces of Spa. 7. His Majeaty’ Goverament have not accorded any other recognition tothe Government foreign Sovereign the preceding which the question i ase. The House ofl ords hele thatthe Foreign Office letter established thatat the date ofthe vwrit the Nationalist Government of Spain was a foreign sovereign state and could not be impleaded. Lord Atkin sai By ‘exer de facto administrative contol’ or ‘exercising effective administrative con Tunderstand exercising ll the functions ofa sovereign government... There isample rity forthe proposition that ther is no diference forthe present purposes between & Fecognition ofa State defacto a8 opposed to de jure, Allthe reasons fr immunity which are the bass ofthe doctrine in international lw as incorporated into our law exis. 20; Recon pp. 286-84, 3658; Brigg 3 re Lond stanly peed wth Lord Aan RECOGNITION OP STATES AN WVERNMENTS » Yet they interpreted and accepted it as conclusive on important issues of low. s peobably intended to be literally a statement of fact its ermphasis on ‘administrative control's significant. Moreover, a t \d not ‘recognized’ the Franco authorities as de facto gov: Nor was the letter of the Foreign Office inten ara. 9) previous cases like the Gagar Selasiev. Cable and Wireless Ltd. (No. 2)?*the recognition de facto had occurred 28 political act and in respect of «government f the state as a whole. As a matter in view ofthe still effective competition of the de jure govern , the Foreign Office letter did not necessarily accord equality to lea government in partial control ofa state territory with, jowever, two other re pragmatic basis y wai forthe decision, '& proposition controversi ‘but nat absurd, since a belligerent entity may soon become a de jure government. ‘Secondly and this point is connected with the foregoing, Lord Atkin states principle ive2” “Une non- belligerent state which recognizes fovernments, one de jure and one de facto, will nt allow them to transfer the {quarrels tothe area of the jurisdiction of its municipal court: Such a principle would tthe dubious acceptance of belligerent entities engaged in civil war as sovereign, CARL ZEISS STIFTUNG V. RAYNER AND KEELER, LTD. (NO. 2)" jscase raised, asin interlocutory question the issue ofthe validity of title to proper based upon le ive acts of the German Democratic Republ st Germany) The Foreigh Office certificate available stipulated that since the irawal of Allied forces from the zone allocated to the USSR in 1945 “Her Majesty’ ‘Government have recognized the State and government of the USSR as de jure eati- to exercise governing authority in respect of that zone...and...have not recog. ity purporting to exercise governing 4) WLR LIE, 9). Forcamment ee enon 67.1. lof Starr Ox Co (9), 262 200 Upright Merry s i Corpora’ Patent Machines Company. 2 Thee Meperides Hoes Le Ares Tash Haida fore a pra 2PERSONALITY AND RECOGNITION he zone Inthe face ofthis the Court of Appeal” held o the acts of the East German legal system. The House ‘of laws and East Germany was a aw even though the sovereignty on which ths an obiter dictum of great interest Lord yas ‘an open question in English law, whether the courts must accept the doctrine ofthe absolute invalid acts flowing from unrecognized governments ‘THE RHODESIAN CASES Judicial Committee of the Privy Council concerning the validity of fer the usurpation of power by the Smith regime in 1965," ish courts as such concerning the recognition of Rhodesian divorce raise substantially similar issues of policy to those presented by the Carl 1 determinant was the const ry ofthe Smith eegime.* Thus even divorce decrees emanating from the Rhodesian courts were refused recognition by the English courts GUR CORPORATION V. TRUST BANK OF AFRICA LTD." igtion the "Republic of Cskei'counter-claimed fora declaration in relation House of Lords in the Carl Zeiss together sith a process of judi (supra) Thus the executive certificate produ ference, was held to justify the view that the RECOGNITION OF STATES AND GOVERNMENTS wo Republic of Ciske’ was an emanation of the Republic of South Africa asa sovereign was acting by virtue ofa delegation oflegislative power from South Africa. 12, BRITISH POLICY ON RECOGNITION OF GOVERNMENTS In 1980 the British Government adopted a new practice concerning recognition of governments. The relevant statement was a follows: swehave decided thet we shall no longer acord rec Government recognise States in accordance with cm ‘Where an unconstitutional change of régime of this change has been unfortunate. Executive certificates ike case eupra) may be indecisive and reflect the ational aw. Such a acy afthe régimein ques- Taw for example, whePART III TERRITORIAL SOVEREIGNTY