Question 1: Recognition/Nature of

International Law
Question:
"The fact that states are not required to recognise one another, nor
recognise new governments, shows that international law is not really
law. Like primitive morality or social rituals, international law is more
about whether you are a member of ‘the club’ than it is about binding
rules followed by sanctions upon breach."

Discuss the above quotation, referring to cases on recognition of states

and governments to support your argument.

1. Recognition
There are two main theories of recognition:

 Constitutive—where the act of recognition ‘makes’ the entity a state;

 Declaratory—where the entity is already a state if it has satisfied the
Montevideo Convention test and recognition merely allows legal
relations between the recognising and recognised states.

A ‘third’ is also suggested:

 ‘Modified Constitutive’—Oppenheim’s middle ground, where the

Montevideo criteria have to be satisfied but recognition is still left up to
the discretion of each state.

1.1. States not required to recognise one another

Under the constitutive theory recognition of states is discretionary. To this

extent international law is like membership of a ‘club’. When you are
recognised you become part of it. If not, you are not a state.

Under the declaratory view—at least in its strongest version—some authors

argue that recognition is a legal duty placed upon other states. If you have
satisfied the Montevideo test (permanent population, defined territory,
government, capacity to enter into relations), then you must be recognised. This
view is fairly extreme, with Oppenheim, for example, taking a middle position
instead (see above).

Without recognition, regardless of which theory you apply, a new entity will
not be able to enter into relations with states that do not recognise it.

Practice

The recent EU practice with respect to Yugoslavia would seem to be more in

line with the declaratory theory, and hence support the proposition in the exam
question. The former Yugoslav republics had to satisfy EU criteria before they
would be accorded recognition.

The UK, and to a greater extent the US, have both refused to recognise new
entities for political reasons even though they might satisfy the criteria for
statehood. I.e., North Korea, Taiwan, etc.

Answer: depending upon the theory of recognition of states employed, the

quotation may or may not be accurate.

1.2. Nor recognise new governments

If the practice regarding recognition of states seems to favour the comment in

the exam question, the practice regarding recognition of governments does so to
an even greater extent.

The question of recognition of governments does not arise if the head of state
remains the same (even in times of revolt), or if a normal constitutional
transition has taken place.

If an unconstitutional transition occurs, the question arises. The key here is to

determine whether the new government is effectively in control of the state (as
required under the Montevideo Convention). Because most states follow a
practice similar to the Estrada Doctrine (i.e., not formally recognising a new
government), it is left to legal observers to weigh the evidence of the relations
between their state and the new government.

Various cases on recognition of governments shed light on the question:

 Tinoco Arbitration
 —recognition or non-recognition only counts as evidence to be weighed
by the court with respect to the basic question of effectiveness, and that
evidence will be less weighty if it is shown that non-recognition was
based upon political factors. The result here was that the Tinoco regime
was found to be effective (have legal status), despite the non-recognition
of the UK.
 Carl Zeiss Case

—the House of Lords allowed an East German company standing in

English courts even though the government of East Germany was not
recognised by the UK—on the basis of a fictional agency argument,
whereby East Germany acted as an agent of the real sovereign, the
USSR.
 Gur Corporation Case

—the agency argument is taken one step further, so that the UK allowed
an unrecognised government (Ciskei) rights in the UK as an ‘agent’ of
South Africa.

Notice that each of these cases would seem to support the quotation—because
states were not required to recognise the new governments. Nevertheless, these
cases also reveal that even without recognition the governments may still have
legal status in foreign courts.

Finally, the Republic of Somalia Case establishes a rigorous test for courts
when looking at recognition of governments issues. The questions to be asked
by the court are:

1. Has it been constitutionally established?

2. Does it have effective control?
3. Has the UK dealt with it officially?
4. Has the international community had dealings with it (only for marginal
cases)?

The result of this case, again, is to show that whether your government
recognises a new regime will be only one factor amongst many to weigh by the
court...

Answer: the quotation appears to be accurate for recognition of governments.

However recent cases show how some domestic courts have been getting
around their government’s non-recognition.
1.3. Paradox: Recognition Denied Because of Law

Paradoxically, the statement may support the idea of international law as being
law precisely because recognition is not mandatory. If there is no rule saying
that this has to be done, then recognition or non-recognition is irrelevant to the
‘legal’ nature of international law.

Also, a rule requiring recognition might violate other rules of international law.
The examples of Transkei and Rhodesia show situations where states refused to
recognise new entities as ‘states’ because of their illegal nature (apartheid
regimes). Thus, if international law required recognition, the rule against
apartheid would have been violated. 

2. International law not really law

The quotation is problematic to the extent that it seems to imply that
international law is not like law merely because states and governments do not
have to recognise one another. In domestic law various legal actors do not need
to recognise one another. Xerox does not need to recognise Sony for the latter
to have legal powers.

However, because there is no superior body to determine questions of

membership or status (i.e., like a Registrar of Companies in the above analogy),
the quotation points to deeper questions about the nature of international law.

International law is unlike national law precisely in the way that its subjects are
also its interpreters. The state can be the subject, object and judge of the law.
This shows us how international law is horizontal in nature, as contrasted with
the vertical structure of national legal systems. Other differences between
international law and national law include the way that the former:

 has no centralisation of use of force,

 does not differentiate in the same way as between legislative, executive
and judicial functions,
 allows each state to interpret, implement and sometimes enforce the law
(both internationally and within its borders), and
 entails collective responsibility—i.e., the people of Iraq as a whole are
suffering for the actions of their leaders.

2.1. Like other forms of social organisation

Of course the question of whether ‘international law is really law’ can to a
significant extent boil down to ‘what is your definition of law’. If you are an
Austinian, believing in commands of the sovereign backed by sanctions, then
international law seems a weak if non-existent candidate. If you follow
Pollock’s definition of a political community with settled rules that are
regarded as binding, then international law has a chance.

2.1.1. Primitive morality

International law is much like primitive morality in that it relies upon collective
censure. States obey international law because it is in their interest to do so (the
reason some people follow moral codes), or because they believe that it is right
to do so (either for natural law reasons or because they believe that the law
requires this—i.e., related to the sources concept of opinio juris). For the most
part states would not seem to obey international law simply because they think
they will be punished with sanctions.

However, unlike primitive morality we call international law "law". We use this
term in order to distinguish it from things that are clearly forms of international
morality or non-binding comity. Thus, as lawyers we can say that something is
legal under international law, even though it may not be ‘good’ or ‘right’. I.e.,
the use of nuclear weapons in self-defence may be lawful even though few of
us would say this is a good thing (especially if we happen to be in a
neighbouring state): Nuclear Weapons Case (Advisory Opinion requested by
the UNGA).

2.1.2. Social rituals

The same kinds of comments may be made about the allegation that
international law is like a social ritual. International law is treated as law, not
as an elaborate ritual of courtesy or behaviour. [Some might joke that
diplomacy fulfils the latter function.]

Thus, states hire international lawyers in addition to diplomats, draw up legal

document to govern their relations (treaties), and even create functional
international organisations governed by law.

Also, as above, international rules of comity exist separately from international

law.

2.1.3. More about being member of ‘club’

[See also the above comments on Recognition].

Historical

To a certain extent international law does have a ‘club-like’ rationale for its
existence. It definitely seemed this way in the past—when the main actors were
all European states intent upon dominating and colonising the rest of the world
(those outside the ‘club’). The capitulation system is a graphic example of
international law supporting this kind of ‘superiority’ of European states
against all else.

The world has moved on to a certain extent from this perspective, with the
decolonisation movement, the Group of 77, the New International Economic
Order, the active role of the UN General Assembly, etc., shattering the ‘club-
like’ atmosphere.

Sociological (Reason for Obedience)

On the other hand, states can still be seen to follow international law because of
fear of negative reaction from other states (like the fear of disapproval from
your peers in a group or ‘club’). Today states follow international law because
they want to be treated as they treat other states. Reciprocity is a key rationale
underlying compliance with international law. Also, self-interest has a strong
role to play. If a state disobeys a rule of international law it may curry disfavour
from the other states (the other members of the club), and its behaviour may
come back to haunt it later as a precedent to be used against itself.

2.2. Not about binding rules followed by sanctions upon breach

Austin’s main critique of international law was its lack of sanctions. We know
that international law does have a few sanctions:

 Chapter VII powers of the Security Council,

 action by regional arrangements,
 Security Council enforcement of International Court of Justice decisions
via Art. 94(2) of the Charter,
 use of domestic courts to enforce international law rules,
 self-help measures such as countermeasures and retorsion, etc.

But this does not take away from the point that international law is nowhere
near as effective at bringing these sanctions to bear upon a delinquent. The
sanctions are weak and not often used.
So the ‘answer’ to Austin must be to some extent to accept the lack of
‘domestic-law-type’ sanctions, but at the same time point out that international
law to a very large extent works. In this way, perhaps international law is more
sophisticated than domestic law, since it is not as reliant upon brute force...

Answer: international law is like or unlike "law" depending upon your

definition. In any event, despite its ‘weaknesses’, it works to a significant
extent.