College of social science and law

School of Law

The advent of legitimate political interlocutor in recognition of government: status

and its implication

By :- Ahmed Dulo

Advisor:- Instructor Kassahun Molla

SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE

DEGREE OF BACHELOR OF LAW (LLB) AT THE SCHOOL OF LAW

June, 2013

I
Certification

I hereby certify this thesis entailed, The advent of legitimate political interlocutor in
recognition of government by status and its implication Ahmed Dulo submitted for LLB
degree at Jimma university, school of law, is carried under my guidance and supervision is a
bona fide work. This thesis has not been previously submitted to any university for award of any
degree, diploma or other similar titles.

Date, June 2013

Signature of Advisor…………………..

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 Declaration

I declare that this entailed The advent of legitimate political interlocutor in recognition of
government by status and its implication, which I am submitted for award of degree of
bachelor of laws (LLB) is my original research work carried under the guidance of Mr Kassahun
Molla jimma university. Ideas and expressions borrowed from others authors and materials are
duly acknowledged and properly cited. I further declare that this thesis wholly or in part, has not
previously formed the basis for award of any degree, diploma or other similar title.

Name of student Ahmed Dulo

Signature……………………

School of law

Date, June 2013

III
Table of Contents
Acknowledgement .................................................................................................................................. VI

Introduction ......................................................................................................................................... VI

Chapter 1 ....................................................................................................................................................... 2

1. General Overview on recognition of government ................................................................................. 2

1.1 Doctrines of Recognition .................................................................................................................... 3

1.1.1Effective Control Doctrine ................................................................................................................ 3

1.1.2 To bar Doctrine ............................................................................................................................... 4

1.1.3 Estrada Doctrine............................................................................................................................... 5

1.2 Condition for the recognition of Government ..................................................................................... 5

1.2.1 De facto and De jure recognition ................................................................................................. 5

1.3 Modes of Recognition of the government ........................................................................................... 6

1.3.1 Implied Recognition..................................................................................................................... 6

1.3.2Conditional Recognition ............................................................................................................... 7

1.3.3 Pre mature Recognition ................................................................................................................ 7

1.4 State practice of recognition of the government ................................................................................. 8

1.4.1The practice of United States of America. .................................................................................... 8

1.4.2 The practice of UK ....................................................................................................................... 8

Chapter 2 ..................................................................................................................................................... 11

2.1 The new development in recognition of the Government ................................................................. 11

2.1.1 The De Facto Regimes ............................................................................................................... 12

2.1.2 Recognition of de facto regimes in international law ................................................................ 13

2.2 Legitimacy for the Representation .................................................................................................... 15

2.2.1 Legitimate representative of People. .......................................................................................... 15

IV
 2.2.2 Legitimate Representative of the country .................................................................................. 17

2.3 Cause and consequence of Arab spring in Recognition of the Government. .................................... 19

2.3.1 What is Arab Spring? ................................................................................................................. 19

2.3.2 The cause of Islamist spring (Arab spring) .............................................................................. 20

2.3.3 Futures and Consequence of Arab Spring .................................................................................. 21

2.4. Lessons for international law from Arab spring .............................................................................. 23

2.4.1. The Responsibility to protect .................................................................................................... 24

Chapter 3 ..................................................................................................................................................... 28

3.1 The effect and implication of legitimate political interlocutor in recognition of the government. ... 28

3.1.1 The meaning of the recognition ................................................................................................. 28

3.2 Legal effect Recognition ................................................................................................................... 29

3.3 Recognition and International legal personality ............................................................................... 30

3.4 Criteria for recognition ..................................................................................................................... 31

3.4.1 Effective Control ........................................................................................................................ 31

3.4.2 International stability ................................................................................................................. 31

3.4.3 Contemporary state practice....................................................................................................... 31

3.5 Political effect of Recognition .......................................................................................................... 32

3.6 Assessment of interlocutor recognition of the Government ............................................................. 33

3.6.1 The recognition of the transitional government of Libyan. ....................................................... 33

Conclusion .............................................................................................................................................. 40

Recommendation .................................................................................................................................... 42

Bibliography ....................................................................................................................................... 43

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Acknowledgement
First of all I would like to thanks “Allah” without whom guidance and help this would have not
completed. Secondly I am highly indebted to my Advisor Kassahun Molla whom patiently read
my paper and gave me constructive and valuable comments on it. Thirdly I am highly indebted
to my family especially to my brother Ato Hayato Dulo and my mother w/ro Bassa Wirtessa for
their moral and financial support during my life in the compass. Fourthly my gratitude goes to
my brother Muktar Dulo for his all assistance and all individuals and institutions for their
immeasurable contributions to finish this work effectively.

Lastly but not the least I could not pass without giving thanks and appliciation to Alem Abebe
who helped me in typing this paper.

VI
 Introduction
The change of the government occurs from time to time in the contemporary world. This
process of changing continuous the question of recognition raised when the government
seize the power through unconstitutional manner, this question of recognition more of
political matter then its legality. There are doctrines and conditions of recognition of
government. This research contains three chapters that framed in the easier manner, the
first chapter deals with the general over view on recognition of government. It is mainly
deals with change of government modalities of recognition and finally the practice of the
international states on the recognition of the government. Chapter two talks about the
new development in recognition of the government mainly emphasize recognition of de
facto regimes in international law, the Arab spring, consequence and the cause of Arab
spring, feature of Arab spring, the lesson of Arab spring for international law and the
responsibility to protect. Chapter three deals with the effect and implication of legitimate
political interlocutor in recognition of the government. This chapter mainly deals with the
meaning of recognition, legal effect of recognition, political effect of recognition,
assessment of interlocutor in recognition of government, finally the recommendation and
conclusion were put at the last of this paper.

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 Chapter 1

1. General Overview on recognition of government

The change of the government is quite common in the contemporary world1. Government is
essential element for the recognition of the state, because the government play vital role in
recognition of the state. The issue of the recognition of the government raised when
unconstitutional government size the power in one country. The change of the government in
accordance of the constitution of the country have no need of the recognition of the other
country.

One country needs government to run the day to day activity of the society. As we have said
above the issue of recognition become problems when change of the government happen through
un constitutional means such as revolution or military coup.2 In this case other states government
may not like with that new emerged government recognition is political issue, Therefore, the
other states government when they wish recognize or refuse because it is their discretion of the
state government rather than the matter of the international law.

The other state governments have various option for expressing their dissatisfaction or consent to
the new government3. For stance in 1949 in china communist party size the power the united
state refused to recognize new communist government and continue to recognize the previous
government in exile in Taiwan as the legitimate government of china4. Similarly the United
Kingdom during the Italy invades Ethiopia they recognized the Hailesillesse government as the
legitimate government of the Ethiopia in exile5. From this we understood that recognition
generally lies with the discretion of sovereigns. We also understood that recognition is more of
political issue.

In practice, the effective control of the new government over the territory is preferable criteria
for the recognition but requires being settled likely to continue. For this purpose the united state
refused the communist government of china in 1949, however finally in 1979 recognize that
communist government.

2
One of the main difference between recognition of the government and state is, in case of the
state recognition it’s all about legal personality of the state in the international atmosphere. On
the other hand, the recognition of the government is all about the status of administrative
authority. In other words the states are element of international order they are above all the
bearers of Rights, obligation power and immunities in the international system where as the
government are nothing but agents of the states. The government assert rights incur obligation
exercise powers and confer immunities on behalf of the underlying sovereign entities from the
above expression we know that recognition of the state basic for the recognition of the
government. When there is no state there is no government, government is one sub element of
the state. After recognition, of government act as the agent o the state and also exercise powers
of the state in the world arena.

Generally the issue of recognition of the government is changed from time to time. The state
government recognition of the new emerged government depending on the different doctrines of
recognition from ancient up to present time. Let discuss briefly the legitimate doctrines of
recognition of the government.

1.1 Doctrines of Recognition

There are many doctrines of recognition of the government which employed in the way of
recognition the new emerged government. Internationally several doctrine are applicable in
recognition of the government among them I choose some doctrines of recognition which
irrelevant for the purpose of this research.

1.1.1Effective Control Doctrine

Effective control doctrine is the theory of factual existence of government within the state. The
fact that a person or a group of persons government and its right to rule6.

E.g. English recognize the Italy when they control the territory by over through the Hailesillesse
government. The Hailesillesse exile in Britain as de jure government of Ethiopia. Italy
recognized as de facto government of Ethiopia.

The government established itself in power and appears to the gained permanent control will
have to be recognized. This doctrine sometimes called declaratory: There is duty to recognize a
government when it fulfilled the requirements, that is, permanent and effective7.In practice are
generally agreed that the declaratory doctrine of recognition is most consistent with justice and

3
common sense the acceptance of the doctrine, however did not stop them when ever their self
interest was affected from resorting to various deceive in order to evade the full consequences of
the doctrine. For instance during the Spanish revolutions 1868-1875, British recognize was
extended to the successive revolutionary government. Generally effective control deals factual
size the territory of the country permanently and effectively effective control is not dealing with
controlling all over boarder of the countries, but it deals with the place controls permanently and
effectively.

1.1.2 Tobar Doctrine

This doctrine advocated in 1907 by foreign minister of Ecuador. The doctrine deals with that
government which has raised to power through extra constitutional means should not be
recognized8. According this doctrine constitutional means i.e. through election by the will of the
people. The governments gain the power by the will of people of the country. The government
come to power by revolution is not recognized.

The United States gave it her whole hearted approval to this doctrine9. It is almost impossible for
one state pass judgment up on the constitutionality of the government of another state. Tobar
doctrine used to promote democratic transfers of power the idea was to use recognition a means
of promoting certain types of government in other state. This doctrine mainly used powerful state
to interfere in the internal affairs of another state in the name of promoting the democracy and
legitimate government.

The will of the people of the country disregards the will of the people rather than the will of the
powerful states. Because the powerful state not recognize when they are not happy with the new
government even though the government take power by the will of the people.

The United States has on many occasions taken herself the task of guardianship of the
constitution of the other states10.

Example united states in 1917 refused the Tinoco government in cost a Rica on the ground of
un constitutionality Further, the doctrine of legitimacy has it often been as pre text for political
bargaining11. Generally this doctrine criticized for interferes in the internal matter of state. This
doctrine the establishment of government in other states. The issue of the determination of the
government is up to the people of the country rather than the government of other country.

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1.1.3 Estrada Doctrine
This doctrine advocate by Mexican foreign minister called Estrada. According to this doctrine
deemphasize and avoid the use of recognition in cases of changes of government and we
concern ourselves with question of whether we wish to have diplomatic relations with the new
governments12. Granting of recognition being an insulting practice implying judgment up on
internal affair of foreign states. The Mexican government would hence forth confine itself to
the maintenance or the non maintenance of diplomatic relation with foreign government. In
the 1970s the United States moved away from the tobar doctrine to Estrada doctrine13.

Generally according to this doctrine the countries should concern themselves with question of
whether they wish to have a diplomatic relation with the new government rather than the use of
recognition in case of change of the government.

1.2 Condition for the recognition of Government

To recognize the newly emerged government there are some condition, there are different types
of recognitions these are the de facto and de jure recognition of government let discuss this issue
briefly.

1.2.1 De facto and De jure recognition

The distinction between de fact and de jure recognition is the most confused circumstance of
recognition14. When we say de facto recognition it is factual the emerged government factually
control the territory effectively and permanently for instance during colonial period Italy
colonize Ethiopia for a few years in that time Italy recognized as the de facto government of
Ethiopia by united kingdom on the other hand.

When we say de jure recognition it is legal recognition de jure government means a legitimate
government of the country for instance when Italy invade Ethiopia the British government
recognize Hailesillesse as the de jure government of Ethiopia in exile.

De jure recognition is stronger while de facto recognition is more tentative and more connected
with effective control over the territory15. Example United Kingdom recognize the soviet union
de facto in 1921, but de jure only in 1924. We may understand from this governments are
reluctant to officially recognize the newly emerged government as de jure government. First
most of the government recognize as de facto then give de jure recognition when that
government permanently controls the territory.

5
The recognition of de facto implies that there is some doubt as to the long term viability of the
government de facto recognition involves a hesitant assessment of the situation an attitude of
wait and see to be succeeded by de jure recognition when the doubt are sufficient over come to
the extent formal acceptance16. According to professor Lauter pact to recognize the new
government as de facto government two main criteria must be fulfilled these are firstly the
government accepted by the people and evidenced by certain democratic procedure secondly the
new government should give proof of its ability and disposition to fulfill international obligation.
According to the professor two criteria fulfilled the issue of de facto unless this recognition of
the government may be not raised. The newly emerged government also claim de facto
recognition from other government when it full fills these conditions as expressed on the first
criteria the new government must welcomed by the people of the country, the people allow for
that party or government to rule the country not only this there is also further criteria, that is, the
government follow some certain democratic procedure. The second criteria deal with the
capacity of the government to enter in to international relation. The governments give some
evidences to international community the ability to perform international obligation.

1.3 Modes of Recognition of the government

1.3.1 Implied Recognition

Recognition is about intention of some government to the new emerged government17. This
intention may be express or implied when state establish relationship with new emerged
government in the way of signing the treaty diplomatic relationship that sate impliedly recognize
the new government. A congratulation message to a new governments and unofficial contact do
have the same effect or implied reocginition18. For instance in formal relation established
between united states and communist china in 1960s and early 1970s considered as implied
recognition state practice has restricted the possibility scope of operation of concept of implied

recognition to a few instances only and all the relevant surrounding circumstances will have to
be carefully evaluated before one can deduce from the conduct. Generally in practice implied
recognition is not preferable, because the government want to have a formal or express
recognition

6
1.3.2Conditional Recognition
Conditional recognition has been subject to fulfillment of certain requirement. For example the
good treatment of religious minorities as occurred with regard to independence of Balkan
countries (Bulgaria, Serbia, Romania, and Montenegro) in the nineteenth century19. Conditional
recognition may cause some political problems but the non-observances of the condition would
not invalidate the recognition.

1.3.3 Pre mature Recognition

Since recognition is a political decision of state or government in some circumstance recognition
occurs before the new government control the territory of that country effectively20. For instance
in case of Libya many countries recognize the national transition council of Libya before it
control the whole territory of the country as the legitimate representative of Libya. Similarly
recognition of Bosnia Herzegovina and Croatia were well known examples of premature
recognition in the hear past as both governments has not an effective control on their whole parts
of territories at the time of recognition21.

There are also other modes of recognition such as collective recognition and withdrawal
recognition. When we say collective recognition according to international law commission; the
acts of the state during the process of receiving information of the situation, evaluating that
information and reaching a decision and communicating that decision22. There is also sometimes
possibility to withdrawn a granted recognition23. Specially, it is easy for the de facto recognition
since the position is different with the de facto recognition which includes an ambiguity for the
futures of the entity.

State practice in recognition of the government under this topic I try to discuss the practice
of state in recognition of the government in international arena.

It is very difficult to consider the practice of all countries of the world on issue how to recognize
the new government for the purpose of this paper I pick out two prominent countries which I
think model of the world countries.

These are the practice of the United States of America and United Kingdom let separately
discuss their

7
1.4 State practice of recognition of the government

1.4.1The practice of United States of America.

In the 19th century, the USA recognizes stable government and also confers approval. Then in the
20th century USA apply Tobar doctrine in recognition of the government. USA use recognition to
spread democracy around the world23. The united state government using this doctrine pre
determines what types of government established in the other countries.

In recent year USA practice has been to deemphasize and avoid the use of recognition in case of
change of the government and concerned themselves with the question of whether we wish to
have diplomatic relation with the new government24. This indicates that United States of
America moved from tobar doctrine to Estrada doctrine which element the notion of recognition
of the government. According to Estrada doctrine there is no need of recognition the country
when wish to have relation with the new government they create relation with that government,
when they do not need any relation with that new government they silent the significance of the
recognition has faded away for instance in 1978 the united states government assume that the
government of Democratic republic of Afghanistan will continue to honors and support the
existing treaties and international agreement enforce between them25. We understand from this
agreement both countries agrees to continue their relationship rather than recognition However
contrary to above agreement the government of the united states and china expressly agreed to
recognition each other and establish diplomatic relation in 1979.

Presently also the issue of recognition seems reviving.

There is situation recently the states recognizing the new government. For instance in case of
Libya many states recognize the national transitional council as the representative and
government of Libya.

1.4.2 The practice of UK

The Britain formally recognizes the government as oppose to the United States which recognize
the government in exceptional circumstances26. The British government assesses the regime
come to power unconstitutionally whether it able to exercise effective control of the territory of
the state concerned. The UK also expressly recognizes the revolutionary government. In the 20th
century the Britain minimizing the role of recognition that is the governments will not be

8
recognized at all27. This is seems that the UK moved from formal recognition to implied
recognition.

United Kingdom since 980 formally recognize only state, not government28. That policy is
reminiscent of the Estrada doctrine accordingly which states issue no declaration in the sense of
grunting recognition in case of change of regime but confine themselves to the maintenance.

9
 End notes
1. DJ Harris Cases and material on international law (6th ed. 2004) p157
2. Nurullah Yamali what is meant by states recognition in international law
3. Wikipedia, International law en. Wikipedia.org/wiki/international law access on 26
January 2011
4. M.N Shaw international law (5th ed.2003) p.377
5. Ibid
6. Ibid 389
7. Full text of the international law of recognition with special reference to practice in Great
Britain and united http//archive. Org/detail/ cu319201
8. Dr. A kirchner public international law Recognition of state and government
http//74.502430/search?P=cache=Dy recognition of governments % 22 and c+=uk
9. European society of international law vo3 http//www-elilen law.ac.uk/media/draft paper
10. New development in public international law statehood self determination and secession
http//www. asil org.int. international 2% en.ct
11. Supra note 1
12. Ibid
13. Supra note7
14. Ibid
15. Supra note 4 p.377
16. Wikipedia “Recognition of state and government http/en.wik/diplomatic recognition
access 05 January 2012 .
17. Supra note 2 p.p.
18. Ibid
19. Ibid
20. Supra note7
21. Supra not2 p 11
22. DJ Harris cases and material on international law 16th ed 2004/p.157
23. Ibid pp 157
24. Ibid pp 156
25. Ibid pp 158
26. Ibid pp 158
10
 Chapter 2

2.1 The new development in recognition of the Government

Recognition is a unilateral act performed by the recognizing states government of another states
or another state government on the state governments it is only their discretion to reorganize or
not to recognize the government is recognize another government it with to assume diplomatic
relation with that government, it implies the readiness to tie with diplomatic relation with the
new government. Recognition is simple a procedure where by the government of existing states
respond to creation changes in the world community and a means by which existing state sack to
effect changes in the same community 2. There are ambiguous position of de facto regimes in
international law has long been subject argument and source of political conflict. The manner in
which de facto regimes are regarded internationally has serious consequences for the individual
under the influence of this legal grey area.

In North Africa new development in recognition of government accords in 2011 in world

atmosphere. In North Africa there was a big revolution in the countries such as Egypt,
Tunisia, Libya, Algeria etc. In 2011, Libya was in the grip of civic war in. Gaddafi and
opposition forces had organize themselves as the national Transitional council (NTC)
controlled large par tics of the large parties of the Libyan territory3

In this struggle to become Libya’s official governments acts by international actors have
played on important role, it raise numerous issues of international law among those issues let
us see some of them.

First, because the primary actors in international law are states international law principally
applies to the government of these states4. Regimes that are not governments of status, but do
exert control over territory, are left with an ambiguous position in the system of the
international community. Because the actions of these regimes may have enormous
consequences, it is important to examine their status in the international legal order.

Second actions by member states of international community may affect the status of these
regime5. Categorization of these actions and their effect is needed to accurately portray the
current international legal orders in which both regular states and irregular regimes are
placed.

11
Since the first half of the 20th century with mainly European legal scholarship, the position of
defector regimes and the practice of governmental recognition has been ignored or least not
been given the attention it deserves6. Because these legal difficulties have the severe
consequences for the people in situations under the influence of this legal grey area

2.1.1 The De Facto Regimes

The position of de facto regime less than de facto government, de facto regime is an entity
which exercises at least some effective authority over a territory with a state7. This degree of
effective authority is coupled with a certain degree political and organizational capacity. This
entity intends to represent partially or completely controls, the territory in the capacity of the
official governments. In order for a defector regime to attain official government status, it is
argued some form of agreement or recognition is needed from the actors that constitute the
international community. Prior to an expression of agreement or recognition by these de facto
regime remains in its defector position, the words de facto signifying the regimes factual
control but illegal (extra legal foundation. It is important to distinguish de facto regimes from
entities that are similar but which are different in several crucial aspects, these entities are de
facto state, de facto government, national liberation movement, belligerent group and
insurgent group. Let us discuss their deference one by one.

A de facto state is a geographical and political entity that has all the features substantive
recognition and therefore remain illegitimate in the eyes of international society8. The entity
that constitutes a de facto state seeks full constitutional independence and wide spread
recognition as a sovereign states. Example of de facto states is republic of Somali land. Then
entity constitutes a de facto regime on the other hand, aspiration to be recognized by
international community as a being official government of an already existing state example
Kosovo. The main difference between de facto state and de facto regime is the ambition
behind its organization. While the de facto state pursues succession or independence from
parent states, the de facto rape seeks to be recognized as the official government, leaving the
parent states and its territorial intact similarly de facto regime can be distinguished from
national liberation movements while national liberation movement strive for the liberation of
a repressed people for instance the liberation movement in Ethiopia Oromo liberation Front
(OLF), Ogden national liberation front (ONLF) and etc. This is not necessarily the case for
de facto regimes; the de facto regimes should also be distinguished from the de facto
government. Although the terms are often used interchangeable. A de facto government is an
12
 entity of the state but is not recognized as the state government by the international
community9. The de facto regime, however, is an entity that does not necessary control the
entire territory of the state; its influence can also be less substantial. De facto regime degree
of controls can range from power over small parts of the state to full control of the whole
territory after which it can also be identified as a de facto government. The distinguishing
factor here is the degree of effective control over the respective state’s territory when an
entity is in effective control of only certain parts of a state it cannot be accurately labeled as
the de facto government of the state, but it can be identified as de facto government. Only
when an entity is in full control of the state, but not recognized as a member of the
international community can terms de facto government and de facto regime be used
interchangeable10. This means that de facto government can always be identified as a de facto
regime, but not vice versa.

Finally de facto regime, can be differentiated from belligerent groups there difference is the
degree of political organization exercises by the group. Belligerents or in sergeants do not
requires political motives and effective organization to achieve their status, as in the case of
de facto regimes11.This means that belligerents and a effective organization to achieve their
status, as in the case of de facto regimes. The belligerents and insurgents can under certain
circumstances acquire the status of de facto regimes that is only if they exercise a certain
degree of political authority and organizational ability. However belligerents and insurgents
group cannot automatically be labeled as being de facto regimes.

2.1.2 Recognition of de facto regimes in international law

Recognition of de facto regimes is the replacement the seated government of their parent state.
Success [partial] in this pursuit bring about change in international community12.This is shift of
power is often unconstitutional and sometimes by forces, and the international orders.
Recognition of an entity as the government of a state implies not only response to the change but
it also deemed to have satisfied the required conditions of governance. Also the recognizing state
will deal with the governing authority of the state and accepted the usual legal consequence of
such status.

De facto recognition can be considered as away to identify the opinion expressed by the
government towards a de facto regime, but nothing more rather and a menu from which
governments choose a method of recognition, it can be used as a chart on which position of a

13
government towards a de facto regime can be placed13. De facto recognition is use full
institutions where two functions (usually the government and the de facto regime) are contesting
effective control over an area. De facto recognition should be understood as abstention from
recognition, coupled with acknowledgement of a factual situation. In this manner, it can be used
by governments to indicate which entity is regarded as the dominant or favored one in their
struggle for dominance. It is not a legal practice for either of the parties. However despite its
controversial nature, de facto nature, de facto recognition is still practiced in international
community.

On the contemporary world the issue of recognition of de facto government is very confusing,
because at this point there are two computing facts the existence of legitimate and recognized
government at one point of time14. Therefore it is not possible for government to have full (legal)
international relation with both de facto regime and government of its parent state. This further
complicated by the fact that recognition often presumed before it has been officially liven by
government. From this we understand the recognition of the new government is an act that only
the government and the states may grant or with hold. Generally it implies readiness to assume
diplomatic relation.

What is generally perceived a full or de jure recognition often is not full government
recognition15. For instance the diplomatic reaction of governments to the situation in Libya in
2011 and its reception in the international press. The major problem in this case was that the
condemnation of the Gaddafi regime, couple with the willingness to open consular or diplomatic
relations with national transitional council (NTC) which presume acknowledgment of a degree of
effective control on the side of the [NTC), was conceived as (de jure) governmental recognition
this presumption is not correct for the mere fact of approval by government official of the NTC
in the combination with the disapproval of the Gaddafi government is in itself not enough to
create any legal effects between the approving government and the de facto regime. From these
we conclude that the international government when they wish they approve the opposition parts
to the governmental power as the legal government of the country and disapprove the
government of the country which they not need to establish relation, they also considered as de
facto government of the country by demotion this is what we perceive from what is occurred in
Libya in 2011, most of the international government approve the NTC by disapproving the
Gaddafi government.

14
When the term recognition is put in contact with the question of governments, whether rebels or
de facto authorities in a state the implication are plenty when it comes the meaning and scope of
the term and the action involved16. It may indicted the recognizing state willingness to enter in to
official relations with new group that is now in charge of a state that already recognizes or may
also manifest its opinion on legal status of the group or both. Alternatively, recognition may
simple be a means of expressing political support or approval.

2.2 Legitimacy for the Representation

In the international legal and political arena to represent a people or country some parties have
to pass through some form of requirement. If the parties fulfill such requirement it may seize
power. Under this title we discuss two sub topics this are legitimate representative of the people
and legitimate representation of the countries both of the sub-topic has their own parameters for
the political parties to consider as legitimate representative of the people or country.

2.2.1 Legitimate representative of People.

The de facto regime can be recognized as being the representative of the people17. In such
recognition the possibility of basic consular relations with the recognizing government and
indicate that the recognizing government sees the defector regime as a separate entity from the
parent state’s government. This practice does not however amount [and not intended to amount]
to any legal form of the government recognition. It is simple statement bay government indicates
the willingness to negotiate with de facto regime. It is often used to express disapproval of old
government and willingness towards a de facto regime to enter in to negotiations. It can often
also be seen as the first step towards (official and legal] recognition, in which recognition has no
legal effect on the relationship between the recognizing state and the government of the de facto
regimes parent state. At this time the state can have only one government.

Let see the issue of legitimate representative of people by looking the situation going on this
world. When we see the legitimate representative of the people in case of Libya. Recuperation as
representative of the Libyan people, France became the first country to recognize the NTC as the
legitimate representative of Libyan people18. This means France recognize the opposition parts
by disapproving the party which ruling the country. Similarly Russia foreign minister lavrov
recognize NTC as legitimate partners at the talk about Libyan futures19. The recognition of the
Russia seems somewhat less than the recognition by France, when we closely look the Russia
15
recognition has narrow by scope when we compare with that of France. This is left in the fact
that international legal status of the incumbent Qaddafi government as the government of Libya.
Even though those countries recognize the NTC as the legitimate representative of the people,
they not derecognize the Gaddafi government.

Recognition of the Rebel group (de facto regimes) as legitimate representative of the people
the following criteria has to be fulfilled.

Firstly it legitimizes the struggle of the group against the incumbent government.

Secondly it allows the group to speak for the people in international organization and
represent it in other states by opening representative office.

Thirdly it provide international acceptance and fourthly it usually results in financial aid.

In the case of the NTC there may be additional advantages in resolution 1970 (2011), the
united nation Security Council (UNSC) decided that all member states shall frozen all funds
and other financial asset owned or controlled by the member of the Gaddafi20. The UNSC
express its intention to ensure that those frozen assets should at a later state be made
available to and for the benefit of the people of Libya. This sanction is very important for the
NTC for the weaking of the Gaddafi government. Also it boosts the confidence of the
opposition to realize their future intention. It such asset, were to be made available to the
Libya people in the future; they could channeled through their legitimate representative21.
These effects have not legal binding, but do indicate a willingness to open diplomatic or even
(basic) consular relations. Therefore, recognition of de facto regime, this makes the practice
of de facto recognition obsolete.

Similar recognition as the NTC as legitimate representative of the people accorded by Qatar,
the maladies, Gambia, Senegal, Turkey, Jordan, Spain and Germany. This recognition is
similar with the recognition of the Palestine liberation organization (PLO) and other national
liberation movement in 1970’s as the sole legitimate representative of their represented
people22. In these cases it was made clear that the action was not mean to signify recognition
as the government of prospective Palestinian states and did not include the exercise of any
sovereign right.

16
 Recognition of the NTC as legitimate representative of people leave intact the national legal
states of the incumbent Gaddafi government as the government of libya23. While as state
cannot have two de jure governments at the same time. It can have a de jure government and
a local de facto or a representative of the state’s people. This explain why state which have
recognize the NTC as legitimate representative of the Libyan people can nevertheless
continue to recognized diplomatic role and states of Gaddafi appointed ambassadors and
accept his representatives in international organization as the representative of Libya. When
we compare the recognition of the PLO and NTC, PLO struggle for two purposes for the
freedom of their people and also to recognize the Palestine as independent state. There is
critual difference bet wean parties, the NTC wish only to over through Gaddafi from power.

2.2.2 Legitimate Representative of the country

Government can recognize de facto regimes in the capacity of representative of their parent state24. In
doing this a government intended to open full consular relation with the new government and to close
relation with old government. Moreover, it considers the de facto regimes capacity to fully represent its
parent’s state and consider its ability to perform all its international rights and duties.

Recognition of a de facto regime as representative of parent’s state amount to full (de jure)
recognition. As oppose to the form of recognition considered above, it have legal implication.
Recognition statement are normally drafted with great care in the legal advisors department of
foreign ministers and it’s usually makes a different whether state recognizes the NTC as the
representative of the Libyan people or as the representative of the Libya. What we understand
from this is that recognizing as legitimate representative of the of the country has legal
implications also used as both legitimate representative of the people and also the country. Italy’s
statement on April 4, 2011, that it recognized the NTC as the counter’s legitimate inter locator on
bilateral relations25.this seems to have gone beyond recognition by France and other. Italy is the
first countries which recognize the NTC as legitimate representative of the country her
recognition also have several legal effects because recognizing as legitimate representative of the
countries are more important and also binding. Libya is also the former colony of the Italy.
Following the recognition of Italy, France up graded its recognition, stating that from now it
consider the NTC as the only holder of the government authority in the contract between France
and Libya and its related entities. This effect amounts to recognizing NTC as the Government of
Libya this recognition also indicate derecognizing the Gaddafi government. France is the first
17
country which express her support to the NTC by intervening in internal affairs of Libya, and
bombarded by air the solders of the Gaddafi by doing this France is played major role to
overthrow the Gaddafi government. On June 12 similar recognition comes from the United Arab
Emirates (UAE), they recognize the NTC as legitimate Libyan government26. Based on this
united Arab Emirates dealing with the NTC will take the form of the government to government
relationship in all issues relating to Libya. On July 2011, the USA. Germany UK and
Representative of Libya met in Istanbul to consider its standing point towards the seated Libyan
government under the Gaddafi and the aspiring Libyan government the NTC 27. At this meeting
they reaffirm that the Gaddafi regime no longer has any legitimate authority in Libya and that
Gaddafi and certain members of his family must go. Hence forth and until an interim authority is

in place, participant agreed to deal with NTC as a legitimate government authority in the Libya.
By collective group issuing this statement, the governments that comprise the Libyan contact
group (LCG) seemed to have accord de jure recognition to the NTC. As the group regarded the
reign of Gaddafi illegitimate and recognized the NTC as the sole representative of the Libyan
state. This was indeed the case for some countries like Germany this met a change in their policy
towards the government under Gaddafi and the NTC as they earlier according, political and legal
bonds had to be severe between the groups members and the

Gaddafi regime, and opened with the NTC de facto or de jure recognition is descriptive of the
charter of the act of recognition. Recognition as having certain capacity (being the represent
tative of the people or of the parent states) is descriptive of the charter of the thing recognized.

Recognition of the NTC as a de jure government of Libya automatically entails the de

recognition of Gaddafi government 27. States that recognize the NTC as the Government of Libya
have to hand over to it the Libyan embassy and diplomats, if requested to do so by the NTC and
grant its access to Libya states assets situated in their territory, subject to the restrictions imposed
by the united nation security council. Those countries which recognized the NTC as legitimate
representative of Libya have to close their embassies in Tripoli and end any arrangements for the
protection of their interests by other diplomatic missions but may open an embassy or a
consulate in NTC controlled Benghazi. They may lawfully buy Libyan state owned oil from the
NTC and provided it with assistance, subject to the UN imposed sanction against Libya. They
will usually as object to the representation of Libyan in international organization by delegation
18
 28
from Tripoli . De recogintion of the Gaddafi government may, however negative side effects,
such as absolving Gaddafi and his followers form their international responsibilities as the
government of Libya. When a government recognized as de facto recognition as a representative
of people, it provide clarity in its intention to wards that the regime. It indicates a willingness to
negotiate and recognize the factual existence of the de facto government, this can be meant as a
de facto regime is recognized as defect government, this can be meant as an expression several
differing (sometimes conflicting intention made opinions. De facto government more over does
not indicate the intention of the recognizing state, other than its refusal to recognize full 29. When
government recognize as representative of people this ambiguity is avoided.

The de facto regime is simple acknowledged for what is and the recognized state express its
willingness to cooperate within it to a certain degree contrary to this recognition of the
government as legitimate representative of the country have followed within legal and political
effect and also binding on the recognized state .

2.3 Cause and consequence of Arab spring in Recognition of the Government.

2.3.1 What is Arab Spring?

The Arab spring refers to the prodemocracy uprising currently sweeping the Middle East and
North Africa30. It is revolutionary wave of demonstration protests and wars occurring in the Arab
world that began on18 December 2010. The term Arab spring was previously used beginning in
march 2005 by numerous media commentators to suggest a spin –of the invention of Iraq would
be the flowering of western friendly middle east democracy many problems facing Arab people
form the dictatorship kings. These create a famous revolution called Arab spring. The term Arab
spring used to denote these events may have started with American political journals. The term
was part of American strategy of controlling (the movement) aims and the goals directing it
towards American Style. However the revolution oppose to this against western democracy,
most the slogan of the revolutionaries also support Islamist parts this is what American as well as
westerns hate. For the liberal democrat’s the name is illusion to the revolutions f 1848, which is
some time referred to as spring time of people and the Prague spring in 196831.

19
Due to the electoral success of Islamist parties following the protests in many Arab countries the
events have also became known as Islamist spring or Islamist winter.

Political analysts’ have sought for common threads across the numerous uprising in Arab region
to formulate effective response to dissatisfaction expressed in mass in streets and squares from
north Africa (morocco, Algeria, Tunisia, Libya Egypt, Jordan and Syria) to the Arab peninsula
32
(Bahrain Saudi Arabia and Yemen) . All these movements challenge states legitimacy many
scholars and commenter’s have point to the regions lack of civil and political rights, giving the
populace neither protection from the state the means of holding the state accountability. The
catalyst for the current revolution of the protest was the self immolation of Tunisian Mohammed
33
Boazizi . He is unable to find work and selling fruits at a road side stand on 17 December a
municipal inspector confiscated his wares, an hour later he doosed himself with gasoline and set
himself a fire. His death on 4 January, brought together various groups dissatisfied with the
existing system including many unemployment, political and human right activists, labor, trade
unionist, students, professors, lawyers and other begin the revolution,untill present the revolution
is going on the countries such as Syria and also in others even though it is not visible as such in
Arab regions. There is some indication of the spring in non Arab states for instance in Spain and
Ethiopia, there is some protest.

2.3.2 The cause of Islamist spring (Arab spring)

The Arab spring (Al-thaw rate al-arabiyyah) , begun at the end of 2010 and beginning of the
2011, a serious of doministrations and protests began to raise in the Arab world34. These
revolution or protests have become known as Arab spring [Islamist spring] and also Arab
awakening.The Tunisia revolution that took place in the self immolation of Mohammed Baize on
December 2010. In protest of police corruption and ill treatment, has taken authoritarian leaders
across the Arab world in Areas such as Egypt, Libya Yemen and Bahrain.

The Arab spring is the outcome of a numbers of repressive policies against Arab citizens from
their own government35. This anger was fomenting in different countries pertly much since the
independence movements secured the European colonizers retreat. This reason the Arab spring
did not happen earlier is that most Arab did not believe that they had the power to over throw
their government. Arab spring protestors had a varieties of demands of which a number of Arab
leaders were no willing to conceal some of those included, but were no limited to the
following36.

20
Lack of democracy, dictatorship or absolute monarchy, human right violation, government
corruption, economic decline, unemployment, extreme poverty and numbers of demographic
structural factors such as large percentage of education etc . Some scholars extended to the 2009
Iranian protest as one of the reason behind the Islamist spring. And also the police following by
America in the Middle East is considered as the root cause of the Arab revolutions.

2.3.3 Futures and Consequence of Arab Spring

The Arab spring revolution varied according to the social, environmental and nature of each
ruling regime and depend on the degree of civility in surrounding environments, the momentum
in achieving the revolutions goals and was faster when charting the future of such revolutions37.
The revolution of Tunisia and Egypt where the fastest to take sharp despite the apparent control
and strength of the ruling class. Whose allegiance and connection to the restitution providing
security for the regime did not cross professional boundaries, though some officials in these
institutions reaped multiple merits at the individual level.

In those countries where, historically or politically, regional tribal sectarian, doctrinal or

ideological partisanship, have developed and prevailed the demise of existing regimes means a
collapse of their supporting institutions gains, such as an environmental led to prolonged conflict
and an escalation of confrontation revolts, action and reaction to extent that drained each party
and forced them in to accept bargains and compromise as in case of yemen38. In other cases, the
parties had to consider such insurrection as a chapter in a long battle of dusting with what has
been achieved and postpone, show down until sometime in the future. However each party
understands the risks such as a stand entails for this evidence in Syria case, where the possibility
of the segimeres , quishing control , as in Tunisia and Egypt, or bargain in populace as in
Yemen, is unlike the international presence however, we make the liquidation of opposition
figures by the regime a difficult task due to the relative weakness it would suffer after the battle.

In Libyan situation can be considered a mixture of two cases above. The park of mobility against
the regime was a byproduct of the violent way in which it faced people other ideologies such
group have become centered and built capabilities in the eastern parts of the country for work
related reasons which was then mingled with regional tribunal sympathy39. Around this group,
all those with reasons to clash with the regime rapidly turn in to pillars for revolting against it.
And because the forces supporting the Libya regime were not based on strong partisanship, they
were at external treat. If the regime and individual leader fell, this prolonged the battle relatively

21
speaking. The end was known and inevitable, no matter how long the regime resisted, because of
what we can term the convective fanatism among supporters as in the Yemen and Syria.

The external factors led, by western countries was certainly important in taking the Libyan
revolution a way from a situation like that of Syria40. Let alone the fact that the internal factor in
the Libya was the main decisive, if not the sole, factor. It was indispensible, so the western
intervention was an optional choice that they impose depending on their reading of effectiveness
of internal ability to bring the battle to close. When we closely examine the intervention of
western in Libya, they not intervene for the purpose of protecting the civilian but for protecting
their interest in Libya. If we say the western intervene the Libya for protecting human right, why
they silent on the issue of Syria, the human right violation in Syria more dangerous and kill more
thousands than Libya. If they truly for human right violation they not silent on issue of Syria
currently. The main target of westerners is to impose their ideology and their democratic style. If
they think their ideology is unacceptable they refrain from any act even though they see the
violation of human right. The good evidence of this is the current situation of Syria.

The nature of the dispute and battle in Yemen and Syria may have defined the direction of
western intervention regardless of the nature of the west relation with ruling regimes 41. This is
not to say that Russia and china stances had a direct impact in charting western intervention
because of the west has always had the tool and means to pressure both countries. The west has
always been able to ignore their stands, while retuning international support by fabricating
political and security pretext as in the case Iraq. The western media made people confusing, the
people unable to identify the truth and false, the world already dominated by the false
propagators. The truth left without place, because in the contemporary world all medias
dominated by western. The main goal for the revolution to replace a totalitarian dictatorship with
freedom and democracy, but the situation does not as the westerns formulation and for custing
the spring futures, the revolution success; they replace the dictators and elected the rulers they
wish. However the western prediction and strategy not success, the wish of the peoples and
westerns goes opposite. Because the people elected the Islamist party which the western call in
the list of terrorist. Generally the consequences of Arab spring are the following42.

 The Tunisia president Ben Ali ousted and government over thrown.
 The Egyptian president Hosni Mubarak ousted and government over thrown.

22
  Libyan leader manner Gaddafi killed after civil war with foreign military intervention and
government over thrown.
 Yemen president Ali Abdullah Saleh outed and had power to national unity government

Syria experienced of full – scale civil war between the government and opposition force. Civil
uprising against government of Bahrain, despite governmental changes, Kuwait, Lebanon, Omen
implanting government changes in response to protests. Ongoing protests in Saudi-
Arabia,Sudan,Maurtania and some other countries.

2.4. Lessons for international law from Arab spring

Not all that begins in hope ends in happiness43. In Egypt the exuberances of Tahrir square has
given way to frustration over the resilience of the state in Libya the anti Gaddafi movement has
fractured a long tribal functional lines in Syria the revolution calls for reform continue to be met
with gunfire form government force .For international law, the importance of Arab spring a
similar ambiguous on the one hand. According to Juan Mendez Arab spring is the world’s first
true human right revolution. The young protestors of the Arab spring spoke the language of
democracy and human rights and international community responded in the same lexicon, with
reference to human rights law and international human right council and international criminals
courts (ICC). Many human right advocates rejoined when united nation Security Council
(UNSC) referred the institution in the Libya to the ICC and when the Libya intervention was
justified in the terms of the international responsibility to protect. To the optimist these
developments reflects the renewed vitality international legal institution and will further speed
the development of human rights related international regal norms44.On the other hand the Arab
spring demonstrated equally the limit and changes of the same institutions and norms. At the
outset it’s probably worth noting the early relevance of international law and institution to the
Arab spring. For most of the least few decades international law and did little or nothing to
improve conditions in the Arab world .In need, the repressive regime of the middle east were
always asterisks to the global trend towards democratization even as autocratic regimes in Latin
America Russia and Eastern Europe. Tumbled oil rich Arab political leaders clung to power,
with little protest form united sates or other powerful nations.

It is unsurprising the change ultimately come from within not from without 45. The starring roles
in the Arab spring have been played not by international actors but by the citizens of the Arab
23
world themselves. International institutions and certainly powerful nations such as United States
have been followers not leaders. When the changing factor on the ground the Security Council
could no longer ignore the Arab spring, there response was equivocal. The council referred Libya
to the international criminal court(ICC) , NATO intervene in Libya for protection of the civilian
from prediction by Gaddafs force but the international community should little interest in
providing substantial financial organization assistance to the Libya opposition once Kaddafi was
over thrown. The Security Council has shown less interest in using military force to protect
civilian in Syria. In Syria there is a serious humanitarian violation against the citizens of the
country by their own government. If the Security Council responsibility to protect the civilian
why they should quite silent? The civilian killed in mass by the government forces, the people of
Syria rise their hands for help, however they have lost any one who listen their cry. The Security
Council and the powerful nation dumped their ears until now the civil war in Syria continued to
take the life of civilian population.

Nonetheless international legal response to the Arab spring may prove more portentous in the
long run than in short run 46. True responsibility to protect may have been operational zed only in
equivocal manner but the fact that it was invoked at all may reflect a substantial shift in the
international consensus on sovereignty intervention and use of force. This is particularly true
when the one considers that the emergence and operatnalization of responsibility to protect with
its sovereignty limiting logic, has been paralleled by similar shifts in security based assertions
about sovereignty and use of force.

2.4.1. The Responsibility to protect

Since the World War II international law has struggled to address the tensions between
47
westphalian sovereignty, human right and increased globalization . The UN charter reflect,
these tension even it introduces the notion of universal human rights and empowers the security
council to use force in the name of international peace and security, it emphasize that aside from
such enforcement actions. In relatively short order, the responsibility to protect concept gained
substantial transaction throughout the international community. It was referenced in the 2005 UN
world summit outcome document and embraced by senior US officials. It first serious trial run
come in early 2011 when the Arab spring hit Libya and Gaddafi predictable responded to
promised would go door to door executing the cockroaches who are trying to imitate what is
happening in Tunisia and Egypt. Mean while the Libya government forces were using fighter jets
to street crowds of civilian protestors. The Gaddafi lost the legitimacy to lead by attacking his
24
own citizens by fighter jet. The responsibility to defend the Libya people fall up on the
international community

The securely council accept this logic authorizing in Resolution 1973 use of force to protect
civilian in Libya 48. Today all use of force in the name of responsibility to protect have all had
security authorization should not be dispositive.

Indeed, the responsibility to protect frame work implies that the lawfulness of state authority is
depend on the capacity and will to protect population from a least certain kinds of harm. If
sovereignty involved in responsibility to protect and states failure to protect its own population
triggers responsibility to protect in other sate, this responsibility of third party states must be
logical existence whether or not politicized and highly veto prone body choose to acknowledge it
or authorized particular actions.

Generally the world powerful nations seem to forget the responsibility to protect the civilian
population in case of Syria. Every day the civilian is killed by the government forces.

25
 End notes

1. Nurullah yamali what is meant by state recognition in international law

2. Ibid
3. Http//www. catalog com / robbed island– blog
4. Supra Note1
5. Christopher J.Le.M. full text of the international law of recognition with sperial reference to the
practice in erat Britrp/detal/euzipain and united stated httpl/ orachice orp/etsal/co31p240/
6. Ibid
7. Ibid
8. Supra note1
9. Whewell Recognition of insurgents as a de facto government /modern law review v. 3 No 1
10. Ibid
11. Ibid
12. Robert D shane the change face of recognition international law (case study of Tibet)
13. Ibid
14. Ibid
15. Supra note3
16. Ibid
17. Ibid
18. Supra note12
19. Ibid
20. Jia – sipa – Columba edula many – colors – Arab spring
21. Ibid
22. Ibid
23. Ibid
24. Supra notes5
25. Http // ripital usembally , polls/ English/article/tam/
26. Supra rotes notes3
27. Supra //rotes12
28. Http// Wikipedia orpl wiki /national transitional council

26
29. Http law protestors. Type pad comlinternational-low-re cognition of Libya-natural transitional
council/html.
30. Http// the free dictionary com/recognition
31. Jia- sipa Colombian- eduymany-colors- arab-spring/
32. Ibid
33. Ibid
34. Supra note29
35. Ibid
36. Ibid
37. Http// global brif. Calb log/ what –the grincegal- neaer time-consequences of Arab spring
38. Ibid
39. Rosa broonk
40. Supra note31
41. Ibid
42. Ibid
43. http//www. Brooking .ed/./ the Arab lesson3/ html
44. ibid
45. supra note37
46. ibid
47. http// uw.orp/en/members/about sf flm)
48. ibid.

27
 Chapter 3

3.1 The effect and implication of legitimate political interlocutor in recognition of

the government.
The recognition of the government followed by many consequences and implication. When we
see the issue of the recognition of the government from ancient up to present time we have seen
many changes. At the beginning international government recognize each other or the newly
emerged governments ask the powerful states for the recognition. There is a time when the
power full states determine the form of government in the other states under the guise of the
democracy. At the present time states adopt the policy of non-recognition of the government
except the state. However recently with the connection of the Arab spring revolution and the
other new emerging government, the international states, they have the intention to move from
non- recognition policy to the recognition they seems they intended to the issue of recognition
many state which have the policy of non-recognition forget such policy and recognize the new
emerged government on this issue I give analysis on the issue of the Libya or the NTC
recognition in the international spheres. But firstly let discuss the issue of the meaning of the
recognition of the government and etc

3.1.1 The meaning of the recognition

The term recognition when we used in the context of recognition of the government of the
governments rebels or de facto authorities in the international law, may have several different
meanings. It may indicate the recognizing state’s willingness to enter in to official relation with
the new group or manifest it opinion on the legal states of the group1. Recognition may simple be
a means of expressing political support or approval.

The subject has been complicated by the use of several variants of the term. Such as de facto
recognition, diplomatic recognition de jure recognition and full recognition like recognition these
terms can be given meaning only by the establishing the intention of the state using them within
the factual and legal context of each case2.

Diplomatic recognition is usually used to indicate a willingness to enter in to formal diplomatic

relations (i.e. exchange ambassadors establishing embassy and etc.) Recognition is unilateral act
performed by recognizing state government it may be express or implicit. The act of recognition
does not necessarily required to use of the term recognition or recognize. Recognition is more

28
than a words. A state may simply say not it acknowledges regards a considers, dealing with or
treats a group in certain capacity in order to analysts its recognition.

It legal term the issue of recognition more of the out came of the end product or what is ideally
should be the result of recognition as a process. It is not a mere term but a process a procedure
involving transition from one position to another. In 1943 British Prime Minister Churchill wrote
to President Roosevelt encapsulating the very core aspect integral to understanding the principle
of recognition. What does recognition mean? One can recognize a man as an emperor or as
governor3. Recognition is meaningless without defining idea or formula. Recognition generally
speaking refers to a process whereby certain facts are accreted and endowed with or a conferred
with a certain legal status. Such as statehood or sovereignty over newly acquired territory4. It
signifies the willingness, and positive choice by a state in the international community. In favour
of a accepting the new state as a member of the same community. Generally recognition is
simply a procedure where by the government of existing states respond to certain changes in the
world community, and a means by which existing states seek to effect changes in the same
community. The process of recognizing a new entity as a state is a political nature allowing room
for each country to decide for itself as to whether it is to extend such acknowledgment or with
hold the same. The international community’s give recognition for the new emerging state as
oppose of the recognition of the government5. For the newly emerged government on the
recognized states there is no need of recognition even though it seems eradicated because some
states indicate their intention to return for the former policy of recognition. However they
refused to accept their practice. What is the effect of this recognition on the international? let we
discuss issue legal effect in recognition of the government.

3.2 Legal effect Recognition

The discourse on the effects of recognition has traditionally been divided between those adhering
to a constitute and those adhering to a declaratory view6. The constitutive view holds that an
entity very legal existence as part of the international system is constituted by the recognition of
the other entities making up the system. In this view de facto regime are effectively transformed
in to a states government by the actions of other governments. Conversely those defending a
declaratory stand point argue that the authority of a new government exists prior to recognition
and the act of recognition is merely a formal acknowledgement or admission of an already
existing fact. It is however constructive to use both views in analyzing recent state practice and

29
discourse. This clarifies the contemporary effects of government recognition on status of de facto
regimes.

International legal personality can be used in considering the contemporary merits of both
theories and in clarifying the position of governmental recognition7. If the international legal
personality of de facto regimes changes after recognition by existing governments (i.e. de facto
regimes attain a higher level of international legal personality after recognition such would
evidences a constitutive system8.

If the governmental recognition does not change the international legal personality after
recognition of a de facto regimes this would indicate a declaratory system.

3.3 Recognition and International legal personality

De facto regimes have international right and duties before recognition as new government of
their parent states. Therefore some argue that governmental recognition has little effect on the
status of de facto regimes and does not extensively change their legal rights and duties9. The
effect of non-recognition is relatively narrow. Many observers believe that recognition of
governments seems to make little difference; however the above has also demonstrated that for
full and formal participation in the internal community, same degree of recognition by other
governments seems to be needed. The possession of complete and uncontested international legal
personality bringing with it rights and duties under international law, seems to emanate primary
from recognition by actors that have previously attained this status themselves. The 2011
developments in the Libya and Ivory coast seems to support these nation. It is hard to contest
enormous influence of the decision to recognize the outtara government by united nation. For it
seems improbable that the government’s powers of Gbagbo government would have been
transferred without this recognition. Likewise when NTC attained the status of official Libya
government it was only after collective recognition by the major western powers. Thus
contemporary international law and states practice have produced a system that attests more to
constitutive than declaratory view10.

It seems almost impossible to suggest that any de facto regime can attain full international legal
personality without being recognized by any government only when other governments are
willing to have relation with de facto regime as a new government is it able to function in the
international community.

30
3.4 Criteria for recognition
Government use different criteria to determine whether to recognize a de facto regime. While
exercise of effective control has always been important for recognition recent developments
attest to the importance of other criteria guiding government judgments.

3.4.1 Effective Control

Exercise effective control has traditionally been the primary criteria for governmental
recognition11. In particular, the fact that regime control, the majority of the states territory has
been regarded as the most important indication of the need to recognize that regime same find
that effective control is not only necessary, but also sufficient to determine governmental
recognition decision must be based solely on whether the new governmental has control of its
state12. They allege, more over the recognition based or other consideration and in the absence of
effective control is premature and illegal under international law.

However the view that presupposes effective control yields several practical difficulties. Firstly
in situation of civil war or contest between a de facto regime and clear who is in effective control
over the majority of the state territory. Also recognition based solely or mostly on effective
disregard the possibility of other consideration that might influence of the states territory. Often
governments rely on the degree of popular support enjoyed by regimes or effect that would have
on the stability of the international community.

3.4.2 International stability

International stability and the role of justice and peace often have weight in the recognition
decisions13. The decision to recognize an account justice and peace can be based on the nature of
the regime itself or for the sake of justice and peace in the wider, international context. Some
scholars argue that satisfaction of minimal requirement of justice is necessary for recognition14.
Recognition of one regime over another may be done because the regime is more just in itself
and recognition of it would also promote global stability. Ability and willingness to fulfill
international obligations by a de facto regime can also be used as criteria for recognition.

3.4.3 Contemporary state practice

The situation in 2011 in Libya and iron cost are example of the fact the effective is no longer the
most important for recognition15. Although regimes might be a partial control in case of Libya or

31
not yet in complete control over state territory in case of iron coast they are recognized based on
other criteria. According to the scholars view these development further under pin the idea that
the effective control of governments is increasingly being out weight by other parameters like
electoral legitimacy in case of cotedivore16. As the primary criteria to determine the authority
entitled to speak and act on behalf of a state. In case of Libya the NTC to more consideration
given for justice, peace and stability more than effective control. Also scholars argue that
decision of recognition based on something other than effective control are illegal and premature
recent state practice seems to confirm that the factors, such as popular support, stability electoral
legitimacy are given more Weight in international community and out weight the (possible out
dated) legal principle of effective control.

3.5 Political effect of Recognition

In early decode of the Libyan civil war, there was more uncertainty on the legal and political and
political front than one could possibly surmise on the concrete terms17. State where very
reluctant to grant any legally relevant recognition to the LNTC (Libya national transitional
council) consequently leading states to invent a sui generis made of recognition of the NTC as a
legitimate and credible interlocutory or valid interlocutor “legitimate political inter locator” for
the people of Libya. These terms apparently signified that the LNTC was effectively an entity
officially as the negotiating coveter party, or for a dialogue or a partner fit enough to give the
people of Libya a voice in international relations. Though politically motivated decision
recognition in principle as toothless without spine that international law lends it18. This is
particularly clear in the light of states recognize as a matter of policy other states not
governments perfect humdingers of which are Australia, Canada, Germany, nether land and
united kingdom consequently those states that have recognize the LNTC as legitimate voice for
the people of Libya have forged diplomatic relations and ties and have in process established
permanent liaison office in Benghazi19. The main purpose of this action seems to have been
express various degree of political support. While in March 2011 the NTC was internationally
recognize only as a political interlocutory among others or simply as interlocutors this
domination was later changed to the political inter locator. The change from indefinite articles
was interpreted by the USA in June as signal that support for the NTC was deepening. However
any such recognition was still limited to this interim period20. States that recognize the NTC as
the legitimate interlocutor for the Libyan people have sent special representation diplomatic
representative, diplomatic ambassadors to and establish permanent liaison offices in Benghazi,

32
while these representatives may have a diplomatic status which would requires the NTC’s
recognition as government of Libya.

The French foreign minister hold report at the conference in London on march 29 that the French
diplomatic sent to the NTC was not an ambassador because we have not formally recognized a
state through the NTC21. States have also invited the NTC to open a representative office in their
capital. Such offices are, however, free to grant NTC’s representative working in their territory
certain diplomatic privileges and immunities. In most countries the grant of diplomatic privileges
and immunities to no diplomats require special legislation. This may explain why the UK and
other have so for granted the NTC only certain administrative concessions on minor issues such
as access to parking spaces unless state recognizes the NTC as the government of Libya. They
cannot allow the representation of NTC to set up office in the existing Libyan embassy without
violating their obligations to wards Libyan under the Vienna convention on diplomatic
relations22. In deed several of the states recognizing the NTC as legitimate interlocutor for the
Libyan people continue to recognize the Gaddafi government of Libya and host its diplomatic
agents.

3.6 Assessment of interlocutor recognition of the Government

3.6.1 The recognition of the transitional government of Libyan.

Libya is state of transitional, no doubt in the process of slipping from one of the worst post war
era of dictatorship to a democracy infused with a sense of respect for human rights and
fundamental freedoms23. In this back drop, there is two clear functions making the Libya fight
with rebel group on one hand and on the other hand with government. The rebel group called the
Libyan national transitional council is characteristically capable of being labeled as insurgents
belligerents or the sole legitimate representative of the Libyan people, the local de facto
government of parts of Libya or as government of Libya the capacity in which a group
recognized may also change over time, based on the direction that the policies may take and
based on the stability they enjoy while in the office. In terms of recognition as representative of
the Libyan population the Libya NTC has been accepts by France, Qatar, the Maldives, Gambia,
Senegal turkey, Jordan Spain and Germany24. The recognition so accorded seems to be more or
less on the line of the recognition that was offered to the Palestine liberation organization (PLO)
and other national liberation movements in the 1970 deeming them the sole legitimate
representative of their respective people.

33
Recognition to the LNTC as the legitimate representative of the Libyan people allows to
continued recognition of the incumbent government as the government of Libya. This would best
to achieve by using the two pronged approach of lending a defector recognition and de jure
recognition.

Many countries recognize the NTC as the representative of the people not the country
(government)25. In the late 20th century many countries adopt a policy recognizing state not
government. In this situation in which there is a question as who was government of a country in
transition, this country would refrain from making declaration of recognition. The policy was
intended to apply to the situations precisely like the Libya situations. So one issue that arise here
is whether these declaration about the NTC indicate the change of policy about

the Recognition of the governments. The policy not recognizing the government is bit 0f sham
and one that is almost impossible to apply in reality state always have to decided on that they
will need to decided on this questions for many purpose (i.e appointment of diplomatic
representatives between the two states, treaty and other negotiation, decision regarding as
consent to the use of force etc.)26. Perhaps all these policy meant was that there would be no
formal declaration of the recognition though in the practice the state would have to make
decision as to who it considered the government. But even this policy of not making declaration
has been breaking down in recent situation where there have been competing claims to be the
government of the state, other state have made statements as to which entity they consider to be
the government this situation happened in the situation of coat d’ivoire.

In Libya some countries appeared to be trying to take a middle position. They wish to say
something about the changes occurring in the Libya but not go the whole way and say that the
NTC is the government the UK foreign secretary William Hague27.

has told parliament that the UK regards the NTC as the legitimate inter locator in Libya
representing the aspirations of the Libyan people. However he wants to not that this assessment
(and the dealings with NTC) does not affect our position on the legal status on the NTC the
British government will continue to recognize states not government.

The British adopt the policy of not recognize the government 1980 and also America in 197728.
Both of them announcing its policy to prevent the impression that the recognition of a new
government implies approval of it or what withholding recognition implies disapproval. In

34
announcing that NTC is the regarded as the legitimate representative of the Libyan people , there
seems to a clear statement of approval of this entity. This is precisely what the policy of not
recognizing government sought to avoid.

Legality of recognition of the NTC

While politics and law are closely intertwined in the questions of recognition this does not mean
that recognition the sense of expressing an opinion on the legal status of a rebel group, is purely
political act within the unfeifered discretion of the recognizing state29. In the 1960 the
organization of Africa unity (OAU) coordinating committee for the liberation of African
developed certain standards albeit vague for the recognition of the national liberation movements
fighting the incumbent government as the sole legitimate representative of the people which, it is
suggests may equally be applied to the recognition of the NTC recognition as a principle is
chaperoned by a confluence of legal and political consideration However, there is not specific

proportion governing the decision and nor it is entirely only a political or only legal phenomena
keeping all these aspects in the mind, it is clear that in order for the LNC to be recognized as the
official, legitimate representative of the Libya, it is necessary pre condition that it must be the
official united action front against the Gaddafi governments, in that, it must be broadly based
have effective following and popular support through Libya and must have reasonable fighting
strength. It must also be understand that the fact that Gaddafi government may recognizable
rebel group.

Which entity regarded as government of Libya? The Gaddafi government or the NTC.

The question which entity is the government of Libya matters. Because of numbers of
international law issues such turn on that question30. These issue includes matters such as which
entity is entitled to appoint ambassadors or representatives to international organizations, which
entity entitle to conclude international agreement that are binding on the state. All of this are
important questions in the Libyan situation but perhaps more important.

The NTC hopes that formal recognition by the USA would provide access to Libya’s foreign
assets which would help the NTC to pay bills. States such as UK us Qatar and other governments
provide support for the NTC, their aid is legal in front of international law. In Nicaragua case the
international court of justice (ICJ), it is unlawful, under international law, to provide support to
rebel movement. Thus assistance to the NTC, if where not government would primafacia be
35
Unlawful intervention in international affairs.

Authorizing the use of force in the Libya and impliedly, the provision of some types support to
the rebels31. Security Council resolutions 1973 only authorize provision of support to the rebels
in so far as the assistance is directly protecting civilians and civilian populated area. However,
the UK and others are going further than that in seeking to provide general support to help to
help to help stabilize the NTC and help it to perform its administrative functions in the areas that
it control.

The Security Council resolution 1973 which is about protecting civilians populated areas32. This
assistance, by contrast, it about helping the NTC to given. That is something that would be
caught by the principle of unlawful intervention and without permission from resolution 1973 to
do this can only be justified if one assume that the NTC is the government of Libya. Regarding
NTC as the government of Libya may also permit consent to the use of force which goes beyond
Security Council resolution 1973 ordinarily a government can consent to use force on

Its territory. There is a suggestion that where a civil war is taking place the government may not
request foreign support. War aggression and self-defense also even those who takes this view
have also taker view that what is prohibited is directly military intervention and provision of
weapons and other military supplies to the government is not prohibited during civil war so it
may the case that regarding the NTC as the government may be also used as justification for the
acts of force that are not authorized by the resolution 1973 for instance providing foreign
occupation or providing weapons for offensive acts by the NTC. There is no that may open up
where here to be political support for those sorts of activities.

Had the recognition of NTC create new legal status in international law?33

Whether, the recognition of the NTC as the legitimate representative of the Libyan people
points towards the creation of some sort of new status in the international law. Something which
is not quite a government ( or perhaps even a find of government, not quite a national liberation
movement, not quite an insurgent None of the state that has describe the NTC as the legitimate
representative have stated explicitly that regard this as a legal status. However they all seem to
be regarded this status as having legal significance. Therefore to be create creation of a new
legal status one would have to see that the states putting it forward regard to it as having a legal
significance in the international law. There is a view adopted by money countries that is lawful

36
to assist the NTC. However, it is arguable that those who take this view regarded such assistance
as a lawful because of the Security Council resolutions and not because the NTC is the legitimate
representative of the Libyan people.

37
 End notes

1. Nurullah yamali Effect of recognition of the government

2. Ibid
3. Dr.A Kirchner public international law recognition of state and government.
Httpll74.502430/search? P=Dy recognition
4. Ibid
5. Ibid
6. Ibid
7. Full text of international law of recognition with special reference to practice in UK and
us http// archia-orp/detail//cu319201
8. Ibid
9. Ibid
10. Supra note
11. Ibid
12. Wikipedia: recognition of the government http//en.wikipidia
13. Supra note
14. Ibid
15. Ibid
16. Ibid
17. Whewell recognition of insurgents as a de facto government http// guardian co.uk.
org/0252
18. Ibid
19. Ibid
20. European society of international law vo.3 http//.www.esilen low.com
21. Ibid
22. Supra note 17
23. Ibid
24. Ibid
25. Ibid
26. Merkourios Utrecht journal of international and European law de facto regimes
recognition internal legal personality
27. Ibid
38
28. Ibid
29. http//www. Global research. Cal. 29164
30. http//www.caaglop. com /robbed island bloglu.
31. Ibid
32. Supra note 27
33. Supra note 17

39
Conclusion
The question of recognition of government normally arises only with regard to recognized states.
When state recognizes as new government it usually acknowledge a person or group of person as
competent to act as organ of state and to represent it in its international relations. The only
criterion in international law for the recognition of an authority as the government of the state is
its exercise of effective control over the states territory.

States may be roughly divided in three groups according to their recognition policy.

States (such as the UK before 1980) that for only recognize state.

States (such as USA that generally do not formally recognizes governments, but do so in
exceptional circumstances for political reason.

States (such as UK since 1980, and other member states of European) that formally recognize
only states not governments. That policy reminiscent of the Estrada doctrine according to which
states issue no declaration in the sense of grants of the recognition in case of change of regime,
but confine themselves to the maintenance or withdrawal, as they may deem advisable, of their
diplomatic agents.

The non recognition of the de facto existing government may be motivated by political reason, as
in the case of the non recognition by western states of the Germen Democratic Republic as
state(1949-1973)or USA non recognition of the China communist government(1947-1979).It
may also be used as sanction in response to a violation of fundamental norms of international law
such as prohibition of the use of force or racial discrimination, especially which applied
collectively, as in the case of the state of Rhodesia(1965-1980).The duty not to recognize as the
lawful situation created by a serious breach obligation arising under a norm of jus cogens is
now laid dawn in article 41(2)of international law commission, article of responsibility of states
of international wrongful acts(2001).A duty of non recognition may also arise under a treaty or a
binding resolution of the UNSC.

However recently there is advent in the international arena on issue of recognition on the
previous time almost all state of the world follow the same mode on issue of recognition of the

government. The state avoid recognition of the government because of the problem follow it
such as intervention in the internal matter of the newly emerged government, approval of the
40
government etc. currently the world states seems to be change this policy. They tries to restore
tobar doctrine. This practice of states seen in relation to Arab strong or revolution. In the
revolution of Arab countries .Many governments overthrown by the government. The new
government emerged to rule the people in those countries. The international states and
government follow this revolution. Most of the countries recognize the newly emerged
government as the legitimate representative of the countries. For instance Libya. The TNC
recognize as the legitimate interlocutor. That is the only representative of the Libya country
while the government of the Gaddafi fighting with opposing parts (TNC)

From this generally, we understand that the parameters of recognition of the government
changed from effective control to other criteria because the TNC still not fulfill the parameter of
effective control and permanence. It does not control the whole territory of the country. they
fight with Gaddafi government. Therefore, more consideration is given for justice, peace and
stability more than effective control. When we look this recognition from international law
point of view, recognition given other than effective control premature and illegal.

41
 Recommendation
The recognition of the government out dated practice in international order. However recently
this practice seems to be restored. The issue of recognition of the government has many impacts
on international governments and also its people. The powerful states intervene internal matters
of emerging government, they approve the emerging government. Therefore I recommend that
international states should confine with former international practice and refrain from
recognition of the government. Continuous to recognize the new state in accordance with Estrada
doctrine.

On responsibility to protect on international law their responsibility to protect the civilian

population in accordance to the law. This responsibility operetionalized in unequivocal manner
and true responsibility to protect, but the fact that it was invoked at all may reflect shift from
international consensus on sovereignty, intervention and use of force.

This responsibility operetionalized only for true protection of the civilian in accordance with
resolution 1973. The resolution gives permission to use force to protect the civilian as in the case
of Libya. Even thought, it is beyond resolution. However, the international community failed to
protect civilian in Syria until now. The state not intervenes for protection of their interest rather
than civilian and human right protection.

42
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Books

1.DJ Harries case and material on international law (6th ed.2004),

2.M .N shaw international law (5th ed.2003)

3. Nurullah Yomali, what is mean by states recognition in international law.

4.Robert D,shane the change face of recognition international law (case study of Tibet)

5.Whe Well, recognition of insurgents as a de facto governments(modern law review

vol.3.No.1)

Websites

1.Christopher J.Le M full text of the international law of recognition with special reference to
the practice in erat Britrp/detal/euzipain and united state http‫׃‬//www.orchice orp/etsal/c031p.240

2.European society of international law vol.3 http ‫׃‬// www eliten law.ac uk/media/draft paper

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4.new development in public international law state hood self determination and succession
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Journals

1.Dr.kirchner public international law recognition of state and government

http//www.74.502430/

2.Merkourios Utrecht journal of international and European law de facto regimes recognition
internal legal personality.

43