FLB 300

SEMINAR 3B:
RECOGNITION OF STATES AND
GOVERNMENTS
 recognition

 Implies both rights and responsibilities of a new

state
 entitles states to the privileges accorded to other
members of the international community;
 it also allows them the benefit of the mechanisms
and frameworks of dispute settlement, diplomatic
relations
 What is recognition?

“The free act by which one or more States

acknowledge the existence on a definite territory of a
human society politically organized, independent of
any other existing state, and capable of observing the
obligations of international law, and by which they
manifest therefore their intention to consider it a
member of the international Community.”
- Institut de Droit International, 1936
 Difference between a “state” and a
“government”
 Under international law states are different from
governments;
 States, not governments, are the bearers of rights
and obligations under international law
 Thus, the general rule is that a change in government does not
affect the international obligations of the state
 Example of a right held by a state: in the US, states have the
right to bring suit in American courts
 states

 In the past 60 years, there has been a rapid increase

in the number of states that exist due to:
 Decolonization
 Break up of various states, such as the USSR, Yugoslavia,
Ethiopia (Eritrea broke away), Czechoslovakia
 states

Break-ups of states occur in two ways:

 Dissolution, or
 Secession
 Dissolution

 an existing state implodes and becomes two or more

new states; all resulting states are new
 Example – Yugoslavia and Czechoslovakia
Political and legal results of dissolution:
- If there is a state that maintains the entity of the original state,
the maintaining state can no longer deploy troops to the new
independent state
 Secession

a part of an existing state breaks away to become its own

state
 example: South Sudan broke away from Sudan, Eritrea broke away
from Ethiopia
Political and legal results:
 The new state does not have to recognize the
government of the state from which it broke
 The new state has the right to govern its own citizens
 The new state can independently enter into treaties
 The new state can have membership in organizations
that were previously closed to it, as some international
orgs are open only to states
 The new state can be a party to an ICJ case
 Recap on criteria for statehood

Montevideo Convention:
 1. Permanent Population
 Size doesn’t matter
 The people can’t simply be passing through, be seasonal
inhabitants, etc.
 It is sometimes said that this implies an organized community
 2. Defined Territory

 Having nearly exclusive authority over

what happens in your territory requires
that you know what your territory is
 “Defined” doesn’t mean there are no
border disputes (example: the border
dispute over Kashmir between India and
Pakistan)
 Again, size does not appear to matter
 3. Government
 This means an effective government – it has effective control
over the territory
 There are situations where states are recognized even though
there is a civil war and no single entity that is in effective
control of the whole territory
 4. Capacity to Enter Into Relations with Other States
 legal relevance of recognition

 Two theories:
1. declaratory – a entity is recognized as a state when it satisfies
the criteria for statehood (this is objective)
generally, this is the prevailing theory (if it
quacks like a duck it’s a duck)
it is supported by state practice.
however, it can get messy
 Declaratory…

Potential problems:
• Srpska does not really have all the
characteristics of a state, but the 2d Circuit
recognized it as such in Kadic v. Karadzic
• Taiwan has all the characteristics of a state
yet is not recognized as one
The upshot of the above two examples is that
there are always policy decisions that
change our adherence to the rule; Dayton
accord, peace.
 Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995)

 How did the issue of statehood come up here?

 Suit was against Karadzic, who was the leader of Srpska, was a
large part of Bosnia that was under Serbian control – it was a
self-proclaimed entity
 For some of the claims brought by the plaintiffs (torture and
summary execution), it was relevant whether Srpska was a
state, need for a state nexus
 so, for the purpose of these claims, it was relevant whether
Srpska was a state and whether Karadizc was a Srpska official
 Issue: is Srpska a state?
 Factors the court looked into:
 Srpska has a president, a legislature, and its own currency
 Srpska controls a defined territory
 Srpska controls a population within its power
 Srpska has entered into agreements with other governments

 The court made clear that a determination of whether Srpska

is a state is not dependent on recognition from other states
 the court may have been adopting declaratory recognition of
Srpska
 Underlying factor?

 The court noted that “It would be

anomalous indeed if non-recognition by
the US, which typically reflects disfavor
with a foreign regime – sometimes due to
human rights abuses – had the perverse
effect of shielding officials of the
unrecognized regime from liability for
those violations of international law norms
that apply only to state actors.”
 2. constitutive

an entity is not a state unless other states recognize it as a state

 the term “constitutive” is used because the idea is that an entity
does not constitute a state until other states recognize it as such
(recognizes that the idea of statehood is really a legal construct)
 this theory encounters difficulties when some entities are
recognized as states by some but not other states.
 this theory does not reflect state practice
 Recognition of governments
 There are three different approaches to recognition
of governments by other states (these three doctrines
are not mandated; recognition is largely a political
call) (government is the legal representative of the
state)
 1. Traditional approach

 states consider four factors in deciding whether to

recognize a state:
 effectiveness of control
 stability and permanence
 popular support

 this does not mean that the government has to be

democratic – it means something more like
acquiescence
 purpose of this factor: states don’t really want to have
relations with a state that is internally unstable
 ability and willingness to fulfill obligations
 2. Estrada doctrine

 when a new government comes to power either

through constitutional means or otherwise, its
relations with other states remain unchanged
 This was created by the Mexican government, which found that it
would be insulting to make determinations about recognition of
governments because it would involve passing judgment on the
internal affairs of other states
 Mexico no longer follows this doctrine
 3. Tobar doctrine

 states will not recognize governments which come into

power as a consequence of a coup or of a revolution against
the government, so long as the freely elected
representatives of the people thereof have not
constitutionally reorganized the country
 In the past years, the US and other countries have spent a lot of
resources writing about the importance of democratic governance
new trend
 The OAS has adopted significant resolutions to
further this objective
 in some cases, the UN will not allow a government to take a seat at
the UN when the government was not democratically installed
Republic of Liberia v. Bickford, 787 F. Supp. 397
(S.D.N.Y. 1992)

 Facts:
 A former government of Liberia gave money to Bickford to
hold for Liberia
 In late 1989, rebel forces led by Charles Taylor invaded Liberia,
and a peace keeping force was sent into Liberia to stop the
fighting; Taylor’s forces killed the then-president of Liberia,
Samwel Doe.
 At a peace conference, an interim government was created,
and Amos Sawyer was named president; he was reelected at a
second conference
 The interim government sued Bickford for the Liberian assets
that he held
 Republic of Liberia v. Bickford

 In this case, there is no question that the assets

belonged to the state of Liberia. The question was
about what government would be entitled to the
assets – Taylor’s rebels (who controlled about 90% of
the territory of Liberia and about 50% of the
population), the Sawyer government (operating out
of a hotel, and controlling the capital), someone else?
 Republic of Liberia v. Bickford

 Holding:The court found that the Sawyer

government should get the money
 The court ruled this way because
The money certainly belonged to Liberia
Because the US executive branch recognized
the Sawyer government, the court found that
the Sawyer government was entitled to the
assets held by Bickford (the court chose to leave
the question of government recognition up to
the executive branch)
 De facto and De jure recognition

 This differentiating evolved in the 19th

century
 De facto implied that a government had
effective control and that there was a
likelihood that the government would be
permanent.
 De jure implied it had effective control and
was firmly established.
 De facto

 This recognition implies that the

recognising State had reservations on
the entity in question.
 The State of Israel was initially
recognised as de facto by many states.
 More examples: Soviet States; Estonia,
Lithuania and Latvia.
 De facto

 Advantage of the distinction is to avoid

premature recognition.
 A State takes cognisance of the factual
circumstances while acknowledging the
de jure government even if that
government is not in physical control of
the whole territory of the State.
 Example – Libya during the uprising.
 National Effects of Recognition

 state immunity is a fundamental effect or recognition

 newly recognized state has the right to
a) Locus Standi; sue in the courts of the recognizing
state;
b) take control of state property located in the
recognizing state;
c) have effect accorded to its legislative and executive
acts of state. Luther v. Sagor (1921)
 Luther v. Sagor

FACTS:
Plaintiffs saw mill was confiscated by
Soviet government during the Russian
revolution. Agents of the government
sold stocks of wood to the defendant.
When the defendant imported the
wood, the plaintiff brought suit
claiming to be the true owner.
 Luther v. Sagor

ISSUE:
Was the decree that confiscated the mill
a valid legislative act which can be
recognized by the English courts?
Note: The English government was yet
to recognise the Soviet government.
 Luther v. Sagor

RATIO:
As the British government was yet to
recognize the Soviet government its decrees
are not a valid legislative act of a foreign
power. It cannot deprive the plaintiff of its
property. However, on appeal, evidence was
disclosed that there had been recognition, as
such the judges found for the defendant
 Rights of newly recognised States cont’d…

d) to claim immunity from suit in the courts

of the recognizing state for itself, its
property and its representatives. In
Arantzazu Mendi Case the House of Lords
held that the British govt had recognised
Franco’s nationalistic government in Spain
and thus it could not be impleaded in court
without its consent.
 Hesperides Hotels Ltd. v. Aegean Turkish
Holidays Ltd [1978]
FACTS: Turkish forces overtook Cyprus including
two hotels that were the subject of this dispute.
The Turkish-Cypriot regime advertised the hotels
and the dispossessed Greek Cypriot owners sued
their representative in England and the travel
agency promoting the hotels for conspiracy to
commit trespass. The British government had not
recognized the Turkish Cypriot regime and so it
was argued that the laws of this regime should be
treated as a nullity.
 Hesperides Hotels Ltd. v. Aegean Turkish
Holidays Ltd [1978]

ISSUE:
Were the acts of the Turkish-Cypriot
regime a nullity thereby allowing a
claim for conspiracy to commit
trespass?
 Hesperides Hotels Ltd. v. Aegean Turkish
Holidays Ltd [1978]

RATIO:
There are two conflicting doctrines.
The first is that if the English
government has not recognized a state,
its acts are to be considered null for the
purposes of English domestic law—this
is to ensure that both courts and
legislatures speak with one voice.
 Hesperides Hotels Ltd. v. Aegean Turkish
Holidays Ltd [1978]

The other doctrine states that the is no

need for unity because courts are
concerned with the internal impact of
an action on private citizens whereas
legislatures are concerned with external
consequences of recognition vis a vis
other states. Courts should thus look to
the practical realities of the situation.