#3541 - Recognition Of States & Governments - Public International Law

Main Theories

1. Declaratory– state exists as subject of IL as soon as it possesses the marks of a state as defined by IL, so that recognition marks the commencement of state for practical purposes

• Brierly – granting of recognition to a new state isn’t a constitutive but a declaratory act. It doesn’t bring into legal existence as a state that which didn’t exist before. A state may exist w/out being recognised and, if it does, then whether or not it has been formally recognised by other states, it has a right to be treated by them as a state. Primary function of recognition is to acknowledge as a fact something that has hitherto been uncertain; i.e. independence of the body claiming to be a state; and to declare the recognising state’s readiness to accept the normal consequences of that fact (usual courtesies of IR)

• Brownlie– declaratory view has much to commend it as a general approach since it militates in favour of a legal & objective method of analysing situations. But the idea that an issue of statehood or of govt. (criterion of effectiveness) involves a mere acknowledgment of fact is too simple. Questions of fact are certainly foremost but legal criteria still has to be applied.

2. Constitutive– state’s legal existence depends on its recognition by other states

• Argues it’s meaningless to accept any state as independent until others are prepared to accept it as such

• The political act of recognition on the part of states is a precondition of the existence of legal rights

• The more extreme version – the very existence of state depends on practical decision of other states; whereas more mitigated version - allows that certain fundamental rights & duties arise prior to recognition.

• Brownlie– the core of constitutive theory is in any event unacceptable. States can’t, by withholding recognition, determine the content of their legal obligations towards other states. In practice, such conduct is hard to find. But there are certain elements of truth in the approach – facts which must be subjected to legal evaluation involve a process and court/foreign minister etc. has to make a more or less arbitrary appreciation of the question of statehood & effective govt. To this extent, recognition involves element of authoritative choice or “certification”. Also, it has some truth where entity concerned doesn’t fit within orthodox categories but is nonetheless accepted as having legal personality in IR (e.g. Andorra).

• Brownlie’s Alternative Approach

• W/rare exceptions, theories of recognition have not only failed to improve the quality of thought but have deflected lawyers from application of ordinary methods of legal analysis. Recognition isn’t a term of art – a statement that govt. of state A doesn’t recognise a govt. of state B (or an entity claiming itself to be its govt.) could have 2 radically different meanings:

1. In opinion of state A, state B doesn’t exist as such (i.e. doesn’t qualify in legal terms to be recognised b/c doesn’t satisfy criteria of statehood) – rare

2. A code for a policy of hostility, usually accompanied by a range of political & economic sanctions

• The correct approach involves nothing more than ordinary legal technique – what did the govt. intend on the given occasion; no theory is called to assist in the process. See approach of Sole Arbitrator in Tinoco Arbitration

1. Enquire what are the facts to be gathered from docs & evidence submitted as to de facto characteristics of Tinoco govt.

2. Look at the relevance of recognition policies of various states which had refused to recognise it & whether they were based on legal considerations or mere political policy aimed at a govt. which actually satisfies the criteria of IL (if on the latter than loses some evidential weight....)

• Crawford– neither is satisfactory to explain modern practice

1. Declaratory Th. – assumes territorial entities can readily, by virtue of mere existence, be classified as having one particular legal status confuses ‘fact’ w/ ‘law’ – even if effectiveness is the dominant principle, it still must be a legal one

2. Constitutive Th. – incorrectly identifies the need for cognition w/dipl. recognition, failing to consider the possibility that identification of new subjects may be achieved with gen. rules/principles, rather than on ad hoc, discretionary basis.

• Evans- respective positions turn on the analytical relationship b/w status & relations

1. Declaratory – maintains that creation of states is rule-governed + that conferral/withholding of recognition is a political/discretionary act = this postulates existence of a rule but denies any ground for it to be applied;

2. Constitutive – maintains that conferral/withholding of recognition is a legal act but than in absence of either duty to recognise or existence of agency competent to adjudicate on the matter, the question of status becomes entirely dependent on individual position of recognising states = a community is ‘more or less a state’

3. Further Problems

1. Not always possible to clearly separate the fact of recognition from the idea of political approval

2. Even where states take a firm position in seeking to avoid recognising a state, they’re frequently unable to live with consequences by way of practising simultaneous inclusion & exclusion

• E.g. unlikely that Arab states, in refusing to recognise Israel, also believed it was not bound by Geneva Conv. re its occupation of West Bank & Gaza, and that it was free to ignore IL

• Consider Brownlie’s modification of Lauterpacht& Guggenheim’s argument (legal duty to recognise)recognition isn’t a term of art but applies to a variety of types of conduct by states – there’s no legal duty and recognition, as a public act of approval by a state, is political & optional act. However, if the entity bears the marks of statehood, other states put themselves legally at risk if they ignore the basic obligations of state relations. Similar considerations apply to recognition of govt. Therefore, in the context of state conduct, there’s a duty imposed on states to accept and apply certain fundamental rules of IL; i.e. there’s a duty to recognise other states for certain purposes at least (e.g. use of force). But there’s no duty to make express public & political determination of the question or to enter into optional bilateral relations.

• Modes of Recognition

1. Express

2. Implied – entry into dipl. relations, BT’s arranging commercial relations, admission to UN (e.g. Israel)

• NB: no precise catalogue of ‘sufficient acts’ – intention is crucial

• Retroactive Effect

• Once granted, dates back to actual commencement of activities of the recognised authority

• UK Practice

1. States 1986 – criteria

1. has and is likely to continue having a clearly defined territory w/population

2. govt. able to exercise effective control in the territory

3. independence in external relations

• States not recognisedPalestine; Turkish Rep. of Northern Cyprus; Somaliland; Taiwan

2. Governments

• Criteria (1951)

1. De facto – effective control over most territory + likely to continue

• only arises where there are 2 competing govt.

2. De jure – firmly established in the territory

• Change of Policy (1981)

• no recognition to govt. b/c of practical advantages (1981)

• decide the nature of dealings with regimes which come into power unconstitutionally in light of assessment of their ability now/foreseeable future to exercise effective control of territory of the state

• Brownlie– policy seems sensible. But the change has caused confusion. It’s important to appreciate what the Sec of State doesn’t say; i.e. intention is to continue making the necessary assessments of law & fact. Thus courts & departments of states will still need to decide when a govt. has began to function w/sufficient effectiveness. The statement isn’t intended to make “effectiveness” a blanket test which ignores other relevant considerations, so effective govt. won’t be recognised where its power depends upon the arms of foreign power or springs from external intervention (but see Libya’s NTC!). Inconsistency results in cases of civil war where the 2 sides are sponsored externally and it’s unrealistic to apply the test of “dependence” to either. Ultimate problem is to decide what, if any, should the condition upon which redemption will take place; i.e. withdrawal of external sponsoring forces may be a necessary but not sufficient condition of recognition

• Brownlie on de jure/de facto terminology – simply an unhappy elaboration of an unsound premise. Like recognition, they can only be given meaning by evoking the intention behind a particular statement by govt. on that particular occasion. Degree of difference b/w the two is small & is mainly that b/w degree of political approval & acceptance involved. In modern US practice, recognition given is “full diplomatic recognition” and there’s no lesser version or “halfway house”. It follows that standard works giving prominence to such usages aren’t only committing atrocities of analysis but are 3 decades out of date in describing ordinary state practice.

• Tinoco Arbitration (GB v Costa Rica)– Tinoco ousted CR’s govt. in 1917 by force; for 2 years administered the country’s affairs as govt.; then new govt. took over & repudiated certain obl. towards GB, arguing that b/c of non recognition, GB was estopped from claiming validity of acts & contracts of that govt. GB argued that, despite it, Tinoco was de facto govt. capable of creating rights in British subjects. Held: Tinoco govt. as actual & sovereign govt....