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Recognition - international law
Hakuna Matata (LE 130430)
Anna University
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E. RECOGNITION
Introduction The international community is in a state of continuous change. New states are created, existing states disappear and territorial changes take place. Furthermore, revolutions, uprisings and coups d’états sweep aside existing governments and replace them with existing regimes. When these changes occur foreign states are faced with the choice of whether or not to recognize the new entities that emerge and the new regimes that claim competence and authority over those entities. This is because for the entity or new regime concerned it must be recognized by other states in order to fully operate in the international plane. The new entity or regime needs the assurance that it would be permitted to hold its place and rank in the character of an independent legal organism in the society of state e When Uhuru was sworn in the other presidents sent a congratulatory message to give assurance that he is the head of state. As a principle, recognition is a mixture of politics, international law and municipal law. When granting or withholding recognition, states are more influenced by political rather than legal considerations. Recognition is a discretionary function exercised unilaterally by the government of a state acknowledging the existence of another state or government or belligerent community. Malcolm Shaw says that, “recognition is a statement by an international legal person as to the status in international law of another real or alleged international legal person.” It is an acknowledgment of the international legal status of the entity in question. With respect
to a state, recognition is the acknowledgment that the entity fulfills the criteria of statehood. On
the other hand, recognition of a government is the acknowledgment that the regime in question
is in effective control of a state.
ACTS OF RECOGNITION
The act of recognition is not a legal act but a policy act as it is discretionary there is no legal duty but there are legal criteria that must be fulfilled for the regime that wants to be recognized. There is no uniform type of acts of recognition. Recognition is a matter of intention and may be expressed or implied. The act or recognition may be effected expressly by a formal announcement or by a bilateral treaty of recognition or in certain cases impliedly through any act indicating an intention to effect recognition. A formal announcement may take the form of a public statement, a congratulatory message on the attainment of independence or a simple diplomatic note delivered to the entity which is to be recognized. Recognition may be implied from the conduct of one state towards another. However, recognition by implication must be unequivocal and clearly indicate that the recognizing state has a clear and inescapable intention to do so. State practice shows that certain situations may amount to recognition, for instance, the conclusion of bilateral treaties and the formal exchange of diplomatic envoys Saharawi democratic republic Western Sahara was a Spanish colony until 1975 Spain could not manage the administration as there was a civil war in Spain. It abandoned Western Sahara. Morocco and Mauritania moved in claiming the territory was historically part of their territory. The issue ended up at the UN assembly and kept off the others. UN referred the matter to the ICC for an advisory opinion. The ICC advised that the Morocco and Mauritania to keep off to allow the Saharawi’s to decide. UN established a UN committee on a referendum on the future Western Sahara. Morocco decided to
export its citizens to WS frustrating efforts of UN Gen Assembly. The OAU admitted the Saharawi to its membership, Morocco pulled out of OAU in protest. Recognition cannot be implied from certain other situations such as being parties to multilateral
treaties or attendance at international conferences in which the unrecognized entities
participate.
An entity may also be recognized collectively. This may arise in two contexts:
In situations where recognition is accorded collectively by a group of states e. by a peace treaty as illustrated by the 1919 Treaty of Versailles which recognized new states emerging after the end of WW1.
When an entity is admitted as a new number of the U.
Article 4 of the U Charter sets out conditions and procedure for admission. Article 4 (1) requires that a new member must be peace loving , must be ready to accept the obligations deriving from the charter and must be able and willing to a carry out those obligations. Under Article 4 (2) , the absolute masters of the admission procedure are the Security Council and the General Assembly. The Security Council will verify whether the conditions laid down in Art. 4 (1) are fulfilled by the applying entity and at the recommendation of the Security Council, the General Assembly will adopt the final decision e. 2011’s attempt by Mahmoud Abass to get Palestine as an entity. Arab states do not recognize Israel as a state but they cannot treat Israel as a non-state as it is against the UN charter and they will be in violation of the obligation. Constitution of UNESCO allows membership to states and non-states. It exists as an independent ILP separate and distinct from the UN. RECOGNITION OF GOVERNMENTS Recognition of governments is an indication of willingness to accord the government in question all the international rights and privileges normally accorded to those governments that recognizes. Recognition of government implicitly means recognition of state because there cannot be
interstate relations with intergovernmental relations.
Recognition of governments is however different from that of states in that non recognition of government does not mean non recognition of state. We have refused to recognize the military regime in Mali. For instance, Tanzania never recognized the Idi Amin government in Uganda but never doubted Ugandans state hood. Most states do not recognize governments but recognize states. Nyerere and Iddi Amin incidence. The granting or refusal of recognition of a government has nothing to do with the recognition of the state itself. If a foreign state refuses the recognition of a change in the form of government of an old/existing state the later does not lose its status as an international person. The state is perpetual and survives changes of its government. Non recognition of government may mean either that
The government in power is not a government in terms of independence and effectiveness or
The foreign state is unwilling to enter into diplomatic relations to that government because it is undemocratic
The entity withholding recognition thinks that the government in power is illegal.
POLITICS AND FUNCTIONS OF RECOGNITION
a. TOBAR doctrine advanced by Dr. Tobar of Ecuador in 1907.
Dr Tobar stated that government which had recently power risen to power through extra constitutional means should not be recognized. This doctrine was embodied in a treaty in the same year between the five Central American republics. b. STIMSON doctrine advanced by H Stimson the US secretary of state in the wake of the Japanese invasion of the Chinese province of Manchuria and the establishment of Manchukuo in 1932.
He stated that recognition should not be accorded to any situation brought about the acquisition of a territory in general or the establishment of a new state or the extinction of an existing state by a war of aggression or use of force. Pacific settlement of disputes THE LEGAL SIGNIFICANCE OF RECOGNITION The legal significance of recognition is mainly influenced by two theories
The constitutive theory According to the constitutive theory, recognition has a constitutive effect in that a state is and becomes an ILP through recognition only and exclusive. In other words IP is held to be conferred only through recognition of the entity in question. An entity may possess all the formal attributes and qualifications of state hood not unless the recognition is accorded to it, would not acquire international personality. This theory is related to an extreme positivists approach because if consent is posited as the major source of IL then it will be quite simple to assert that international personality can be obtained only through the consent of existing legal persons by the performance of an act constituting recognition. Anzilotti and Kelsen are the main antagonists in this theory. Logically however this premise is not altogether correct for a number of reasons.
New states are conferred with the rights and bear obligations under IL, independent of the will of other states through recognition.
State practice shows that recognition is primarily a political act on the part of states. Accordingly the legal status of an entity cannot be held to be independent according to the performance of such a political act.
State practice also shows that it might not be possible to ignore completely a non- recognized entity.
It is not clear how many members of the international community must recognize the entity for it to qualify as a state.
The theory fails to address the issue on whether the existence of the entity as a state will be relative to only those states which extend recognition. An entity cannot be a state vis a vis those states that extend recognition to it and the same time be a non state vis a vis those states that do not recognize it. The declaratory theory The 2nd theory holds that it is a declaratory act at most formal admission of existing facts. The act of recognition is not decisive of the new entities claimed to state hood because that status is conferred by IL. The status of statehood does not depend on recognition. The international legal personality of a state does not depend on its recognition as such by other states but for the operation of the law.
It is conferred by rules of international law and whether or not a state is actually recognized by another state it is still entitled to the rights and subject to the general duties of the system. This theory has been endorsed on many occasions by international conventions, arbitral decisions and even the international court of justice. There does however exist a qualification in this theory namely since states are free to deny or grant access to their courts recognition is constitutive with respect to those domestic courts. If Kenya does not recognize a particular entity as a state the court of Kenya will tell an official
that they do not recognize them and that they cannot grant access to the courts.
All in all the declaratory theory is favorable for the following reasons.
- The constitutive theory amounts to states creating and demolishing entities and derogates from the principle of sovereign equality of states.
Besides the competence of states is established by international law and not by the political discretion which determines the grant or withholding of recognition. 2. It is not clear how many recognizing states will be enough in order to create a new state under the constitutive theory.
Besides it is not clear whether the new states entity will become a state vis a vis recognizing states and not a state vis a vis non recognizing states. 3. Judicial decisions have endorsed the declaratory theory.
For instance, in the case of the Re Al-fin corporations patent The English courts reaffirmed the fact that recognition was not constitutive but merely declaratory Section 24 (1) of the 1941 English patents act allowed a patentee an extension of his patent if he had suffered loss ‘by reason hostilities between his majesty on any foreign state.’ In this case the applicants sought an extension under section 24 (1) in respect of loss suffered during the Korean War between 1950 -1953. The Comptroller General rejected the application partly on the ground that the Korean War did not come within section 24 (1) because North Korea not having been recognized by the UK was not a ‘foreign state.” The applicants sought a ruling of the HC on this Justice Graham j said, ‘.. have no hesitation in holding that the phrase ‘any foreign states,’ although of course it includes a foreign state which has been given foreign office recognition, is not limited there to. It must at any rate include a sufficiently defined area of territory over which a foreign government has effective control. Whether or not a state in question satisfies these conditions is a matter primarily of fact in each case.. at the relevant time North Korea as a defined territory over which a government has effective control and that his late majesty was engaged in hostilities in this state albeit his troops were under the command and formed part of the un forces fighting in the area. I hold therefore that North Korea was a foreign state within the meaning of section 24 and that the applicants are entitled to proceed with the application for extension on that basis.’ 4. State practice supports the declaratory theory.
States enter into official relations with recognized entities and conclude international
agreements with them. Such practice is founded on the beneath that non recognized entities
have international personality.
Recognition - international law
Course: Hakuna Matata (LE 130430)
University: Anna University
