Recognition of states and governments

Dr Peter D Maynard

2

Learning objectives1. Explain the theories of recognition of states

and governments.2. Define a state.3. Explain the process and effects of

recognition.4. What was English law before 1980?5. What is English law since 1980?6. What is the approach of the courts?7. What is effectiveness or administrative

control?

3

Recognition is a political act, dressed in legal terminology.Like a beauty contest:The criteria, especially

under the constitutive view, are not always consistent.

Where is the law in it?Anastagia Pierre, Miss

Bahamas 2011Like a duck:It (state or government)

walks, quacks, and looks like a duck, so it must be a duck.

4

Diplomatic recognition can be withheld.In connection with the anti apartheid movement, it was withheld on different levels, including beauty contests.

5

Historically, acts of unrecognized state or government have no legal effect.

State: Government:

What is a state?1. Permanent population2. Defined territory3. Government4. Capacity to enter into international

relationss 1 Montevideo Convention on Rights and

Duties of States , 19335. Declaratory or6. ConstitutiveObtaining recognition is NOT the same as

keeping it. Order of Malta ruled Rhodes, then Malta, and today only has HQ in Rome as an humanitarian organization and not territory in Malta. limited international legal personality. Nanni v Pace and the Sovereign Order of Malta 1935-37 8 AD 2 Italian Court of Cassation

What is a government? Entity in control of the state.

1. De iure (constitutional), or2. De facto (has administrative

control)What do courts do when rivals (de iure,

de facto or neither) make a claim? English courts applied an Italian decree re Ehtiopia b/c UK recognized Italy as de facto government of Ethiopia, although Italy was merely a belligerent occupant, in Bank of Ethiopia v National Bank of Egypt and Liguori [1937]Ch 493. Now, effective control applies, under Somalia v Woodhouse (below).

6

Wide application, e.g., insurgents and civil war

Recognition is also applied to new revolutionary or unconstitutional governments, states in a condition of belligerency, organized and effective insurgents, secessionists, and the territorial claims of states.

Insurgents in control of territory may be de facto govt which can bind the state (traditionally, responsible for contracts but not torts)

Human rights records may also be taken into account in the political decision of according recognition.

7

Independence Austro-German Customs Union Case (Advisory Opinion) PCIJ Rep. Series

A/B –Austria and Germany established a free-trade customs union, and the court was asked if it was in accordance with the 1919 Treaty of St Germaine and Protocol 1 of Geneva 1922. Article 88 of St GermaineTreaty provided that the independence of Austria was inalienable except with the consent of the League of Nations. In the absence of such consent, Austria undertook to abstain from any act that might compromise its independence .

What is the meaning of the word independence? Independence of Austria = existence within present borders of separate

state with sole right of decision in all economic, political, financial matters etc.

Ratio: Independence refers to the legal independence of a state to act as sovereign within its borders.

Issue: Does the union violate Austria’s independence? Held: NO. But, it is incompatible with both the protocol of 1922 and the

Treaty of St. Germaine.

8

Self determinationWhere you draw the line between minority ethnic group rights in a larger state

versus the right to form their own state? Indonesia, 2 current insurgencies (Aceh & Papua/Irian Jaya) and secession of

East Timor Western Sahara Case (Advisory Opinion), ICJ Rep. 1975, p.12, UNGA Res

1514, Art. 1 ICCPR, Art. 1 ICESCR, the right of the people to self determine Palestine. More than 130 states recognize Palestine as a state. Member of

ESCWA, UNESCO, G77, Non Aligned, Organisation of Islamic Cooperation. UN observer, applied for UN admission in 2011. The Legal Consequences of the Construction of a Wall by Israel in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep. 2004, p.136. Wall and associated regime of permits and ID cards illegal.

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) ICJ (July 22, 2010) paras. 78 – 84 (Majority Opinion), and paras. 21 – 24 of Judge Koroma’s Dissenting Opinion. ICJ only dealt with the narrow question of whether the declaration of independence was lawful under international law. Yes. It did not deal with the broader questions of whether a state could self determine outside a colonial situation and under a right of remedial secession, whether a new state had been created, and, if so, whether other states were required to recognize or not recognize the new state.

9

Estrada DoctineEstrada, Mexican foreign secretary, said in

1930 that it was not necessary to recognize its government once a state is recognized. Such recognition of a government would be an undesirable interference in internal affairs of the state. Rely on effective control.

Most current US view of recognition appears to be Estrada Doctrine

10

Effect of non-recognition of a stateEffect of non-recognition of a state is that the

legal actions of a non-recognized state will have no validity in the municipal or domestic law of the state refusing recognition. Carl Zeiss Stiftung v Rayner and Keeler Ltd. (No. 2) [1967] 1 A.C. 853, HL

11

Contracts of de facto governments binding

Tinoco Arbitration (Great Britain v Costa Rica) (1923) 1 RIAA 369. Tinoco regime came to power in a coup and remained two years. During that time it granted oil concession to British company. After coup regime replaced, new govt repudiated contract. British had not recognized Tinoco coup regime, but claimed contract valid. Held a de facto govt exercising authority can bind state.

12

Effect of non-recognition of governments before 1980Before 1980 in UK, an executive certificate

would be obtained from the UK government."A foreign government which has not been

recognised by the United Kingdom Government as either de jure or de facto government has no locus standi in the English courts. Thus it cannot institute an action in the courts . . . The English courts will not give effect to the acts of an unrecognised government . . .“

Halsbury's Laws of England, 4th ed., vol. 18 (1977), p. 735, para. 1431.

13

1st fictionIn mitigation of the fact that governmental acts of an

unrecognised state cannot be recognised by an English court, 2 fictions are used:

1. Agency. The acts of unrecognized East Germany (or German Democratic Republic (GDR)) were categorised as those of the USSR, rather than the GDR. This route was open because there was an executive certificate, which expressly stated: ‘up to the present date Her Majesty’s Government have recognised the State and Government of the Union of Soviet Socialist Republics as de jure entitled to exercise governing authority in respect of that zone [the GDR].’Carl Zeiss Stiftung v Rayner and Keeler Ltd. (No. 2) [1967] 1 A.C. 853, HL

Similarly, unrecognized Ciskei “Bantustan” was regarded as an agent of South Africa. Gur Corporation v Trust Bank of Africa Ltd. [1987] Q.B. 599, COA

14

2nd fiction2. Private internal (as opposed to international) acts

of the unrecognized state unconnected to the grounds for non recognition. Rights and obligations related to day-to-day affairs of people, such as marriages, divorces, leases, their occupations, etc.

Hesperides Hotels v Aegean Turkish Holidays [1978] QB 205 at 218 per Ld Denning MR obiter. Applied by Sumner J in Emin v Yeldag [2002] 1 FLR 956.

But, the limit of this approach is that it contradicts the government’s policy of non-recognition. Kibris Türk [2009]ECHW1918(Admin), paras 44-67.

15

No recognition of governmentsSince 1980, the UK does NOT recognize governments, only states, as set out in 2 Parliamentary answers

in April and May 1980: "We have conducted a re-examination of British policy and practice concerning the recognition of

governments. This has included a comparison with the practice of our partners and allies. On the basis of this review, we have decided that we shall no longer accord recognition to governments.

"Where an unconstitutional change of regime takes place in a recognised state, governments of other states must necessarily consider what dealings, if any, they should have with the new regime, and whether and to what extent it qualifies to be treated as the government of the state concerned. Many of our partners and allies take the position that they do not recognise governments and that therefore no question of recognition arises in such cases. By contrast, the policy of successive British Governments has been that we should make and announce a decision formally 'recognising' the new government.

"This practice has sometimes been misunderstood, and, despite explanations to the contrary, our 'recognition' is interpreted as implying approval. For example, in circumstances where there may be legitimate public concern about the violation of human rights by the new regime, or the manner in which it achieved power, it has not sufficed to say that the announcement of 'recognition' is simply a neutral formality.

"We have therefore concluded that there are practical advantages in following the policy of many other countries in not according recognition to governments. Like them, we shall continue to decide the nature of our dealings with regimes which come to power unconstitutionally in the light of our assessment of whether they are able of themselves to exercise effective control of the territory of the State concerned, and seem likely to continue to do so.

"In future cases where a new regime comes to power unconstitutionally our attitude on the question of whether it qualifies to be treated as a government, will be left to be inferred from the nature of the dealings, if any, which we may have with it, and in particular on whether we are dealing with it on a normal government to government basis."

16

Therefore, what else do courts do?Therefore, the courts decide whether a government is a

government of a state from the following 4 factors: (a) whether it is constitutional; (b) the degree, nature and stability of its administrative

control, if any, over the territory of the state; (c) whether the UK government has any dealings with

it and if so what is the nature of those dealings; and (d) in marginal cases, the extent of international

recognition of it as the government of the state.per Hobhouse J in Somalia v Woodhouse [1993]QB54 at

68

17

What is effective administrative control?

In The Arantzazu Mendi [1939] A.C. 256, 264-265, Lord Atkin said:

"By 'exercising de facto administrative control' or 'exercising effective administrative control,' I understand exercising all the functions of a sovereign government, in (1) maintaining law and order, (2) instituting and maintaining courts of justice, (3) adopting or imposing laws regulating the relations of the inhabitants of the territory to one another and to the government."

18

Thank you!

Now, judge the beauty contest of states and governments from a lawyer’s point of view.

19

What have you learned?1. The creation of states may be declaratory or constitutive.2. A state is defined by the 4 factors in Art 1 Montevideo Convention

1933.3. Governments maybe de iure or de facto.4. The effect of non-recognition of a state or government? Its acts

have no effect in domestic courts of the state refusing recognition.5. Generally speaking, governments no longer recognize other

governments.6. The courts may adopt 3 approaches: (a) regard the entity as an

agent of a recognized government; (b) view the acts as private internal acts not connected with recognition; or (c) rely on the effectiveness of the entity under the 4 factors of Somalia v Woodhouse.

7. Effective administrative control is determined by imposing law and order.