INTRODUCTION The identity and number of sates belonging to international community are by no means fixed and invariable. The march of history produces many changes. Old state disappear or unite with other states, or disintegrate and split into several new states, or former colonial or vassal territories may by a process of emancipation themselves attain statehood. Then, also, even in the case of existing state, evolution occur or military conquest are effected, and the status of new governments becomes a matter of concern to other states, which formerly had relations with the displaced governments, raising the question of whether or not to engage in formal or informal relations with the new regimes either by either by recognition, or if a policy of not making formal statements of recognition of new government if followed, solely by some kind of 1 intercourse. These transformations raise problems for the international community, of which one is the matter of recognition of the new state of new government or other changes of status involved. At some time or other this issue of recognition had to be faced by certain states, particularly if diplomatic 2 intercourse must necessarily be maintained with the states or government to be recognized. It is important to distinguish between recognition of states and recognition of the government of states. The former is the more important because it is the fundamental to the international legal order; the state is the entity which is the bearer of international rights and obligations, not the government for the time being representing it. Thus these rights and obligations continue even if the government come and go. To recognize a new state is therefore a serious step which other states take only after due deliberation and by formal statement. Changes in government of states by way of normal constitutional process such as elections do not require action by other states by the way of recognition. Irregular changes of government such as military takeover or revolution do require some response by the other states.
1
2
See The international law of recognition (1951); Dugard recognition and the united nations. See Lauterpacht Recognition in international law (1947)
1 e g a P
DIPLOMATIC RECOGNITION Diplomatic recognition in international law is a unilateral political act with domestic and international legal consequences, whereby a state acknowledges an act or status of another state or government government.. Recognition can be accorded either de facto or de jure, usually by a statement of the recognizing government. 3
Accordingly the recognition of new state has been defined with some authority as:“…… the free act by which one or more states acknowledges 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 the manifest therefore their intention to consider it a member of international community.” State recognition signifies the decision of a sovereign state to treat another entity as also being a 4 sovereign state. Recognition can be either express or implied and is usually retroactive in its effects. It doesn't necessarily signify a desire to establish or maintain diplomatic relations. There is no definition that is binding on all the members of the community of nations on the 5 criteria for statehood. In actual practice, the criteria are mainly political, not legal. L.C. Green cited the recognition of the unborn Polish and Czech states in World War I and explained that "recognition of statehood is a matter of discretion; it is open to any existing state to accept as a 6 state any entity it wishes, regardless of the existence of territory or an established government." In international law, however, there are several theories of when a state should be recognized as 7 sovereign.
3
By the institute of international law; see resolution adopted at Brussels Brussels in 1936 art 1,30 AJIL ( 1936)
4
Recognition, Encyclopedia of American Foreign policy
5
See B. Broms, "IV Recognition of States", pp 47 -48 in International law: achievements and prospects , UNESCO Series, Mohammed Bedjaoui(ed), Martinus Nijhoff Publishers, 1991
6
See Israel Yearbook on Human Rights, 1989,
7
Thomas D. Grant, The recognition of states, 1999
2 e g a P
Constitutive theory The constitutive theory of statehood defines a state as a person of international law if, and only if, it is recognized as sovereign by other states. This theory of recognition, was developed in the 19th century. Under it, a state was sovereign if another sovereign state recognized it as such. Because of this, new states could not immediately become part of the international community or be bound by international law, and recognized nations did not have to respect international law in 8 their dealings with them. In 1815 at the Congress of Vienna the Final Act only recognised 39 sovereign states in the European diplomatic system, and as a result it was firmly established that in future new states would have to be recognized by other states, and that meant in practice 9 recognition by one or more of the great powers. One of the major criticisms of this law is the confusion caused when some states recognize a new entity, but other states do not. Hersch Lauterpacht, one of the theory's main proponents, suggested that it is a state's duty to grant recognition as a possible solution. However, a state may use any criteria when judging if they should give recognition and they have no obligation to use 10 such criteria. Many states may only recognize another state if it is to their advantage. In 1912, L. F. L. Oppenheim had the following to say on constitutive theory: ...International Law does not say that a State is not in existence as long as it is not recognised, but it takes no notice of it before its recognition. Through recognition only and exclusively a 11 State becomes an International Person and a subject of International Law.
Declarative theory By contrast, the "declarative" theory defines a state as a person in international law if it meets the following criteria: 1) a defined territory; 2) a permanent population; 3) a government and 4) a capacity to enter into relations with other states.
8
Hillier, Tim (1998). Sourcebook on Public International Law
9
Kalevi Jaakko Holsti Taming the Sovereigns
3 e 11
Lassa Oppenheim, Ronald Roxburgh (2005). International Law: A Treatise
g a P
According to declarative theory, an entity's statehood is independent of its recognition by other states. The declarative model was most famously expressed in the 1933 Montevideo Convention. Article 3 of the Convention declares that statehood is independent of recognition by other states. In contrast, recognition is considered a requirement for statehood by the constitutive theory of statehood.
A similar opinion about "the conditions on which an entity constitutes a state" is expressed by the European Economic Community Opinions of the Badinter Arbitration Committee. The Badinter Arbitration Committee found that a state was defined by having a territory, a population, and a political authority.
Collective recognition The advantages of recognition taking place by some collective international act, or through the medium of an international institution cannot be denied. It would obviate the present 12 embarrassments due to unilateral acts of recognition. In the lights of advisory opinion of the International court of justice, on conditions of 13 membership in the United Nations, which recognizes statehood as a primary qualification for 14 admission is a tantamount to recognition of the member admitted as a state.
Recognition of states and governments Diplomatic recognition must be distinguished from recognition of states and their [1] governments. The fact that states do not maintain bilateral diplomatic relations does not mean that they do not recognize or treat one another as states. A state is not required to accord formal recognition to any other state, but it is required to treat any entity that meets certain requirements as a state. A state has a responsibility to not recognize as a state any entity that has attained the qualifications for statehood by violating the prohibition on the threat or use of force in the UN
12
There are number of historical precedents of collective recognition e.g. the recognition of Bulgaria, Montenegro, Serbia and Rumania by the Berlin Congress in 1878
13 14
ICJ 1948, 57 et seq.
As distinct from the admission of a new member state to the UN, there is a question of acceptance of the credentials of the government of an existing member state.
4 e g a P
Charter. States can exercise their recognition powers either explicitly or implicitly. recognition of a government implies recognition of the state it governs, but not vice versa.
15
The
Recognition De jure and De facto De facto recognition of states, rather than de jure, is rare. De jure recognition is stronger, while de facto recognition is more tentative and only recognizes that a government exercises control over a territory. An example of the difference is when the United Kingdom recognized the Soviet Union de facto in 1921, but de jure only in 1924. Another example is the state of Israel in 1948, whose government was immediately recognized de facto by the United States and three days later by Soviet de jure recognition. Renewing recognition of a government is not necessary when it changes in a normal, constitutional way (such as an election or referendum), but is necessary in the case of a coup d'etat or revolution. Recognition of a new government by other states can be important for its long term survival. For instance, the Taliban government of the Islamic State of Afghanistan, which lasted from 1996 to 2001, was recognized by only Pakistan, the United Arab Emirates, and Saudi Arabia, while far more had recognized the government of ousted President Burhanuddin Rabbani. The Disputed territories of Jammu and Kashmir and Arunachal Pradesh of the Republic of India are not recognized by either Pakistan or the People's Republic of China, but are recognized by Russia. Recognition can be implied by other acts, like the visit of the head of state, or the signing of a bilateral treaty. If implicit recognition is possible, a state may feel the need to explicitly proclaim that its acts do not constitute diplomatic recognition, like when the United States commenced its dialogue with the Palestine Liberation Organization in 1988. The doctrine of non-recognition of illegal or immoral situations, like territorial gains achieved by force, is called the Stimson Doctrine, and has become more important since the Second World War, especially in the United Nations where it is a method of ensuring compliance with international law - for instance, in the case of Rhodesia in 1965. Withdrawal of recognition of a government is a more severe act of disapproval than the breaking of diplomatic relations. Most sovereign states are states de jure and de facto (i.e. they exist both in law and in reality). However, sometimes states exist only as de jure states in that an organisation is recognised as having sovereignty over and being the legitimate government of a territory over which they have no actual control. Many continental European states maintained governments-in-exile during the 15
See for example "The Restatement (Third) Foreign Relations Law of the United States, merican Law Insitute Publishers, 1990,
5 e g a P
Second World War which continued to enjoy diplomatic relations with the Allies, notwithstanding that their countries were under Nazi occupation. A present day example is the Sovereign Military Order of Malta, which is a United Nations observer, has bi-lateral diplomatic relations with 104 states, while having no territory since 1798 and possessing only extraterritorial 16 areas since (i.e. embassies and consulates). Other states may have sovereignty over a territory but lack international recognition, these are de facto states only. Somaliland is commonly 17 considered to be such a state. For a list of entities that wish to be universally recognized as sovereign states, but do not have complete worldwide diplomatic recognition, see the list of 18 states with limited recognition.
Recognition of governments Besides recognizing other states, states also can recognize the governments of states. This can be problematic particularly when a new government comes to power by illegal means, such as a coup d'etat, or when an existing government stays in power by fixing an election. States once formally recognized both the government of a state and the state itself, but many no longer 19 follow that practice, even though, if diplomatic relations are to be maintained, it is necessary 20 that there be a government to engage in diplomatic relations with. Countries such as the United States answer queries over the recognition of governments with the statement: "The question of 21 recognition does not arise: we are conducting our relations with the new government."
Unrecognized state Several of the world's geo-political entities lack general international recognition, but wish to be recognized as sovereign states. The degree of de facto control these entities exert over the territories they claim varies. Most are subnational regions with an ethnic or national identity of their own that have separated from the original parent state. Such states are commonly referred to as "break-away" states. Some of these entities are in effect internally self-governing protectorates that enjoy military
16
Bilateral relations with countries, Retrieved 2009-12-2 Arieff, Alexis (November 2008). "De facto Statehood? The Strange Case o f Somaliland". Yale Journal of International Affairs. 17
18
The List: Six Reasons You May Need A New Atlas Soon" . Foreign Policy Magazine
19
See for example, the oral arguments in the International Court of Justice case on Kosovo's declaration of independence. CR 2009/32, page 39
20
Since the 1970s the United States Department of State has moved away from the practice of recognizing governments 21
[1974] Digest of U.S. P ractice in International Law at 13; [1975] Digest of U.S. Practice in International Law at 34.
6 e g a P
protection and informal diplomatic representation abroad through another state to prevent forced reincorporation into their original states.
7 e g a P
LEGAL EFFECTS OF RECOGNITION Recognition produces legal consequences effecting the rights, powers and privileges of the recognized state or government both at international law and under the municipal law of states which have given it recognition. Also, when the subject of recognition arises for examination however, incidentally, by the municipal courts of such states, various problems of evidence, legal interpretation and procedure enter into consideration. The capacity of a recognized state and government may be considered from a negative aspect, by 22 ascertaining the particular disabilities of one which is unrecognized state and government may be enumerated as follows: a) It cannot sue in the courts of a state which has not recognized it. The principle underlying 23 …….‟ A foreign power brings an this rule was well expressed in one American case. action in our Courts no matter as a right. Its power to do so is the creature of comity. Until such government is recognized by the united sates, no such comity exists.‟ b) By reason of the same principle, the acts of an unrecognized state or government will not generally be given the courts of non-recognising state the effect customary according to the rules of comity. c) Its representatives cannot claim immunity from legal process d) Property due to a state whose government is unrecognized may actually be recovered by the representatives of the de jure government which has overthrown. Recognition transmutes these disabilities into the full status of a sovereign state or government. Accordingly, the newly recognized state or government: i) ii) iii) iv)
Acquires the right of suing in the courts of law of the recognizing state; May have a effect given by these courts to its legislative and executive acts both past and future; May claim immunity from suit in regard to its property and its diplomatic representative; Becomes entitled to demand and receive possession of, or to dispose of property situate within the jurisdiction of recognizing state which formerly belonged to a 24 preceding government.
22
There may, however be other matters besides disabilities e.g. if a state is annexed by an unrecognized state, nationals of the annexed state will, in the municipal courts of a non -recognising country, be deemed to retain their citizenship. 23
24
See Russian Socialist Federated Soviet Republic v. Cibrario Cibrario ( New York court of appeals) 235 NY 255 ( 1923) See the Jupiter (1924) p 236 and the Bank of Ethiopia v. National Bank o f Egypt and Liguori (1937) Ch 513
8 e g a P
Recognition of Insurgency and Belligerency When insurrection or civil war breaks out in any State, third States generally will not interfere in the domestic affairs. Belligerency is a term used in international law to indicate the status of two or more entities, generally sovereign states, being engaged in a war. Wars are often fought with one or both parties to a conflict invoking the right to self defence under Article 51 of the United Nations Charter 25, (as did the United Kingdom in 1982 before the start of the Falklands War 26) or under the auspices of a United Nations Security Council resolution (such as the United Nations Security Council Resolution 678 which gave legal authorization for the Gulf War).
The recognition of belligerency is merely an assertion of the fact that the rebels are in a position to exercise authority over the territory in their possession. The recognition does not give cause for any offence to the State concerned. And according this recognition is not a violation of neutrality either. 27
What is the meaning of the term „insurgency‟ ? Insurgency means rebellion, revolt, or mutiny by a section of the citizenry of a State against the established government. It denotes a sustained armed struggle carried out by dissident forces in a State against the established order. It is an internal situation wherein dissident forces resort to the use of violence for the replacement of an existing socio-political order or in order to assert their political rights or overthrowing an existing government. This struggle is carried out for the purpose of obtaining power or self-rule. International law treats insurgencies and civil wars as internal matters falling within the domestic jurisdiction of the state concerned and it is up to the municipal law to deal with it. Generally, as a rule, States do not interfere in the internal affairs of other States, and especially so when civil strife or condition of insurgency exists within a State. However, when rebels or insurgents come to occupy and effectively control a substantial part of the State territory, it may become necessary for the recognizing States to take cognizance of the state of insurgency. A civil war may not reach a stage to call for the recognition of a formal condition of belligerency by outside powers. The rebel forces may not be acting under an organized command structure and may not be following the laws of war. In such circumstances, outside States may grant the rebels only a form of recognition, viz. as insurgents and refrain from treating them as law-breakers and recognize their de facto authority in the territory under their occupation. They maintain such relations with the insurgents as may be necessary for the protection of their nationals, commerce 25
Bruce Ackerman But What's the Legal Case for Preemption? Yale Law School, August 20, 2002
26
Daniel K. Gibran (1997). T he Falklands War: Britain Versus the Past in the South Atlantic, McFarland,
27
Oxford English Dictionary second edition 1989 "insurgent B. n. One who rises in revolt against constituted authority; a rebel who is not recognized as a belligerent."
9 e g a P
and for such other purposes connected with hostilities. Belligerency is a formal status involving rights and duties. Some of the conditions essential for the recognition of insurgency may be enumerated as under: a) The insurgents must have control over a considerable part of the territory; b) A majority of the people inhabiting the territory must lend support to the rebels out of their own free will and not as a result of coercive measures adopted by the insurgents; c) The insurgents must be capable and willing to carry out international obligations imposed upon them. If the rebels are accorded the status of belligerents, they become subjects of international law and can be held responsible for their acts. Further, the rules governing hostilities become applicable to both the sides. The concepts of insurgency and belligerency are quite vague and are extremely subjective in that a state or states for political considerations may choose to accord recognition to a rebel group. The issue has gained considerable importance in the years following the Second World War for the colonies resorted to struggle for liberation and independence, many a times by armed means.
ISRAEL’S STRUGGLE After 1945, Britain found itself in fierce conflict with the Jewish community, as the Haganahjoined Irgun and Lehi in armed struggle against British rule At the same time, thousands of Jewish refugees from Europe sought shelter in Palestine and were turned away or rounded up and placed in detention camps by the British. In 1947, the British government withdrew from the Mandate of Palestine, stating it was unable to arrive at a solution acceptable to both Arabs and Jews. The newly created United Nations approved the Partition Plan for Palestine (United Nations General Assembly Resolution 181) on November 29, 1947, which sought to divide the country into two states — one one Arab and one Jewish. Jerusalem was to be designated an international city — a corpus separatum — administered administered by the UN. The Jewish community accepted the plan, but the Arab League and Arab Higher Committee rejected it. On December 1, 1947, the Arab Higher Committee proclaimed a three-day strike, and Arab bands began attacking Jewish targets. Jews were initially on the defensive as civil war broke out, but they gradually moved onto the offensive. The Palestinian Arab economy collapsed and 250,000 Palestinian-Arabs fled or were expelled. Israel being a jew settlement had constantly been seen as a troub lemaker by arab nations in it‟s vicinity and Egypt took the initiative in attacking Israel.It was later joined in it‟s fight by Lebanon,Iraq and Syria.After several days of intense fighting it seemed that Egypt had the edge owing to it‟s immense manpower and better cavalry. Israel seeing that it had nothing to lose decided to use it‟s last weapon. Instead of maintaining the proverbial stronghold it attacked egypt‟s presidential palace using it‟s paratroopers and changed the course of the war. This not
0 1 e g a P
only tilted the battle in Israel‟s favour but also gave them a superiority which remains to be challenged till today. One of the first conditions which the victors put forward was RECOGNITION. This recognition was important as it helped United States to have a recognized ally in the middle east.
1 1 e g a P
KOSOVO’S EXAMPLE A number of states expressed concern over the unilateral character of Kosovo's declaration, or announced explicitly that they will not recognise an independent Kosovo. The UN Security Council remains divided on this issue: of its five members with veto power, three (the United States, United Kingdom, France) have recognised the declaration of independence, while the People's Republic of China has expressed concern, urging the continuation of the previous negotiation framework. Russia has rejected the declaration and considers it illegal. On 15 May 2008, Russia, China, and India released a joint statement where they called for new negotiations between the authorities of Belgrade and Pristina Although EU member states decide individually whether to recognise Kosovo, by consensus the EU has commissioned the European Union Rule of Law Mission in Kosovo (EULEX) to ensure peace and continued external oversight. Due to the dispute in the UN Security Council, the reconfiguration of the UN Interim Administration Mission in Kosovo (UNMIK) and partial handover to the EULEX mission met with difficulties. In spite of Russian and Serbian protests, the UN Secretary-General Ban Ki-moon proceeded with the reconfiguration plan. On 15 July 2008, he stated: "In the light of the fact that the Security Council is unable to provide guidance, I have instructed my Special Representative to move forward with the reconfiguration of UNMIK... in order to adapt UNMIK to a changed reality". According to the Secretary-General, the "United Nations has maintained a position of strict neutrality on the question of Kosovo's status". On 26 November 2008, the UN Security Council gave the green light to the deployment of the EULEX mission in Kosovo. The EU mission is to assume police, justice and customs duties from the UN, while operating under the UN resolution 1244 that first placed Kosovo under UN administration in 1999. As of late July 2008, UNMIK no longer provides the citizens of Kosovo with travel documents, while their ability to travel using the new Kosovan passport does not coincide with diplomatic recognition: for example Greece, Romania and Slovakia make it possible, despite not recognising Kosovo. The three neighbouring states that recognise Kosovo — Kosovo — Albania, Albania, Montenegro and Macedonia — Macedonia — all all accept the Kosovan passport, which Serbia refuses. A UN General Assembly resolution adopted on 8 October 2008 backed the request of Serbia to seek an advisory opinion from the International Court of J ustice on the legality of Kosovo'‟ unilaterally proclaimed independence The International Court of Justice delivered its advisory opinion on 22 July 2010 and concluded that the declaration of independence of Kosovo "did not violate any applicable rule of international law", because it was not issued by the Assembly of Kosovo, Provisional Institutions of Self-Government, or any other official body and thus the authors, who named themselves "representatives of the people of Kosovo" were not bound by the Constitutional Framework (promulgated by UNMIK) or by UNSCR1244 that is addressed only to United Nations Member States and organs of the United Nations. 2 1 e g a P
