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RECOGNITION IN INTERNATIONAL LAW
Transcript of RECOGNITION IN INTERNATIONAL LAW
At the first years of 20Th century, there were nearly fifty states in the world, just before the World War II the number reached approximately 75 and in 2005, there were almost 200. Each state creation, again and with some problems, put the recognition concept on the agenda of International community. Recognition has become much important especially by reasons of its result.
Grant defines it as:
"A procedure whereby the governments of existing states respond to certain changes in the world community."
The authority for the recognition of any state defines Recognition as:
"The free act by which one or more states acknowledge the existence of a definite territory of a human society politically organized independent of any other existing state and capable of observing the obligation of international law and by which they manifest therefore the intention to consider it a member of international community."
RECOGNITION OF STATE:
When a state come in existence, other state are faced with problem of deciding whether or not to recognize the new state.
Recognition means a willingness to deal with the new state as a member of international community.
FOR EXAMPLE: The first example in history was the recognition in 1648 by Spain of United Netherlands, which had declared their independence in 1581.
RECOGNITION OF GOVERNMENT:
International law allows states to exercise great discretion when granting or withholding recognition, especially when a new government comes into power in an existing state by violent means.
Recognition is accorded to the head of state, and so no problem of recognition arises when a revolution does not affect the head of state.
The military coup in Greece in April 1967, which overthrew the Prime Minister but not the King.
Nor does any problem of recognition arise when there is a constitutional change in the head of state.
When a British monarch dies and is succeeded by the eldest son, or when a new President of United States is elected.
States have often used recognition as an instrument of policy.
The United States has often regarded recognition as a mark of approval, and the President Wilson's time withheld recognition from Latin American regimes which had come to power by unconstitutional means, such as Tinoco's regime in CostaRica.
Distinction between Recognition of State and Recognition of Government:
recognition of a state
acknowledges that the entity fulfills the criteria of statehood.
implies that the regime in question is in effective control of a state.
THEORIES REGARDING RECOGNITION:
There are two principle theories as to the nature, function and effect of recognition:
1: Constitutive Theory.
2: Declaratory theory.
According to the constitutive theory, it is the act of recognition alone which creates statehood or which clothes a new government with any authority or status in the international sphere.
Simply in Constitutive theory, recognition is a necessary condition for statehood and personality. It is a process by which a political community acquires personality and becomes a member of nations. A state comes into existence through recognition only and exclusively.
According to declaratory theory, statehood or the authority of a new government exists as such prior to and independently of recognition.
This theory states that declaration is a mere formality and has no legal effect as the existence of a State is a mere question of fact.
INTERNATIONAL REGISTRATION OF TRADEMARK (GERMANY)CASE(1959) 28 ILR82
, a West German national court ruled that a trademark originating in East German was not entitled to protection in its territory. The reason was that West Germany did not recognize the State hood of East Germany. According to the court, any entity which actually exists does not thereby become a state in international law without some from of recognition of its existence. In other words, recognition of statehood was esswntial to international personality.
CASES REGARDING CONSTITUTIVE AND DECLARATORY THEORY:
CASE REGARDING CONSTITUTIVE THEORY:
CASE REGARDING DECLARATORY THEORY:
In the Tinoco Arbitration (Great Britain v Costa Rica)(1923), Great Britain made certain claims against Costa Rica arising out obligations undertaken by Tinoco government. This government had not been recognized by Great Britain, but the arbiter, Judge Taft, held that the fact of non-recognition did not preclude the claim. In his opinion non-recognition was evidence, perhaps strong evidence, that the entity had not yet attained the alleged status in international law, but the ultimate test was factual one based on internationally accepted criteria. So if the unrecognized entity was effective, it could still be the object of international claims and was bound by the duties imposed by international law. Recognition itself did not determine personality under international law.
IS THERE DUTY TO RECOGNIZED :
It has urged that states are subject to a duty under international law to recognized to a new state or a new government fulfilling the legal requirements of statehood or of government capacity.
Is it right of state claiming to recognized, or a right of international community, and how would such claims of right be presented?
The answer to these questions must be that there is no general acceptance of existence of the duty or the right mentioned. No right to recognition is laid down in the Draft Declaration on the Rights and Duties of States, drawn up by International Law Commission in 1949.
view that recognition is a 'facultative' and not an obligatory act is more consistent with the practise.
who, on the basis of constitutive theory, argued that other states had an obligation to recognized a state meeting the criteria of statehood.
FORMS OF RECOGNITION:
There are different forms of recognition some of them are:
An existing state recognizes another state by releasing a public statement by the way notification or a declaration announcing the intention of recognition.
Implied recognition is very much a matter of the intention of the state said to have given recognition.
By implication a state may recognized under certain circumstances:
the formal signature of a bilateral treaty by the recognized and recognizing States.
The treaty of Commerce between Nationalist China and the United States in 1928.
The formal initiation of diplomatic relations between the recognized and recognizing state.
The issue of consular exequatur buy the admitting state for a consul of an unrecognized state.
In certain exceptional circumstances, but not otherwise, recognition has been inferred from the following circumstances:
Common participation in a multilateral treaty . Some states such as Great Britain and United States have, sometimes, when signing a convention, declared that this signature was not to be construed as the recognition of signatory Power not recognized by them.
the Protocol, to the Declaration on the neutrality of Laos, signed at Geneva on 23rd July 1962. The United States, and the People's Republic of China, not then recognized by the United Nations, were both parties to Protocol.
: Participation in an international conference.
: Initiation of negotiations between recognizing and a recognized state.
The advantage of recognition taking place by some collective international act, or through the medium of an international institution cannot be denied.
there are number of historical precedents of collective recognition: e.g, the recognition of Bulgaria, Montenegro, Serbia and Rumania by the Berlin Congress of 1878, and of Esthonia and Albania by the Allied Powers in 1921.
Since it is political decision of the states, in some circumstances, the recognition occurs before the criteria of statehood have been fulfilled by the new state. In such cases, the problem is to determine the premature recognition is an intervention in the internal affairs of another state or is an admissible recognition of a new state that has emerging or is emerging as a result of result of secession.
Recognition of Bosnia- Herzegovina and Croatia were the well-known examples of premature recognition.
Conditional recognition means that to recognize an entity as a State only when it fulfills some conditions.
Conditional Recognition was seen in the Berlin Congress of 1878, Great Britain, France, Italy and Germany marked the recognition of Bulgaria, Serbia, Romania, and Montenegro with the condition that these countries would not impose any religious disabilities on any of their subjects.
DE JURE RECOGNITION:
Recognition de jure means that according to recognizing state or government recognized formally fulfills the requirements laid down by international law for effective participation in the international community.
DE FACTO RECOGNITION:
Recognition de facto means that in the opinion of the recognizing state, provisionally and temporarily and with all due reservations for the future, the state or government recognized fulfills the above requirements in facts.
DISTINCTION BETWEEN DE FACTO AND DE JURE RECOGNITION:
DE FACTO RECOGNITION:
1: De facto Recognized states can not
claims for the property locally situated
in the territory of the recognizing state.
2: De facto recognized states can not
represent the old state for the purpose
of states succession.
3: De facto recognized state, cannot grant
independence to a dependency,
4: The de facto recognized state or
governments may not be entitled to full
diplomatic immunities and privileges.
5: It is revocable.
1: Only the de jure recognized state
or government can claim to receive
property locally situated in the
territory of the recognizing state.
2: Only the de jure state can
represent the old state for purposes
of state succession.
3: If the sovereign state, de jure
recognized, grants independence to
a dependency, the new state is to be
recognized de jure and not other
4: The de jure recognized states and
government may be entitled to full
immunities and privileges
5: It is irrevocable.
ARANTZAZU MENDI CASE: REGARDING DE JURE AND DE FACTO RECOGNITION:
The case of Arantzazu Mendi involved a conflict of rights between the legitimate and the insurgent governments in Spain during the Spanish Civil War 1936-1938, at a period when the insurgents had won over the greater part of Spanish territory. At this stage Great Britain continued to recognize the Republican Government as the de jure government of Spain, but also recognized the insurgent administration as the de facto government of that portion of Spain occupied by it. Proceedings were initiated in the British Admiralty Court by the de jure government against the de facto government to recover possession of certain ship, and the latter government claims the usual immunity from suit accorded to a fully sovereign state. This ship was registered in a port under the control of the de facto government, and had been handed over to that government in England pursuant to a requisition decree issued by it. It was held that the writ must be set aside as the insurgent(or Nationalist) government was a sovereign state and was entitled to immunity. The argument put forward on behalf of the de jure government that the insurgent administration was not a sovereign state, since it did not occupy the whole of Spain was rejected.The decision in the Arantzazu Mendi has not escaped criticism, particularly on the ground that in such circumstances the concession of jurisdictional immunity to a de facto government without full sovereignty goes too far.
LEGAL EFFECTS OF RECOGNITION:
Recognition produces legal consequences affecting 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 its recognition.
Through Recognition a newly recognized state or government:
1:acquire the right of suing in the courts of law of the recognizing state.
2:May have affect given by these courts to its legislative and executive acts both past and future.
3:may claim immunity from suit in regard to its property and its diplomatic representatives.
4: becomes entitled to demand and revive possession of, or to dispose of property situate with in the jurisdiction of a recognizing state which formerly belonged to a preceding government.
ADAMS V ADAMS:
In this case, a UK refused to recognize a divorce granted in Southern Rhodesia because UK did not recognize that country as a sovereign state.
HESPERIDES HOTELS V AEGEAN TURKISH HOLIDAYS(1978), the
claimants claimed damages for trespass in respect of two hotels owned by them, but now occupied by the Turkish Cypriot defendants. The hotels were situated in that part of Cyprus under Turkish occupation following an invasion in 1947 and had been handed over to the defendants by the Turkish administration de jure or de facto. The effect of this should have been that no laws or the administrative acts of Turkish authorities could be considered valid in a UK court. In fact, the action was dismissed because the court lacked jurisdiction over the substantive issue.
ARAB MONETARY FUND V HASHIM:
In that case, the Arab Monetary Fund was initially denied personality in the UK legal system because it was created by a treaty which had not been transformed into UK law(i.e it came from unrecognized legal system-international law). Although subsequently reversed on other grounds, the case highlighted that lack of legal personalty, be it because the institution was incorporated under the law of unrecognized state.
KIBRIS TURK HAVA YOLLARI AND CTA HOLIDAYS V SECRETARY OF STATE OF TRANSPORT:
This case was a judicial review, brought by an airline inc operated in Turkey (and a travel company) that wished to operate direct flights between the UK and the Northern Cyprus. The Secretary of state had refused the grant of an operating permit for such flights on the basis that to do so would be unlawful, and the applicants sought review of this decision, which was upheld, the judge agreeing that the authorization of direct flights would have been unlawful.
Recognition Under the modern state practice involves more than cognition, that is to say more than avowal of knowledge that a state or government possesses the requisite bare qualifications to be recognized. this is proved by the fact, inter alias, that substantial delays may occur before a state or government is recognized, notwithstanding that its status may be beyond doubt. The practical purpose of recognition, namely, the initiation of formal relations with the recognizing state,must also always be borne in mind. Once granted, recognition in a sense estops or precludes the recognizing state from contesting the qualifications for recognition of the state or government recognized
Introduction To International Law by J.G.Starke
Akehurst's Modern Introduction to International Law By Peter Malanczuk.
International Law by Martin Dixon.
What is meant by state recognition in international law by Nurullah Yamali , Ministry of Justice , Turkey