(A)  Theoretical Overlay6

In this context legal writing has adopted the emphasis and terminology of political relations, notably in relation to the fundamental issue of recognition of states. Indeed ‘there is probably no other subject in the field of international relations in which law and politics appear to be more closely interwoven’.7

The dominance of the category ‘recognition’ has led to some perverse doctrine. When a state is in dispute over title to territory, a court or tribunal will examine all the available and legally significant conduct of either party. A declaration by one party that it does not ‘recognize’ the title of the other will not determine the issue, and will usually be worth very little. A statement registering the fact that at a certain date the opponent was in actual occupation may be evidence, but only within the context of the particular case will the statement have significance. When the existence of states and governments is in issue, by contrast, a sense of perspective seems to be elusive.

Indeed the complexity one may expect of legal issues in interstate relations has been compacted into a doctrinal dispute between the ‘declaratory’ and ‘constitutive’ views (p. 145) of recognition.8 According to the declaratory view,9 the legal effects of recognition are limited: recognition is a declaration or acknowledgement of an existing state of law and fact, legal personality having been conferred previously by operation of law. In a relatively objective forum such as an international tribunal, it would be entirely proper to accept the existence of a state although the other party to the dispute, or third states, do not recognize it.10 This perspective appears to have been accepted (at least tacitly) by the International Court. In Genocide (Bosnia and Herzegovina v Yugoslavia),11 it was argued by the Socialist Federal Republic of Yugoslavia (SFRY) that the allegations of the breach of the Genocide Convention12 made by Bosnia-Herzegovina were not admissible as the parties to the dispute had not recognized each other at the time of the events in question. The Court dismissed this argument on the basis that, as recognition had been given subsequently in the Dayton Accord,13 any defect was merely procedural and could be remedied by re-filing the claim to relate to events of genocide occurring prior to 1995.

Substantial state practice supports the declaratory view.14 Unrecognized states are quite commonly the object of international claims by the very states refusing recognition. An example is Israel, long held accountable under international humanitarian and human rights law by certain Arab states that persistently deny it recognition.15

The declaratory theory of recognition is opposed to the constitutive view, according to which the political act of recognition is a precondition of the existence of legal rights: in its extreme form this implies that the very personality of a state depends on the political decision of other states.16 The most nuanced defence of this perspectiveReferences(p. 146) is that of Lauterpacht, who conceives of states as the gatekeepers of the international realm:

[T]he full international legal personality of rising communities…cannot be automatic…[A]s its ascertainment requires the prior determination of difficult circumstances of fact and law, there must be someone to perform the task. In the absence of a preferable solution, such as the setting up of an impartial international organ to perform that function, the latter must be fulfilled by States already existing. The valid objection is not against the fact of their discharging it, but against their carrying it out as a matter of arbitrary policy distinguished from legal duty.17

Taken to its logical conclusion, however, the constitutive view is as a matter of principle impossible to accept: it is clearly established that states cannot by their independent judgment remove or abrogate any competence of other states established by international law (as distinct from agreement or concession). Moreover, the constitutive theory of recognition leads to substantial difficulties in terms of practical application. How many states must recognize? Can existence be relative only to those states which recognize?18 Is existence dependent on recognition only when this rests on an adequate knowledge of the facts? More vitally, does nonrecognition by a state entitle it to treat an entity as a non-state for the purposes of international law, for example, by intervening in its internal affairs or annexing its territory?

One solution put forward is that of the ‘collectivization’ of recognition, under which statehood matures through membership of the United Nations, or at least a call by the UN that the new state be recognized.19 Whilst this would circumvent what Lauterpacht called the ‘grotesque spectacle’20 of relative statehood, it has its own problems:21 notably, it cannot account for the legal position of a state in the period between its declaration of independence and its admission to the UN, which in the case of the two Koreas lasted some 43 years.22Moreover, under Article 4 of the UN Charter statehood is a criterion for membership, not a consequence.

References(p. 147) (B)  The Varied Legal Consequences of Recognition and Non-Recognition

There is no such thing as a uniform type of recognition or non-recognition.23 The terminology of official communications and declarations is not very consistent: there may be ‘de iure recognition’, ‘de facto recognition’, ‘full diplomatic recognition’, ‘formal recognition’, and so forth. The term ‘recognition’ may be absent, taking the form instead of agreement to establish diplomatic relations or a congratulatory message on independence day. The typical act of recognition has two legal functions. First, the determination of statehood, a question of law: such individual determination may have evidential value.24 Secondly, a condition of the establishment of formal relations, including diplomatic relations and the conclusion of bilateral treaties: it is this second function which has been described by some as ‘constitutive’, but it is not a condition of statehood. Since states are not legally required to make a public declaration of recognition nor to undertake optional relations such as the exchange of ambassadors, the expression of state intent involved is political in the sense of being voluntary. But it may also be political in a more obvious sense. An absence of recognition may not rest on any legal basis at all, there being no attempt to pass on the question of statehood as such. Non-recognition may simply be part of a general policy of disapproval and boycott. Recognition may be part of a policy of aggression involving the creation of a puppet state: the legal consequences here stem from the breaches of international law involved.25

Above all, recognition is a political act and is to be treated as such. Correspondingly, the term ‘recognition’ does not absolve the lawyer from inquiring into the intent of the recognizing government, placing this in the context of the relevant facts and law. Indeed, non-recognition (in the sense of a refusal to have formal relations) may carry with it the implicit assumption of recognition (in the sense of an acknowledgement of existence). Warbrick notes that a bare statement of non-recognition carries five possible meanings, only one of which is a definitive declaration that the entity in question is not regarded as a state. Under his taxonomy, non-recognition is: (a) a statement of neutrality, under which no view is taken deliberately as to the entity’s statehood; (b) driven purely by political calculations (thereby implying recognition of statehood in law); (c) driven by the understanding that recognition would be unlawful or premature (genuine non-recognition); (d) issued on the basis that supervening obligations in custom or (p. 148) treaty prevent recognition; (e) issued on the basis of a supervening obligation imposed by the Security Council.26

This leads to a consideration of the practicalities of recognition: the existence of a state is of little worth unless it is accepted as such into the community of nations. It is of little value to assert that Taiwan or Somaliland is a state if nobody will engage with it on such a basis.27

(C)  The ‘Duty to Recognize’

Lauterpacht28 and Guggenheim29 adopt the view that recognition is constitutive but that there is a legal duty to recognize. This standpoint has been vigorously criticized as bearing no relation to state practice and for its inconsistency, providing as it does that state consent is determinative of statehood whilst in the same breath narrowing its scope until only one option remains.30 A constitutive argument dependent on a duty to recognize in order to reconcile theoretical inconsistency becomes the declaratory theory viewed from a different perspective.

In principle the legal duty implies that the entity in question already bears the marks of statehood and (although Lauterpacht does not express it thus) the duty would seem to be owed to the entity concerned. The argument postulates personality on an objective basis. Discussion of Lauterpacht’s views often reveals a certain confusion among the critics. Recognition, as a public act of state, is an optional and political act and there is no legal duty in this regard. However, in a deeper sense, if any entity bears the marks of statehood, other states put themselves at risk legally if they ignore the basic obligations of state relations. Few, for example, took the view that its Arab neighbours could treat Israel as a non-entity. In this context of state conduct there is a duty to accept and apply certain fundamental rules of international law, a legal duty to ‘recognize’ for certain purposes at least.31 But there is no duty to make an express, public determination or to declare readiness to enter into diplomatic relations by means of recognition: this remains political and discretionary. Non-recognition (in this sense) is not a determinant of diplomatic relations, and the absence of diplomatic relations is not in itself non-recognition of the state.32

(p. 149) (D)  Implied Recognition33

Recognition is a matter of intention and may be express or implied.34 The implication of intention is a process aided by certain presumptions. According to Lauterpacht, in the case of recognition of states, only the conclusion of a bilateral treaty, the formal initiation of diplomatic relations, and, probably, the issue of consular exequaturs, justify the implication.35 No recognition is implied from negotiations, unofficial representation, the conclusion of a multilateral treaty to which the unrecognized entity is also a party, admission to an international organization (at least in respect to those not supporting admission),36 or participation with the entity concerned at an international conference. Confusion arises from two sources. First, the terminology of governmental statements may lead tribunals to give legal status to acts intended only to give a low level of recognition:37 for example, an authority with which only informal and limited contacts have been undertaken may be accorded sovereign immunity by national courts.38 Secondly, different considerations ought to apply to different aspects of recognition, yet doctrine tends to generalize about the subject. Thus, in terms of evidence in an international tribunal, informal relations, especially if these persist, may have probative value on the issue of statehood. However, as a matter of optional bilateral relations, recognition depends on intention.39

(E)  Retroactivity of Recognition40

British and American courts have applied the principle of retroactivity in following or interpreting the views of the executive in matters of recognition, but Oppenheim describes the rule as ‘one of convenience rather than of principle’.41 Once again one ought not to generalize except to say that on the international plane there is no rule of retroactivity. As to the basic rights and duties entailed by statehood, delayed recognition cannot be ‘retroactive’ because in a special sense it is superfluous. Optional and consensual relations it may or may not be, since the area is one of discretion.42

References(p. 150) (F)  Recognition and Membership of International Organizations43

Collective recognition may take the form of a joint declaration, for example that of the Allied Supreme Council after the First World War, or an invitation to a new state to become a party to a multilateral treaty of a political character such as a peace treaty. The functioning of international organizations of the type of the League of Nations and United Nations provides a variety of occasions for recognition, of one sort or another, of states. Recognition of other members, or of non-members, may occur in the course of voting on admission to membership44 and consideration of complaints involving threats to or breaches of the peace. Indeed, it has been argued that admission to the League and the UN entails recognition by operation of law by all other members, whether or not they voted for admission.

The position, supported by principle and practice, would seem to be as follows. Admission to membership is evidence of statehood,45 and non-recognizing members are at risk if they ignore the basic rights of existence of an entity the object of their non-recognition.46 However, there is nothing in the Charter, or customary law, which requires a non-recognizing state to enter into optional bilateral relations with other members.47 In any event the test of statehood in general international law is not necessarily applicable to the issue of membership in the specialized agencies of the United Nations,48 as demonstrated by the recent admission of Palestine to UNESCO.

There are other elements in the case of organizations, adequate treatment of which cannot be given here. Can the UN and its organs (including the Secretariat), as such, accord recognition? For the purposes of the Charter numerous determinations of statehood are called for: thus, for example, the UN Secretary-General acts as depositary for important treaties. Whether, and to what extent, such determinations provide evidence of statehood for general purposes must depend on the relevance to general international law of the criteria employed in a given case.49 Attitudes of non-recognitionReferences(p. 151) may depend on the political positions of individual members and the view that in any case the special qualifications for membership contained in Article 4 of the Charter are not fulfilled: statehood may be necessary but it is not sufficient.

The status of an entity as the government of a state raises somewhat different issues to those raised by recognition of statehood, although the differences were historically obscured by the practice of diplomatic recognition being applied to both states and governments. The legal entity in international law is the state; the government is in normal circumstances the representative of the state, entitled to act on its behalf. The consequences of an entity not being considered a state are potentially greater. The absence of a (recognized) state with respect to some area of the world raises the possibility of a legal vacuum, although in practice this may be mitigated in various ways.51 By contrast the absence of a (recognized) government does not lead to a loss of title, and may simply require some form of curatorship.52

In short although recognition of government and state may be closely related, they are not identical. Non-recognition of a particular regime is not necessarily a determination that the community represented by that regime does not qualify for statehood. Non-recognition of a government may mean that it is not regarded as a government in terms of independence and effectiveness, or that the non-recognizing state is unwilling to have normal intergovernmental relations with it. Recognition in the context of voluntary relations may be made conditional on the democratic character of the regime, the acceptance of particular claims, or the giving of undertakings, for example on treatment of minorities.53 Here, the European Community’s Guidelines on the Recognition of New States, adopted in response to the breakup of the USSR and Yugoslavia, are instructive.54The sphere of optional relations and voluntary obligations is one of discretion and bargain. In terms of bilateral voluntary relations, an unrecognized government is little better off than an unrecognized state.

In the case of governments, ‘the standard set by international law’ is so far the standard of secure de facto control of all or most of the state territory. The Tinoco regime had that, and was thus the government for the time being of Costa Rica, irrespective of non-recognition.

(A)  De Iure and De Facto Recognition

The distinction between de iure and de facto recognition occurs exclusively in the context of recognition of governments: there is no such thing as a de facto state.56 General propositions about the distinction are to be distrusted; everything depends on the intention of the government concerned and the general context of fact and law.57 On the international plane a statement that a government is recognized as the ‘de facto government’ of a state may involve a purely political judgment, involving a reluctant or cautious acceptance of an effective government, lawfully established in terms of international law and not imposed from without, or an unwarranted acceptance of an unqualified agency. On the other hand, the statement may be intended as a determination of the existence of an effective government, but with reservations as to itsReferences(p. 153) permanence and viability. No doubt the legal and political reasons for caution may coincide, but they rarely affect courts, which, with or without the epithet de facto, accord recognition the same effect. It is sometimes said that de iure recognition is irrevocable while de facto recognition can be withdrawn. In the political sense recognition of either kind can always be withdrawn: legally it cannot be unless a change of circumstances warrants it.

Situations do occur where there is a serious legal distinction between de iure and de facto recognition. Thus some governments accepted certain legal consequences of German control of Austria, 1938–45, and Czechoslovakia, 1939–45, for example in the fields of nationality law and consular relations. Yet these same governments did not accept the lawfulness of German authority.58 In documents relating to these matters ‘de facto recognition’ may be used to describe acceptance of facts with a dubious legal origin: de iure recognition would be inappropriate and unjustifiable.59 In this context it is hazardous to accept the full legal competence of an administration accorded only ‘de facto recognition’. Thus, in Bank of Ethiopia v National Bank of Egypt and Liguori,60 the Court gave effect to an Italian decree in Ethiopia on the basis that the UK had recognized Italy as the de facto government. In truth Italy was no more than a belligerent occupant. Furthermore, in situations where rival governments were accorded de iure and de facto recognition in respect of the same territory, problems arise if the same legal consequences are given to both forms of recognition.61

(B)  Recognition of Governments Inabeyance

There is a school of thought supporting the automatic recognition of de facto governments, exemplified by the ‘Estrada doctrine’ enunciated by the Mexican Secretary of Foreign Relations in 1930.62 As a means of reducing non-recognition as a source of interference in internal affairs this is laudable, but difficulties remain.

In 1980 the British government adopted the practice of no longer according recognition to governments. The statement read as follows:

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.

References(p. 154) This practice has sometimes been misunderstood, and, despite explanations to the contrary, our ‘recognition’ interpreted as implying approval…

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.63

The practical result of this change has been unfortunate. Executive certificates, like the one supplied in Gur Corporation,64 may be indecisive and reflect the premise that the issues are unrelated to questions of general international law. Such a premise is especially inappropriate in cases where the legitimacy of the regime raises issues of validity in terms of general international law, for example, in case of foreign intervention, or there are competing administrations and their internal validity is linked to issues of international law. No doubt the facts are paramount in each case but the facts can only be assessed within the appropriate legal framework.65

When issues of international legality have been in question, however, the UK government has provided the necessary guidance, for example, in relation to the status of Kuwait under Iraqi occupation in 1990;66 and the status of the ‘Turkish Republic of Northern Cyprus’ (TRNC).67 Most recently, clarification as to the legitimate government of Libya was provided in the form of a certificate (apparently contrary to the announced policy) explicitly stating that the government considered the National Transitional Council (NTC) to be the legitimate government of Libya and did not recognize any other government in Libya, notably the former Qaddafiregime. This certificate permitted the NTC to obtain access to English bank accounts in Libya’s name formerly under the control of Qaddafiand his supporters.68

(C)  Credentialsand Representation in International Organizations

The approval of the credentials of state representatives by organs of the United Nations raises problems similar, but not identical, to those concerning admission, since inReferences(p. 155) practice the formal requirements for approving credentials have been linked with a challenge to the representation of a state by a particular government.69