International Recognition

Recognition in International Law

In a world system where the principal actors are independent and sovereign states, that choose to regulate their relations through the medium of a system of international law, to be recognised as a state and to become endowed with the legal rights and obligations that this entails is thus of central importance for any aspirant state wishing to take its place in the world stage. In such a scenario, we could assume that an entity that considers itself to be a state and that aspires to be recognised as such by the world community of states need only satisfy certain agreed objective criteria for this to take place. However, as I hope to illustrate, this is far from being the case. Not only are there difering views as to how an entity becomes a state, there are also problems when the concept of recognition is applied to governments. As Brownlie has pointed out: “Unfortunately, when the existence of states and governments is in issue, a proper legal perspective seems to be elusive” (1).

My proposition is that whilst there might appear to be objective legal norms and procedures established for the purpose of the recognition of states and governments, there are different interpretations of the former and difering perceptions of the situations where they are to be applied, and that this non-uniformity allows states to present in a legal format what in effect is an act of policy prompted by political expediency and their own interests.

In examining the above proposition, I shall first refer to the two traditional theories of recognition, namely the constitutive and declaratory theories, for which I quote directly from Shaw (2): “The constitutive theory maintains that it is the act of recognition by other states that creates a new state and endows it with legal personality and not the process by which it actually obtained independence…The declaratory theory maintains that recognition is merely an acceptance by states of an already existing situation. A new state will acquire capacity in international law not by virtue of the consent of others but by virtue of a particular factual situation. It will be legally constituted by its own efforts and circumstances and will not have to await the procedure of recognition by other states” . The declaratory theory is adopted by most modern writers and is also supported by arbitral practice, in particular the Tinoco Arbitration (3). Brierly, for example, has stated that: “The better view is that the granting of recognition to a new state is not a but a act; it does not bring into existence a state which did not exist before. A state may exist without being recognized, and if it does exist in fact, then, whether or not it has been formally recognized by other states, it has a right to be treated by them as a state” (4). The question of recognition arose in the Tinoco Arbitration (5) in the context of certain claims brought by Great Britain against Costa Rica in 1923, pursuant to obligations entered into by the government of Federico Tinoco who had ousted the previous government in 1917.

The position of Costa Rica was that a majority of states, including Great Britain, had not recognized the Tinoco government and that in consequence the latter could not be considered as having been the government of Costa Rica for the purpose of entering into legal obligations with other states. In his findings, the Sole Arbitrator, William Taft expressed the opinion that: “…Such non-recognition for any reason, however, cannot outweigh the evidence disclosed by this record before me as to the de facto character of Tinoco’s government, according to the standard set by international law” . Commenting on this rulling, Brownlie has stated that: “In other words the policies of non-recognition in question were based not upon legal considerations but upon a political policy aimed at a government which satisfied the criteria of international law. This arbitration relates to recognition of governments but it is clear that the logic of Taft’s approach would apply equally to recognition of States” (6). The declaratory approach, therefore, resolves the incongruent situation that could arise under the constitutive approach of a state being recognized by some states and not by others, and the difficulties that this could give rise to, especially as regard to a “non-recognized” state not abiding by international law rules of non-aggression and non-intervention (although Lauterpacht (7) attempted to reconcile this situation within the constitutive theory by imposing on states a “duty to recognize once the international law criteria for statehood has been complied with). Some writers have attempted to bridge this difference of opinion by resorting to the concept of “collective recognition” through the medium of international organizations. Duggard (8), drawing from other writers and from the procedures for admission into the United Nations, especially Articles 3 and 4, concludes that: “The views of Kelsen, Briggs and Wright provide the necessary jurisprudential framework for an examination of United Nations practice on recognition-by-admission.

Once it is fully understood that recognition by the United Nations does not oblige a member State to enter into bilateral relations, or to exchange diplomatic relations with an obnoxious fellow member, and that its main purpose is to certify the …existence of an entity as a State subject to the benefits and burdens of international law, it should be easier for even the most ardent exponent of State sovereignty to acknowledge the part played by the United Nations in the recognition of States” . Notwithstanding the above, state practice shows that states still consider actual recognition as an important element in their relationships with other states and governments; this “constitutive” bias can be seen to work in cases where a state wishes to show opposition to a state or government (the non -recognition of China by the USA) or conversely its support (the recognition of Israel within 48 hours of its establishment as a state). It is also used in the municipal courts of the recognizing state to deny its rights and duties to the non-recognized state. This “constitutive” bias is also apparent in situations of insurgency, the establishment of a new government by unconstitutional means, in the development of self-determination and the emergence of National Liberation Movements.

An examination of some of the aspects of this “constitutive” bias as regards to governments can be done with reference to the Spanish Civil War (1936-1939). Legislative elections held on 16.2.36 were won by an alliance called the Popular Front; on 19.2.36 Manuel Azaña formed a Republican government that was supported in Parliament by the left-wing parties of the Popular Front; on 18.7.36 General Franco, supported by part of the army and right-wing and fascist political parties, rebeled against the constitutionally elected government; on 25.7.36 the rebels received the first shipments of arms and soldiers from Germany and Italy, who proceeded to recognize the forces of General Franco as the de facto and de jure government of Spain in November. It is important to consider at this point that these events took place at a time when the international situation was very tense, and when a number of factors threatened to upset the balance of power established by the Treaty of Versailles that had been so poorly defended by the League of Nations. In 1933, Hitler had been appointed Chancellor, and in March 1936 cancelled the Locarno Pact and ordered the occupation of the demilitarized zone of the Rhineland. In the meantime, in Great Britain, the National Government of Baldwin (1935-37) pursued a policy of “appeasement” .

After a meeting in London on 23.7.36 between the British and French governments, the latter, on 25.7.36, decided not to intervene in the “internal affairs” of Spain – a position which was influenced, no doubt, by British foreign policy based on avoiding confrontation with Germany and Italy. Eventually, on 2.8.36 a “Committee of non-intervention” was formed to which 27 European countries were party to. In May 1937, the new government of Chamberlain continued to follow a policy of “appeacement” towards Germany and Italy, notwithstanding the proclamation of the “Berlin-Rome axis” in November of the previous year. As regard to Spain, the position of the British government was tending towards the recognition of belligerent status of the rebels led by General Franco. On 16.9.37, Negrín, a member of the Republican government, made a speech before the Assembly of the League of Nations in Geneva and demanded amongst other things that the League recognized the agression of Germany and Italy towards Spain. This did not happen.

Although the British government had not recognized the insurgents, on 16.11.37 Sir Robert Hodgson was appointed “Commercial Agent” to “Nationalist Spain” , that is, the territory which was under the control of General Franco. At the same time the Duke of Alba arrived in London as the latters “Commercial Agent” . The position of the British government can be made clearer with reference to the case of The Arantzazu Mendi (9), a vessel registered at Bilbao. She had left Spain before June 1937, when Bilbao fell to the insurgent forces. On 23.3.38 the owners of the ship were served in London with a notice of requisition on the part of the Republican Government under a decree of requisition of 28.6.37; on 5.4.38 the acredited agent of the insurgent Nationalist Government in London served on the owners a notice of requisition under a decree issued on 2.3.38. On 13.4.38 the managing director of the owners firm declared that he freely submitted to the provisions of the Nationalist decree of 2 March. On the same day the Republican Government issued a writ asking for possession of the ship to be adjudged to them. The Nationalist Government appeared conditionally under protest and moved that the writ be set aside on the ground that it impleaded a foreign sovereign state, namely, the Nationalist State which was in possession of the ship by its duly authorised agents. In reply to a request of the Court for information as to the status of the Nationalist Government, the Foreign Office stated that:
(1) His Majesty’s Government recognizes Spain as a foreign sovereign State.
(2) His Majesty’s Government recognizes the Government of the Spanish Republic now having its seat in Barcelona as the de jure government of Spain. (…) …
(5) His Majesty’s Government recognizes the Nationalist Government as a government which at present exercises de facto administrative control over the larger portion of Spain. (…) …
(9) The question whether the Nationalist Government is to be regarded as that of a foreign Sovereign State appears to be a question of law to be answered in the light of the preceding statements and having regard to the particular issue with respect to which the question is raised.

On the basis of this letter the judge of the case, Mr Justice Bucknill, held that the Nationalist Government was for the purposes of the case a government of a foreign sovereign State and set aside the writ. The Court of Appeal upheld this decision and the House of Lords confirmed the decision of the former. Commenting on the case, Lauterpacht observed that: “…At the time when these arrangements were made the British Government repeatedly denied that there was an intention to recognize the sovereignty of the insurgent authority. This being so, the decisions of the Court of Appeal and of the House of Lords laying down that the insurgent government was the government of a foreign sovereign State seem, on the face of it, to go far beyond the declared intentions of the British Government as well as beyond what international law associates with an insurgency or with recognition of a government during a civil war…” (10).

And Brownlie, commenting on the speech by Lord Atkin in the House of Lords: “…he seems to say that the rationale of sovereign immunity was in any case applicable on the facts: a proposition controversial in terms of international law, but not absurd, since a belligerent entity may soon become a de jure government…” (11). This position was expressed more eloquently by the leader article of 2.8.38 in the French newspaper Le Temps, one week before the Paris Tribunal had to decide whether to return to the Republican Government the gold it had deposited in France: ” French interests demand that the Spanish fire does not spread beyond the borders of the Peninsula; it demands that we do not prematurely and irrevocably antagonize ourselves with the side that has the most possibilities of becoming the owner of the whole of Spain” (12).

By the end of the summer of 1938 the war appeared to be decided in favour of the nationalist forces of General Franco. On 27.2.39 Britain and France officially recognized the new government. The war ended on 1.4.39.
It could be argued that the Spanish Civil War is not relevant in a discussion of the concepts of recognition and non-recognition as addressed in this essay, and that it would be more pertinent to refer to it in a study of the rules of international law as regard to the position of states when confronted with a civil war confined within the borders of another state. In contrast I would argue that the non-compliance of these rules on the part of the international community and the active intervention of Germany and Italy provide a linkage that allows this sad episode to be included herein. If we refer to the resolutions adopted by the Institute of International Law in 1900 regarding the obligations of third Powers towards established and recognized governments and State practice up until the Spanish Civil War (13) it is clear that the rules of international law were broken by (i) refusing to supply arms to the lawfull Republican Government, even though the belligerent status of the insurgents had not been recognized, and (ii) by the intervention of Germany and Italy.

In addition, the non-intervention agreement and the passiveness of the League of Nations amounted to a non-declared premature recognition of the insurgents. “Recognition is unlawful if granted durante bello, when the outcome of the struggle is altogether uncertain” (14). The question then arises – where there legal reasons for the international community of states, and especially the European states, to have acted in such a way, or was it simply because of political considerations? The answer must be that the rules of international law were broken or “adapted” for political reasons. At the beginning of the conflict, Spain, as Abyssinia in 1935 and as Austria in 1938, was expendable in the interest of “appeacement” ; and as the possibility of a second war in Europe appeared near, the strategic importance of Spain necessitated a rapproachment with the side that had more possibility of winning in order for Spain to be brought into the ranks of the allies or at the very least to make sure of its neutrality.
The debate about the concept of recognition can be further examined by reference to a contemporary situation, namely that in the former Yugoslavia, and the international response to its dissolution. It is in this context that I shall examine some of the areas which I have deliberately not touched upon above, namely, criteria for statehood, self-determination and the role played by jus cogens in recognition.

The Yugoslav Federal Republic was formed in November, 1945 and consisted of six republics (Slovenia, Croatia, Serbia, Bosnia-Hercegovina, Montenegro and Macedonia) and two autonomous regions (Kosovo and Vojvodina), each with a two-chamber legislative assembly comprising the 220 member Federal Chamber and the 88 member Chamber of Republics and Provinces. The legislature elected the executive branch of government, which since May 1980 (when Marshal Tito died) consisted of a nine-member collective presidency, comprising the head of the Communist Party plus a representative from each republic and province, with the leadership rotating annually.

The population of Slovenia was 90% ethnic Slovene, with small minorities of Serbs, Croats and Hungarian. In Croatia 85% of the population were ethnic Croats, and 11.5% Serbs. In Serbia, including Kosovo with an Albanian majority and Vojvodina with a 21% Hungarian population, which were incorporated into Serbia in September 1990, 66% of the population were ethnic Serbs. In Montenegro, 66% of the population were ethnic Montenegrins with small minorities of Muslims and Albanians. In Macedonia, the population was 67% Macedonians, Albanians and other minorities. And lastly, in Bosnia-Hercegovina, the population was 40% Muslims, 32% Serbs and 18% Croats.

The unity of the ruling Communist Party began to desintegrate between 1988 and 1990 fueled by ideologigal differences, the annexation of the two autonomous provinces into Serbia and calls from within Croatia and Slovenia to break away from the federation. During this period there had been confrontations between ethnic Albanians and Serbs in Kosovo as a result of its annexation by Serbia. In February 1991 Slovenia called for secession from the federal republic and so did Croatia where fighting broke-out between Croats and local Serbs supported by the federal army. In Bosnia-Hercegovina there had been fighting between Muslims and Serbs. Negotiations that had been set in motion in July 1990 by the then Prime Minister Markovic with the aim of preserving Yugoslav unity within a pluralist federation failed when on 25 June 1991 both Slovenia and Croatia declared independence.

The problem that confronted the international community was how to resolve a threat to regional security by means of diplomacy and the accepted rules of international law, and not least the rule of non-intervention in the internal affairs of other states. The status of the Socialist Federal Republic of Yugoslavia, at least before 25 June 1991, was that of an independent sovereign state, recognized as such by the international community of states and a member of the United Nations, and as such endowed with be benefits and obligations of both international law and the Charter of the United Nations.It is at this juncture that we can begin to see with hindsight the dilema that confronted the international community. On the one hand is the question of secession in a non-colonial situation, as Shaw points out: “Whether the [a] federation dissolves into two or more states also brings into focus the doctrine of self-dertermination in the form of secession. Such a dissolution may be the result of an amicable and constitutional agreement or may occur pursuant to a forceful exercise of secession.

In the latter case international legal rules may be pleaded in aid, but the position would seem to be that (apart from recognised colonial situations) there is no right of self-determination applicable to independent states that would justify the resort to secession” (15). On the other hand is the question of the criteria for statehood and state practice of adopting the declaratory view as regard to recognition, both Republics -Slovenia and Croatia- appeared to meet the criteria contained in Article 1 of the Montevideo Convention on Rights and Duties of States of 1933, namely, a permanent population, a defined territory, government, and the capacity to enter into relations with other states. International reaction at the outset of the conflict appeared to favour the option of considering Yugoslavia as an independent sovereign state and the conflict as within the scope of an “internal affair” – the U.N. Security Council did not consider the situation until September 1991.

The position of the European Community and the Conference for Security and Cooperation in Europe (CSCE) was to seek a solution within the framework of a united Yugoslav federation, presumably based on Principles I and IV of the Helsinki Final Act of 1975 as regard to the territorial integrity of each of the participating states. In Principle VIII of the act the right of self-determination is acknowledged but “…at all times in conformity with the purposes and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of states” . In the opinion of Weller (16) “The support for maintaining the territorial integrity of the federation…undoubtedly strengthened Slobodan Milosevic, the Serbian leader, in his perception that flexibility was not required in negotiations, since independence for Slovenia and Croatia was not supported internationally” . On 27 June 1991 the federal army attacked Slovenia. The European Community attempted to negotiate a cease-fire and on 19 July 1991 the federal forces withdrew from Slovenia. As part of the agreement the latter and Croatia agreed to postpone their declaration of independence for three months and the European Community was permitted to send a team of fifty observers to monitor the cease-fire. At the same time, however, fighting broke-out in Croatia between Croats and local Serb militias supported by the federal army.

By this time, the escalation of violence and the fate of minorities in the various Republics, were becoming a serious concern and we begin to see a change of tact and an appreciation that the situation would not be resolved by continuing to support a unified state – there were calls from Germany and Austria to grant recognition to Slovenia and Croatia in order to internationalise the conflict. Whilst recognition was not granted, a different approach could be discerned by 27 August 1991 when the European Community proposed a peace conference and the setting-up of an Arbitration Committee. The peace conference had its first session on 7 September 1991 chaired by Lord Carrington with the aim of seeking “to ensure peaceful accommodation of the conflicting aspirations of the Yugoslav peoples, on the basis of the following principles: no unilateral change of borders by force, protection for the rights of all in Yugoslavia and full account to be taken of all legitimate concerns and aspirations.” One could venture that by withholding recognition whilst at the same time acknowledging “legitimate concerns” , the European Community was on the one hand hoping for a reversal of the position of Slovenia and Croatia, and on the other trying to contain Serbian expansionism.

However, the fighting continued, and on 25 September 1991 the U.N. Security Council issued Resolution 713 calling on all parties to settle their disputes peacefully and at the same time imposing an embargo on all deliveries of weapons and military equipment to Yugoslavia, as had the European Community on 5 July 1991. On 17 September 1991 a referendum held in Macedonia voted in favour of a sovereign and independent Macedonia within an association of Yugoslav states and in Bosnia-Hercegovina, Parliament adopted a sovereignty resolution on 14 October 1991. The violence continued despite the negotiation of various cease-fires, and by this stage it was becoming apparent that the withholding of recognition had not had the desired effect. This became evident on 4 October, 1991 at a meeting of the Conference on Yugoslavia, when it was “agreed that the involvement of all parties concerned would be necessary to formulate a political solution on the basis of the prospective recognition of the independence of those republics wishing it…The recognition would be granted in the framework of a general settlement and have the following components: a loose association or alliance of sovereign or independent republics, adequate arrangements to be made for the protection of minorities, including human rights guarantees and possibly special status for certain areas, and no unilateral changes in borders” . The proposed general settlement was not accepted by Serbia. On 20 November 1991 the Arbitration Committee (Badinter Commission) received some questions from the Conference and its opinion, in substance, reflected the agreement reached at the meeting of 4 October.

On 16 December, 1991 at an EPC meeting of European Foreign Ministers, an agreement was reached setting out the conditions for recognition (Guidelines on Recognition of new States in Eastern Europe and the Soviet Union):
– respect for the provisions of the Charter of the United Nations and the commitments suscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights;
– guarantees for the rights of the ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE;
– respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement;
– acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as well as to security and regional stability;
– commitment to settle by agreement, including where appropiate by recourse to arbitration, all questions concerning State succession and regional disputes.

On 15 January 1992, the European Community recognized the republics of Slovenia and Croatia. The recognition of Macedonia and Bosnia-Hercegovina was postponed pending “important matters to be addressed” . “The statement of 15 January shows a tendency to blur the questions of statehood and recognition, with its reference to republics but then making reference to factors which do not touch the traditional criteria for statehood -protection of minorities in the case of Croatia, referendum of the people in Bosnia” (17).
Even though at the time of writing the situation in the former Yugoslavia has not yet been resolved, in fact it has become if anything more complex, for the object of this essay the above exposition of events should suffice for the purpose of illustrating my proposition. As Weller points out: “It is noteworthy that neither side [the U.N and the European Community] based its argument primarily on legal considerations. Recognition was clearly used as a political tool” (18).

Note: this Article is from 1994.

Resources

Notes

[1]I.Brownlie, Principles of Public International Law, 4th edn., (Oxford University Press, 1990), p.88.
[2]M.N.Shaw, International Law, 3rd edn., (Cambridge, 1991), p.243.
[3]D.J.Harris, Cases and Materials on International Law, 4th edn., (London, 1991), p.140.
[4]ibid, p.139.
[5]ibid, p.148.
[6]I.Bronlie, “Recognition in Theory and Practice” , British Yearbook of International Law, Vol.53[1982], pp.197-211.
[7]H.Lauterpacht, Recognition in International Law, (Cambridge, 1947).
[8]J.Duggard, Recognition in the United Nations, (Cambridge, 1987), p.50.
[9]Lauterpacht, op.cit. pp.279-280 and Brownlie, Principles of Public International Law, pp.101-103.
[10]Lauterpacht, op.cit, p.281.
[11]Brownlie, Principles of Public International Law, p.102.
[12]Manuel Tuñón de Lara, Historia de España, 2nd edn, (Barcelona: Editorial Labor, S.A.,1981), Vol.IX, p.455 (my translation).
[13]Lauterpacht, op.cit. pp.230-231.
[14]Ibid, p.8.
[15]Shaw, op.cit., p.152.
[16]M.Weller, “The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia” in The American Journal of International Law, Vol.86, [1992], pp.569-607, p.570.
[17]C.Warbrick, “Recognition of States” , in International and Comparative Law Quarterly, Vol.41, [1992], pp.473-482, p.480.
[18]Weller, op.cit., p.587.

BIBLIOGRAPHY

Brownlie, I. Principles of International Law, 4th edn, (Oxford University Press, 1990). “Recognition in Theory and Practice“(British Yearbook of International Law),Vol.53 [1982] pp.197-211.

Bundu, A.C. “Recognition of Revolutionary Authorities: Law and Practice of States“,(International and Comparative Law Quarterly)Vol.27 [1978] pp.18-45.

Crawford, J. The Creation of States in International Law (Oxford, 1979).

Duggard, J. Recognition and the United Nations (Cambridge, 1987).

Lauterpacht, H. Recognition in International Law (Cambridge, 1947)

Thomas, H. The Spanish Civil War (Penguin Books edition, 1977).

Warbrick, C. “Recognition of States” (International and Comparative Law Quarterly) Vol.41 [1992] pp.473-482 Recognition of States -Part 2 ICLQ [1993] pp.433-442.

Weller, M. “The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia” (The American Journal of International Law) Vol.86 [1992] pp.569-607.

Wilson, H. International Law and the Use of Force by National Liberation Movements (Oxford University Press, 1988).


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