“The members of International community use the concept of recognition to acknowledge that new states have acquired International personality”-Illustrate & Explain
Introduction
This Report attempts to illustrate what “legal recognition” and “International Legal Personality” means and its origins; also we shall see several examples where states and/or non-state actors exercised their right as international legal personalities. After which we will examine the several past and recent issues regarding State and Government recognition.
International Legal Personality and why it matters
After the war Europe was nearly in ruins. The liberals and idealists capitalized on this opportunity to blame the realist rationale that justified the war. This ensured that the realists would not interfere with the functioning and foundation, of the post-World War Two iteration of the League of Nations.
Although both sides of the Atlantic had similar views on what the post-World War Two world should look like, the eastern side was ruled by liberalism; while the west side was ruled by idealism. Both were in agreement that in order to prevent a third war of an even greater scale the world would need an institution that could act as a world parliament. This was the reasoning behind the creation of the United Nations.
The reasons behind the creation of the United Nations is necessary when discussing International Legal Personality is because of the time frame following the Second World War, during which states received an attribute of a non-human entity regarded by law to have the status of person hood. The legal personality that was attributed to states imply that they will have legal names, protections, privileges, rights, responsibilities and liabilities under law just as any person.
International legal personality has no legal legitimacy without International Law. As mentioned earlier. International Law is significant to the interdependent and interconnected world as it acts as a universal set of guidelines; comprising of rules and principles pertaining to the relations between sovereign states. Some of the areas where it has been of great importance include: international economic law, international crime and extradition, human rights, counter terrorism, etc.
As most legal systems, international law is made accordingly to regulate and shape our behaviors, to prevent violations and provide solutions for said violations when and if they occur. Although international law is fair and important, we need to understand that without the legal personality, international law would not be effective; as International legal personality enables the individual states to be personified and speed up legal procedures. Therefore states could be taken to court or even accused of breach of international law. Those willing to take action can do so with the support of the legal system.
International Legal personality is not reserved exclusively for states; non-state individuals/entities have it as well. A great example is the reparation case of the International Court of Justice which confirmed that the United Nations was entitled to reparations in its own right for the death of one of its members while engaged in UN related business.
One could even say that the United Nations have the power to impose resolutions on its member states. This is achieved through its Security Council which can make resolutions that are legally binding. States are aware that if they refuse to accept any resolution passed by the Security Council, said institution has the legal right to take adequate measures, as stated in the statute of the United Nations.
There are several requirements for International Legal Personality status like permanent association of states, along with others. An important exception is the Red Cross; the International Committee of the Red Cross, based in Switzerland, possess a unique status within international law as an inter-governmental organization and as a guardian of the Geneva Convention of 1949[1] advocating the protection of victims of armed conflicts; it is not an international organization or a non-governmental organization, but has special legal status under the treaty law by virtue of its important function in protecting civilians during armed conflicts.
Sovereign states were the first to obtain International Legal Personality, seconded by international companies and certain non-government organizations, with individuals at last for eligibility. International law does not prevent individuals from being recognized as subjects of international law; especially as human rights are becoming increasingly relevant in cases were an individual wants to sue the state.
Examples where International legal personality was exercised
China uses its own construction firms and banking systems to demonstrate that it is a big player on the international level. Examples of dispute between multi-national corporations in municipal law occur regularly in the airline business when they often have to deal with the demands from governments worldwide. However, for others, such as EU-US based airlines, it quite easy because of the Open Skies agreement in place giving total freedom to any airline to add flights or frequencies as it pleases.
Africa is infamous as one of the most inhospitable business ventures, considering the case of aviation. A great example taken from Nigeria when the government was dissatisfied with the equipment used in Delta Air Lines during its journey from Atlanta (Boeing B767-300ER) and demanded a bigger and more advanced aircraft (Boeing B777-200). Delta realized that there was insufficient demand to increase the seats offered and thus had no choice but to withdraw from the Nigerian market. Although Delta chose to withdraw it could have taken the case into court as both Delta and the Republic of Nigeria enjoyed International Legal Personality.
In recent times the European Union introduced an ecological tax on the airlines operating within the continent. Many of the airlines based in the United States stood together and took the European Union to court over the decision.
Through the Lisbon Treaty the European Union received International Legal Personality thus allowing the airlines to sue the Union. In this scenario we see a situation where a group of companies sued a union of states over a decision it had made. We need to keep in mind that the European Union is not a sovereign state; however it almost became one with the European Union constitution that was presented several years ago.
Recognition or Diplomatic recognition
In International Law, the term recognition refers to the formal acknowledgment by one state that another state exists as a separate and independent government. Recognition is not a mere technicality. A state has no status among nations until it is recognized by other states, in spite of the fact that it might possess all other attributes of a state, including a definable territory and population, a recognizable government, and a certain amount of continuity or stability.
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 relate.
Recognition of States and Governments
Since 1980, it has been the policy of British Government to not recognize new governments but only new States. In the recent years this policy has been criticized in Parliament for leading to the implied acceptance of unwanted governments as the Taliban regime in Afghanistan. We can’t help but wonder if international law distinguishes between the recognition of new States and recognition of new governments, and whether recent practice of States support or contradict the existing British policy.
A state’s foreign policy is necessary for determining the foundations of its bilateral relations with other states of the world. The British Government’s policy to not recognize new governments but new States is quite rational as a principle and within its rights according to international law.
Recognition is one of the essential acts constituting foreign policy although it is highly debated and controversial. Different countries search for the fulfillment of different criteria when deciding about recognition of the same state. Some countries decide upon the four requirements set forth in the Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States
“The state as a person of international law should have the following qualifications: a permanent population; a defined territory; government; and ability to enter into relations with the other states.”
Some could consider other factors, such as some United Nations resolutions. Several others would use recognition as a means to extend their own ulterior motives, by accepting or denying the credentials for recognition. Then, recognition becomes highly political, depending on the recognizer’s stake over the potentially recognized state and the effect on other similar potential issues. Since there are no legal limitations about this, most countries usually interpret the data of a state through different views, and there are no strict guidelines to distinguish between the right kind and the wrong kinds of state stances.
When United States of America recognized Israel as a state just a few hours later in its proclamation of independence in 1948, the representative of the United States on the Security Council Mr. W. R. Austin argued it as the following:
“I should regard it as highly improper for me to admit that any country on earth can question the sovereignty of the United States of America in the exercise of that high political act of recognition of the de facto status of a state. Moreover, I would not admit here, by implication or by direct answer, that there exists a tribunal of justice or of any other kind, anywhere, that can pass upon the legality or the validity of that act of my country.” (New York Times, May 19, 1948).
Furthermore, in 1986, the British Government withheld recognition of Bophuthatswana[2]in South Africa, since as it did not meet the credentials of a defined territory, which was highlighted as the prime reason. Similarly, recognition by the British government was also withheld for the Saharwi Arab Democratic Republic currently controlled by its government in exile, thus not meeting the credential of an organized effective government.
Secondly, when the British government deduces that a state (let’s call it E) has fulfilled all the necessary qualifications for statehood, then it is implied that the principle of an efficient government is also complete and legitimate under the state. However, on the event of the opposite happening, i.e. if the British government recognized the new government instead of the new state, it suggests that all the other three foundations of state recognition are compromised. Either recognition of state or the government could occur expressly or through implication. Taking part in diplomatic relations, commercial bilateral treaties, or encouraging the country to join international organizations –i.e. both states are mutually recognizable.
Similarly, on the 30th November of 2011 responding to attacks on the UK embassy in Tehran, the embassy along with Iran’s embassy in London was closed by the British government. Expelling the Iran’s diplomats from UK, did not stop the British government from recognizing Iran as a state, however due to the undemocratic Ahmadinejad government, it has cut all diplomatic ties with the state.
It is important to consider how new governments and new states are formed, and what restrict a state from being recognized. Some cases helped this issue to develop further, by providing the international doctrine with necessary guidelines against or in favor of a potential recognition of new states. The case of the Disintegration of the Social Federal Republic of Yugoslavia, Opinion No.1[3]analyses both perspectives. Firstly Serbia, who tried to dominate all the remaining republics within SFRY, argued that countries declaring independence or will declare independence should be considered as secessionist states, suggesting that Serbia would be the next successor.
On the other side, the Republics argued saying that it was not secession, but rather disintegration of SFRY, and that all the six disintegrated republics have equal right for the succession of SFRY. This suggested that SFRY would cease to exist.
The Arbitration Commission arrived at the same conclusion that SFRY is working on its way to dissolution, and the dispute settling between the republics should be within the rights of international law, with emphasis on the respect for human and minority rights. The Arbitration Commission continued with Opinion No.8: Extinction of the Socialist Federal Republic of Yugoslaviawhich discovered that SFRY’s dissolution is now complete, all of the republics that have declared independence are now new states, SFRY had no state as successor thus no international organizations’ membership, etc. Also, Opinion No.3 emphasized that the boundaries in between former federal republics most likely won’t change without the exception of free agreement.
Kosovo was the last former republic of SFRY to declare independence from Serbia. After a 15 years of oppression, breaches of human rights of ethnic Albanians by Serb army and the militia, to continue with the horrible Kosovo War in 1998-1999, that was finally ended by the NATO intervention in March – June of 1999, Kosovo then had a 9 year governance by both and UNMIK and the Provisional Institutions of Self-Governance until 2008.
The Kosovo institutions, along with all international bodies present in Kosovo, decided to recognize the Kosovo Assembly and declare their independence with the free will and consent of the members of the Kosovo Assembly, elected as representatives of Kosovo’s people, acting upon their mandates. Many other clear-set arguments; were used by the ICJ to provide advisory opinion on the legal eligibility of Kosovo’s declaration of independence[4] on July 22, 2010, they concluded that the proclamation of the Independence of Kosovo was in accordance with the principles of International Law. This assessment gave Kosovo the sui generis status.
Conclusion
In conclusion; after considering all the aforementioned facts and examples, both recognition of the new states and the recognition of new governments do not always conflict with each other, instead they complement each other, despite major differences. It is impossible to find two states that are exactly identical within the international scope, therefore the conditions, circumstances, etc of each case is unique. Also, all governments will possess their own, foreign policies that are applied to other states. Despite the differences between the recognition of new states and new governments by international law, they are vital in determining the relations between Britain and other states.
Bibliography
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[1] ICRC International Humanitarian Law – Treaties and Documents, Convention (III) relative to the Treatment of Prisoners of War. Geneva 12 August 1940.
[2] Harris, D.J., Cases and Materials on International Law (5th edn., London: Sweet & Maxwell, 2010), 154-155
[3] Harris, D.J., Cases and Materials on International Law (5th edn., London: Sweet & Maxwell, 2010), 123-125;
[4] ICJ Advisory Opinion of the unilateral declaration of independence in respect of Kosovo, Advisory Opinion of 22 July 2010, ICJ Rep. 2010, retrieved on January 20, 2012 http://www.icj-cij.org/docket/files/141/15987.pdf.