2. Recognition of States
(A) Theoretical overlay
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’.6
The dominance of the category ‘recognition’ has led to some perverse doctrine. When two states are 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 of recognition.7 According to the declaratory view,8 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 (p. 136) objective forum such as an international tribunal, it would be entirely proper to accept the existence of a state although it is not recognized by the other party to the dispute or by third states.9 This perspective appears to have been accepted (at least tacitly) by the International Court.10 In Bosnian Genocide,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 still 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 perspective is that of Lauterpacht, who conceives of states as the gatekeepers of the international realm:
(p. 137) 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 judgement 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 non-recognition 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 UN membership, 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.22 Moreover, under Article 4 of the UN Charter statehood is a criterion for membership, not a consequence.
(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 jure 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 (p. 138) 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: (1) a statement of neutrality, under which no view is taken deliberately as to the entity’s statehood; (2) driven purely by political calculations (thereby implying recognition of statehood in law); (3) driven by the understanding that recognition would be unlawful or premature (genuine non-recognition); (4) issued on the basis that supervening obligations in custom or treaty prevent recognition; and (5) 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 no one 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 (p. 139) 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
(D) Implied recognition
Recognition is a matter of intention and may be express or implied.33 The implication of intention is a process aided by certain presumptions.34 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, (p. 140) 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 recognition
British and US courts have applied the principle of retroactivity in following or interpreting the views of the executive in matters of recognition,40 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
(F) Recognition and membership of international organizations
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.43 The functioning of international organizations of the type of the League of Nations and UN 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 (p. 141) 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 UN,48 as demonstrated by the admission of Palestine to the United National Educational, Scientific and Cultural Organization (UNESCO) in 2011.49
There are other elements in the case of organizations. 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: for example, the UN Secretary-General acts as depositary of important treaties. Whether 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.50 Attitudes of non-recognition 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.
Footnotes:
1 State practice and other materials: 2 Whiteman 1–746; 1 Hackworth 161–387; 1 Moore, Digest, 67–248. Literature: Lauterpacht, Recognition in International Law (1947, repr with introduction by Crawford, 2013, xxi–lix); Jessup, A Modern Law of Nations (1948) 43–67; Chen, The International Law of Recognition (1951); Fitzmaurice (1957) 92 Hague Recueil 1, 16–35; Kelsen, Principles of International Law (2nd edn, 1967) 387; Jennings (1967) 121 Hague Recueil 323, 349–68; Lauterpacht, 1 International Law: Collected Papers (1970) 308; Salmon, La Reconnaissance d’état (1971); Verhoeven, La Reconnaissance internationale dans la pratique contemporaine (1975); Brownlie (1982) 53 BY 197; Dugard, Recognition and the United Nations (1987); Talmon, Recognition of Governments in International Law (1998); Grant, The Recognition of States (1999); Talmon (2004) 75 BY 101; Crawford, Creation of States (2nd edn, 2006) 12–28; Talmon, La non reconnaissance collective des Etats illégaux (2007); Fabry, Recognizing States (2010); Vidmar (2013) 31 Chinese (Taiwan) YBIL & Aff 136; Dugard (2013) 357 Hague Recueil 9, 36–72; Craven & Parfitt in Evans (ed), International Law (5th edn, 2018) 177; Charlesworth (2014) 371 Hague Recueil 43, 74–81; Grant in Baetens & Chinkin (eds), Sovereignty, Statehood and State Responsibility (2015) 192.
2 (1933) PCIL Ser A/B No 53, 73. The better view is that the facts disclosed an agreement rather than a unilateral act, the quid pro quo being Danish recognition of Norwegian sovereignty over Svalbard (Spitzbergen). On unilateral acts in general: chapter 18.
3 Brownlie (1982) 53 BY 197, 197–8.
4 E.g. 1 Restatement Third §§202, 203. Recognition of a state may be independent of the recognition of its government, though the reverse is not true: ibid, §203, comment (a).
5 Ibid, §202, comment (c). Also: Montevideo Convention on the Rights and Duties of States, 26 December 1933, 165 LNTS 19, Art 6 (‘The recognition of a State merely signifies that the State which recognizes it accepts the personality of the other with all the rights and duties determined by international law’).
6 Lauterpacht (1947, repr 2013) v.
7 Talmon characterizes the declaratory position as status-confirming and the constitutive position as status-creating: Talmon (2004) 75 BY 101, 101–2.
8 Adherents include Chen (1951); Waldock (1962) 106 Hague Recueil 1, 147–51; Rolin (1950) 77 Hague Recueil 305, 326–37; Kunz (1950) 44 AJIL 713; Charpentier, La Reconnaissance internationale (1956); Talmon (2004) 75 BY 101; Crawford (2nd edn, 2006) 19–22.
9 E.g. Tinoco Concessions (1923) 1 RIAA 369; Deutsch Continental Gesellschaft v Polish State (1929) 5 ILR 11.
10 The issue may arise in the case brought by Palestine against the US before the International Court in relation to alleged violations of the Vienna Convention on Diplomatic Relations, as a result of the relocation of the US Embassy in Israel from Tel-Aviv to Jerusalem: Palestine v US, Application, 28 September 2018.
11 ICJ Reports 1996 p 595, 612–13.
12 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277.
13 General Framework Agreement for Peace in Bosnia and Herzegovina, 14 December 1995, 35 ILM 75.
14 Montevideo Convention, Arts 3 (‘The political existence of the State is independent of recognition by the other States’), 6. Also: 1 Restatement Third §202(1); Badinter Commission, Opinion No 10 (1992) 92 ILR 206, 208; Reference re Secession of Quebec (1998) 115 ILR 536, 589–90. Further: Talmon (2004) 75 BY 101, 106–7.
15 Craven & Parfitt in Evans (5th edn, 2018) 177, 207.
16 Constitutive doctrine takes many forms; many jurists allow certain rights prior to recognition. Adherents include Anzilotti, 1 Cours de droit international (1929) 160; Kelsen (1932) 42 Hague Recueil 117, 260–94 (earlier he was a declaratist: (1929) 4 RDI 613, 617–18); Lauterpacht (1947, repr 2013). Certain German Interests in Polish Upper Silesia (1926) PCIJ Ser A No 7, 28 does not unequivocally support the constitutive view, since the issue was the existence of a contractual nexus between Germany and Poland: that Poland could not invoke a treaty against Germany did not connote its non-existence as a state. For the view that UN Secretariat practice supported the constitutive position: Schachter (1948) 25 BY 91, 109–15. For the view that Japan’s Supreme Court has supported this position: Tomonori (2013) 107 AJIL 627.
17 Lauterpacht (1947, repr 2013) 55 (emphasis in original). Lauterpacht tempers the severity of this position by reference to a ‘duty’ of recognition. Also: Capps (2011) 82 BY 248, 252–64; Crawford in Lauterpacht (repr 2013) xxi.
18 Further: Kelsen (1941) 35 AJIL 605, 609; Lauterpacht (1947, repr 2013) 67, 88; Crawford (2nd edn, 2006) 21–2.
19 E.g. Chen (1951) 222; Dugard (1987) 125–7; Duursma (1996) 110–12; Hillgruber (1998) 9 EJIL 491; Grant (2009) 256; Dugard (2013) 357 Hague Recueil 9, 57–69. Also and earlier: Lauterpacht (1947, repr 2013) 167–9.
20 Lauterpacht (1947, repr 2013) 78.
21 Talmon (2004) 75 BY 101, 105.
22 The Republic of Korea was established on 15 August 1948 and the Democratic Republic of North Korea on 9 September 1948. Both states were admitted to the UN on 17 September 1991: SC Res 702 (1991); GA Res 46/1, 17 September 1991.
23 1 Restatement Third §202, comment (a): ‘States may recognize an entity’s statehood by formal declaration or by recognizing its government, but states often treat a qualified entity as a state without any formal act of recognition.’ On the distinction between recognition of governments and of legitimate representatives of the people: Talmon (2013) 12 Chin JIL 219.
24 Recognition is rarely ‘cognitive’ in a simple sense: the issue is one of law as well as fact, and cognition, which may involve no outward sign, occurs before, often long before, public recognition. Cf 2 Whiteman 13 (Secretary of State Dulles).
25 E.g. the Japanese recognition of ‘Manchukuo’: Crawford (2nd edn, 2006) 78–9.
26 Warbrick in Evans (ed), Aspects of Statehood and Institutionalism in Contemporary Europe (1997) 9, 1–11.
27 Generally: Brenthurst Foundation, ‘The Consequences of Somaliland’s International (Non) Recognition’, Discussion Paper 2011/05 (2011). Further: UKMIL (2006) 77 BY 597, 618–19; (2007) 78 BY 634, 682; (2008) 79 BY 565, 596–7; (2009) 80 BY 661, 709–10, 712–13; (2010) 81 BY 435, 503–5; (2011) 82 BY 676, 736; (2012) 83 BY 298, 350, 359–61; (2014) 85 BY 301, 394–5; Secretary of State for the Home Department v CC and CF [2012] EWHC 2837 (Admin), [118].
28 Lauterpacht (1947, repr 2013) 73–5; 158–61; 1 Lauterpacht (1970) 308, 312–14.
30 Kunz (1950) 44 AJIL 713; Cohn (1948) 64 LQR 404; Briggs (1949) 43 AJIL 113; Jessup (1971) 65 AJIL 214, 217; Brownlie (1982) 53 BY 197, 209; Talmon (2004) 75 BY 101, 103; Crawford (2nd edn, 2006) 22.
31 E.g. 1 Restatement Third §202(1).
32 Brownlie (1982) 53 BY 197, 209.
33 In some cases, a state may base its policy of recognition with respect to both states and governments around an approach of implied recognition: Talmon (2009) 7 NZYIL 1.
34 Lauterpacht (1947, repr 2013) 369–408; Chen (1951) 201–16; Lachs (1959) 35 BY 252. US practice: 1 Hackworth 327–63; 2 Whiteman 48–59, 524–604; 1 Restatement Third §201.
35 Lauterpacht (1947, repr 2013) 406.
36 Some international organizations are open to non-states: e.g. autonomous customs territories under the WTO (Hong Kong, Macao, and Taiwan) and the World Tourism Organization. Further: chapter 7.
37 Cf Talmon (2009) 7 NZYIL 1, 17.
38 E.g. Arantzazu Mendi [1939] AC 256.
39 Brownlie (1982) 53 BY 197, 208.
40 E.g. Haile Selassie v Cable and Wireless Ltd (No 2) [1939] 1 Ch 182. Also: 2 Whiteman 728–45; 1 Hackworth 381–5; Chen (1951) 172–86; Brownlie (1982) 53 BY 197, 208–9.
41 1 Oppenheim (9th edn, 1992) 161.
42 Cf Polish Upper Silesia (1926) PCIJ Ser A No 7, 27–39, 84 (Lord Finlay).
43 Generally: Rosenne (1949) 26 BY 437; Aufricht (1949) 43 AJIL 679; Wright (1950) 44 AJIL 548; Higgins, Development (1963) 131–2, 140–4, 146–50; Dugard (1987); Crawford (2nd edn, 2006) ch 4; Grant, Admission to the United Nations (2009); Duxbury, The Participation of States in International Organisations (2011) 314–15.
44 Cf Northern Cameroons (Cameroon v UK), Preliminary Objections, ICJ Reports 1963 p 15, 119–20 (Judge Fitzmaurice).
45 E.g. Genocide (Bosnia and Herzegovina v Yugoslavia), Preliminary Objections, ICJ Reports 1996 p 595, 611. Also: Rosenne, Developments in the Law of Treaties 1945–1986 (1989) 215; Grant (2009) 254. For UK practice: UKMIL (2009) 80 BY 661, 706 (UK written intervention in the Kosovo advisory opinion).
46 Grant (2009) 255 (‘UN admission, entailing the participation of all members in a multilateral treaty, may be described as putting a formal frame around the opposability of statehood toward all other UN members’). E.g. the UN admission of Montenegro: SC Res 1691 (2006), GA Res 60/264, 12 July 2006.
47 S/1466, 9 March 1950; Kelsen, Law of the United Nations (1951) 946.
48 Morgenstern, Legal Problems of International Organizations (1986) 46–68.
49 UNESCO Doc DG/2011/147, 31 October 2011; Cerone (2012) 51 ILM 606.
50 UN organs have been involved in varying degrees in the process of political creation of some states, e.g. Indonesia, Israel, Libya, Republic of Korea, Somalia, Namibia, Kosovo, and South Sudan. On the UN role: Crawford (2nd edn, 2006) ch 12. See also chapter 8.
51 Generally: Galloway, Recognizing Foreign Governments (1978); Ando [1985] JAIL 28, 29–46; Talmon (1992) 63 BY 231; Talmon (1998). Also: 1 Restatement Third §203; Pavot (2006) 14 Rev Aff Eur 297; Talmon (2009) 8 Chin JIL 135; Schuit (2012) 14 Int Comm LR 381, 382–95; Vidmar (2013) 31 Chinese (Taiwan) YBIL & Aff 136, 150–8; Gathii, ‘Introduction to the AJIL Unbound Symposium on Recognition of Governments and Customary International Law’ (2014) 108 AJIL Unbound 199–200; de Wet (2015) 26 EJIL 979, 983–92.
52 Thus de facto control may continue while issues of succession are resolved: e.g. the continued involvement in Kosovo of UNMIK: S/2011/675, 31 October 2011, para 2; S/2012/818, 8 November 2012, para 2; S/2013/631, 28 October 2013, para 2; S/2014/773, 31 October 2014, para 2; S/2015/303, 27 April 2015, para 2; S/2016/407, 29 April 2016, para 2; S/2016/901, 26 October 2016, para 2; S/2017/95/Rev.1, 6 February 2017, para 2; S/2017/640, 24 July 2017, para 2; S/2017/911, 31 October 2017, para 2; S/2018/76, 31 January 2018, para 2; S/2018/407, 1 May 2018, para 2.
53 E.g. Republic of Somalia v Woodhouse, Drake & Carey (Suisse) SA [1993] QB 54.
54 Kelsen (2nd edn, 1967) 403–4; cf Murphy (1999) 48 ICLQ 545. E.g. the Roosevelt–Litvinov Agreement, 16 November 1933, 11 TIAS 1248 (recognition of the USSR by the US dependent on the resolution of certain financial claims and an undertaking by the USSR not to take acts prejudicial to the internal security of the US). Also: Duxbury (2011) 101–3 on EU recognition of former Soviet states.
55 16 December 1991, 31 ILM 1485. Further: Hillgruber (1998) 9 EJIL 491.
56 (1923) 1 RIAA 369, 381. Also: Wulfsohn v RSFSR, 234 NY 372 (1923); Sokoloff v National City Bank, 239 NY 158 (1924); Salimoff v Standard Oil Co, 262 NY 220 (1933); Deutsche Continental Gas-Gesellschaft v Polish State (1929) 5 ILR 11; Socony Vacuum Oil Co (1954) 21 ILR 55; Standard Vacuum Oil Co (1959) 30 ILR 168; Clerget v Représentation Commerciale de la République démocratique du Viet-Nam (1967) 48 ILR 145; Badinter Commission, Opinion No 1 (1991) 92 ILR 162; Opinion No 8 (1992) 92 ILR 199; Opinion No 10 (1992) 92 ILR 206.
57 Frowein, Das de facto-Regime im Völkerrecht (1968) proposed the idea of a ‘de facto regime’ to describe political entities that exercise control over territories, but are not recognized as states. The concept is not reflected in state practice and appears chiefly in the German literature, but see Mansour (2014) 3 CJICL 1182. Further: Talmon (2004) 75 BY 101, 103–5; Frowein, ‘De Facto Regime’ (2013) MPEPIL.
58 Briggs (1939) 33 AJIL 689; Brownlie (1982) 53 BY 197, 207–8; Talmon (1998) 59–111; Craven in Evans (4th edn, 2014) 201, 240–1.
59 On UK and US policies: Brownlie, Use of Force (1963) 414–16.
60 British de jure recognition in 1938 of the Italian conquest of Ethiopia in 1936 was avoided in 1941: Wright (1937) 31 AJIL 683; Talmon (1998) 102–3, 290; Crawford (2nd edn, 2006) 519–20.
62 Further: Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853, 898–904 (Lord Reid), 950–78 (Lord Wilberforce). Also: Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd [1978] QB 205, 218 (Lord Denning MR).
63 Estrada (1931) 25 AJIL Supp 203; Jessup (1931) 25 AJIL 719.
64 UKMIL (1980) 51 BY 355, 367–8. Also: Warbrick (1981) 30 ICLQ 568. Further: 1 Restatement Third §203, reporter note (1).
65 Gur Corp v Trust Bank of Africa Ltd [1987] 1 QB 599.
66 For criticism: Brownlie (1982) 53 BY 197, 209–11; Crawford (1986) 57 BY 408; Talmon (1998) 3–14. Also: Republic of Somalia v Woodhouse Drake and Carey (Suisse) SA [1993] QB 54, noted Kingsbury (1993) 109 LQR 377; Crawford (1993) 52 CLJ 4.
67 Kuwait Airways Corp v Iraqi Airways Co and the Republic of Iraq (1999) 116 ILR 534, 580–1.
68 Caglar v Billingham (1996) 108 ILR 510, 519; Veysi Dag v Secretary of State (2001) 122 ILR 529, 536.
69 British Arab Commercial Bank plc v National Transitional Council of the State of Libya (2011) 147 ILR 667, 675–7 (Blair J). Further: Warbrick (2012) 61 ICLQ 247; Schuit (2012) 14 Int Comm LR 381. For recent controversy over Venezuela: OAS Permanent Council, CP.RES.1117 (2200/19), 10 January 2019.
70 Higgins (1963) 131–2, 140–4, 146–50; Kelsen (2nd edn, 1967) 406.
71 1 Lauterpacht (1970) 308, 321; Kelsen (2nd edn, 1967) 415–16; Dugard (1987) 81–111; Crawford (2nd edn, 2006) 157–73; Talmon in Talmon et al (eds), Fundamental Rules of the International Legal Order (2006) 99; Talmon (2007); Ronen, Transition from Illegal Regimes under International Law (2011) chs 2, 3; Vidmar (2013) 31 Chinese (Taiwan) YBIL & Aff 136, 144–9; ILA Committee on Recognition/Non-Recognition in International Law, Second (Interim) Report (2014), 76 ILA Rep Conf 424, 426–32, 449–57.
72 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, ICJ Reports 2010 p 403, 437–8.
73 On the aetiology of Art 41: Talmon in Talmon et al (2006) 99, 102–3; Dawidowicz in Crawford, Pellet, & Olleson (eds), The Law of International Responsibility (2010) 677; Pert (2012) 30 Chinese (Taiwan) YBIL & Aff 48, 49–59. See also chapter 27.
74 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004 p 136, 171; cf ibid, 232 (Judge Kooijmans).
75 Cf the Stimson Doctrine: LNOJ, Sp Supp 101 (1932) 87–8 (‘it is incumbent upon the members of the League of Nations not to recognize any situation, treaty or agreement which may be brought about by means contrary to the Covenant of the League of Nations or the Pact of Paris’). Further: 1 Lauterpacht (1970) 308, 337–48; Turns (2003) 2 Chin JIL 105; Fabry (2010) 135–7; Grant, ‘Doctrines (Monroe, Hallstein, Brezhnev, Stimson)’ (2014) MPEPIL, §C. See further chapter 27.
76 Namibia, ICJ Reports 1971 p 16, 56. Also: Loizidou v Turkey, Merits (1996) 108 ILR 443, 462. Generally: Ronen (2011) 80–100.
77 SC Res 216 (1965); SC Res 217 (1965); SC Res 232 (1966); SC Res 253 (1968); SC Res 277 (1970). Later: SC Res 318 (1972); SC Res 320 (1972); SC Res 388 (1976); SC Res 409 (1977); SC Res 423 (1978). On the UN resolutions concerning Rhodesia: Fawcett (1965–6) 41 BY 103; McDougal & Reisman (1968) 62 AJIL 1; Dugard (1987) 90–8; Gowlland-Debbas, Collective Responses to Illegal Acts in International Law (1990); Ronen (2011) 27–37.
78 Generally: Namibia, ICJ Reports 1971 p 16.
79 SC Res 385 (1976); SC Res 402 (1976); SC Res 407 (1977); SC Res 417 (1977).
80 SC Res 541 (1983); SC Res 550 (1984). Further: Case C-432/92 R v Minister of Agriculture, Fisheries and Food, ex p SP Anastasiou (Pissouri) Ltd (1994) 100 ILR 257; Loizidou v Turkey, Preliminary Objections (1995) 103 ILR 622; Loizidou v Turkey, Merits (1996) 108 ILR 443; Demopoulos v Turkey (2010) 158 ILR 88. Generally: Ronen (2011) 38–54.
81 GA Res 3485(XXX), 12 December 1975; GA Res 31/53, 1 December 1976; GA Res 32/34, 28 November 1977; GA Res 33/39, 13 December 1978; GA Res 34/40, 21 November 1979; GA Res 35/27, 11 November 1980; GA Res 36/50, 24 November 1981; GA Res 37/30, 22 November 1982; SC Res 384 (1975); SC Res 389 (1976). Further: Ronen (2011) 54–61; Vidmar (2012) 61 ICLQ 361, 367–8; Qerimi (2013) 36 T Jeff LR 181, 201–3. Also: East Timor (Portugal v Australia), ICJ Reports 1995 p 90.
82 Wall, ICJ Reports 2004 p 136, 200.
83 GA Res ES-10/15, 20 July 2004, para 3.
84 Ronen (2011) 312 attributes the ineffectiveness of collective non-recognition to (1) non-uniform application of the duty (Soviet annexation of the Baltic states, Indonesian annexation of East Timor), (2) the internal strength of certain illegal regimes (the case of Rhodesia), or (3) the political consequences inherent in implementing non-recognition (the case of Israel and Palestine). Talmon in Talmon et al (2006) 99, 125, is more sanguine, but believes the scope of the duty to be limited.
85 GA Res 68/262, 27 March 2014, op para 6. On sanctions: e.g. Council Regulation (EU) 692/2014, OJ L183/9; Council Regulation (EU) 1351/2014, OJ L365/46. For individual non-recognition and sanctions: Daugirdas & Mortensons (2014) 108 AJIL 783, 800, 803–4.
86 Generally: Mann (1943) 29 GST 143; Merrills (1971) 20 ICLQ 476; Nedjati (1981) 30 ICLQ 388; Verhoeven (1985) 192 Hague Recueil 13; Talmon (1998) Appendix I; Fatima, Using International Law in Domestic Courts (2005) 388; McLachlan, Foreign Relations Law (2014) ch 10; ILA Committee on Recognition/Non-Recognition in International Law, Second (Interim) Report (2014), 76 ILA Rep Conf 424, 433–45.
87 [1939] AC 256, 264 (Lord Atkin). This principle still exists: Adams v Adams [1971] P 188, 198 (Simon P); Re Westinghouse Electric Corp Uranium Contract Litigation (Nos 1 and 2) [1978] AC 547, 617; Gur Corp v Trust Bank of Africa Ltd [1987] QB 599, 604 (Steyn J), on appeal, ibid, 625 (Nourse LJ); Lonrho Exports Ltd v Export Credits Guarantee Department [1999] Ch 158, 179 (Lightman J); R (Sultan of Pahang) v Secretary of State (2011) 152 ILR 543, 548 (Maurice Kay LJ), 554 (Moore-Bick LJ); British Arab Commercial Bank plc v National Transitional Council of the State of Libya (2011) 147 ILR 667, 676–7 (Blair J); Al Attiya v Al Thani (2016) 174 ILR 519, 544 (Blake J).
88 As noted by Mann (1943) 29 GST 143, 145: ‘[t]he Courts cannot make foreign policy’ (emphasis in original).
89 [1919] P 105. Also: Luther v Sagor [1921] 1 KB 456, on appeal: [1921] 3 KB 532.
90 [2016] EWHC 602 (Comm).
91 E.g. Mighell v Sultan of Johore [1894] 1 QB 149, 158 (‘When once there is the authoritative certificate of the Queen through her minister of state as to the status of another sovereign, that in the courts of this country is decisive’); Carl Zeiss Siftung v Rayner and Keeler Ltd (No 2) [1967] AC 853, 43 ILR 25; Gur Corp v Trust Bank of Africa Ltd [1987] QB 599; Veysi Dag v Secretary of State (2001) 122 ILR 529, 535–6; British Arab Commercial Bank plc v National Transitional Council of the State of Libya (2011) 147 ILR 667, 676–7 (Blair J); Bouhadi v Breish [2016] EWHC 602 (Comm), [33] (Blair J).
92 Gur Corp v Trust Bank of Africa Ltd [1987] QB 599, 625. Cf Mann (1987) 36 ICLQ 348, 349–50; Beck (1987) 36 ICLQ 350.
94 Ibid, 65. Further: Sierra Leone Telecommunications Co Ltd v Barclays Bank [1998] 2 All ER 821.
96 Haile Selassie v Cable & Wireless Ltd (No 2) [1939] 1 Ch 182.
97 But cf Gdynia Ameryka Linie Zeglugowe AS v Boguslawski [1953] AC 11 (recognition of the new de jure government’s acts only retrospective ‘in so far as those acts related to matters under its control at the time when the acts were done’); Civil Air Transport Inc v Civil Air Transport Corp [1953] AC 70 (‘retroactivity of recognition operates to validate acts of a de facto Government which has subsequently become the new de iure government, and not to invalidate acts of a previous de iure Government’).
98 Generally: Mann (1987) 36 ICLQ 348.
99 Lauterpacht (1947, repr 2013) 145.
100 E.g. City of Berne v Bank of England (1804) 9 Ves Jun 346; AM Luther v James Sagor & Co [1921] 1 KB 456. Much later: Adams v Adams [1971] P 188.
101 Carl Zeiss Siftung v Rayner and Keeler Ltd (No 2) [1967] AC 853. Also: Greig (1987) 83 LQR 96.
102 Gur Corp v Trust Bank of Africa Ltd [1987] 1 QB 599.
103 Further: Caglar v Billingham (1996) 108 ILR 510, 534.
104 Hesperides Hotels Ltd v Aegean Turkish Holidays [1978] QB 205, 218. Also: Carl Zeiss Siftung v Rayner and Keeler Ltd (No 2) [1967] AC 853, 954 (Lord Wilberforce).
105 Gur Corp v Trust Bank of Africa Ltd [1987] 1 QB 599, 622.
106 [2002] 1 FLR 956; cf B v B [2000] FLR 707. Also: Parent v Singapore Airlines & Civil Aeronautics Administration (2003) 133 ILR 264. Further: Ronen (2004) 63 CLJ 268.
107 The Foreign Corporations Act 1991 (UK), s1, provides that where a question arises as to the corporate status of a body under the laws of a non-recognized country, and those laws are applied by a settled court system, the question shall be determined as if the territory were a recognized state. Also: UKMIL (1991) 62 BY 535, 565–8.
108 Convention on International Civil Aviation, 7 December 1944, 15 UNTS 295 (as amended).
109 R (Kibris Türk Hava Yollari & CTA Holidays) v Secretary of State for Transport (2009) 148 ILR 683, 701–7. The decision was affirmed on appeal: (2010) 148 ILR 715. Further: Talmon (2005) 43 AdV 1; Talmon (2009) 8 Chin JIL 135.
110 R (Kibris Türk Hava Yollari and CTA Holidays) v Secretary of State for Transport (2009) 148 ILR 683, 714.
111 E.g. Wulfsohn v RSFSR, 234 NY 372 (1923). On the early US cases: Dickinson (1931) 25 AJIL 214; Borchard (1932) 36 AJIL 261; Lauterpacht (1947, repr 2013) 145–50 (comparing early UK and US practice).
112 Further: Kallis (1933) 20 Va JIL 1; Talmon (1998) 34–7; Grant (1999) 49–51.
113 Generally: Fountain (1988–89) 29 Va JIL 473. For a reaffirmation of the executive’s exclusive power of recognition: Zivotofsky v Kerry, Secretary of State, 576 US (2015); McLachlan, ‘Speaking with One Voice on the Recognition of States’ (2015) 109 AJIL Unbound 61.
114 But cf the special provisions under the Taiwan Relations Act, 22 USC §3301 and further Mingtai Fire and Marine Insurance Co Ltd v United Parcel Service, 177 F3d 1142 (9th Cir, 1999). Further: Lee, The Making of the Taiwan Relations Act (2010); Ahl, ‘Taiwan’ (2008) MPEPIL. More generally, non-recognized governments are still offered certain protections under the US Criminal Code in relation to, e.g., counterfeiting of currency or killing of officials and representatives: 18 USC §§11, 1116. Non-recognized states are also entitled to sovereign immunity: Wulfsohn v RSFSR, 234 NY 372 (1923); cf Klinghoffer v SNC Achille Lauro, 937 F2d 44 (2d Cir, 1991).
115 E.g. The Penza, 277 F 91 (EDNY, 1931); The Rogdai, 276 F 294 (ND Cal, 1920); RSFSR v Cibrario, 235 NY 255 (1923); Republic of Vietnam v Pfizer Inc, 556 F2d 892 (8th Cir, 1977). However, the courts remain open to recognized governments with which the US does not have diplomatic relations: Banco Nacional de Cuba v Sabbatino, 376 US 398, 408–12 (1964).
116 E.g. Ministry of Defence of the Islamic Republic of Iran v Gould Inc (1988) 82 AJIL 591; Petrochemical v The M/T Stolt Sheaf, 860 F2d 551 (2d Cir, 1988).
117 E.g. The Maret, 145 F2d 431, 439 (3d Cir, 1944); Transportes Aeros de Angola v Ronair, 544 F Supp 856, 863–4 (D Del, 1982) (corporations owned by non-recognized governments permitted to appear); Russian Volunteer Fleet v US, 282 US 481, 492 (1931) (alien investor from non-recognized country entitled to compensation for expropriation). Further: 1 Restatement Third §205, comment (a).
118 213 NYS (2d) 417 (1961).
119 Kunstsammlungen zu Weimar v Elicofon, 358 F Supp 747, 757 (EDNY, 1972), affirmed on appeal: 478 F2d 231 (2d Cir, 1973). The US later recognized the government of East Germany, after which it was permitted to intervene: Federal Republic of Germany v Elicofon, 358 F Supp 747 (EDNY, 1972).
120 E.g. Texas v White, 74 US 700 (1868).
121 Carl Zeiss Siftung v VEB Carl Zeiss, 293 F Supp 892, 900 (SDNY, 1968). Also: Sokoloff v National City Bank of New York, 239 NY 158 (1924). Further: Lauterpacht (1947, repr 2013) 147; 1 Restatement Third §202, reporter note 6; ibid, §205, reporter note 3.
122 Lauterpacht (1947, repr 2013) 147.
123 186 NE 679, 882 (1933). Further: Dickinson (1933) 27 AJIL 743.
124 Maret, 145 F2d 431 (3d Cir, 1944).
125 Further: Autocephalous Church of Cyprus v Goldberg and Feldman Fine Arts Inc, 917 F2d 278 (2d Cir, 1990).
126 E.g. Schinz v High Court of Zurich (1926) 3 ILR 32; Exportchleb Ltd v Goudeket (1935) 8 ILR 117; X v Y (1946) 13 ILR 19; South Moluccas v Netherlands New Guinea (1954) 21 ILR 48; VEB Carl Zeiss Jena v Carl Zeiss Heidenheim (1965) 72 ILR 550; Billerbeck and Cie v Bergbau-Handel GmbH (1967) 72 ILR 59; Wang v Switzerland, ILDC 90 (CH 2004).
127 On the early European cases: Lauterpacht (1947, repr 2013) 151–3.
129 Warenzeichenverband Regekungstechnik EV v Ministry of Trade and Industry (1975) 77 ILR 571, 571.
130 Democratic Republic of East Timor & Fretilin v State of the Netherlands (1980) 87 ILR 73, 74. Also: FRG-GDR Relations Case (1973) 78 ILR 149, 165–6.
131 Italy v Djukanovic, ILDC 74 (IT 2004).
132 Case C-432/92 R v Minister of Agriculture, Fisheries and Food, ex p SP Anastasiou (Pissouri) Ltd (1994) 100 ILR 257.
133 Belgium, France, Germany, Ireland, Italy, Netherlands: ibid, 270.
134 (1994) 100 ILR 257, 276. Further: Namibia, ICJ Reports 1971 p 16, 56.
135 (1994) 100 ILR 257, 281.
136 Ibid, 297. But cf Case C-219/98 R v Minister of Agriculture, Fisheries and Food, ex p SP Anastasiou (Pissouri) Ltd [2000] ECR I-5241.
137 Ronen (2011) 88–98; Orakhelashvili in Baetens & Chinkin (2015) 172, 177–9.
138 Loizidou v Turkey, Merits (1996) 108 ILR 443, 468; 474 (Judge Baka, diss), 481 (Judge Pettiti, diss). Further: Foka v Turkey (2008) 158 ILR 88; Protopapa v Turkey [2009] ECtHR 16084/90.
139 (2001) 120 ILR 10, 42–6.
141 (2010) 158 ILR 88, 116–38. Further: Ronen (2011) 95; Loucaides (2011) 24 LJIL 435, and see chapter 27.