Rev Il Recognition of States and Governments ee OY CERETIS. Introduction Recognition of States and Governments occupies the interface between polities and law for, on the one hand, recognition is essentially a unilateral political act at the intern nal plane and Which is solely within the discretion of a recognising State. However, the according of ‘ecognition has political and legal consequences both at the interational and municipal planes. At the intemational plane, recognition of States during the Concert of Europe in the 19! century operated to admit the political entity recognised to the intemational community. It also operated to accord the State recognised international legal personality in order to enjoy rights and assume obligations under intemational law. In terms of rights at the international plane, the State recognised may espouse a claim before an intemational tribunal on behalf of a national, and may accord its nationality to persons and other objects of intemational law. Article 34 of the Statute of the International Court of Justice permits a state to appear before it and any state "ay in accordance with Article 36 of the Statute also submit also submit to the compulsory Jurisdiction of the Intemational Court of Justice, Member states of Caricom have submitted to ‘he compulsory jurisdiction of the Caribbean Court of Justice in respect of the interpretation and application of its constituent instrument. Recognised States which are admitted to the United Nations are subject to the rights and obligations set out in Article 2 of the United Nations Charter. Such a State also enjoys certain rights at the municipal plane, including sovereign immunity from the jurisdiction of the recognising State Recognition does have important juridical and political consequences in international law. The rant of recognition is a discretionary political act on the intemational plane which affects the Status or legal capacity of States and their rights and obligations as States. It is not clear Whether recognition is necessary at present for a new State to become a member of the international community as the constitutive theory requires; ot whether an entity which satisfies the requirements of statehood set out in Article 1 of the Montevideo Convention 1933 Sulomatically becomes a member of the international community irrespective of recognition.3 Development Company v Government of Kelantan (1924) and cannot claim any property of the State concemed: Haile Selassie v Cable Wireless (1939), Only recognised States may ity of Berne v Bank of England (1804) 32 ER 616; Republic of Somalia v Woodhouse Drape and Carey (1992) 3 WLR 744, initiate proceedings in British Courts: The existence of a State is a matter of fact according to the declaratory theory and the function ofits internal constitutional order and satisfying the required international attributes, The grant of recognition is not entirely discretionary since legal principle plays an important part. Thus, Where a new politcal entity possesses the required attributes of statehood, other States should, in principle, accord it recognition as a State. ‘Those required attributes of statchood are set out in Article 1 of the Montevideo Convention and in the United Nations Draft Declaration on the Rights and Duties of States. These attributes are a permanent population: Western Sahara case; @ stable government; definable territory; and capacity to enter relations with other States, ‘Whether those attributes exist in any given case is an issue of fact and not legitimacy. Despite the foregoing, political considerations are likely to play an important part in the according or Withholding of recognition of new States. Consider the use of recognition by the United States as a political instrument in the cases of Korea, Germany and Vietnam. Where recognition of Statchood is precipitate, particularly in a civil war situation, the recognizing State may be guilty of intervention in the intemal affairs of the parent State, Such was the case in the recognition of Israel by the USA and the recognition of Bangladesh by India, But where a parent State recognizes belligerents/insurgents as forming a State, other States may recognise the new Without violating the rule about non intervention in domestic affairs of a State (145). Where a Government in exile represents a rebel community attempting to break away from a parent State, recognition of such a Government may be premature and constitute intervention in the domestic affairs of the parent State, But where there is a change of Government or of a Head of State constitutionally, recognition is not likely to create a problem, Where a Government is displaced by a rebellious group, the intemational personality of the State is unaffected! Not unlike the recognition of statehood, considerations of principle also play an important part in the recognition of Governments. Thus, where a Government is in control of a territory and enjoys the habitual obedience of the population, recognition, in principle, should be accorded it Some countries withhold recognition where a change of Govemment was due to revolution,5 self-determination may become involved under Resolution 1516 of the United Nations General Assembly (UNGA) which recognizes the rights of colonial people to self-determination, Both ‘he League of Arab States and the Organisation of African Unity support according such groups representation in certain bodies of the United Nations, e.g., observer status in the UNGA, E. Palestine Liber: mn Organisation. Similarly, South West Aftican People’s Organisation (SWAPO) was recognized as the authentic representative of the Namibian peoples prior to the emergence of Namibia as an independent State. Where a rebel group is recognized as a de Jacto Government, it may be accorded a measure of international personality by recognizing its belligerency. This occurs where rebels occupy and establish orderly administration of a Substantial part of the national territory, observe the rules of warfare under a responsible authority and third States are accorded the rights and obligations of neutrality. Even when the rebel groups do not satisfy the above conditions, they may still be regarded as the de facto authority of territory under their control in order to secure protection for their nationals and commercial intercourse, In such a ease, the rebels are accorded recognition of insurgents, Both belligerent and insurgent groups may be subject to Common Article 3 of the 1949 Geneva Conventions and the Protocols thereto regarding the treatment of prisoners of war and civilian Populations in warfare. They may also be considered as competent to perform certain local acts of administration, like levying of taxes and collection of customs duties in the area under their Control and representations may be made to them where the rights of nationals of third States are adversely affected. But in any case, recognition of rights in rebel territory including territorial waters is a function of effective control, Implied and Condi ial Recognition Recognition may be implied but may not be conditional on the satisfaction of conditions other than those required for according it in the first place, Consider in this context the United States recognition of the Afghanistan regime in 1978, Despite this, after World War Il, the victorious allies stipulated conditions for the recognition of States freed from Nazi control that would have ensured the establishment of democracies and systems of Government, However, it is not clear that the allied powers could have subsequently withdrawn recognition for ‘omission to satisfy those conditions.7 However, there is not much of a difference between the legal incidents of de facto recognition and de jure recognition. Both are predicated on an assurance of stability and permanence, the loyalty of the population and the ability and willingness to enter international relations. Both de facto and de jure recognition takes effect retroactively and acts done by a de facto Bovernment have to be recognized by a subsequent de jure government: Arantzaru Mendi 11939] AC 256, Recognition of de facto protects the property and interests of citizens of the recognizing State in the territory controlled by the de facto government until the situation becomes regularized, But at the domestic level, there are important differences between de facto and de jure recognition, as follows: (@) only States recognized de jure can espouse a claim for an aggrieved national in an international forum (see Article 34 Of the Statute of the ICI); (©) only representatives of de jure recognized States are entitled to diplomatic privileges and immuniti (©) __ only a de jure recognized State may claim assets of the State, At the international plane, the de jure recognized State is regarded as a full member of the international community. It may enter diplomatic relations and conclude treaties. It can espouse claims in international courts for and on behalf of aggrieved nationals and may accord and withhold recognition of other entities.Rev Ill RECOGNITION OF STATES AND GOVERNMENTS Recognition does have important juridical and political consequences in international law. The grant of recognition is an act on the intemational plane which affects the status or legal capacity of States and their rights and obligations as States. It is not clear whether recognition is necessary for a new State to become a member of the international community; or whether an entity which satisfies the requirements of statehood automatically becomes a member of the international community irrespective of recognition. However, it is equally correct that States are not obliged to have diplomatic relations with new States and recognition, express or implied, is necessary to establish diplomatic relations. The extent to which a new State interacts with other States in the international community depends in the ultimate analysis on the extent of its bilateral relations with other States. Recognition is both declaratory and constitutive. On the one hand, recognition of a State is the acknowledgement of its existence as a State but, on the other hand, it is constitutive in establishing relations with the recognizing State and being accorded certain rights in the Courts of the recognising State. Thus, in Britain, the Courts require a certificate from the Foreign Office to regard a State as recognized. An unrecognized State cannot claim sovereign immunity: the Arantzazu Mendi (1939) and may be sued in the local courts: Duff Development Co. v Government of Kelantan (1924) and cannot claim any property of the State concemed: Haile Selassie v Cable & Wireless (1939).3 Principle also play an important part in the recognition of Governments, Thus, where a Government is in control of a territory and enjoys the habitual obedience of the population, recognition, in principle, should be accorded it, Some countries withhold recognition where a change of Government was due to revolution. However, the Estrada Doctrine enunciated by the F M of Mexico 'n1930 attempted to change this. But state practice does not deny recognition to governments emerging from a revolution and constitutional legitimacy cannot be regarded as a condition for the recognition of governments. Recognition of governments may be either de jure or de facto. De jure recognition constitutes full recognition while de facto recognition is provisional pending the satisfaction of Some condition, But there is no practical difference in the Courts of a State according recognition de facto or de jure. Recognition of new States and Governments has important consequences at both the intemational and municipal plane. At the intemational plane, the recognized State is regarded as possessing international personality capable of assuming rights and obligations under international law and the new Government as representing the new State in its international relations. At the municipal Plane, the new Government may sue in British Courts, may plead immunity for itself and property in British Courts and may claim property in the jurisdiction of the recognizing State. In the practice of British and American Courts, recognition operates retroactively dating back to when the recognised authority established itself.5 responsible authority and third States are accorded the rights and obligations of neutrality. Even when the rebel groups do not satisfy the above conditions, they may still be regarded as the de facto authority of territory under their cont rol in order to secure protection for their nationals and commercial intercourse. In such a case, the rebels are accorded recognition of insurgents. Both belligerent and insurgent groups may be subject to Common Article 3 of the 1949 Geneva Conventions and the Protocols thereto regarding the treatment of prisoners of war and civilian populations in warfare. They may also be considered as competent to perform certain local acts of administration, like levying of taxes and collection of customs duties in the area under their control and representations may be made to them where the rights of nationals of third States are adversely affected. But in any case, recognition of rights in rebel territory including territorial waters is a function of effective control. Implied and Conditional Recognition Recognition may be implied but may not be conditional on the satisfaction of Conditions other than those required for according it in the first place Despite this, after World War II, the victorious allies stipulated conditions for the Fecognition of States freed from Nazi control that would have ensured the establishment of democracies and systems of Government, However, it is not Clear that the allied powers could have subsequently withdrawn recognition for ‘omission to satisfy those conditions.Sovereignty of the State annexing another. The United Kingdom withdrew recognition of Abyssinia as an independent State when Italy annexed it in 1938 and withdrew de jure recognition of the Government of Spain. But withdrawal of Fecognition is not to be easily inferred. Thus, severance of diplomatic relations does not constitute withdrawal of recognition De Facto and De Jure Recognition Generally, recognition operates at the interface of law and politics and is a discretionary political action of the recognizing State. Recognition is employed by the United States of America and Britain as a political instrument to indicate approval or disapproval of a regime or entity. But normally de facto recognition is @ provisional instrument which precedes de jure recognition following plausible assurances of stability and permanence of an emerging regime. However, there is not much of a difference between the legal incidents of de facto recognition and de jure recognition. Both are predicated on an assurance of stability and Permanence, the loyalty of the population and the ability and willingness to enter intermational relations. Both de facto and de jure recognition take effect retroactively and acts done by a de facto government have to be recognized by a Subsequent de jure government: Arantzazu Mendi [1939] AC 256. Recognition of de facto protects the property and interests of citizens of the recognizing State in the territory controlled by the de facto government until the