International law, Sixth edition
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International Law MALCOLM N. SHAW
International Public, Paris, 1977, vol. III, p. 555.
458 i n t e r nat i o na l l aw exigencies of state and is thus unrealistic, particularly where there are com- peting governments. 47 It has also been criticised as minimising the dis- tinction between recognition and maintenance of diplomatic relations. 48 The problem, of course, was that recognition of a new government that has come to power in a non-constitutional fashion was taken to imply approval. Allied with the other factors sometimes taken into account in such recognition situations, 49 an unnecessarily complicated process had resulted. Accordingly, in 1977 the United States declared that: US practice has been to de-emphasise and avoid the use of recognition in cases of changes of governments and to concern ourselves with the question of whether we wish to have diplomatic relations with the new governments . . . The Administration’s policy is that establishment of rela- tions does not involve approval or disapproval but merely demonstrates a willingness on our part to conduct our affairs with other governments directly. 50 In 1980, the UK government announced that it would no longer accord recognition to governments as distinct from states. 51 This was stated to be primarily due to the perception that recognition meant approval, a per- ception that was often embarrassing, for example, in the case of regimes violating human rights. There were, therefore, practical advantages in not according recognition as such to governments. This change to a policy of not formally recognising governments had in fact taken place in certain 47 See e.g. Peterson, ‘Recognition’, p. 42, and C. Rousseau, ‘Chroniques des Faits Interna- tionaux’, 93 RGDIP, 1989, p. 923. 48 Warbrick, ‘New British Policy’, p. 584. 49 For example, the democratic requirement noted by President Wilson, President Rutherford Hayes’ popular support condition and Secretary of State Seward’s criterion of ability to honour international obligations: see statement by US Department of State, DUSPIL, 1977, pp. 19, 20. See also Third US Restatement, para. 203, note 1. The Organisation of American States adopted a resolution in 1965 recommending that states contemplating recognition of a new government should take into account whether that government proposes to hold elections within a reasonable time, 5 ILM, 1966, p. 155. 50 DUSPIL, 1977, p. 20. See also DUSPIL, 1981–8, vol. I, 1993, p. 295. Note that Deputy Secretary of State Christopher stated in 1977 that unscheduled changes of government were not uncommon in this day and age and that ‘withholding diplomatic relations from these regimes after they have obtained effective control penalises us’, ibid., p. 18. See also, as regards Afghanistan and the continuation of diplomatic relations, 72 AJIL, 1978, p. 879. Cf. the special circumstances of the recognition of the government of China, DUSPIL, 1978, pp. 71–3 and ibid., 1979, pp. 142 ff. But cf. Petersen, ‘Recognition’. 51 See 408 HL Deb., cols. 1121–2, 28 April 1980. See also Symmons, ‘United Kingdom Abo- lition’, p. 249. r e c o g n i t i o n 459 civil law countries rather earlier. Belgium 52 and France 53 appear, for ex- ample, to have adopted this approach in 1965. By the late 1980s, this approach was also adopted by both Australia 54 and Canada, 55 and indeed by other countries. 56 The change, however, did not remove all problems, but rather shifted the focus from formal recognition to informal ‘dealings’. The UK an- nounced that it would continue to decide the nature of dealings with unconstitutional regimes: in the light of [an] assessment of whether they are able of themselves to exercise effective control of the territory of the state concerned, and seem likely to continue to do so. 57 The change, therefore, is that recognition of governments is abolished but that the criterion for dealing with such regimes is essentially the same as the former test for the recognition of governments. 58 In that context, regard should also be had to the phrase ‘of themselves’. 59 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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