International law, Sixth edition
De facto and de jure recognition
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International Law MALCOLM N. SHAW
De facto and de jure recognition
60 In addition to the fact that there are different entities to be recognised, recognition itself may take different forms. It may be either de facto or de 52 See 11 Revue Belge de Droit International, 1973, p. 351. 53 See 69 RGDIP, 1965, p. 1089. See also 83 RGDIP, 1979, p. 808; G. Charpentier, ‘Pratique Franc¸aise du Droit International’, AFDI, 1981, p. 911, and Rousseau, Droit International Public, p. 555. 54 See J. G. Starke, ‘The New Australian Policy of Recognition of Foreign Governments’, 62 Australian Law Journal, 1988, p. 390. 55 See 27 Canadian YIL, 1989, p. 387. See also Re Chateau-Gai Wines Ltd and Attorney-General for Canada [1970] Ex CR 366; 55 ILR, p. 38. 56 See e.g. the Netherlands, 22 Netherlands YIL, 1991, p. 237, and New Zealand, Attorney- General for Fiji v. Robt Jones House Ltd [1989] 2 NZLR 69 at 70–1; 80 ILR, p. 1. The European Union has stated that ‘it does not recognise governments, and even less political personalities, but states, according to the most common international practice’, Bulletin of the European Union, 1999–7/8, p. 60 and UKMIL, 70 BYIL, 1999, p. 424. 57 408 HL Deb., cols. 1121–2, 28 April 1980. This has been reaffirmed on a number of occasions: see e.g. UKMIL, 69 BYIL, 1998, p. 477 and UKMIL, 72 BYIL, 2001, p. 577. 58 See Gur Corporation v. Trust Bank of Africa [1987] 1 QB 599; 75 ILR, p. 675. 59 See, as regards the different approaches adopted to the Cambodian and Ugandan ex- periences, Symmons, ‘United Kingdom Abolition’, p. 250, and UKMIL, 50 BYIL, 1979, p. 296. See also above, chapter 4, p. 192. See, as to recognition of belligerency and insurgency, e.g. O’Connell, International Law, pp. 148–53; Lauterpacht, Recognition, p. 270, and Oppenheim’s International Law, pp. 161 ff. 60 See e.g. Oppenheim’s International Law, p. 154. 460 i n t e r nat i o na l l aw jure. A more correct way of putting this might be to say that a government (or other entity or situation) may be recognised de facto or de jure. Recognition de facto implies that there is some doubt as to the long-term viability of the government in question. Recognition de jure usually fol- lows where the recognising state accepts that the effective control displayed by the government is permanent and firmly rooted and that there are no legal reasons detracting from this, such as constitutional subservience to a foreign power. De facto recognition involves a hesitant assessment of the situation, an attitude of wait and see, to be succeeded by de jure recognition when the doubts are sufficiently overcome to extend formal acceptance. To take one instance, the United Kingdom recognised the So- viet government de facto in 1921 and de jure in 1924. 61 A slightly different approach is adopted in cases of civil war where the distinction between de jure and de facto recognition is sometimes used to illustrate the variance between legal and factual sovereignty. For example, during the 1936–9 Spanish Civil War, the United Kingdom, while recognising the Republi- can government as the de jure government, extended de facto recognition to the forces under General Franco as they gradually took over the coun- try. Similarly, the government of the Italian conquering forces in Ethiopia was recognised de facto by the UK in 1936, and de jure two years later. 62 By this method a recognising state could act in accordance with political reality and its own interests while reserving judgment on the permanence of the change in government or its desirability or legality. It is able to safeguard the affairs of its citizens and institutions by this, because certain legal consequences will flow in municipal law from the recognition. 63 There are in reality few meaningful distinctions between a de facto and a de jure recognition, although only a government recognised de jure may enter a claim to property located in the recognising state. 64 Additionally, it is generally accepted that de facto recognition does not of itself include the exchange of diplomatic relations. Download 7.77 Mb. Do'stlaringiz bilan baham: |
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