International law, Sixth edition
The legal effects of recognition
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International Law MALCOLM N. SHAW
The legal effects of recognition
In this section some of the legal results that flow from the recognition or non-recognition of an entity, both in the international sphere and within the municipal law of particular states, will be noted. Although recognition may legitimately be regarded as a political tool, it is one that nevertheless entails important consequences in the legal field. Internationally In the majority of cases, it can be accepted that recognition of a state or government is a legal acknowledgement of a factual state of affairs. Nev- ertheless, it should not be assumed that non-recognition of, for example, 109 See above, chapter 5, p. 235. See also Cyprus v. Turkey, European Court of Human Rights, Judgment of 10 May 2001, paras. 60–1; 120 ILR, p. 10. 110 See below, chapter 22, p. 1253. 111 36 ILM, 1997, pp. 396, 422. 112 ICJ Reports, 1971, pp. 16, 54, 56; 49 ILR, pp. 2, 44, 46. Non-member states of the UN were similarly obliged, ibid. The non-recognition obligation did not extend, however, to certain acts of a humanitarian nature the effect of which could only be ignored to the detriment of the inhabitants of the territory, ibid., p. 56 and Cyprus v. Turkey, European Court of Human Rights, Judgment of 10 May 2001, paras. 90–8; 120 ILR, p. 10. See also above, chapter 5, p. 225. r e c o g n i t i o n 471 a state will deprive that entity of rights and duties before international law, excepting, of course, those situations where it may be possible to say that recognition is constitutive of the legal entity. In general, the political existence of a state is independent of recog- nition by other states, and thus an unrecognised state must be deemed subject to the rules of international law. It cannot consider itself free from restraints as to aggressive behaviour, nor can its territory be regarded as terra nullius. States which have signed international agreements are enti- tled to assume that states which they have not recognised but which have similarly signed the agreement are bound by that agreement. For example, the United Kingdom treated the German Democratic Republic as bound by its signature of the 1963 Nuclear Test Ban Treaty even when the state was not recognised by the UK. Non-recognition, with its consequent absence of diplomatic relations, may affect the unrecognised state in asserting its rights or other states in asserting its duties under international law, but will not affect the existence of such rights and duties. The position is, however, different under municipal law. Internally Because recognition is fundamentally a political act, it is reserved to the executive branch of government. This means that the judiciary must as a general principle accept the discretion of the executive and give effect to its decisions. The courts cannot recognise a state or government. They can only accept and enforce the legal consequences which flow from the executive’s political decision, although this situation has become more complex with the change in policy from express recognition of govern- ments to acceptance of dealings with such entities. To this extent, recognition is constitutive, because the act of recognition itself creates legal results within the domestic jurisdiction. In the United Kingdom and the United States particularly, the courts feel themselves obliged to accept the verdict of the executive branch of government as to whether a particular entity should be regarded as recognised or not. If the administration has recognised a state or government and so informs the judiciary by means of a certificate, the position of that state or government within the municipal structure is totally transformed. It may sue in the domestic courts and be granted immunity from suit in certain instances. Its own legislative and executive acts will be given effect to in the courts of the recognising state and its own diplomatic 472 i n t e r nat i o na l l aw representatives will be able to claim the various immunities accorded to the official envoys of a recognised state. In addition, it will be entitled to possession in the recognising state of property belonging to its predeces- sor. The UK 113 The English courts have adopted the attitude over many years that an entity unrecognised by the Foreign Office would be treated before the courts as if it did not exist and accordingly it would not be able to claim immunity before the courts. 114 This meant in one case that ships of the unrecognised ‘Provisional Government of Northern Russia’ would not be protected by the courts from claims affecting them. 115 Similarly an unrecognised state or government is unable to appear before the courts as a plaintiff in an action. This particular principle prevented the revolutionary government of Berne in 1804 from taking action to restrain the Bank of England from dealing with funds belonging to the previous administration of the city. 116 The leading case in English law on the issue of effects of recognition of an entity within the domestic sphere is Luther v. Sagor. 117 This concerned the operations and produce of a timber factory in Russia owned by the plaintiffs, which had been nationalised in 1919 by the Soviet government. In 1920 the defendant company purchased a quantity of wood from the USSR and this was claimed in England by the plaintiffs as their property since it had come from what had been their factory. It was argued by them that the 1919 Soviet decree should be ignored before the English courts since the United Kingdom had not recognised the Soviet government. The lower court agreed with this contention and the matter then came to the Court of Appeal. 118 In the meantime the UK recognised the Soviet government de facto and the Foreign Office informed the Court of Appeal of this in writing. The result was that the higher court was bound to take note of the Soviet decree and accordingly the plaintiffs lost their case, since a court must give effect to the legislation of a recognised state or government. The Court also held that the fact that the Soviet government was recognised 113 See e.g. Talmon, ‘Recognition of Governments’, pp. 275 ff.; Greig, ‘Carl-Zeiss Case’, and J. G. Merrills, ‘Recognition and Construction’, 20 ICLQ, 1971, p. 476. 114 See e.g. Halsbury’s Laws of England, 4th edn, London, 1977, vol. XVIII, p. 735. 115 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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