International law, Sixth edition
particular eventuality and the kind of legal entity it should be accepted
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International Law MALCOLM N. SHAW
particular eventuality and the kind of legal entity it should be accepted as. Recognition involves consequences both on the international plane and within municipal law. If an entity is recognised as a state in, for example, the United Kingdom, it will entail the consideration of rights and duties that would not otherwise be relevant. There are privileges permitted to 1 See generally e.g. J. Crawford, The Creation of States in International Law, 2nd edn, Oxford, 2006; Oppenheim’s International Law (eds. R. Y. Jennings and A. D. Watts), 9th edn, London, 1992; H. Lauterpacht, Recognition in International Law, Cambridge, 1947; T. C. Chen, The International Law of Recognition, London, 1951; J. Charpentier, La Re- connaissance Internationale et l’ ´ Evolution du Droit des Gens, Paris, 1956; T. L. Galloway, Recognising Foreign Governments, Washington, 1978; J. Verhoeven, La Reconnaissance In- ternationale dans la Pratique Contemporaine, Paris, 1975 and Verhoeven, ‘La Reconnais- sance Internationale, D´eclin ou Renouveau?’, AFDI, 1993, p. 7; J. Dugard, Recognition and the United Nations, Cambridge, 1987; H. Blix, ‘Contemporary Aspects of Recog- nition’, 130 HR, 1970-II, p. 587; J. Salmon, ‘Reconnaissance d’ ´Etat’, 25 Revue Belge de Droit International, 1992, p. 226; S. Talmon, Recognition in International Law: A Bib- liography, The Hague, 2000; T. D. Grant, The Recognition of States: Law and Practice in Debate and Evolution, London, 1999, and Third US Restatement on Foreign Rela- tions Law, Washington, 1987, vol. I, pp. 77 ff. See also Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit International Public, 7th edn, Paris, 2002, pp. 556 ff.; P. M. Dupuy, Droit International Public, 8th edn, Paris, 2006, p. 95, and L. Henkin, R. C. Pugh, O. Schachter and H. Smit, International Law: Cases and Materials, 3rd edn, St Paul, 1993, pp. 244 ff. 444 r e c o g n i t i o n 445 a foreign state before the municipal courts that would not be allowed to other institutions or persons. It is stating the obvious to point to the very strong political influences that bear upon this topic. 2 In more cases than not the decision whether or not to recognise will depend more upon political considerations than exclusively legal factors. Recognition is not merely applying the relevant legal consequences to a factual situation, for sometimes a state will not want such consequences to follow, either internationally or domestically. To give one example, the United States refused for many years to recog- nise either the People’s Republic of China or North Korea, not because it did not accept the obvious fact that these authorities exercised effec- tive control over their respective territories, but rather because it did not wish the legal effects of recognition to come into operation. 3 It is purely a political judgment, although it has been clothed in legal terminology. In addition, there are a variety of options open as to what an entity may be recognised as. Such an entity may, for example, be recognised as a full sovereign state, or as the effective authority within a specific area or as a subordinate authority to another state. 4 Recognition is a state- ment by an international legal person as to the status in international law of another real or alleged international legal person or of the valid- ity of a particular factual situation. Once recognition has occurred, the new situation is deemed opposable to the recognising state, that is the pertinent legal consequences will flow. As such, recognition constitutes Download 7.77 Mb. Do'stlaringiz bilan baham: |
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