International law, Sixth edition
particular state (or states) is proving recalcitrant? If this were so, one
Download 7.77 Mb. Pdf ko'rish
|
International Law MALCOLM N. SHAW
particular state (or states) is proving recalcitrant? If this were so, one would appear to be faced with the possibility of a non-state with as yet no rights or duties enforcing rights against non-recognising states. Nevertheless, state practice reveals that Lauterpacht’s theory has not been adopted. 22 The fact is that few states accept that they are obliged in every instance to accord recognition. In most cases they will grant recog- nition, but that does not mean that they have to, as history with regard to some Communist nations and with respect to Israel illustrates. This position was supported in Opinion No. 10 of the Yugoslav Arbitration Commission in July 1992, which emphasised that recognition was ‘a dis- cretionary act that other states may perform when they choose and in a manner of their own choosing, subject only to compliance with the imperatives of general international law’. 23 The approach of the United States was emphasised in 1976. The Department of State noted that: 21 Recognition, pp. 24, 55, 76–7. 22 See e.g. H. Waldock, ‘General Course on Public International Law’, 106 HR, 1962, p. 154. See also Mugerwa, ‘Subjects’, pp. 266–90. 23 92 ILR, pp. 206, 208. r e c o g n i t i o n 451 [i]n the view of the United States, international law does not require a state to recognise another entity as a state; it is a matter for the judgment of each state whether an entity merits recognition as a state. In reaching this judgment, the United States has traditionally looked to the establishment of certain facts. These facts include effective control over a clearly defined territory and population; an organised governmental administration of that territory and a capacity to act effectively to conduct foreign relations and to fulfil international obligations. The United States has also taken into account whether the entity in question has attracted the recognition of the international community of states. 24 The view of the UK government was expressed as follows: The normal criteria which the government apply for recognition as a state are that it should have, and seem likely to continue to have, a clearly defined territory with a population, a government who are able of themselves to exercise effective control of that territory, and independence in their ex- ternal relations. Other factors, including some United Nations resolutions, may also be relevant. 25 Recent practice suggests that ‘other factors’ may, in the light of the Download 7.77 Mb. Do'stlaringiz bilan baham: |
Ma'lumotlar bazasi mualliflik huquqi bilan himoyalangan ©fayllar.org 2024
ma'muriyatiga murojaat qiling
ma'muriyatiga murojaat qiling