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Week 8 – Recognition and Nationality

Recognition of States and Governments

Recognition largely political with legal consequences

Many types of recognition:
1. States
2. Governments
3. Territorial claims
4. Belligerency
5. Insurgency
6. National liberation movement
7. Recognition of foreign legislative and administrative acts

Concerns status of entity in question
(i) on international scene
(ii) within municipal legal system of recognizing state
• usually accorded by executive
• matter of policy at recognizing state's discretion – cannot demand recognition as a right

Important distinction between recognition of state and recognition of government
• recognition of government implies regime is in effective control of a state (effectiveness doctrine/test)
• recognition of state means acceptance of statehood / not just government
• recognition of state needn't imply acceptance of government/regime
• doctrine of effectiveness rooted in France's recognition of post-revolutionary U.S.

Two theoretical approaches to recognition:
1. Constitutive theory – emphasizes act of recognition; state/government does not exist in IL until recognized
2. Declaratory (evidentiary) theory – recognition has no legal effect; existence of state or government a question of viability; recognition merely acknowledges viability
State Practice (usus) favours declaratory theory – states obliged to recognize entities meeting criteria of statehood
Constitutive theory largely out of favour – but recognition still of evidentiary importance in borderline cases
Today's prevailing view: recognition is declaratory and does not create a state

Ultimately, recognition still important given that place of states/governments in international order reliant to some extent on recognition of the validity of claims
• failure to achieve recognition may leave new/rogue states/governments marginalized
Recognition sometimes used as indicator of approval of governments (U.S.), but should not be equated with approval (mistaken approval particularly problematic in instances where human rights abuses abound)
Estrada doctrine, Mexico 1930 – decision not to issue declarations of recognition of governments
• Many states now moving to this practice – see change of government as a legally internal matter
• Adoption of this practice may represent substitution of implied recognition for express recognition – i.e. practical withholding of diplomatic relations; establishment of diplomatic relations probably only unequivocal act from which full recognition can be inferred
• Recognition still significant as gesture of goodwill
• Viability of new states very important in cases of secession – premature recognition may be violation of IL and rights of mother country
• Rhodesia interesting case – UN Security Council called on international community to withhold recognition – mandatory decision under Chapter VII Charter; binding upon members under Article 25 Charter
• perceived lack of independence may give rise to hesitation/ refusal of recognition
Non-recognition no excuse from rules of IL
Recognition does not imply obligation to establish diplomatic relations

De jure and de facto recognition
Both describe entity in question, not the act of recognition

de facto government: implies government has effective control & likely to be permanent

de jure government: effective control and firmly established

de facto state: manifests most attributes of sovereignty

de jure state: displays all characteristics of sovereignty

Real distinction is de facto generally indicates recognition with reservations
• when recognition not express may lead to confusion/uncertainty as to intentions of recognizing state
• if state or government established in violation of IL only de jure recognition can supersede illegality

Creation of UN and other international organizations has had significant impact on practice of recognition of states and governments

EC has establish guidelines re recognition and establishment of diplomatic relations:
1. Must respect provisions of UN Charter, Final Act of Helsinki, and Charter of Paris, especially re rule of law, democracy, human rights
2. Guarantees rights of minorities in keeping with framework of CSCE
3. Respect of inviolability of all frontiers -- only changeable by peaceful means and common agreement
4. Acceptance of European security imperatives
5. Agreement to reach agreement or arbitrate questions of state succession and regional disputes
• These guidelines represent move toward a constitutive theory
• Criteria suggest that recognition is inappropriate for states that do not recognize human rights.

Nationality of Claims

Claims re damages will fail unless it can be proved that the injured individual is a national of the claimant state -- 'nationality of claims' rule -- customary IL
• established in Panevezyz-Saldutiskis Railway case (1937) Permanent Court of International Justice established that 'in taking up the case of one of its nationals... a State is in reality asserting its own right' (Akehurst, 1997: 263).

Nationality: the status of belonging to a state for certain purposes of IL
IL generally leaves to each state to define who are its nationals – principle may be limited by treaty

Means of acquiring nationality:
1. By birth:
• ius soli – nationality to all children born on country's soil
• ius sanguinis – nationality to all children of parents of given country
2. By marriage
3. By adoption or legitimation
4. By naturalization
5. As result of transfer of territory from one state to another

Means of losing nationality
1. Renunciation of one nationality by a child born with dual nationality
2. Assumption that acquisition of new nationality entailed renunciation of old nationality
3. By deprivation – exclusion on basis of various criteria (race, ethnicity)
4. As result of transfer of territory from one state to another

Statelessness serious problem; stateless people have no right of entry, no voting rights, frequently excluded from areas of the workforce, may live under threat of deportation – lack of passports makes travel difficult

Dual or multiple nationality can give rise to problems when states are making claims against third states – which national state presses the claim?
• usually held that both states can make claims
• if claim is of one national state against another, usually deemed that such cases are inadmissible

While normal to acquire nationality at birth via ius soli, the general principle that claims must be based upon nationality to which there is a genuine link poses some problems (Nottebohm case)
• Iran-U.S. case showed some of the problems here – Claims Tribunal decided refers to 'dominant and effective nationality' of claimant is decisive with regard to admissibility of claim
• companies are regarded as having nationality of state under laws of which they are incorporated/whose territory they have their registered office (Barcelona Traction case)