3. State Recognition And Succession Flashcards
State recognition intro
Formal acknowledgement of international personality by there states
Montevideo - definite territory, population, govt, ability to enter into relationship
- Constitutive - anzilotti, Oppenheim, lauterpacht
- Declaratory - hall brierly ficher
- Modified constitutive theory - kelson
Contitutive theory
- 4 attributes - not ipso facto.
- Duty
Ex: vatican city
Criticism 1. Inconclusive- some may some may not 2 . No legal duty. Never consented 3. Retroactive- meaningless 4. States - some rights and obligations even when not recognized Ex. Bangladesh
Declaratory theory
Merely formal acknowledgement
- Sweet IL
- Birth of state act of Internal law
- Retrospective effect ( tinnocco case)
Legal effect of recognition
- Sue in ing states municipal cour
- Ed state right of succession of possession of property
- Diplomatic and treaty relation
- Ing state may give retroactive effect to past legislative act of ed state
- Soverign immunity for itself and it’s property
Examine whether india should recognize taliban govt based on existing practices
Though no set rules below are the criteria frequently used
- Effective control: does this seem likely to continue- vast swathes, control state machinery, though some resistant force
- Habitual obedience of people. Though fear of human rights. Only time will tell
- Democratic legitimacy- not democratic process, but decade long insurgency. “ Open inclusive Islam govt”. Inducted members of various ethnic groups. But cabinet mainly - TALIBAN
USA, eu - de facto
Estrada doctrine - automatic recognition of govt in all situation.
De facto vs dejure recognition intro
Df- although stable govt its effectiveness and continuance is doubtful. Often considered preliminary step to dejure.
USA afghan- doha
Dj - permanent complete final
- Fulfilled all elements of statehood
- Capacity to enter into relationship with intl community
8 point difference between de facto and dejure
- Provisionally with all due reservations for future vs without reservation on a definitive basis
- Lesser degree vs fullest
- Made dependant on conditions, withdraw vs no withdrawal
- Full diplomatic relations
- Full diplomatic immunity
- Revolt vs peacefully and constitutionally
- No claim to property, no extra territorial jurisdiction
- Official visits and dealings kept to a minimum
2 case laws for DF vs DJ
Luther vs sagor - no difference between DJ and DF govt. Both are treated as independent sovereign and gets immunity from being sued
Bank of Ethiopia vs national Bank of Egypt and ligouri - laws enacted by DF govt will be given recognition
So basically ni complete disregard of DF govt. Case to case basis. DJ more complete kind of recognition
Both are out of fashion. Current practice full recognition. No halfway
Retroactivity
Both dejure and defacto - the acts of the newly recognized are treated valid from a retroactive date
- Property and people - within effective control
- Area under effective control
- Luther vs sagor- DFR
- Civil Air transport vs central air transport- intention, if clear date mentioned, not to invalidate the acts of the previous dejure govt but to validate the acts of the defacto who is the new dejure
Belligrancy is recognized by customary IL and is more clearly defined. Conditions for recognition
- Within the state a status of armed conflict
- Major portion
- Rules of war. Through organized armed force acting under a responsible authority
Recognition given- self interest and political motives
Rights and obligation of belligerent once recognition is given
- Law and customs of war apply- geneva POW, red Cross convention for protection of medical personnel
- Bilateral trade
- Treaty relation
- Sue in municipal courts
5 boats will not be treated as private boats ( pirates)
India practice of recognition
- Defactoism
- Wider version of stinson doctrine. Self determination.
- Effective control. China
- Political motive - Bangladesh
Any question where old dejure govt overthrown and defacto recognition given
In the light of bank of ethiopia case and Artanzu mendi case - claim of defaacto govt will succeed
Defacto govt - actual amd effective control. And dejure only theoretical control
Whether the successor govt is liable to honour the concessions granted by the predecessor
TINOCO CONSESSIONS CASE
- govt can change but it’s position in international law remains the same. State is bound by engagements entered into by govt that have ceased to exist
So successor govt bound by contracts or acts of predecessor govt which have international raminfications, unless those contracts or acts were unconstitutional at time of making or granting
Define state succesion
Replacement of one state by another in responsibility of IR. factual change of soverign authority
2 types of succession
- Universal succession- one state completely absorbed - subjugation, voluntary merger . One state breaks into parts and each seperate becomes a state . Ex: breakdown of the ussr
- Partial succession-
A. When one breaks away from other . Pak bangladesh
B. When one state aquires part of territoey of another - crimea
C. Non soverign state becomes fully soverign
D. Fully soverign state loses its independence by becoming fedral state, Suzerianity, protectorate
What happens to different treaties on state succession
- Territorial treaties - continue
- Political treaties- donot bind successor
- General - facts, claims, reaction
- Bilateral treaties - presumed non succession
What is the case of public debt in case of succession
- Public debt - if predecessor state remains - division. S responsible to P state
- Local debt - contracted by Subgovernmental terrotorial state ; pass
- Localised debt - incurred by the p for local projects - pass
4 merger or absorbtion - new state will take over - Newly independent - not inherit national debt
Position of contactual obligations wrt state succession
Rule given by O connel- successor can modify a state contract after succession. But no unjust enrichment
Principle of non refoulement
- Art 33 of convention of status of refugees 1951
- Applies even before claim to refugee status has been verified. Provided there is prima facie claim
- Refugee status a legal right unlike asylum
- Non refoulement - art 33+ iccpr+ un convention against torture
Distinction between recognition of state and recognition of government
State - international community acknowledges that the state has 4 attributes of the montivideo convention
Govt - aptly summed by PE Corbett - its not the acknowledgement of state hood but as to who is entitled to act for a given state
Conditions for recognition of government
1. Constitutionally elected through peaceful means - ordinarily given recognition
2. But when comes through an internal revolt, force — usually seen
A. Able to effectively control the state
B. Does it seem likely to continue
C. Does it command the respect of the population
Benefits of recognition
1. Ensures that regimes which only deserves the status
2. Assures the recognized govt respect
3. Informs the courts, population and govt inst of the recognising state
STATE PRACTICES
1. International law leaves it to the sweet will of states ( facultative theory )
2. Political and diplomatic function
AV Levontin- accorded prematurely to sympathetic regimes and withheld from unsympathetic ones
- India also considers it a political and discretionary act
Recognition of insurgency
Condition of political revolt in a country where rebels have not acquired the character of belligerent
Lauterpact - if recognized - not treated as lawbreakers, recognising state want to develop temporary ties with the insurgents
Conditions
1. Considerable territory
2. People
3. Will and capability to carry out international obligations
Effects
1. Not treated as pirates
2. Until recognition treated as hostes generis humani
3. Intl rules of war become applicable to them
Theories of state succession
- Theory of continuity
a. Theory of universal succession
b. Theory of popular continuity
C. Theory of self abnegation - Negative theory
- Communist theory
- Theories importing international law
India’s refugee case
Mohd salimullah vs UOI
