Public International Law - Afghanistan Flashcards
What is the relation between a government and a state? What does the Montevideo Convention tell us?
A government must be recognized for a state to be recognized. A state cannot be recognized without a government.
What is the dominant theory of state recognition?
Recognition does not create the state. It is an acknowledgement of the state. The short way to recognition is UNGA membership.
What is the difference between a de facto recognition of a state and a de jure recognition of a state?
De facto: Other states acting as if it was a state. Derived from the conduct of states with the state in question.
De jure: Recognition in treaties, resolutions.
What are the eight factors that demonstrate that a government exercises states’ rights? For each factor, explain if this is met for Afghanistan
- be free from foreign military force (except in self-defence) or other interventions in internal affairs; (yes)
- conduct the state’s diplomatic and international relations; (no)
- enjoy privileges and immunities from foreign domestic jurisdiction; (no)
- enter into treaties and benefit from treaty rights; (no)
- own and deal with state property or assets held abroad; (no, barred through CTF)
- exclusively govern within its territory; (yes)
- exploit the state’s natural resources; and (yes)
- engage in the international economic order (as through trade, finance, investment, and development), etc (yes, with limitations)
Where can we find the obligations on de facto governments in international law?
Draft Articles on the Responsibility of States for internationally wrongful acts
What do the Draft Articles on the Responsibility of States for Internationally Wrongful Act say on the obligations of de facto governments?
The obligations are no different from the obligations of de jure governments. They carry out the obligations of states in international law in human rights, international humanitarian law, international criminal law, economic law, environmental law.
“Recognition will only really be relevant where the change in government is unconstitutional’ (Shaw) - What recent case did we see what exemplified this? (Venezuela case)
2018 elections in Venezuela was disputed. The former VP turned P of Venezuela Maduro was declared an usurper by the Assembly in 2019 and declared Guaido as the acting president. What followed were USCR without consensus. At the peak, Guaido was recognized as legitimate by 60 countries, Maduro only by 20. The Organization of American States approved a resolution to declare Maduro’s presidency as legitimate. The issue was resolved in December 2022 when the national assembly voted Guaido out and disassembled the ‘iterim government’ to which Guaido belonged.
What are the UK’s reasons for recognition? (1970)
Would the Afghanistan’s government fulfil these requirement?
Are these legal or political considerations?
1) Reasonable prospect of permanence
2) Obedience of the mass population (factual, not wilful)
3) Effective control of territory
Yes. Political considerations.
Why do states eschew using a “test” to recognize a government?
Political decision. Might lead to the recognition of the “wrong” government.
When thinking about the real, practical factors of recognition of governments, how could we determine their recognition?
1) How many states have relations with them
2) How many states grant them access (visa)
3) How many states grant them diplomatic immunity
4) Can they access their financial resources
‘governments which came into power by extra-constitutional means should not be recognised, at least until the change had been accepted by the people’ (Shaw) - What would be a counterargument to this_
1) Many states have started through a revolution - Russia, US, China
2) Who decides if the people have accepted it?
UNGA resolutions are binding upon whom?
UN agencies
Which UNGA resolution provides guidelines for situations where more than one authority claims to be the government entitled to represent a member state in the United Nations?
The UN General Assembly Resolution 396 (1950).
What does UN General Assembly Resolution 396 (1950) state for guidelines for situations where more than one authority claims to be the government entitled to represent a member state in the United Nations?
he resolution recommends the following:
1) When there is a dispute over which authority represents a member state, the matter should be considered in light of the Purposes and Principles of the UN and the circumstances of each case.
2) The General Assembly or, if it is not in session, the Interim Committee should consider such questions when they arise.
3) The General Assembly’s position on such matters should be taken into account by other UN organs and specialized agencies.
4) The resolution declares that the General Assembly’s stance on such questions does not automatically affect the direct relations of individual member states with the state in question. In other words, the Assembly’s decision doesn’t automatically alter the bilateral relationships between member states and the state involved in the controversy.
UN General Assembly Resolution 396 (1950) is not binding. How did the UN oust Taiwan out of the UN?
Art. 18(2). Admission of new members. Expulsion of members. Two third majority was required, which was reached.
UNGA 2758 (1971)
