12 July 2018 – Conference Legal Position of Non-Recognized States in the Post-Soviet Space Under International Trade Law, Private International Law and International Civil Procedure, Bordesholm Non-recognized States from the perspective of public international law in general Andreas R. Ziegler Professor, Law School, University of Lausanne

Overview The recognition or refusal of recognition of States (and sometimes certain Governments) has always had the potential to disturb friendly relations among States. International Law  has developed only few generally recognized principles and even those are often applied with a lot of pragmatism in view of the political context.

Why is recognition important ? States as subjects of international law Criterion for applicability of International Law (as opposed to domestic law or any alternative system) Practice by State (unilateral act) – hardly clarified through act of other body (international organization or in dispute settlement)

Origins Recognition of Power of Monarchs over certain territories (due to complicate successions) Recognition by original State after secession:e.g. Independence: Spain - United Netherlands (1581) Recognition by third State; e.g. France – UK – USA: (1776) Hence: Originally not always clearly distinguished from recognition of government (and its role of excessing sovereignty over a certain territory) – e.g. recognition of Israel (Israeli Government) in 1948

Principle of Effectiveness (of the Separation) ‘It accords with our principles to acknowledge any Government to be rightful which is formed by the will of the nation, substantially declared’ (Thomas Jefferson to Gouverneur Morris [7 November 1792] Time of the "An Act declaring England to be a Commonwealth (1649)- Independence of the United States (177 6) - French Revolution (1789) Idea of the democratic theory of the “pouvoir constituent”

Reasons for Non-Recognition (Lack of proper statehood, e.g. no territory) Lack of Sovereignty (Independence) from another State (having intervened) E.g. Manchuko as Japanese Puppet State (1930s) E.g. German creations in Eastern Europe (1940s) E.g. GDR with regard to USSR (1949) Northern Cyprus South African Homelands Domestic Flaws E.g. Rhodesia (White Minority / Apartheid)

European Union (16 December 1991, ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’. Respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights Guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE; Respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement; Commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning State succession and regional disputes Acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as well as to security and regional stability

Formal Aspects Explicit Act: normally the establishment of full diplomatic relations Implicit recognition: De jure: De facto: pragmatism? or illogical in view of effectiveness ? Situations of a provisional nature (National liberation movements, insurgents, de facto regimes) – control, effectiveness

Consequences of Recognition Theoretical Debate: declaratory or a constitutive effect No obligation to establish full diplomatic relations or any other specific links flow from recognition. Only those rules of international law which do not require a specific relationship apply automatically with recognition

Legal Effects in Domestic Law Certain States see incoherence when accepting effects of domestic law of a State they have not recognized (UK, USA) – though not applied in a consistent manner (harmful or not) Others see no contradiction (e.g. Germany, Switzerland)

Namibia Principle South West Africa/Namibia (Advisory Opinion, [1971] ICJ Rep para. 125): non- recognition should not extend to ‘for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory’ Applied by European Court of Human Rights (ECtHR) when dealing with the legal situation in Northern Cyprus (Cyprus v Turkey para. 96; Demopoulos v Turkey paras 92–8).

Pragmatism Economic and Consular Relations: E.g. The Republic of China (Taiwan) maintains unofficial relations with many other states through its Economic and Cultural Offices, which even allow regular consular services. TRNC Representative Offices Abroad (UK, US and international organizations e.g. in NY and Geneva etc.) International Legal and Administrative Assistance

Call by Security Council upon States not to recognize entities: Does membership of international organizations (especially the UN) replace unilateral recognition? Idealistic view of UN Many exceptions: Israel GDR Call by Security Council upon States not to recognize entities: Rhodesia “independence” in 1965 (UNSC Res 216 [1965] [12 November 1965]) South Africa declared the independence of Transkei as a homeland (UNSC Res 402 [1976] [22 December 1976])

Thank you ! Questions andreas.ziegler@unil.ch