UK caselaw has thus created two exceptions to the traditional doctrine of
‘no recognition, no existence’:
1/ the ‘delegated authority exception’:
acts of an unrecognized state can be considered where such acts can be said have
been done pursuant to powers delegated by the recognized sovereign authority.
2/ the ‘private acts exception’[or acts of everyday occurrence, or perfunctory
acts of administration’, or ‘acts which can properly be regarded as regulating
the day to day affairs of the people within the territory in question and can
properly be regarded as essentially private in character]’......
However the Courts to date have not acknowledged acts of an unrecognized state/entity
that can be characterized as public and international in character i.e. the acts of states,
on the basis that is no longer formal recognition.
UN Membership is only open to all peace-loving States that accept the UN obligations
and, in the judgment of the Organization, are able to carry out these obligations”....
The recognition of a new State or Government is an act that only other States and Governments
may grant or withhold. It generally implies readiness to assume diplomatic relations.
The United Nations is neither a State nor a Government, and therefore does not possess any
authority to recognize either a State or a Government.
A two-thirds majority vote is necessary in the un Assembly for admission of a new State
How to recognise a government is not defined, as the decision whether or not to recognise
a government is a unilateral act and at the discretion of each individual State.
The most important criteria for recognising a government are the effective control and
the legitimacy doctrine ECLD. EG: the conflict in Libya in 2011,
the recognition of LYBIA by some States, while the Gadaffi regime was still in control over parts
of the territory, is not supported by the ECLD....This could invoke State responsibility.
International law constrains nation recognition choices, by defining what is
and is not a state.
<>cocoo: was the recognition/rejection lawful?
-distinction between a ‘state’ and a ‘government’: the government is not a legal person,
but the state's agent ....thus, for recognition to be lawful, other nations need to enquire
the basis on which this control is exercised....what if a nation/s no longer recognise a new gov?
-distinction between the creation of a new State(needs proof), and the continuity (presumed)
or extinction (needs proof) of an
established State.....eg: the continued general international recognition of Somaliland as part
of Somalia
was based on the presumption of continuity
CRITERIA [international law] determining whether a new entity does
is a state, and whether an state no longer exists:
1/ viability criteria: a permanent population, existing in a defined territory,
over which there is an effective government operating independently
from external control, and that purports to govern the
people and the territory on the basis that they constitute an
independent state.
2/ SDU : if the claimant state constitutes a self-determination
unit (SDU), it may be regarded to lawfully constitute a state, even if in some respects
its viability criteria is deficient. eg. newly independent former colonial states in
the post-Second World War era of decolonization, for example, The Congo.
By contrast, if the new state could violate selfdetermination, whether internal or external,
then this may operate as a bar to statehood, even if has sufficient viability criteria....
eg. the claim of Rhodesia to independent statehood was invalid because was constituted on
the basis of an apartheid system of white minority rule, it violated internal selfdetermination.
eg. the creation/extinction/territoryloss of a statev will not be recognised, if brought about
through the unlawful use of force and/or military occupation....but is hard to diff between
lawful and unlawful uses of force...
eg force used to exercise of a claim to
external self-determination, for example India in relation to Bangladesh
-The old uk courts approach: an entity(eg a gov, or a state)unrecognized by the UK government,
is treated by the courts simply as if it did not exist: both the unrecognized government/state, and its acts are a nullity
<> cocoo challenges uk gov decision to recognise/refusetorecognise, a gov or state.
-today uk courts approach:
1966 case of Carl Zeiss v Rayner & Keeler ....The defendants alleged that Carl Zeiss
had no standing to sue, since the administrative act under which Carl Zeiss
had been constituted was an act of East Germany (GDR) and the GDR was not recognized by the UK:
the Foreign Office had certified that the USSR was recognized as sovereign over the
GDR. While the Court of Appeal ruled lack of standing, the House of
Lords,decided that it could give effect to the acts of the GDR on the basis that they had been
lawfully delegated to the GDR by the recognized sovereign, the USSR. This allowed the courts to
circumvent nonrecognition, to avoid an injustice.
- in the past, a company incorporated in an unrecognized state, had no legal personality for the UK,
so could not
sue or be sued in the UK courts. But there was concern that such a position
would cause unwarranted hardship to individuals and damage commercial confidence,
so the legislature passed the Foreign Corporations Act 1991
(FCA), which gave companies incorporated under the laws of unrecognized
territories legal personality within the UK legal system...provided the unrecog.territory has a
settled legal system.
2009 Kibris and CTA Holidays v Sos for Transport:
a judicial review, brought by an airline incorporated in Turkey (and a travel company)
that wished to operate direct flights between the UK and northern Cyprus(not recognised by uk).
The Secretary of State had
refused the grant of an operating permit for such flights on the basis that to do
so would be unlawful, and the applicants sought review of this decision, which
was upheld, the judge agreeing that the authorization of direct flights would
have been unlawful.
the theory of a state's SR (sovereign right) as an absolute and unlimited legal
power against other states and their nationals, subject to no control except self-imposed: [right to
SELFDETERMINATION]...is FALSE.... because a society of states in which each member is bound only by
its own will would be an "anarchy of sovereignties, like gladiators with their weapons pointing on
one another....There would be no rights/justice/injustice as between them
SR ends at the frontier and even within the national
territory, is limited by the rights which international law
recognizes as belonging to the subjects of other states domiciled
or engaged in business therein.
SR is limitated via the principle of international responsibility, and pple. of intern.justice
[international law]....the exercise by a state of a SR inconsistent with justice,
is an illegal act.
a nation's SR is absolute, only if does not affect the proper and just rights of other
nations/individuals.
eg. a nation has no right to choose (and alter) its form of government, if it is "notoriously
opposed to the existing orde
of affairs " (Eg dictatorship)....this is why nations are asked to recognise new govs
eg. a state right to extend or contract at will its territorial domain by purchase or cession,
does not exist, because other nations can prevent it if could affect their safety/peace.
eg. the refusal of the United States government to recognize the Soviet government of Russia
a SN has the right to regulate its own domestic affairs...But what are "domestic affairs?"
if one SN claims that its laws/conduct are its own domestic affairs, and another SR claims
that they are international affairs.... who is the judge?
SNs do NOT have the right to decide which are its own domestic affairs
eg.
Italy, by an act of parliament in 1912, created a state monopoly of
the life insurance business, and expropriated the business of
foreign private companies without indemnifying them. Some foreign governments protested on the
basis that a state does not have a right to deprive aliens of their property rights and invoke
as a defense its SN on domestic affairs.
eg.
And when Uruguay in the same year passed a similar
law the protests of Great Britain and France were such as to
cause the Uruguayan legislature to rescind its action and abolish
the monopoly
case: usa issued a protest to the government of Romania, for enacting a mining law which was
deemed to be confiscatory of the rights of an American oil company. The
reply of the Romanian government that the legislation complained of was enacted in the exercise
of its right of sovereignty and dealt with matters of purely domestic concern was not admitted
No party can avoid the obligation to arbitrate, by showing that the
matter giving rise to the dispute is by its constitution or laws or because it is so regarded
by its own authorities.
eg. the French government contended that the determination of matters
of nationality belonged to the exclusive jurisdiction of the state.
The British government denied this as france imposed nationality upon the subjects of other
states against their will and its view was sustained by the
court.
The court also said that whether a matter is solely within the jurisdiction
of a state is relative [depends upon the
state of development of international relations]. Thus, what is accepted
as a domestic matter
today, may be an international matter tomorrow.
-cocoo will challenge SNs's laws/policies
that breach clcp/wpis of the People and/or of large firms, in that SN, or
on other SNs
-cocoo will require these laws/policies to be amended, as involve
international affairs, the SN should amended, as has
no soverignty over international affairs....
-cocoo will ask the SN to pay damages to those firms
-The most of irritating are affairs which States insist are domestic, thus excluding them from
arbitration
-SNs questioning whether certain affairs are the domestic affairs of other SNs, often seriously
affects international relations.
-The principle, each nation for itself to the full extent of its powers,
is the principle of war, not of peace."
-reciprocal right of states to protect their nationals/firms abroad, to demand redress for
wrongs imputable to the authorities of a foreign state in which
they are domiciled and to intervene in their behalf
-in case of conflict between domestic and international law, courts and executive authorities are bound
by the domestic law....but this does not mean that domestic law is superior to international law.
no domestic laws may alter international law.
-domestic law cannot be invoked as a defense to a claim
by another state for reparation for wrongs done in violation of international law
It amounts to little in effect, therefore, to concede to national
sovereignty the right to enact and enforce legislation contrary
to international law, when in the same breath it is declared that
if the right is exercised the state exercising it will be held responsible and compelled to
make reparation for injuries sustained
by other states in consequence thereof.
international law is supreme over domestic law
States sometimes assert a claim to be the judges of the applicability and the
meaning of the law, or assert a claim to
judge of the measure and nature of protection which they are
obliged to afford to foreigners and of the degree of responsibility owed to other states
...occasionally they are able to impose their interpretation upon weaker states... but SRs
have no right to do so.... and in controversies between
states of equal strength, the attempt usually fails
During the past fifty years a large number of multi-lateral conventions have been concluded
between groups of states ....a network of common obligations the performance of which necessarily
reduces national freedom of action
-the only way for a state may preserve its total sovereignty is by
refusing to enter into conventions [which restrict SN)
The right to so refuse, of course, belongs to every
state...but refusing to admit any conventional SN limitations
would ultimately find itself outside
the pale of international intercourse and deprived of rights essential to its existence and progress.
-during the controversy in 1901 between Venezuela and
certain foreign governments relative to claims for unpaid bonds issued by the
Venezuelan government and held by nationals of the other governments the
Venezuelan government, invoking the rights of sovereignty in domestic matters,
insisted that the national laws of Venezuela were conclusive as to the merits of
the claims in controversy. This contention, of course, was not admitted
-no surrender of sovereignty results from the voluntary
assumption of contractual obligations; sovereignty is lost only
when a state has been deprived, against its will, of its freedom
of action, by an external power
LIMITATIONS TO FREEDOM OF CONTRACT = SITUATIONAL MONOPOLY
<> cocoo will challenge SNs' convention agreements, using exceptions
to the freedom of contract.
-freedom of contract is limited where there was no such freedom [no full consent]
= situational monopolies
-the principle of freedom cannot require that a person can choose not to be free
coercion :
eg. a foundering ship owner, who is coerced to pay an excessive
salvage fee to the only tug operator in the vicinity, would not rationally
seek rescission and restoration of the status quo ante,
but would seek the substitution of a more reasonable salvage fee
courts in both Great Britain and theusa substitute reasonable salvage terms for extravagant ones
extracted under coercion.
similarly, in European civil law systems, the
doctrine of duress is applied here to enable courts to substitute more reasonable terms for
those apparently agreed to, but only under coercive threat
information asymmetry:
eg. a contract which the consumer did not understand.....if is not feasible to cancel the
entire transaction,or disadvantageous to the consumer, or
wishes to retain, the goods or services, the courts should ask: did such consumer receive a deal
significantly inferior (than sophisticated consumers would have received?)?
if so, courts should substitute more reasonable terms
frustration:
a party successfully invoking frustration, can now throw all losses on the other party.
