1. 03.10.08 POLI 383<br />THEORIES – CONSTITUTIVE<br />-DECLARATORY<br />MODES – EXPLICIT<br />-IMPLICIT<br />EFFECTS<br />CONSTITUTIVE – MUNICIPAL – “QUASI-CONSTITUTIVE”<br /> -INT’L – PROBLEMATIC, BUT SOME APPLICATION<br />DECLARATORY – MUNICIPAL – DOESN’T FIT WELL<br /> -INT’L – IF NO REAL QUESTION<br />Papers are marked, and will be returned and discussed on Monday.<br />Remind him to discuss midterm & what will be covered on it.<br />Recognition gives formal status. Can be given under certain conditions, but can also be used as a political tool. (If they like you or don’t.)<br />Can also be something done if they don’t want to anger someone, or because they’re your ally. (E.g. The United States & recognition of the Chinese government)<br />Theories: There are two.<br />THEORIES – CONSTITUTIVE: You’re nobody until somebody loves you. You don’t exist unless you are recognized by others. You are created in international law by the acceptance of others. <br />Works well as the practice of states.<br />However, it is problematic at the International Level. State exists for some, but not others. Still, they have responsibilities at the International level.<br />What if there is genuine doubt? The number who do or do not recognize will help to determine if it is recognized.<br />If there is an illegal process of succession, formal recognition will clear this illegality. E.g. East Germany, for a long time there was refusal to recognize. Eventually, the West recognized East Germany, which cured that illegality. In this sort of case, recognition can have a constitutive effect.<br />At the municipal level, works well in the courts of a State.<br />-DECLARATORY: It does not create a State; it merely acknowledges something that already exists. <br />It is for this reason that it can be problematic if there is a question if it actually does exist.<br />Works well at the International level (Unless there is genuine doubt about the State or government.), but does not fit well in a municipal court (There is no party before me, as I don’t recognize you.). <br />(****In quizzes, often makes up a quotation about this that is completely ass-backwards. Be careful. JUST BECAUSE IT IS QUOTED, DOESN’T MEAN IT IS TRUE. As well, just because it is published doesn’t mean its true either. )<br />These work at different levels in different ways.<br />MODES – EXPLICIT: Sending a telegram to acknowledge is essentially recognition.<br />-IMPLICIT: It is implied in the way you have treated them. You treat them as if they exist. Many ways you can behave and act without actually recognizing. Intent is the key here. Is there intent to recognize? This must be part of the behaviors. <br />Can sign treaties with one another, but still not recognize! This makes implicit recognition messy. <br />Diplomatic relations, and opening up an embassy in the country is implicit recognition. <br />It is for this reason that the Estrada doctrine creates such an issue for the court.<br />The Panda Problem: Is accepting the guerilla from General Charles Dugal of the Free French acknowledgement of him as leader?<br />Case: <br />Makes a difference where the case is tried, but also WHEN.<br />Luther v. Sagor:<br />The Helena is important (see handout) as it provides the background for how such acts are treated in court.<br />The Helena (UK)1801The Helena, a British ship, was seized by the Barbary Pirates and turned over them to the Dey of Algiers, who then sold the vessel. The original owners sued to recover. The Dey of Algiers was recognized by the British government. A transfer of property by the act of a recognized government will be upheld.Luther v Sagor (UK)1921See Cases and MaterialsA transfer of property by the act of an unrecognized government will not be upheld. (On appeal) Once a government is recognized, its acts will be granted validity, even those prior to its recognition (i.e., retroactive effect of recognition). <br />The British Court must acknowledge the acts of a recognized country, but if the government is not recognized they do not have to recognize their acts.<br />During the appeal, Britain recognized Soviet Union. In this case, court gave retroactive recognition to the SU. Therefore, the prior decision is overturned.<br />Salimoff v. Standard Oil:<br />Salimoff v Standard Oil (US)1933See Cases and MaterialsActs of an unrecognized government have no extra-territorial effect.But, they do hold for their own nationals and their property within their own territory. NB: if US nationals had lost property, the rights of aliens would be involved.<br />This is a US case, but at the time the US had not yet recognized SU.<br />Parent company had been nationalized, but argues that this does not apply to the parts of the company in New York, The court was not going to interfere with what a government does to its own nationals (Russians on Russian territory). This is true even though they do not recognize the SU.<br />Wulfsohn v RSFR<br />Wulfsohn v RSFSR(US)1923See Cases and MaterialsAn unrecognized government has immunity from suit for actions regarding property in its own territory. NB: Generally, immunity from suit would be denied, since immunity is an act of comity, and there is no comity in the absence of recognition. In this case, however, the plaintiff (Wulfsohn) admitted that there was a de facto government in actual control in its territory, even if it was not recognized. Note also that the property in question was not in the court’s jurisdiction. <br />If it had been a recognized government, they would have been immune. But, they do not extend this courtesy to unrecognized nations.<br />However, it was within their own territory. Within their own territory their jurisdiction is absolute and exclusive. There is therefore immunity. <br />RSFR v Cibrario<br />RSFSR v Cibrario (US)1923See Cases and MaterialsAn unrecognized government has no standing to sue in the court of the state refusing recognition: standing to sue is an act of comity, and there is no comity in the absence of recognition. <br />Can an unrecognized government sue in courts of a country that does not recognize them? Nope! There is no recognized government before the court.<br />An unrecognized can be sued, but cannot sue in the court of a country that does not recognize them. This is an important distinction. <br />