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Democratic Legitimacy and the Recognition of States and Governments

Published online by Cambridge University Press:  17 January 2008

Sean D. Murphy
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In a seminal 1992 article Thomas Franck postulated the emergence in international law of a right to democratic governance.1 Franck argued that, increasingly, the acceptance of a government by other States turns on whether the government governs with the consent of its people.

In supporting this notion, Franck pointed to events such as the 1991 effort by Haitian military and police authorities to overthrow the elected President of Haiti, Jean-Bertrand Aristide. Although those authorities exercised complete control over Haiti, the international community condemned the coup leaders, refused to engage in normal diplomatic relations with them or to seat their representatives at international organisations, and instead continued to recognise the exiled President Aristide as representing the legitimate government of Haiti. Severe economic and ultimately military sanctions were imposed on Haiti, and finally, in 1994, the coup leaders were forced to relinquish power. President Aristide then returned to Haiti to complete his term as president.

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Articles
Information
International & Comparative Law Quarterly , Volume 48 , Issue 3 , July 1999 , pp. 545 - 581
Copyright
Copyright © British Institute of International and Comparative Law 1999

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References

1. Franck, Thomas M., “The Emerging Right to Democratic Governance” (1992) 86 A J.I.L. 46.Google Scholar For a collection of essays testing Franck's thesis in various areas of international law, including an abbreviated essay based on this article, see Gregory, Fox and Brad, Roth (Eds), Democratic Governance and International Law (forthcoming).Google Scholar

2. There are different faces of “recognition”. One face is the express or tacit acknowledgment by States of the legal capacity of a new State to avail itself of international rights and obligations or for a new government to engage in foreign relations on behalf of its State. (In particular, “tacit” acknowledgment arises for States that prefer not to view changes of government as a question of “recognition” but, rather, as a question of the level of relations with the new government.) In some cases, even if recognition is not acknowledged, the new entity may be accorded some type of special status. A further face of “recognition” occurs when a new State is granted admission to an international organization or when an organ of an international organisation accepts the credentials of the delegates of a new government. Yet another face concerns the effects of recognition (or nonrecognition) on rights and obligations within a State's national legal system (e.g. litigation in the State's courts).

3. The standard point of departure on these conditions is the 1933 Montevideo Convention on the Rights and Duties of States, League of Nations T.S. 165 (1936), p.19.Google ScholarSee also Brierly, J. L., The Law of Nations (6th edn, Waldock, H. (Ed.), 1963), p.137.Google ScholarSee generally Grant, Thomas D., “Defining Statehood: The Montevideo Convention and its Discontents” (1999) Col. J. Trans. L. 37, 403.Google Scholar

4. James, Crawford, The Creation of States in International Law (1979), pp.44–45.Google Scholar

5. Roth, Brad R., Governmental Illegitimacy in International Law (1999)Google Scholar; cf. Bot, B. R., Nonrecognition and Treaty Relations (1968), pp.23–24.Google Scholar

6. Menon, P. K., The Law of Recognition in International Law (1994), p.39Google Scholar; Blix, H. M., “Contemporary Aspects of Recognition” (1970–II) 130 Hag. Rec. 636.Google Scholar

7. In other words, a new State emerges once it has a defined territory, permanent population and an effective government capable of entering into foreign relations, and the act of recognition by other States merely declares something that has already occurred. Brierly, op. cit. supra n.3, at p.139Google Scholar; Ti-Chiang, Chen, The International Law of Recognition (1951)Google Scholar; see also Charter of the Organisation of American States, Art.9, 30 Apr. 1948, U.N.T.S. 119 (1952), p.54Google Scholar, United Stales Treaties and Other International Agreements, Vol.2 (1952), p.2419 (“The political existence of the State is independent of recognition by other States”).Google Scholar

8. Of these constitutive theorists, some see the act of recognising a new State as driven by the national interests or convenience of other States; while others, notably Hersch Lauterpacht, argue that once the conditions are met States are under a duty to recognise the new State: Hersch, Lauterpacht, Recognition in International Law (1947), p.6, and (Ed.), Oppenheim's International Law (8th edn, 1955, 2 vols), Vol.I, sec. 71.Google Scholar

9. Fernando, Tesón, Humanitarian Intervention, An Inquiry Into Law and Morality (2nd edn, 1997)Google Scholar, and “The Kantian Theory of International Law” (1992) 92 Col. L. Rev. 53.Google Scholar

10. In 1861 the “Confederate States of America” was declared by Southern leaders, with its capital in Richmond, Virginia, based on a written constitution. Under this constitution, elected members of executive and congressional branches proceeded to promulgate wide-ranging laws affecting some 10 million people in ten clearly defined States that had seceded. Once established, the Confederacy deployed diplomatic representatives to several foreign States, including England, France and Russia, fully empowered to act on its behalf.

11. By October 1862 the Confederacy had decisively repulsed several Union advances and had unleashed spectacular offensives of its own. Many believed that continuing the war was futile, since it was necessary for the North to conquer vast stretches of southern territory, cripple southern resources and destroy the fighting power of the Confederate armies. Thus, by autumn 1862, the Confederacy had a serious claim on recognition by foreign governments: McPherson, James M., Battle Cry of Freedom: The Civil War Era (1988), pp.546–557.Google Scholar

12. Idem, p.548.

13. Idem, p.556; David Herbert Donald, Lincoln (1995), p.414Google Scholar; Shelby, Foote, The Civil War: A Narrative (First Vintage Books edn, 1986, 3 vols), Vol.1, pp.791–792.Google Scholar For a thorough treatment of the relationship of the UK with the Confederacy, See Brian, Jenkins, Britain and the War for the Union (1974–1980, 2 vols).Google Scholar

Had recognition by the UK occurred, the outcome of the American Civil War might have been quite different, much as the outcome of the American Revolution turned in no small part on France's recognition of and alliance with the US in early 1778. See Robert, Middlekauff, The Glorious Cause: The American Revolution, 1763–1789 (1982), pp.404–405.Google Scholar

14. McPherson, idem, p.549. On Lincoln' own propaganda campaign directed at the UK working class, see Donald, idem, pp.415–416; Foote, idem, Vol.11, pp.154–155.

15. The position taken here is not that democratic legitimacy was the sole reason the UK failed to recognise the Confederacy. There were other important factors as well, such as the UK's fear of a rupture of diplomatic relations with the Union, if not outright war: McPherson, idem, pp.384, 553; Foote, idem, Vol.II, p.154.

16. See e.g. Donald, op. cit. supra n.13, at p.379Google Scholar (“Eventually, immense throngs in London, Birmingham, and other British cities would rally to celebrate Lincoln's declaration of freedom and an outraged public opinion would make it impossible for any British government to intervene on behalf of the slaveholding Confederacy”); Reid, Mitchell, “The Perseverance of the Soldiers”, in Boritt, (Ed.), Why the Confederacy Lost, p.117 (“The Emancipation Proclamation destroyed the possibility of European intervention in the Civil War. It established that what had looked to some liberals like a war for self-determination against a central government was actually a war of slavery against freedom”).Google Scholar

17. Indeed, similar influences can be divined in the recognition of new States spun off from the decaying Ottoman Empire during the 19th century (e.g. Greece), which turned in large part on increasing European concern for protection of the rights—including representative rights—of minority groups under Ottoman control. See Manouchehr, Ganji, International Protection of Human Rights (1962), pp.17–38.Google Scholar However, at the same time, the Concert of Europe helped suppress popular rebellion in various European countries, such as Spain, Italy, Poland, and Hungary.

18. McPherson, , op. cit. supra n.11, at pp.553–554, 650–651Google Scholar; Foote, , op. cit. supra n.13, at Vol.11, pp.155–158.Google Scholar On the French and US machinations in Mexico during this period, See Ralph, Roeder, Juarez and His Mexico (1968 [1947], 2 vols).Google Scholar

19. Those States included Poland, Czechoslovakia and Yugoslavia. The post-war peace agreements might also have included the return of Danzig (Gdansk) to Poland (its main port on the Baltic), but the city's overwhelmingly German population resulted in it being established as a “free city” whose internal affairs were to be democratic and under international supervision, while its foreign policy and trade affairs were subject to Polish control.

20. Those States included Australia, Canada, New Zealand and South Africa.

21. For the admission procedure, see Covenant of the League of Nations, Art.1.

22. See e.g. Treaty Between the Allied and Associated Powers and Poland (Protection of Minorities), 28 06 1919Google Scholar, reprinted in Hudson, Manley O., International Legislation (1931, 9 vols), Vol.1, p.283Google Scholar (Art.7(1) provides that “All Polish nationals shall be equal before the law and shall enjoy the same civil and political rights without distinction as to race, language, or religion”); John, Dugard, Recognition and the United Nations (1987), pp.23–24 (“International concern for human rights was still in its early days in 1920, but the minority treaties and declarations imposed upon States with linguistic, religious and racial minorities as a pre-condition for League membership, served clear notice on an aspirant State that its performance in the field of human rights was a factor that would be considered in the recognition of its statehood by the international community”).Google Scholar

23. Examples are the ex-German colony of Southwest Africa (now Namibia), which was placed under a South African mandate, and the Ottoman territory of Syria, which was placed under a UK mandate.

24. See e.g. Marian Nash (Leich), “Contemporary Practice of the United States Relating to International Law” (1995) 89 A.J.I.L. 96Google Scholar (transition of Palau from a trust territory to a self-governing sovereign State in free association with the US, subsequent to a plebiscite whereby the people of Palau approved). On consultation of the population, see Case Concerning Western Sahara, I.C.J. Rep. 1975, 33.Google Scholar

25. Universal Declaration of Human Rights, Art.21(1), G.A. Res.217A, United Nations General Assembly Official Records, 3rd Sess., pt.I at 71, UN Doc.A/810 (1948)Google Scholar, reprinted in Burns, Weston (Ed.), International Law and World Order: Basic Documents (1994, 5 vols.), Vol.III, sec. A.1.Google Scholar

26. International Covenant on Civil and Political Rights, Art.25, 16 Dec. 1966, U.N.T.S. 999 (1976), p.171Google Scholar, reprinted in Weston, idem, Vol.III. sec. A.3.

27. See International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 Nov. 1973, U.N.T.S. 1015 (1973), p.243Google Scholar, reprinted in Weston, idem, Vol.III, sec 1.2; International Convention on the Elimination of All Forms of Racial Discrimination, 7 Mar. 1966, U.N.T.S. 660 (1966), p.195Google Scholar, reprinted in idem, Vol.III, sec. I.I; Vera, Gowlland-Debbas, Collective Responses to Illegal Acts in International Law: United Nations Action in the Question of Southern Rhodesia (1990), pp.273–361.Google Scholar On the General Assembly's refusal to accept the credentials of the delegates of South Africa's apartheid government, See Dan, Ciobanu, “Credentials of Delegations and Representation of Member States at the United Nations” (1976) 25 I.C.L.Q. 351.Google Scholar

28. Important commitments in favour of democratic pluralism, free elections and the rule of law were incorporated in the 1975 Helsinki Final Act signed by the US, Canada and European States, including the USSR: Conference on Security and Co-operation in Europe: Final Act, 1 Aug. 1975, reprinted in (1975) 14 I.L.M. 1292.Google Scholar Whether these provisions of the Helsinki Final Act constitute legal as opposed to political commitments is unclear; see e.g. Thomas, Buergenthal, “The CSCE Rights System” (1991) 25 Geo. Wash. J.Int. L. Econ. 333Google Scholar, but their influence on State attitudes cannot be overstated.

29. Conference on Security and Co-operation in Europe: Charter of Paris for a New Europe and Supplementary Document to Give Effect to Certain Provisions of the Charter, 21 Nov. 1990, reprinted in (1991) 30 I.L.M. 190.Google Scholar Under the Charter of Paris, OSCE States “undertake to build, consolidate and strengthen democracy as the only system of government of our nations”: idem, p. 193. See also the 1991 Organisation of American States Santiago Declaration, whereby OAS States declared their “inescapable commitment to the defense and promotion of representative democracy and human rights in the region, within the framework of respect for the principles of self-determination and non-intervention”: Santiago Commitment to Democracy and the Renewal of the Inter-Amencan System, 4 June 1991, OAS General Assembly, 21st Sess., 3rd plenary meeting at p.1, OAS Doc.OEA/Ser.P/AG/Doc.2734/91.

30. See Rosalyn, Higgins, The Development of International Law through the Political Organs of the United Nations (1963), p.23Google Scholar (“the anti-colonial pressures upon Western European states, and uneconomic costs for them to remain by force in their colonial possessions, have caused these states in several cases to withdraw from territories which they previously governed before any adequate indigenous system of government had been formed”).

31. International Covenant on Civil and Political Rights Art.1; International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, Art.1, U.N.T.S. (1976), p.171Google Scholar, reprinted in Weston, , op cit. supra n.25, at Vol.III, sec. A.2.Google Scholar

32. The Basque separatist group ETA began violent actions in 1968 in an effort to secede from Franco's Spain. After Franco's death in 1975, Spain became a democratic country and, over time, the four Basque provinces achieved considerable self-governance under a new system of regional autonomy, which gradually weakened violence by the separatist movement. Nevertheless, as of 1997, the largest party in the region remains the Basque Nationalist Party, which runs the regional government and seeks a separate Basque State. See “The Basques: A Murder Too Far”, The Economist, 19 07 1997, p.30.Google Scholar

33. See Ijalaye, David A., “Was ‘Biafra’ at Any Time a State in International Law?” (1971)65 A.J.I.L. 551.Google Scholar

34. Georges, Abi-Saab, The United Nations Operation in the Congo 1960–1964 (1978).Google Scholar

35. Suzanne, Palmer, “The Turkish Republic of Northern Cyprus: Should the United States Recognize it as an Independent State?” (1986) 4 Boston Univ. Int. L.J. 423.Google Scholar

36. Case Concerning Frontier Dispute {Burkina Faso/Mali), I.C.J. Rep. 1986, 565.Google Scholar

37. See Dugard, , op. cit. supra n.22, at pp.27–35.Google Scholar

38. Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations, 24 Oct. 1970, G.A. Res.2625 (XXV), United Nations General Assembly Official Records, 25th Sess., Supp. No.28, p.121Google Scholar(annex), UN Doc.A/8028(1970)Google Scholar, reprinted in Dietrich, Rauschning, Katja, Wiesbrock and Martin, Lailach (Eds), Key Resolutions of the United Nations General Assembly 1946–96 (1997), p.3.Google Scholar

39. Statute of the Council of Europe, 5 May 1949, Art.3, U.N.T.S. 87 (1953), p.103.Google ScholarSee Hans, Winkler, “Democracy and Human Rights in Europe: A Survey of the Admission Practice of the Council of Europe” (1995) 47 Austrian J.Pub and Int. L. 147.Google Scholar

40. See e.g. Recommendation 1338(1997)Google Scholar on the Obligations and Commitments of the Czech Republic as a Member State, Pt.4, Council of Europe Parliamentary Assembly, 1997 Ordinary Session, (22–26 09 1997), p. 1.Google Scholar

41. UN Charter, Art.1(2).

42. The Charter provides that membership is open to all “peace-loving states” which accept the obligations of the Charter and which, in the judgment of the UN, are able and willing to carry out those obligations: Art.4(1). The ICJ advised that it was illegal to impose any additional conditions on States seeking membership: Advisory Opinion on the Conditions of Admission of a State to Membership in the United Nations (Charter, Art.4), I.C.J. Rep. 1948, 62–65Google Scholar; see also Advisory Opinion on the Competence of the General Assembly for the Admission of a State to the United Nations, I.C.J. Rep. 1950, 4.Google Scholar

Recently, the ICJ also rejected arguments by Serbia (Yugoslavia) that Bosnia-Herzegovina was incapable of becoming a party to the Genocide Convention because it achieved independence through a process that violated the principles of equal rights and self-determination. Rather than consider whether Bosnia-Herzegovina's Statehood ran afoul of fundamental human rights, the ICJ simply noted that the Genocide Convention was open to “any Member of the United Nations”: Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), I.C.J. Rep. 1996, para.19.Google Scholar

43. See e.g. David, Potter et al. (Eds), Democratization (1997), pp.1, 38.Google Scholar

44. E.g. although the US places considerable emphasis on democratic legitimacy in the conduct of its foreign policy, it nevertheless recognises (and maintains diplomatic relations with) numerous States that are non-democratic, including Afghanistan, Algeria, Burma, China, Nigeria, Oman, Saudi Arabia and Syria. Even non-democratic States with which the US does not have diplomatic relations are recognised as independent States, such as Cuba, Iran, Iraq, Libya and North Korea. See “Fact Sheet: Independent States and Dependencies as of August 20, 1996”, US Department of Stale Dispatch, 7 (26 08 1996), p.433.Google Scholar

45. See e.g. Yves Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections: Self-Determination and Transition to Democracy (1994), p.94.Google Scholar

46. See Marian, Nash (Leich), “Contemporary Practice of the United States Relating to International Law” (1994) 88 A.J.I.L. 719. Suspension requires a two-thirds majority vote in the OAS General Assembly.Google Scholar

47. Of course, the international community acknowledges a State's right to hold referenda on whether it should fragment into smaller States, as recently occurred in the Caribbean State of St Kitts and Nevis: Kovaleski, Serge F., “Secession Move Fails on Caribbean Island”, Washington Post, (11 08 1998), p.A18.Google Scholar

48. See e.g. Hungary-Romania Treaty on Understanding, Cooperation, and Good Neighborliness, 16 Sept. 1996, Arts.15–16, reprinted in (1997) 36 I.L.M. 348–350Google Scholar (requiring protections for the rights of ethnic Hungarians living in Romania and ethnic Romanians living in Hungary, including the right to effective participation in the political life of their country).

49. Evans, , op. cit. infra n.9, at pp. 19–21Google Scholar; Antonio, Cassese, Self-Delermination of Peoples (1995), pp.258–261.Google Scholar

50. Cassese, idem, p.262, n.9.

51. idem, p.264.

52. Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Krygyztan, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine and Uzbekistan.

53. See Decision by the Council of Heads of State of the Commonwealth of Independent States, 21 Dec 1991, para.1, reprinted in (1992) 31 I.L.M. 151Google Scholar (all former Soviet republics except Georgia establishing a commonwealth of independent States); see also Blum, Yehuda Z., “Russia Takes Over the Soviet Union's Seat at the United Nations” (1992) 3 E.J.I.L. 354Google Scholar; Ralph, Gaillard Jr, “The Baltic Republics”, Washington Post, 3 09 1991, p.A12.Google Scholar

54. Azerbaijan, Armenia, Kazakhstan, Krygyzstan, Moldova, Tajikistan, Turkmenistan and Uzbekistan were admitted as members of the UN on 2 Mar. 1992. Georgia was admitted on 31 July 1992. Belarus and Ukraine were original UN members and consequently did not require admission upon obtaining independence. Russia assumed the membership of the former USSR, taking over the former Soviet seat in the General Assembly and its permanent membership in the Security Council.

55. “Testimony by Ralph Johnson, Deputy Assistant Secretary of State for European and Canadian Affairs, 17 Oct. 1991”, Foreign Policy Bulletin 2 (11–12 1991), p.42.Google Scholar

56. Declaration on the “Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union”, 16 Dec. 1991, reprinted in (1992) 31 I.L.M. 1486–1487Google Scholar and in (1993) 4 E.J.I.L. 72Google Scholar (emphasis added). For a discussion, see Colin, Warbrick, “Recognition of States: Recent European Practice”, in Evans, Malcolm D. (Ed.), Aspects of Statehood and Institutionalism in Contemporary Europe (1996), p.9.Google Scholar

57. Evans idem, p.23.

58. See “President Bush Welcomes Commonwealth of Independent States, 25 Dec. 1991”, Foreign Policy Bulletin 2 (01–04 1992), p.12.Google Scholar For the US government's attitude on various issues relating to the break-up of the former USSR and the former Yugoslavia, See Edwin, Williamson and John, Osborn, “A U.S. Perspective on Treaty Succession and Relating Issues in the Wake of the Breakup of the USSR and Yugoslavia” (1993) 33 Virginia J.Int. L. 261 (views of former State Department Legal Adviser and his Special Assistant).Google Scholar

59. See David, Rieff, “Nagorno-Karabakh: Case Study in Ethnic Strife”, Foreign Affairs 76 (03–04 1997), p.118.Google Scholar

60. “China's Rebellious Province”, The Economist, 23 08 1997, p.43.Google Scholar

61. Marc, Weller, “The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia” (1992) 86 A.J.I.L. 569.Google Scholar

62. “Declaration on Guidelines”, supra n.56. In addition, each State had to pledge that it had no territorial claims against any neighbouring EC State and that it would not use a name that implied such claims. This condition was prompted by Greece's concerns regarding potential territorial claims by Macedonia Greece believed even the name “Macedonia” implied territorial ambitions toward Greece, since its northernmost province is also named Macedonia: “Macedonia: Next on the List”, The Economist, 8 02 1992, p.46.Google Scholar

63. Declaration on Yugoslavia, 16 Dec. 1991, reprinted in (1993) 4 E.J.I.L. 73.Google Scholar

64. Ibid.

65. The Arbitration Commission was established by the Peace Conference to address issues arising in connection with the break-up of Yugoslavia. Judges were chosen from the Constitutional Courts of Belgium, France, Italy, Germany and Spain.

66. Conference on Yugoslavia, Arbitration Commission Opinion No.1, para.3, reprinted in (1992) 31 I.L.M. 1494.Google Scholar

67. Idem, Opinion No.3, 11 Jan. 1992, reprinted in idem, p.1499.

68. Idem, Opinion No.2, 11 Jan. 1992, reprinted in idem, p.1497.

69. Idem, Opinion No.7, 11 Jan. 1992, reprinted in idem, p.1512.

70. Idem, Opinion No.5, 11 Jan. 1992, reprinted in idem, p.1503.

71. Idem, Opinion No.6, 11 Jan. 1992, reprinted in idem, p.1507.

72. Security Council Res. 817, United Nations Security Council Official Records, 48th Sess., 3,196th meeting, p.132Google Scholar, UN Doc.S/RES/817(1993).Google Scholar On the erratic application of the EC Guidelines, See Evans, , op. cit. supra n.56, at pp.29–30.Google Scholar

73. Conference on Yugoslavia, Arbitration Commission Opinion No.4, 11 Jan. 1992, reprinted in (1992) 31 I.L.M. 1501.Google Scholar

74. Weller, , op. cit. supra n.61, at p.593.Google Scholar

75. The US asserted that it was recognising the three new States “because we are satisfied that these states meet the requisite criteria for recognition. We acknowledge the peaceful and democratic expression of the will of citizens of these states for sovereignty”: “US Recognition of Former Yugoslav Republics”, US Department of State Dispatch 3 (13 04 1992), p.287.Google Scholar

76. For Croatia, Security Council Res.753, United Nations Security Council Official Records, 47th Sess., 3,076th meeting, p.115Google Scholar, UN Doc.S/INF/48(1992)Google Scholar; Statement by the President of the Security Council, UN Doc.S/23945(1992)Google Scholar, ibid. For Slovenia, Security Council Res.754, idem, 3,077th meeting, p.115, UN Doc.S/INF/48(1992)Google Scholar; Statement by the President of the Security Council, UN Doc.S/23946(1992)Google Scholar, ibid. For Bosnia-Herzegovina, Security Council Res.755, idem, 3,079th meeting, p.116, UN Doc.S/lNF/48(1992)Google Scholar; Statement by the President of the Security Council, UN Doc.S/23982(1992), ibid.Google Scholar

77. G.A. Res.46/236, United Nations General Assembly Official Records, 46th Sess., Supp. No.49A, p.5Google Scholar, UN Doc.A/46/49/Add.1(1992)Google Scholar (Slovenia admission); G.A. Res.46/237, ibid, UN Doc.A/46/49/Add.1(1992)Google Scholar (Bosnia-Herzegovina admission); G.A. Res.46/238, ibid, UN Doc.A/46/49/Add.1(1992) (Croatia admission).Google Scholar

78. Constitution of Bosnia and Herzegovina, Art.I, reprinted in US Department of State Dispatch, Supp.7 (03 1996), p.25.Google Scholar

79. See letter dated 27 Apr. 1992 from the Chargd d'Affaires A.I. of the Permanent Mission of Yugoslavia to the United Nations addressed to the President of the Security Council, UN Doc.S/23877 (1992), annex.Google Scholar

80. See letter dated 12 May 1992 from the Permanent Representatives of Belgium, France and the United Kingdom to the United Nations addressed to the President of the Security Council, UN Doc.S/23906(1992)Google Scholar, annex. For the position of the US, see letter dated 5 May 1992 from the Permanent Representative of the United States to the United Nations addressed to the President of the Security Council, UN Doc.S/23879(1992)Google Scholar

81. Conference on Yugoslavia, Arbitration Commission Opinion No.10, 4 July 1992, para.5, reprinted in (1992) 31 I.L.M. 1525Google Scholar, and in United Nations General Assembly Official Records, 48th Sess., Annex, Agenda Item 8, p.2Google Scholar, UN Doc.A/48/874–S/1994/189(1994).Google Scholar Interestingly, the Commission found that recognition was “purely declaratory” and was not a requirement for the creation of a State.

82. For the Security Council, see Security Council Res.777, United Nations Security Council Official Records, 47th Sess., 3,116th meeting, p.34Google Scholar, UN Doc.S/RES/777(1992)Google Scholar (adopted by 12 votes, with China, India and Zimbabwe abstaining). The Security Council previously had noted that Serbia and Montenegro's claim to continue automatically the UN membership of the former Yugoslavia “has not been generally accepted”. Security Council Res.757, idem, 3,082nd meeting p.13, UN Doc.S/RES/757(1992).Google Scholar For the General Assembly, see G.A. Res.47/1, United Nations General Assembly Official Records, 47th Sess., 7th plenary meeting, Supp. No.49, p.12Google Scholar, UN Doc.A/47/49(1992)Google Scholar, reprinted in Rauschning et al, op. cit. supra n.38, p.197.Google Scholar

For the debate on the legal right of Serbia and Montenegro to continue as a member of the UN based on the membership of the former Yugoslavia, compare Blum, Yehuda Z., “UN Membership of the ‘New’ Yugoslavia: Continuity or Break?” (1992) 86 A.J.I.L. 830Google Scholar with “Correspondents' Agora: UN Membership of the Former Yugoslavia” (1993) 87 A.J.I.L. 240.Google Scholar

83. See Raju, Thomas, “Self-Determination and International Recognition Policy” (1997) World Affairs 16017Google Scholar; Hayden, Robert M., “Bosnia's Internal War and the International Criminal Tribunal” (1998) 22 Fletcher Forum of World Affairs 45.Google Scholar

84. See generally Peterson, M. J., Recognition of Governments: Legal Doctrine and State Practice, 1815–1995 (1997)Google Scholar; Stefan, Talmon, Recognition of Governments in International Law: With Particular Reference to Governments in Exile (1998).Google Scholar

85. See e.g. Lauterpacht, (1997) op. cit. supra n.8 at p.98Google Scholar; Hans, Kelsen, General Theory of Law and State (1949 [1945]), pp.228–229.Google Scholar

86. See Galloway, L. Thomas, Recognizing Foreign Governments: The Practice of the United Stales (1978), pp.21–24.Google Scholar

87. See Jessup, Philip C., “The Estrada Doctrine” (1931), 25 J.I.L. 719.Google Scholar

88. See René, Albrecht-Carrié, A Diplomatic History of Europe Since the Congress of Vienna (revised edn, 1973).Google Scholar

89. Quoted in Whiteman, Marjorie M., Digest of International Law (1963 15 vols), Vol.II pp.68–69Google Scholar; Lauterpacht (1947), op. cit. supra n.8, at pp.125–126.Google Scholar

90. Whiteman, idem p.69.

91. For an example of this, see a 1913 US Department of State memorandum reported in Green Haywood Hackworth, Digest of International Law (1940 13 vols), Vol.I, p.176.Google Scholar

92. Knock, Thomas J., To End All Wars: Woodrow Wilson and the Quest for a New World Order (1992), pp.25–30Google Scholar; Jules, Davids, America and the World of Our Time United States Diplomacy in the Twentieth Century (1970), pp.37–42.Google Scholar

93. “Woodrow Wilson Address of July 4, 1914”, quoted in Knock, idem, p.28. The government of Mexico was recognised only in 1923 by Wilson's successor, primarily on the basis of Mexico's willingness to protect US nationals and property in Mexico: Hackworth, loc. cit. supra n.91.

94. Galloway, , op. cit. supra n.86, at pp.27–29Google Scholar; see also Division of Historical Policy Research, Department of State, The Problem of Recognition in American Foreign Policy, Research Project No.174 (1950), pp.35–45Google Scholar; Taylor, Cole, The Recognition Policy of the United States Since 1901 (1928)Google Scholar; Frederic, Paxson. The Independence of South-American Republics: A Study in Recognition and Foreign Policy (1903).Google Scholar

95. Arguably there was no communist threat. See Theodore Draper, “The Dominican Crisis: A Case Study in American Policy”, Commentary, 12 1965, p.33. Regardless, it seems clear that the US essentially backed a junta installed through a military coup against the democratically elected President, Juan Bosch.Google Scholar

96. According to President Reagan's Secretary of State: “What kind of country would we be, [Reagan] asked, if we refused to help small but steadfast democratic countries in our neighborhood to defend themselves against the threat of this kind of tyranny and lawlessness?”: George, Shultz, Turmoil and Triumph: My Years as Secretary of Stale (1993), p.329.Google Scholar For a classic exchange on the issue of foreign support for the installation of a democratic government, See Reisman, W. Michael, “Coercion and Setf-Determination: Construing Charter Article 2(4)” (1984) 78 A.J.I.L. 642Google Scholar; Oscar, Schachter, “The Legality of Pro-Demccratk Invasion”, (1984) 78 A.J.l.L. 645.Google Scholar

97. See e.g. Bot, op. cit. supra n.5, at p.25.Google Scholar

98. Gregory, Fox, “The Right to Political Participation in International Law” (1992) 17 Yale J.I.L. 570–587.Google Scholar

99. “Fact Sheet: Independent States and Dependencies as of August 20, 1996”, US Department of State Dispatch 7 (26 08 1996), p.433.Google Scholar

100. See e.g. “Chronicle of State Practice” (1992) 2 Asian Y.I.L. 298 (Israel—China diplomatic relations established in 1992).Google Scholar

101. The reversion of Hong Kong to China was agreed to by the UK and China in a Sino-British Joint Declaration on the Question of Hong Kong, signed on 19 Dec. 1984.

102. Velisarios Kattoulas, “A New Order Takes Its Place in Hong Kong”, International Herald Tribune, 2 07 1997, p.1.Google Scholar By contrast, Spain has been unsuccessful in its efforts to have Gibraltar revert to Spanish control, no doubt largely because Gibraltar's 30,000 population prefer to remain a UK colony. Barbara Crossette, “As It Seeks New Status, Island Helps a UN Panel”, New York Times, 8 06 1997, p.19.Google Scholar Some 16 other territories remain classified by the UN as colonies: American Samoa, Anguilla, Bermuda, British Virgin Islands, Cayman Islands, East Timor, the Falklands, Guam, Montserrat, New Caledonia, Pitcairn, Tokelau, Turks and Caicos, St Helena, US Virgin Islands and Western Sahara.

103. Gargan, Edward A., “Hong Kong Scraps Its Voting System”, International Herald Tribune, 9 07 1997, p.1.Google Scholar

104. See e.g. “Chronicle of State Practice” (1991) 1 Asian Y.I.L. 283 (Philippines–North Korea diplomatic relations established in 1991).Google Scholar

105. See e.g. idem, p.281 (Belgium–Vietnam diplomatic relations downgraded in 1978 and then upgraded in 1991); “Chronicle of State Practice” (1993) 3 Asian Y.I.L. 281 (South Korea–Vietnam diplomatic relations established in 1993).Google Scholar

106. “US Normalizes Diplomatic Relations with Vietnam”, US Department of State Dispatch 6 (10 07 1995), p.551Google Scholar; Marian Nash (Leich), “Contemporary Practice of the United States Relating to International Law”, (1996) 90 A.J.I.L. 79.Google Scholar

107. Kaplan, Robert D., “Was Democracy Just a Movement?”, Atlantic Monthly, 12 1997, p.55.Google ScholarEfforts by the UN to promote democracy have been extensive, but have not included systematic non-recognition of non-democratic governments: Beigbeder, op. cit. supra n.45, at pp.91—118.Google Scholar For some recent efforts by the General Assembly and the Secretary-General to promote the transition to democracy not by isolating non-democratic States and governments but, rather, by working with them and other relevant actors, see Yearbook of the United Nations 1995 (1997), pp.293–295.Google Scholar

108. McKinley, James C. Jr, “Moi Keeps Foes at Bay”, International Herald Tribune, 10 07 1997, p.1.Google Scholar

109. Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, Pub. L. No.104–114, 110 Stat 785 (1996).Google Scholar

110. “Promoting a Peaceful Transition to Democracy in Cuba”, US Department of State Dispatch 7 (15 07 1996), p.364.Google Scholar

111. The reaction to the Helms-Burton law is unfortunate in that imposing risks on third parties, Including companies, that deal with a non-democratic government has been advanced as an attractive alternative to the more draconian measure of blanket nonrecognition of that government: James, Crawford, “Democracy and International Law” (1993)64 B.Y.I.L. 113.Google Scholar

112. French, Howard W., “The Honeymoon is Over for Kabila”, International Herald Tribune, 14 07 1997, p.9.Google Scholar

113. See e.g. “Condemnation of Military Coup in Sao Tome and Principe”, US Department of State Dispatch 6 (28 08 1995), p.665Google Scholar; “US Welcomes Restoration of Government of Sao Tome and Principe”, ibid.

114. See e.g. “US Suspends Assistance to Niger Following Military Coup”, US, Department of State Dispatch 7 (12 02 1996), p.44.Google Scholar

115. See e.g. “Hemispheric Support for Democracy in Paraguay”, US Department of State Dispatch 7 (22 04 1996), p.203.Google Scholar

116. Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE, 3 Oct. 1991, Art.II, para.17.2, reprinted in (1991) 30 I.L.M. 1670Google Scholar, and in Weston, op. cit supra n.25, at Vol.III, sec. B22.Google Scholar

117. US legislation in recent years has precluded the provision of US foreign assistance to any country whose elected head of government is deposed by military coup or decree. See e.g. 1996 Foreign Operations, Export Financing, and Related Programs Appropriations Act, s.508, Public Law 104–107, 110 Stat 704, 723 (1996).Google Scholar The US Congress, however, probably could not constitutionally require the president not to recognise a foreign government, since the US Constitution art.II, sec. 3, allocates to the president the power to “receive Ambassadors and other Public Ministers”.

118. “The Tigers' Fearful Symmetry”, The Economist, 19 07 1997, p.53Google Scholar (noting tepid reactions in the West); “Cambodia: The Last Battle?”, The Economist, 23 08 1997, p.44 (“Prince Ranariddh has been touring the world, appealing for help. He has received little more than the occasional kind word”).Google Scholar

119. David, Lamb, “High Price of Coup Becomes Clear to Despairing Cambodia”, Los Angeles Times, 9, 12 1997, p.A1.Google Scholar Founded in 1967, ASEAN consisted at the time of Cambodia's application of nine States: Brunei, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam.

120. Morris, Stephen J., “Brutocxacy Wins: The Travesty of Cambodia's ‘Fair’ Elections”, Washington Post, 9 08 1998, p.C1Google Scholar; Tim, Rosenberg, “Hun Sen Stages an Election: From Cambodia, a Post-Cold-Wax Parable”, NY Times Magazine, 30 08 1998, p.26.Google Scholar After the election, Cambodia was admitted to ASEAN. See e.g. “Cambodia Gains Full Status In Southeast Asian Group” New York Times, 30 04 1999, p.A10.Google Scholar

121. Reuters, , “Nigerian Opposition Leader Passes 3d Year in Detention”, International Herald Tribune, 25 06 1997, p.6.Google Scholar

122. For a description of the US reaction to the annulment of the 1993 elections, see “Assessment of US-Nigeria Relations”, US Department of State Dispatch 6 (31 07 1995), p.604.Google Scholar

123. “Bloc Gives Nigeria a Year on Reforms”, International Herald Tribune, 28 10 1997, p.6Google Scholar The US supported the actions taken by the Commonwealth. See e.g. “Nigeria: Commonwealth Ministerial Group Recommends New Measures on Nigeria”, US Department of State Dispatch 7 (6 05 1996), p.235.Google Scholar

124. Decision of the Organisation of African Unity Council of Ministers, 28 May–4 June 1997 Meeting, OAU Doc.CM/DEC(LXVI)(1997).Google Scholar

125. French, Howard W., “Lagos Imposes Its Will on West Africa”, International Herald Tribune, 27 06 1997, p.1 (quoting a former Nigerian Foreign Minister, now in exile, that Nigeria's military ruler “would have intervened even if it had been a military regime that was overthrown” because “he cannot tolerate a coup against a government perceived to be under his protection”).Google Scholar

126. James, Rupert, “Liberian Leader Lost the War, But May Have Won the Battle”, International Herald Tribune, 22 07 1997, p.1Google Scholar; “Liberia: Farewell Guns?”, The Economist, 26 07 1997, p.37.Google Scholar

127. See e.g. UN G.A. Res. 49/197, United Nations General Assembly Official Records, 49th Sess., 94th plenary meeting, p.217Google Scholar, UN Doc.A/49/197(1994))Google Scholar; “US Policy Toward Burma”, US Department of Stale Dispatch 6 (24 07 1995), p.584.Google Scholar

128. Milton, Viorst, “Algeria's Long Night”, Foreign Affairs 76 (11–12 1997) p.86.Google Scholar For a discussion of why Western democracies should consider some democratically elected governments as the “wrong” kind of democracy (i.e. democracy but without the rule of law and basic human rights), see Fareed Zakaria, “The Rise of Illiberal Democracy”, idem, p.22.

129. French, Howard W., “Former Dictator Sweeps Back into Control of Congo Republic”, International Herald Tribune, 16 10 1997, p.1Google Scholar

130. Security Council Res. 661, United Nations Security Council Official Records, 45th Sess., 2,933rd meeting, at p.13Google Scholar, UN Doc.S/RES/661(1990).Google Scholar

131. Security Council Res.757, idem 3,082nd meeting, p.13. UN Doc.S/RES/757(1992).Google Scholar

132. Franck, Thomas M., The Power of Legitimacy Among Nations (1990), p.92.Google Scholar

133. idem, pp.111–112.

134. idem, pp.118, 127–128.

135. idem, pp.122–123.

136. idem, pp.136–137, 140–142.

137. For a discussion, see Jean, Salmon, “Internal Aspects of the Right to Self-Determination: Towards a Democratic Legitimacy Principle?”, in Christian, Tomuschat (Ed.), Modern Law of Self-Determination (1993), pp.253–282.Google Scholar