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The Genesis of Lex Specialis

Published on April 30, 2014        Author: 

When it comes to describing the relationship between human rights and international humanitarian law, the lex specialis principle is frequently taken for granted, as if it has somehow always been there, carved in stone. But what is its actual genesis? By ‘genesis’ I do not mean its ancient history. Yes, it was in the Digest of Justinian. But, honestly, who cares? We have little or no idea of what exactly the lawyers of the Roman and Byzantine empires meant by the expression and how they applied it in practice, and indeed there are several different ways of conceptualizing lex specialis.

My question is rather this: when did we, the community of international lawyers, start using this language to describe the relationship between IHL and IHRL? The timeframe for answering that question is necessarily more limited and easier to manage, since IHRL did not become a part of public international law until after the Second World War. I am obviously too young to have direct experience of this, but my impression has been that during the first fifty years or so of their co-existence very little thought was given to how IHL and IHRL would interact, and when the issue was discussed it was generally not framed in terms of lex specialis. My hypothesis is thus that the term entered common parlance among the international lawyers who have dealt with the issue only after the end of the Cold War, and specifically only after the ICJ’s 1996 Nuclear Weapons advisory opinion, para. 25, when the Court itself first used the term:

In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.

To prove or disprove this hypothesis, which is what I am doing in a paper I’m writing right now, I need to do two things. First, I need to establish how the Court itself got the idea to use the lex specialis principle to describe the relationship between the rules of IHL and IHRL. Was it complete innovation on its part? Did it come from the pleadings of some of the participants in the advisory proceedings? Or did it come from generally accepted scholarship on the issue? Second, I need to look at the scholarship itself, specifically those works that examined the issue before the Nuclear Weapons opinion and immediately after it.

The pre-1996 scholarship I will leave aside for the purpose of this post, but from what I’ve read so far there are few, if any references to the lex specialis principle as a solution to normative conflicts between IHL and IHRL (I will obviously very much appreciate it if readers could point me to any such references in scholarship in whatever language). But I’ve read through all of the pleadings in the two nuclear weapons cases (the WHO and GA requests), both written and oral. And out of the 40 or so states that appeared before the Court in the two cases, do you know how many referred to the lex specialis principle? Just one – the United Kingdom.

Read the rest of this entry…


Fresh Brains, and a Very Old One

Published on April 28, 2014        Author: 

SchillingTheodor Schilling, Dr. jur. utr. (University of Würzburg), LL.M. (Edin.), is extra-ordinary professor of public law at Humboldt University Berlin.

Maria Aristodemou, in an article entitled “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours” (EJIL 25 [2014] 35), hailed by JHH Weiler as the cutting edge of international law, tries to marry, on the Lacanian couch, international law to Lacan’s version of psychoanalysis. I must admit that I have no very good idea of psychoanalysis. My difficulty following an article which blithely assumes (among many other, for me, arcane points) that “[e]veryone knows that at the intersection between the imaginary, symbolic, and real registers we can find Lacan’s famous ‘little object a’” (p. 39) are therefore mostly a problem of my ignorance and cannot be attributed to the article or its author. Still, questions arise also for the uninitiated, and I should like to venture to answer some of them.

The article does not appear to problematise the anthropomorphism it chooses in treating “public international law as the neurotic patient hankering after ‘fresh brains’” (p. 37). This anthropomorphism is particularly strange as psychoanalysis appears to require a psyche to analyse. A psyche however is attributed generally to living beings only and not to abstractions (international law) and collectivities (the eponymous academic discipline) (it never becomes entirely clear which of the two is considered the patient). If there is a psychoanalytical answer to this apparent problem, it is not in the article. Rather, the anthropomorphism pervades the whole article as international law is said to have desires (eg p. 45) and to crave fresh brains to achieve its own completeness. In what sense can international law, or the eponymous discipline, be said to have desires? The claim that “the proscriptions of international law, like of all law, are precisely based on desire” (p. 49), because they are aimed at suppressing human desires, is entirely convincing. However, it does not follow that the law, or the discipline, themselves have desires.

On the other hand, the article contains an acknowledged paradox: why should international law look at psychoanalysis when the article’s whole argument is to stop looking for Others who will complete us? Can this paradox really be explained away, as the author seeks to do, by claiming that Lacanian psychoanalysis does not complete “us”, but shatter “us”? (p. 39) Or is the resort to psychoanalysis not just another case of a new “law and …”, driven by an academic craving (a very understandable craving of individual academics) for under-explored fields of research? To me, this is a more plausible explanation than the Lacanian one proposed by Aristodemou.

Another pervasive theme of the article is the death of God. This recurrent topos, while not exactly a cutting edge issue, is clearly Eurocentric and at least a bit suspect on that count. On the basis of circumstantial evidence readily available, it appears that in many (most) parts of the world God is very much alive and kicking, maybe especially kicking (cf eg, on the role of Islamic International Law in the history of international law, Nahed Samer). That said, Aristodemou quotes Kelsen as one voice showing that absent a transcendental legislator – God – some other ‘final’ limit for the system of international law has to be hypothesised or postulated (p. 47). That much, I think, is not in dispute. Less clear is her conclusion that this postulate is necessary to “efface the fact … that there is no such thing as ‘an international society’”. Read the rest of this entry…


Announcements: Peacekeeping Symposium, Territorial Conflict Conference, Oceans Law Summer School, ILA Spring Conference, IALS Conference, ICC Summer School

Published on April 27, 2014        Author: 

1.  The European Society of International Law Interest Group on Peace and Security (ESIL IGPS) and the Research Project on Shared Responsibility in International Law (SHARES Project) are organizing a joint symposium to be held in conjunction with the 10th ESIL Anniversary Conference in Vienna, Austria, on 3 September 2014. The symposium is entitled “The Changing Nature of Peacekeeping and the Challenges for Jus ad Bellum, Jus in Bello and Human Rights”. The full call for papers and details for submissions of abstracts can be found here and  here. The deadline for submissions of abstracts is the 4th of May.

2.  Further Call for Papers: Conference on 21st Century Borders: Territorial Conflict and Dispute Resolution, 13th June 2014, University of Lancaster, United Kingdom. 21st Century borders are coming under increasing strain with shifting balances of international power. This was seen most dramatically in the recent Russian annexation of the Crimea, but also in continuing tensions in East Asia, the Middle East and elsewhere. This conference, organised by the Centre for International Law and Human Rights at Lancaster University Law School will explore the causes and dynamics of contemporary territorial disputes as well as mechanisms to resolve them. Building on our initial call for papers, we welcome abstracts for papers of no more than one page from both established researchers and early career academics on the themes of: critical perspectives on uti possidetis; the concept of the “border” in light of new technologies and transnational structures; historical and cultural perspectives on international borders; borders and international economic and environmental law; institutional mechanisms for territorial dispute settlement; and secession and borders. Please send your proposals to Dr. James Summers j.summers {at}  The deadline for abstracts is Wednesday 7th May 2014.

3.  The 2014 Summer Program of Marco Polo-Zheng He Academy of International Oceans Law and Policy, P.R. China. The South China Sea Institute of Xiamen University, and Center for Polar and Deep Ocean Development of Shanghai Jiao Tong University, announce their annual summer program – Marco Polo- Zheng He Academy of International Oceans Law and Policy, to be held from June 22 – July 18, 2014. These centers are leading interdisciplinary research institutes in China in the area of Oceans Law and Policy. This is the 9th year of this summer academy which has been attended in past by the scholars, practitioners, diplomats, and students from -: Australia, Belgium, China, Colombia, Hong Kong, India, Indonesia, Iran, DPR Korea, Rep. of Korea, Malaysia, Russia, Singapore, Switzerland, U.S., and others. The four week intensive summer program is divided into two sessions to be held in Chinese cities of Xiamen and Shanghai. The participants have an option to attend either or both the sessions. The program offers a unique chance to learn about the Chinese perspectives on Law of the Sea and its policies. The structure of the program is such that the class lectures are held in morning sessions and in the afternoon sessions trips to Chinese courts, law firms, governmental agencies related to oceanic administration, museums, etc., are planned. Participants also have the option of taking tests and getting credits transferred to their own schools. Limited number of scholarships are offered to outstanding candidates upon application and subsequent review. Please find more information about Xiamen Session here and Shanghai Session here. For queries regarding-: Xiamen Session contact zhangxia-fly {at} 163(.)com; Shanghai Session sjtu_colp {at} 163(.)com; for general queries contact arpita.goswami7 {at} gmail(.)com.

4.  The Dickson Poon School of Law, King’s College London is proud to host this year’s ILA (British Branch) Spring Conference from 23 to 24 May 2014. The organizers aim to shed new light on the following foundational questions: the relationship between international, regional and domestic legal orders; the identification and development of customary international law; and the regulation of armed conflict. The five parallel panel sessions will re-examine the foundations of international law in the light of new information and modes of thinking. In this respect, main goal of the organizers is to imagine possible futures in issues of concern to present and future generations, such as combatting climate change, preventing human trafficking, managing financial risk, encouraging businesses to respect human rights and promoting socially responsible investment. The keynote speech will be delivered by Professor James Crawford at 10 am on 23 May 2014 (‘The identification and development of customary international law’ ) and after dinner speech by Professor Philip Allott the same day at Inner Temple (‘The Idealist’s Dilemma )For more info on registration for the conference and the dinner, but also the full two-day programme are available here.

5. Registration is now open for the conference ‘National Security and Public Health: Exceptions to Human Rights’ organised at IALS on 29th May 2014. For more information, including the full programme of speakers, and to register, see here.

6.  The annual International Criminal Court Summer School organized by the Irish Centre for Human Rights will take place 16th-20th June 2014 at NUI Galway. The summer school is the premiere summer school specializing in the International Criminal Court. Lectures are given by leading academics on the subject and by legal professionals working at the ICC. More information is available here.


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The New Terrain of International Law: A Reply by Karen Alter

Published on April 25, 2014        Author: 

Thanks very much to Nico Krisch and Antonios Tzanakopoulos for their thoughtful commentaries on my book. I speak to some of Nico and Antonio’s comments in my separate response on Opinio Juris where I addresses limitations from my focus on international courts (IC) as defined by the Project on International Courts and Tribunals (PICT); how case studies allow me to use time to assess IC influence; how we need to stretch time further by exploring more IC creation; and the question of the causes and costs of the proliferation of ICs. This last discussion addresses directly whether or not I see the proliferation and expanding reach of ICs as inherently good.

In this reply I focus on Nico Krisch’s challenge to my role-based heuristic. On Opinio Juris, Roger Alford  also questions this judicial role heuristic. Their comments raise two rather different critiques. I then turn to Tzanakopoulos’ concern about hidden normativity in my analysis.

The New Terrain of International Law codes the legal instruments creating ICs (what I call Court Treaties) to establish a baseline of which ICs have been formally delegated a specific judicial role–administrative review, enforcement, constitutional review, and the catch-all category of dispute settlement. I then have four chapters that correspond to each role, which include eighteen case studies that stretch to about 100 binding legal rulings.

Krisch questions whether the roles are “the most helpful heuristic” for understanding political dynamics surrounding ICs. Alford argues administrative review is really “incidental” to the core role of adjudicating investment disputes and suggests that it might be better to focus on “core objectives,” which in the case of ICSID is “the economic consequences of state action.”

When I presented my role-based chapters in the course of writing the book, members of the audience also suggested that I should collapse the categories, because at the end of the day the only category that is both new and that matters is enforcement. And I have heard that I should instead focus on IC review of state action (e.g. enforcement) v. IC review of IOs or private actors.

So why did I cling to the judicial role heuristic in the face of these valid points?  There are three answers. Read the rest of this entry…

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Challenging (Some) Stereotypes and the DNA of (International) Law

Published on April 24, 2014        Author: 

Karen Alter has written an important and useful book surveying the ‘new terrain’ of international law. The book straddles international law and international relations/political science, and thus readers on both sides of the fence may find it a challenging read—as Karen herself acknowledges in the Preface. But this is not the only reason why readers may find the book challenging: its stated intention is to challenge stereotypes about international courts, and to demonstrate through the emergence of ‘new-style’ courts that we are moving from a contractual understanding of international law to a rule of law mentality. This is because ‘new-style’ courts do not engage solely in (bilateral) dispute settlement but rather also undertake public law functions such as enforcement, administrative review and constitutional review. I fully subscribe to Nico Krisch’s comments on how these functions interact (and have always interacted).

In this short comment I want to focus on the book’s central claim, not so much to summarily disagree with it—in fact to some extent I agree with the claim—but rather to highlight why I think it might be glossing over some important issues from the perspective of international law. Such glossing over may weaken the central claim, which is made with great force. As a (self-proclaimed) positivist international lawyer I found some of the arguments on which the central claim is based hard to digest.

The first point that I want to raise is about the ‘contractual’ paradigm of international law (and dispute settlement) and the move to a ‘rule of law’ paradigm (and public law functions). I should say at the outset that I find terms like ‘rule of law’ inherently suspicious, precisely because they operate as shibboleths for something good without having any agreed content—except perhaps in the broadest possible sense. More on this below. But there is also a problem with the contractual paradigm and ‘new-style’ international courts as an indicator of moving away from it. Well, we are and we aren’t moving away from it, for one, and it is not international courts that predominantly signify whatever move there is, in my view.

Whether we are moving away from a contractual conceptualisation of international law, and whether this is a new development signified by the rise of ‘new-style’ courts depends, first, on what we understand as such a contractual paradigm. Karen seems to be focusing a lot on treaty obligations (which in the first instance are contractual in the broadest sense) and indeed on reciprocal obligations, even arguing at some point that the violation of a contractual obligation ‘dissolves’ the counterparty’s obligation—which it does not, and in any event not automatically. But we have been moving away from this narrowly-conceived contractual paradigm since the late 40s; suffice it to mention here the Reservations to the Genocide Convention Advisory Opinion and the Barcelona Traction Judgment, to take just examples from the oldest-style permanent court you could imagine – the ICJ. The point is that this has not really translated in any significant change in locus standi for actors other than (directly injured) States except in the example of the very particular courts that Karen deals with in her book. Read the rest of this entry…


The Path of Judicialization: A Comment on Karen Alter’s The New Terrain of International Law

Published on April 23, 2014        Author: 

Krisch photoNico Krisch is ICREA Research Professor, Institut Barcelona d’Estudis Internacionals.

Karen Alter’s The New Terrain of International Law is a landmark achievement. It presents a sophisticated picture of the changed landscape of international courts as it has emerged in the last few decades, distinguished by the fact that many of the new courts enjoy compulsory jurisdiction and can be accessed by non-state actors. This opens up a much greater field of action, gives these courts a considerable caseload and also makes them perform new roles, going beyond traditional inter-state dispute settlement to include administrative review, law enforcement, and constitutional review. Organized around these different roles, The New Terrain provides a very helpful structure for conceptualizing what international courts do today and what challenges they face, especially when it comes to ensuring compliance with their rulings, and it draws our attention to less well-known but increasingly active courts in Latin America and Africa. The ‘altered politics’ framework the book presents for understanding the impact of international courts – focusing on effects through the mobilization of (largely domestic) ‘compliance constituencies’ – unfolds quite differently for the different roles, thus promising significant insights into the political dynamics around international courts.

It is not always clear, however, whether the four roles mentioned are indeed the most helpful heuristic for understanding these dynamics. First, they are often mixed: law enforcement, for example, will always be a part of the other three roles – dispute settlement, administrative and constitutional review – and its compliance constituencies (the political actors that need to be mobilized in order to achieve compliance) will vary depending on the kind of law to be enforced. Dispute settlement, too, will often overlap with administrative and constitutional review, depending on what kind of action is impugned. The relevant compliance partners and supporters are likely to be very different if a dispute concerns the construction of environmentally harmful pulp mills than if it is about an arrest warrant that executes a legislative choice for universal jurisdiction. Even the distinction between administrative and constitutional review, though generally very helpful, will in many cases fail to reflect a difference in political dynamics. Indirectly, administrative review may challenge politically salient statutes – and will often challenge regulation enacted by agencies of a sitting government – while constitutional review may well affect legislative choices of the past with no relevant defenders today. Moreover, the dynamics are radically different when review (of both the administrative and constitutional kind) is directed at inter- or supranational actors than when it is directed at the national level. Both are treated jointly in the book, but the former type, supranational review, would probably warrant a distinct category altogether, possibly along the lines of the global administrative law project.

Alter’s understanding of the dynamics around international courts – the ‘altered politics’ framework – cuts across different theories of international relations. Read the rest of this entry…


The New Terrain of International Law: Courts, Politics, Rights

Published on April 22, 2014        Author: 

Alter bookThe New Terrain of International law: Courts, Politics, Rights uses the universe of operational permanent international courts (ICs), those with appointed judges that stand ready to receive cases, as a laboratory to explore the changing reach and influence of international courts in contemporary politics. In 1989 when the Cold War ended, there were six operational ICs. Today there are more than two-dozen that have collectively issued over thirty-seven thousand binding legal rulings. The New Terrain of International Law shows how today’s international courts differ fundamentally from their Cold War predecessors. Most ICs today have ‘new-style’ features, compulsory jurisdiction and access for non-state actors to initiate litigation, which scholars associate with greater independence and political influence. Most ICs today have a mandate that extends beyond inter-state dispute resolution. Chapters in the book chart the uneven jurisdictional landscape of ICs today, and offer an account of the proliferation of new-style ICs.

The book is first and foremost a social science treatment of the growing role of ICs in politics today. I argue that the trend of creating and using new-style ICs signals a transformation from international law being a breakable contract between governments towards a rule of law mentality. ICs are not, I argue, the vanguard of this political change.  Rather, the trend towards creating new-style ICs reflects the reality that international law increasingly speaks to how governments regulate national markets, treat their citizens and conduct war, and both citizens and governments want these increasingly intrusive international legal agreements to be respected. For the most part, ICs are doing exactly what governments tasked them to do. International judges are resolving questions about the law, and holding governments and international organizations to international legal obligations.

My primary objective is to understand how and when delegating authority to ICs transforms domestic and international relations. Formally speaking, ICs have the power to issue rulings in the cases that are adjudicated. I explain how this inherently limited power to speak the law translates into political influence. Focusing on dispute resolution, enforcement, administrative review, and constitutional review, The New Terrain of International Law argues that ICs alter politics by providing legal, symbolic, and leverageable resources that shift the political balance in favor of domestic and international actors who prefer policies that are more consistent with international law. Read the rest of this entry…

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Joint EJIL:Talk! and Opinio Juris Discussion: Karen Alter’s The New Terrain of International Law

Published on April 22, 2014        Author: 

Alter bookThis week we will be hosting a joint discussion, along with Opinio Juris, of Karen J. Alter‘s book The New Terrain of International Law: Courts, Politics, Rights, recently published by Princeton University Press. Karen is Professor of Political Science and Law at Northwestern University. The book’s introductory chapter is available on SSRN. Here is the abstract:

In 1989, when the Cold War ended, there were six permanent international courts. Today there are more than two dozen that have collectively issued over thirty-seven thousand binding legal rulings. The New Terrain of International Law charts the developments and trends in the creation and role of international courts, and explains how the delegation of authority to international judicial institutions influences global and domestic politics.
The New Terrain of International Law presents an in-depth look at the scope and powers of international courts operating around the world. Focusing on dispute resolution, enforcement, administrative review, and constitutional review, Karen Alter argues that international courts alter politics by providing legal, symbolic, and leverage resources that shift the political balance in favor of domestic and international actors who prefer policies more consistent with international law objectives. International courts name violations of the law and perhaps specify remedies. Alter explains how this limited power–the power to speak the law–translates into political influence, and she considers eighteen case studies, showing how international courts change state behavior. The case studies, spanning issue areas and regions of the world, collectively elucidate the political factors that often intervene to limit whether or not international courts are invoked and whether international judges dare to demand significant changes in state practices.

Opinio Juris will host commentary by William Burke-White (University of Pennsylvania), Jacob Katz Cogan (University of Cincinnati), and Tonya Lee Putnam (Columbia University). Here on EJIL:Talk!, we will hear from Nico Krisch (Institut Barcelona des Estudis Internacionals) and Antonios Tzanakopoulos(Oxford University). Karen will respond to the comments on both blogs. We are grateful to her and all of the commenters for contributing to this symposium.

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Crimea: Does “The West“ Now Pay the Price for Kosovo?

Published on April 22, 2014        Author: 

There is a lingering sentiment on this blog (see the posts by Nico Krisch and Christian Marxsen) that “the Kosovo issue” has facilitated the blatant violations of international law recently committed by Russia with regard to Crimea (notably the unlawful annexation of that territory), and that “the West’s” behaviour in the Kosovo context now prevents clear condemnations and robust reactions towards these violations. That view has also been espoused elsewhere (see, e.g., Marcelo Kohen, “L’ Ukraine et le respect du droit international”, Le Temps, 13 March 2014 and Bruno Simma, “The West is hypocritical” (interview), Der Spiegel, 7 April 2014). The basic idea is that “the West” now pays the price for Kosovo, and that such a situation was predictable (and has been predicted) by those who now deplore it, and allows them to think (or even to say): “Well, we warned you from the beginning on, and this is now what comes out of it … so we were right”.

In this post, I would like to investigate the soundness of this position. We first have to ask what is meant by “the Kovoso issue”. Actually “Kosovo” refers to two events: not only to the sponsoring of Kosovo’s independence in 2008, but also to the possible unlawfulness of NATO’s military intervention of 1999. Both events were politically linked, and they concerned three different core norms of international law: the prohibition on the use of force, territorial integrity/inviolability of boundaries, and the self-determination of peoples.

In the Crimea crisis, all three norms are again at stake: Russia both relies on its right or even responsibility to intervene with military means to prevent human rights abuses committed against ethnic Russians and Russian citizens (humanitarian type /R2P-type intervention) and on the Crimean (or even Eastern Ukrainian) right to secession based on the right to self-determination whose exercise in Crimea led to a disruption of Ukrainian territorial integrity.

Did Russia abuse these norms? Read the rest of this entry…


Recognition of States in International Law: For Sale

Published on April 21, 2014        Author: 

alfonso-portillo-1-sizedNews reports indicate that former Guatemalan president Alfonso Portillo (pictured left) recently pleaded guilty in federal court in New York to accepting $2.5 million in bribes from Taiwanese officials in exchange for assurances of continued diplomatic recognition during his tenure in office (see here, here and here). To what extent is the recognition of a state undermined by charges of corruption? In the context of Taiwan, the recognition of a government, and not a state, was at issue. But as an analytical exercise it is interesting to think through the implications of corruption on the recognition of statehood in international law.

Statehood and recognition are distinct legal concepts, but in practice recognition can be dispositive of whether an entity is a state.  In light of the importance of recognition for the creation and existence of states, the possibility of corruption influencing the recognition process is disconcerting. In the case of Taiwan, “dollar diplomacy” is an established phenomenon, and allegations similar to those raised against Guatemalan president Portillo seem to be surfacing in El Salvador as well. Nor does it seem implausible that other instances of recognition, of and by other states, may have been similarly motivated.

To be clear, the issue discussed here is not recognition based on inducement or incentive to the recognising state, but recognition based on inducement or incentive to key officials in the recognising state. States routinely make binding political and legal decisions based on political and economic, tangible and intangible, inducements and incentives: defence deals, monetary aid, concession agreements and diplomatic manoeuvres just a few examples.

The issue that forms the subject of this post is whether the validity of an act of recognition can be impugned on the grounds that it was induced through the corruption of key government officials? Is it possible for Guatemala, or China to argue that the original act of recognition is invalid by reason of President Portillo’s corruption? This question of possible invalidity has two aspects. First, does the act of recognition bind the recognising state, notwithstanding the fact that it was a result of a mala fide exercise of powers by a key government official? Second, does the act of recognition vest an irrevocable right or status in the recognised state, such that notwithstanding the taint of corruption on the act of recognition, it cannot be invalidated?

The first question deals with the effect of the act of recognition on the recognising state. I would argue that such recognition, even if motivated by the corruption of a particular official, retains its validity. To begin with, it is well established that “the conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions” (Art. 7, ILC’s draft articles on state responsibility). Further, analogies from other areas of international law support this conclusion. In the matter of ‘full powers’ for the conclusion of treaties, the actions of persons who appear to represent the state with the state’s consent bind the state (Art. 7, VCLT). Similarly, the concepts of immunity rationae personae and rationae materiae, in protecting senior government officials from prosecution by other states, assume that the senior officials of a state act in the name of the state and bind the state by their actions.

Conversely, it might perhaps be possible to analogise from the doctrine of ‘odious debt’ that actions taken by corrupt government leaders in the recognising state, in their own interest, against the interest of the people they represent, when the recognised state knows that the actions benefit the officials and not the recognising state, should not bind the recognising state. There are two problems with this argument: first, it is unclear whether the odious debt doctrine applies outside of government debts, strictly construed; second, in relation to the recognition of states, it would be rather onerous to prove damage to the interests of the people of the recognising state and knowledge by the recognised state of this damage.

Therefore, the recognising state probably cannot seek to void its recognition because it was induced by individual corruption. To be clear, Guatemala is not restrained from separately revoking its recognition of Taiwan; it is, however, constrained from arguing that its original recognition was invalidated by the corruption of President Portillo. This is a narrow distinction in theory, but a broad distinction in practice. For instance, the difference between revocation and invalidation will have an effect on the scope of involvement of third states. If the validity of the original act of recognition is capable of being impugned, it may be possible for third states (for instance, China in this case) to challenge the recognition. But if the original act of recognition can only be revoked and not challenged, then it is only Guatemala that can revoke the recognition.

The second question deals with the effects of the recognition on the recognised state. Is it possible for the recognised state to argue that the act of recognition vests an irrevocable right or status? At least two possible arguments to this effect come to mind.

First, it could be argued that such a revocation amounts to denial of self-determination, but this argument is not persuasive. The right to self-determination does not include an unqualified right to independent statehood. Moreover, the impact of a singular instance of revocation of recognition on the self-determination of a recognised state would probably be difficult to determine, and would require an analysis of how many states have recognised the state, what the effect of a single revocation would be, whether that revocation would produce a knock-on effect, and so on. A second, more plausible, argument focuses on the violation of sovereign equality. Once an entity meets the criteria of statehood, and is recognised as such, the ability of individual states, or the international community, to revoke recognition and statehood would infringe the fundamental right of sovereign equality. International law does provide for such ability in limited circumstances, for instance through directives of the UNSC, but those circumstances are very limited, and restricted to situations involving threats to international peace and security.

Neither of these arguments is ultimately persuasive. The recognition of states in international law is a political act; there is no duty in international law to recognise a state, nor a right to be recognised. Similarly, the revocation of recognition is a political act. However, if these two arguments, or other similar arguments, were to be accepted, they would have the effect of preventing the revocation of recognition of statehood. And that is contrary to the accepted position in international law.

In conclusion then, an act of recognition of statehood induced by the personal corruption of individuals in the recognising state is valid in international law. But it is difficult for the recognised state to argue that the recognition is permanently irrevocable, and it is possible tor the recognising state to separately revoke its recognition.