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Home States and Statehood Archive for category "Government" (Page 2)

Palestine, Statehood and the Challenges of Representation

Published on December 19, 2011        Author: 

Guy Goodwin-Gill is a Senior Research Fellow at All Souls College, Oxford and Professor of International Refugee Law, University of Oxford. Previously, he was Professor of Asylum Law at the University of Amsterdam and Legal Adviser in the Office of United Nations High Commissioner for Refugees from 1976-1988. He practises as a Barrister from Blackstone Chambers, London.[i]

The bid by Palestine for full UN membership in September last has generated controversy, discussion, reflection, and doubt, all now helped along by UNESCO’s recent decision to admit Palestine as a State of full capacity.

The questions arising here, of course, are not just sterile, academic ones about the incidents and criteria of statehood. Rather, we are at an intensely political moment, and what we are seeing is deep-seated frustration on the part, not only of Palestinians, but also once again, of substantial numbers of the world community who see justice for the people of Palestine endlessly obstructed by the intransigence of the Israeli Government.

In this highly contested context, and from a limited international law perspective, Palestinian ‘statehood’ can only seem indeterminate and uncertain, considered against traditional, Montevideo Convention criteria – a fluctuating and hitherto uncounted population, borders at the mercy of realignment by superior force, daily restrictions on the capacity to govern itself. And yet, as many have said, the conception of the Palestinian State may still have its uses, and offer the potential for Palestinians to put their complaints, their disputes, their rights and their claims on a higher plane, and to access more directly a variety of international mechanisms to assist their cause, bringing about or bringing closer that goal of a State in international law, a national home for the people of Palestine which has been the stated aim of the international community for over sixty years.

 Today, however, I do not want to look so much at the issue of Palestinian statehood, but rather at that the ‘Ur-question’ – the question behind the question, the question that we can and should ask of every State, actual and potential. And that question is about who represents the State in its relations with other States, and by what right or claim, and about whether this is a matter of international legal concern.

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The Birth of Israel and Palestine – The Ifs of History, Then and Now

Published on September 26, 2011        Author: 

Given the promised September UN move by the Palestinian Authority it is of interest to recall some of the circumstances surrounding the birth of Israel. There are some interesting historical parallels and some differences. In public opinion and Hollywood movies, Israel was born with a UN midwife: UNGA Resolution 181, the famous Partition Resolution of 29 November 1947

The Resolution called for, inter alia, the creation of two states, the internationalization of Jerusalem and … wait for it … an economic Union within the whole territory! ‘De Facto Solidarity’ was not, apparently, invented with the Schuman Declaration.

Arab states spoke forcefully against the Resolution and, obviously, voted against it en bloc.  Not only did they not recognize Israel in the sense of declining diplomatic relations – they argued the very illegitimacy of Israel as a state. In furtherance of this position, in the lawfare (only the term is new, not the praxis) that immediately erupted, Arab scholars spent much ink on dismissing any legal significance to that Resolution – essentially arguing the general non-binding nature of General Assembly resolutions. (You don’t see that argument about UNGA Resolution 181 being made too often today by the Arab protagonists in the ongoing lawfare.)

Many Israeli scholars readily conceded the point. Indeed, they argued, it was not within the power of the General Assembly as such legally to sanction the creation of a new state, though, of course, the Resolution was politically very important. Israelcame into being, it was argued, when it declared independence on 15 May 1948 upon termination of the British Mandate over Palestine. The birth of the new state under international law was the result, it was claimed, of the widespread and representative recognition of it by the states of the world community. On this reading, Israel came into being not on the morrow of the November 1947 Partition Resolution, but in May 1948. Read the rest of this entry…

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Can Libya Sue the UK on Recognition of the National Transitional Council?

Published on July 30, 2011        Author: 

Earlier this week, the UK Foreign Secretary, William Hague announced that the UK now recognises the Libyan National Transitional Council (the rebels fighting Colonel Gaddafi’s forces) as the sole governmental authority in Libya. This was an implementation of the decision reached in the context of the Libya Contact Group meeting which I spoke about last week (see here). As part of the UK’s decision, the UK has expelled those Libyan diplomats in the UK appointed by Gaddafi and has invited the Libyan NTC to appoint a new diplomatic envoy to the UK. As indicated in my previous post, one of the consequences of the recognition decision (and perhaps one of the drivers of the decision) is that the UK is willing to release some Libyan assets in the UK for use by the NTC. In particular, the UK is unfreezing £91 million belonging to a Libyan oil company which is controlled by the NTC. However, the vast majority of the Libyan State’s assets in the UK remain frozen.

In response to all of this the Libyan Deputy Foreign Minister (by which I mean the Gaddafi govt’s Deputy Foreign Minister) declared that these moves by the UK are illegal and that Libya will sue the UK in the International Court of Justice and in British domestic courts. Libya has been involved in quite a few cases before the ICJ – recall the maritime delimitation cases with Tunisia and with Malta in the 1980s, the Lockerbie cases against the UK and the US in the 1990s – so it is perhaps no surprise to hear that they are considering another suit at the ICJ. But are there jurisdictional grounds for such a suit and what exactly might such a claim involve? Read the rest of this entry…

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Recognition of Libyan National Transitional Council as Government of Libya

Published on July 23, 2011        Author: 

On June 16, I wrote a post asking “Which Entity is the Government of Libya and Why does it Matter?” In that post, I explained that what appeared to be recognition by a number of States of the Libyan “rebel” National Transitional Council (NTC) as the government of Libya was not necessarily so (see also the ASIL Insight published on the very same day as my post by my colleague Stefan Talmon). Matters have now changed quite dramatically. A month later (on July 15), a group of 32 States (including the United States and the United Kingdom) at the Libya Contact Group meeting in Turkey issued a statement in which they declared that:

The Contact Group reaffirmed that the Qaddafi regime no longer has any legitimate authority in Libya and that Qaddafi and certain members of his family must go. Henceforth and until an interim authority is in place, participants agreed to deal with the National Transitional Council (NTC) as the legitimate governing authority in Libya.

This is clear recognition, by members of the Contact Group, of the NTC as the government of Libya.

As noted in my previous post, such formal recognition is contrary to the stated policy of many of these countries that they do not recognise governments. In reality, States always have to decide which entity they consider to be the government of other States. However, the policy of not recognizing governments meant that some countries would not make formal statements announcing the recognition decisions they had made. This statement by the contact group not only exposes the lack of reality in the policy of not recognizing but even goes against the practice of not making formal statements regarding recognition.

One of the main consequences of this joint act of recognition is that it may permit the NTC to lay claim to foriegn assets of Libya. Many of those assets are currently frozen under sanctions imposed by the US and the European Union. However, even, if the executive branch in those countries reverses those  freezes (see report here at Bloomberg Businessweek), there may well be litigation in domestic courts raising the question of who is entitled to control those resources (the NTC or the Gaddafi authorities). Read the rest of this entry…

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Filed under: EJIL Analysis, Government, Libya
 

Which Entity is the Government of Libya and Why does it Matter?

Published on June 16, 2011        Author: 

 In the past couple of days, Germany and Canada have joined the group of countries that have declared that they consider the National Transitional Council (NTC) in to be the “legitimate representative” of the Libyan people. But what exactly does this mean? According to the BBC, the group of countries extending this recognition includes France, the UK, Italy, Spain, Germany, the UAE, Qatar, Jordan, Gambia, Senegal and Australia. Russia and the United States have had meetings with the NTC and have also made similar declarations about the illegitimacy of the Gaddafi regime and about the legitimacy of the NTC (see previous post by Stefan Talmon on the US position in March). What are the legal implications, if any, of these statements by different countries? One key question with all of these developments is whether they mean that the countries extending this form of recognition consider the NTC as the government of Libya. Secondly, if they do regard them as the government of Libya what are the international law implications of such recognition?

In a previous post, my colleague Stefan Talmon explained that declarations that the Gaddafi regime is illegitimate does not mean that that regime is not (and is not considered to be) the government of Libya as a matter of international law (and in the domestic law of other countries). What about the reverse? Do declarations about the legitimacy of the NTC mean this entity is (or is considered to be) the government of Libya as a matter of law? I think the answer is that Stefan’s point also works in reverse. Declarations about the legitimacy of the NTC are primarily intended to be political and to have effect at that political level. They are not necessarily intended to be statements with legal effect. But the emphasis here is on necessarily. To the extent that what one is dealing with is the question whether the NTC is recognised as the government of Libya, what we are dealing with here is a question of intention. What do the countries extending this form of recognition intend? Do they intend to recognise the NTC as the government of Libya? In addition to these questions of recognition, there is also the question whether under international law recognition matters. Or to put it differently, is the question of which entity is the government determined or affected by who is recognised by others as the government of Libya?

Has there been a Reversal of the Policy of Not Recognising Governments?

One of interesting things here is that many of the countries declaring the NTC as the legitimate representative of the Libyan people are countries that have a policy of not recognizing governments. Read the rest of this entry…

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Filed under: EJIL Analysis, Government, Libya
 

The Difference between Rhetoric and Reality: Why an Illegitimate Regime May Still be a Government in the Eyes of International Law

Published on March 3, 2011        Author: 

Stefan Talmon is Professor of Public International Law at the University of Oxford.

The current situation in Libya provides a good example of grand political rhetoric meeting legal reality. Over the last fortnight the Qadhafi administration seems to have undergone a transformation from being the ‘Government of Libya’ to being an ‘illegitimate regime’. On 26 February 2011, US President Barack Obama said with regard to Colonel Qadhafi: ‘when a leader`s only means of staying in power is to use mass violence against his own people, he has lost the legitimacy to rule’. This was echoed two days later, by UK Prime Minister David Cameron who told the House of Commons: ‘It is clear that this is an illegitimate regime that has lost the consent of its people.’

Through his actions, Colonel Qadhafi may ‘have lost the legitimacy to govern’ but has he also lost the competence to do so under international law? International law does not distinguish between illegitimate regimes and lawful governments. ‘Legitimacy’ is a political concept and not a legal term of art. In fact, international law does not provide any criteria for defining and determining legitimacy. If consent of the people or a democratic mandate were indeed such criteria, many governments in the world would have to be ‘downgraded’ to illegitimate regimes. Both the United States and the United Kingdom are, of course, aware of the distinction. Thus, on 25 February 2011, US Assistant Secretary of State Philip Crowley told a press conference

‘I believe, from a legal standpoint, he [Colonel Qadhafi] is still the head of state and head of government. But clearly, he has lost legitimacy in the eyes of his people, and that obviously influences our perceptions of him as well.’

While it is in the interest of the United States and the United Kingdom to keep channels of communication open and to deal with the representatives of the Libyan government as long as that government is in power, however obnoxious it may be, such behaviour is difficult to explain against the backdrop of the ‘illegitimacy’ rhetoric and may also cause some embarrassment.

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Filed under: EJIL Analysis, Government, Libya
 

Has the United Kingdom De-Recognized Colonel Qadhafi as Head of State of Libya?

Published on February 28, 2011        Author: 

On 27 February 2011, it was reported in the media that the United Kingdom had revoked the diplomatic immunity of Libyan leader Muammar Qadhafi and his family (see here and here). Earlier that day, the British Foreign Secretary, William Hague, told BBC1`s Andrew Marr Show:

‘[…] the people of Libya have risen up against Colonel Gaddafi. We have here a country descending in to civil war with atrocious scenes of killing of protestors and a Government actually making war on its own people so, of course, it is time for Colonel Gaddafi to go. That is the best hope for Libya and last night I signed a directive revoking his diplomatic immunity in the United Kingdom but also the diplomatic immunity of his sons, his family, his household so it`s very clear where we stand on, on his status as a head of state.’

William Hague`s statement seems to give the impression that the United Kingdom no longer recognizes Colonel Gadhafi as ‘head of State’, despite him still being listed as such on the Foreign and Commonwealth Office`s website ‘Country Profile: Libya’. This also seems to be confirmed by the fact that an operation by British special forces the night before which rescued some 150 oil workers from remote desert camps in Libya was carried out without the ‘official permission’ of the Qadhafi Government.

The revocation of personal immunity and, even more so, the withdrawal of recognition from a serving head of State who continues to control substantial parts of the foreign State`s territory would seem an unprecedented move in British State practice. Recognition is usually withdrawn and, consequently, immunity lost when a government ceases to be effective, either because it is forced into exile or comes under foreign military occupation. Withdrawal of recognition takes place either by express notification or public statement, or implicitly through the recognition of a new de jure government. The British Government withdrew its recognition, for example, from Emperor Haile Selassie of Ethiopia in November 1938, the Polish Government of Unity and National Defence on 5 July 1945, the Nationalist Government of China on 6 January 1950, and the Government of Democratic Kampuchea on 6 December 1979.

Rather than withdrawing head of State recognition from Colonel Qadhafi and depriving him of diplomatic or personal immunity in the United Kingdom, the Direction signed by Foreign Secretary William Hague has, in fact, a much more limited effect.

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Filed under: EJIL Analysis, Government, Libya
 

Duality of government in Côte d’Ivoire

Published on January 4, 2011        Author: 

 Dr. Jean d’Aspremont is Associate Professor of International Law and Senior Research Fellow of the Amsterdam Center for International Law at the University of Amsterdam. He is  also Guest Professor of International Humanitarian Law at the University of Louvain in Belgium and Senior Editor of the Leiden Journal of International Law.

The current distressful situation in Côte d’Ivoire is pitting two warring factions against one another, each of them claiming to be the legitimate authority entitled to act and speak on behalf of the State. Such a duality of government is, regrettably, far from being unprecedented and raises some legal issues which are not unknown to international lawyers.

A sketch of the facts

The eligibility of Alassane Ouattara – President of the Rally of the Republicans (RDR) whose popular support lies mainly in the north of the country, former Prime Minister of Côte d’Ivoire and a former IMF managing director – to run for office has been a bone of contention in the political scene in Côte d’Ivoire for more than a decade. Indeed, several key political figures began, in the mid-nineties, to make use of the loaded argument of ‘Ivoirité’, especially following the 1995 electoral code barring candidates from taking part in the national elections if either of their parents were of a foreign nationality and if they had not lived in Côte d’Ivoire for the preceding five years – a stipulation which had been perceived by many as meant to exclude the popular Ouattara who was said to be of Burkinabé (i.e. Burkina Faso) origin. After a coup d’Etat in 1999, a new Constitution in 2000, a civil war between a government-controlled south and a rebel-held north, a painstaking peace process between the insurgency led by Guillaume Soro and Laurent Gbagbo in power in Abidjan, a unity government and several postponements of the last round of elections in which Ouattara had eventually been allowed to participate, the severe tensions that had beset the country over the last decade came again to a head in the aftermath of the 28 November second round of the presidential elections. Indeed, on 2 December 2010, the Independent Electoral Commission (hereafter CEI) announced the provisional results according to which Ouattara had won the election with 54% of the vote. Gbagbo claimed that the elections had been rigged by the former rebels and the results were invalidated by the President of the Constitutional Council which declared Gbagbo the winner.

Recognition of Ouattara as the legitimate head of Côte d’Ivoire

The international community was very prompt to endorse the position of the CEI and recognize Ouattara as the legitimate leader of Côte d’Ivoire. Although many States still profess that they do not officially recognize governments, it has long been demonstrated that such a political claim has never entailed an actual abandonment of the practice of recognition of governments but rather a toning down of the solemnity with which new governments are recognized. Situations of duality of government, as that in Côte d’Ivoire, makes this claim even less sustainable, for States around the world, and especially those having strong relations with – and interest in – the country, inevitably need to determine whom they will speak to and thus who they see as being in charge. Read the rest of this entry…

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The Honduran Crisis and the Turn to Constitutional Legitimism, Part I: The Place of Domestic Constitutional Orders in the International Legal Framework

Published on September 23, 2009        Author: 

Who is the current President of Honduras?  Far from the stuff of quiz shows, this question bears on the very foundations of international law.  The international reaction to the June 28, 2009 ouster of President Manuel Zelaya, though superficially similar to earlier repudiations of coups, is in important respects unprecedented.  Its implications have a profundity that few international actors – least of all, President Zelaya’s strongest international political allies – seem to have considered.

A decade ago, I explored at length the question of Governmental Illegitimacy in International Law.  The title was initially intended as a provocation, since the legitimacy of governments had ordinarily not been considered a proper object of international law.  It had largely been taken as a given that a ruling apparatus exercising “effective control through internal processes” – whether or not formally “recognized” – would be acknowledged to have legal standing to assert rights, incur obligations, exercise powers, and confer immunities on behalf of the underlying sovereign entity that enjoyed membership in the international legal order.

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Comment on Benvenisti & Downs’, ‘National Courts, Domestic Democracy, and the Evolution of International Law’

Published on June 23, 2009        Author: 

Alison MacDonald is an English Barrister at Matrix Chambers and was a Fellow at All Souls College, Oxford from 1999 to 2006. She has acted as counsel before a range of international tribunals including the European Court of Human Rights, the Special Court for Sierra Leone, the International Tribunal for the Law of the Sea, and in ICSID arbitrations. She has also appeared in cases raising international law issues in English courts, including before the House of Lords.

 In this comment on Benvenisti and Downs’ fascinating article, I set out some thoughts from the perspective of an English legal practitioner.

The English courts have been creative in developing legal rules and principles to avoid adjudicating on what have traditionally been considered to be core executive functions. Benvenisti and Downs describe such rules as ‘avoidance doctrines’, either ‘doctrines which were specifically devised for such matters, like the act of state doctrine, or general doctrines like standing and justiciability’. As they say, such doctrines ‘provided the executive with an effective shield against judicial review under international law.’ The doctrines of justiciability and act of state have fulfilled this function in English law, though their justification has been framed in terms of the courts’ competence to adjudicate on those issues, rather than in terms of protecting the executive from scrutiny, or protecting the courts themselves from difficult decisions or political criticism.

Certainly before the English courts, these ‘avoidance doctrines’ have been significantly eroded in recent years. Benvenisti and Downs’ article suggests that this erosion is part of a broader international trend, at least among ‘national courts from prominent democratic states’. English law continues to recognise an area of non-reviewable executive power, but it is shrinking.

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