Akehurst modern introduction to international law pdf

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AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW 'Professor Malanczuk has written a new edition of Michael Akehurst's textbook which. Akehurst's Modern Introduction to International Law SubjectsLaw, Politics & International Relations DownloadPDF MB Read online. Akehurst's modern introduction to international by Peter Malanczuk. Akehurst's modern introduction to international law. by Peter Malanczuk; Michael Akehurst.

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Akehurst Modern Introduction To International Law Pdf

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International Law. Particularly controversial in the context of the Yugoslavian conflict has been the drive for early recognition of Slovenia and Croatia, which Germany and Austria justified as being an attempt to contain the civil war, but which was seen by other states as premature action which actually stimulated it. Indeed, some authors require independence as an additional criterion for statehood.

An independent state becomes a dependent state only if it enters into a treaty or some 26 See Chapter 10 below, See also M. See also Chapters 11, and 22, and text, below. STATES other legal commitment whereby it agrees to act under the direction of another state or to assign the management of most of its international relations to another state.

It may seem artificial to have described Afghanistan, for instance, as an independent state, at the time when everybody knew that Afghanistan was forced to follow Soviet policy on all important questions;35 however, if international law tried to take all the political realities into account, it would be impossible to make a clear distinction between dependent and independent states, because all states, even the strongest, are subject to varying degrees of pressure and influence from other states.

Therefore, although sometimes amounting to little more than a mere legal fiction, the vast majority of states are considered to be independent in this sense. Moreover, it is important to note that, in principle, international law is indifferent towards the nature of the internal political structure of states, be it based on Western conceptions of democracy and the rule of law, the supremacy of a Communist Party, Islamic perceptions of state and society, monarchies or republics, or other forms of authoritarian or nonauthoritarian rule.

The legality or legitimacy of such an establishment are not decisive for the criteria of a state. Although the Holy Alliance in Europe after the Napoleonic Wars had sought a different solution,37 revolutions and the overthrow of governments have become accepted in international law; the only relevant question is whether they are successful. The choice of a type of government belongs to the domestic affairs of states and this freedom is an essential pre-condition for the peaceful coexistence in a heterogeneous international society.

Thus, international law also does not generally inquire into the question whether the population recognizes the legitimacy of the government in power.

Nor is it concerned with the actual form of government, democratic in one sense or another or not so. Certain qualifications in this respect may arise from the recognition of the principle of self-determination of peoples,38 but this is not pertinent to the question of whether or not a state exists. See Chapter 19 below, Capacity to enter into relations with other states The last criterion d in the Montevideo Convention suggested by the Latin American doctrine finds support in the literature40 but is not generally accepted as necessary.

Guinea-Bissau, for example, was recognized in the s by the United States and by Germany on the basis of only the first three elements. The Restatement Third of the American Law Institute, however, basically retains this criterion, although with certain qualifications: An entity is not a state unless it has competence, within its own constitutional system, to conduct international relations with other states, as well as the political, technical, and financial capabilities to do so.

The exercise of these rights has no other limitation than the exercise of the rights of other States according to international law. There are several examples of dependent states, which have only a limited capacity to enter into international relations and are usually mentioned as a special category. For example, colonies in the process of becoming independent44 often had a limited capacity to enter into international relations.

In practice, the formal grant of independence was usually preceded by a period of training, during which the colonial power delegated certain international functions to the colony, in order to give the local leaders experience of international relations.

Protectorates were another example.

Akehurst's Modern Introduction to International Law

However, the exact relationship depends on the terms of the instrument creating the relationship, and no general rules can be laid down. Protectorates were generally a by-product of the colonial period, and most of them have now become independent.

Trusteeships and associated territories that were placed under the control of the United Nations after the Second World War were also limited in their capacity to conduct foreign relations. Shaw, International Law, 3rd edn , Self-determination and recognition as additional criteria Some authors refer to other additional factors that may be relevant as criteria for states, such as self-determination and recognition.

These, however, are not generally regarded as constitutive elements for a state and it is agreed that what matters in essence is territorial effectiveness. In most cases the facts will be so clear that recognition will not make any difference, but in borderline cases recognition can have an important effect.

For instance, recognition of very small states such as Monaco and the Vatican City is important, because otherwise it might be doubted whether the territory and population of such states were large enough to make them states in the eyes of international law. Similar considerations apply in the case of secessionary struggles; outright victory for one side or the other will create a situation which international law cannot ignore, and no amount of recognition or non-recognition will alter the legal position; but in borderline cases such as Rhodesia now Zimbabwe between and , where the mother states efforts to reassert control are rather feeble, recognition or non-recognition by other states may have a decisive effect on the legal position.

If a member state of the federation acts in a manner which is incompatible with the international obligations of the federal state, it is the federal state which is regarded as responsible in international law. For instance, when a mob lynched some Italian nationals in New Orleans in , the United States admitted liability and paid compensation to Italy, even though the prevention and punishment of the crime fell exclusively within the powers of the State of Louisiana, and not within the powers of the federal authorities.

The representation of the German Bundeslnder on the European level in Brussels is of a different nature. It does not allow the exchange of ambassadors only commercial representatives or to generally engage in relations with a foreign government. Dehousse, Fdralisme et Relations Internationales, On state responsibility see Chapter 17 below, Malanczuk, Verfassungskrise und Probleme des Fderalismus in Kanada, Der Staat 20 , ; on recent secessionist tendencies see S.

Doran, Will Canada Unravel? Beyerlin, Rechtsprobleme der lokalen grenzberschreitenden Zusammenarbeit, ; N.

Levrat, Le Droit applicable aux accords de cooperation transfrontire entre collectivs publiques infratatiques, Governments A state cannot exist for long, or at least cannot come into existence, unless it has a government.

Thus the post-war governments of West Germany and Italy have paid compensation for the wrongs inflicted by the Nazi and Fascist regimes. The same principle is also illustrated by the Tinoco case. After his retirement, Costa Rica declared that the concessions and banknotes were invalid. The United Kingdom protested on behalf of the British companies, and the two states referred the case to arbitration.

See H.

For further discussion of the Tinoco case, see text below, 84, Lauterpacht, Recognition in International Law, ; I. Brownlie, Recognition in Theory and Practice, in R. Verhoeven, La Reconnaisssance internationale: dclin ou renouveau?

OConnell, International Law, 2nd edn , For the legal effects of recognition under English law, see Akehurst, 6th edn of this book, See also F.

See also Chapters 6, and 19, , below. Recognition of states and governments in international law Recognition is one of the most difficult topics in international law. The legal and political elements cannot be disentangled; when granting or withholding recognition, states are influenced more by political than by legal considerations, but their acts do have legal consequences.

What is not always realized, however, is that the legal effects of recognition in international law are very different from the legal effects of recognition in municipal law. Today a clear distinction must be made between the recognition of a state and the recognition of a government. The recognition of a state acknowledges that the entity fulfils the criteria of statehood.

The recognition of a government implies that the regime in question is in effective control of a state. The basic difference is that the recognition of a government necessarily has the consequence of accepting the statehood of the entity which the regime is governing, while the recognition of a state can be accorded without also accepting that a particular regime is the government of that state.

The first example in history was the recognition in by Spain of the United Netherlands, which had declared their independence in Another well-known example is the dispute between France and Britain on the status of the United States when it declared its independence.

At that time Britain took the view that title to territory could never be established by revolution or war without recognition by the former sovereign. It was the view of France, however, which was based on the doctrine of effectiveness, that became the accepted principle in the nineteenth century. According to the constitutive theory, advanced in particular by Anzilottii and Kelsen, a state or government does not exist for the purposes of international law until it is recognized; recognition thus has a constitutive effect in the sense that it is a necessary condition for the constitution that is, establishment or creation of the state or government concerned.

Thus, an entity is not a state in international law until it has secured its general recognition as such by other states. The constitutive theory is opposed by the declaratory theory, according to which recognition has no legal effects; the existence of a state or government is a question of pure fact, and recognition is merely an acknowledgment of the facts.

If an entity satisfies the requirements of a state objectively, it is a state with all international rights and duties and other states are obliged to treat it as such. An intermediate position was formulated by Lauterpacht who, on the basis of the constitutive theory, argued that other states had an obligation to recognize an entity meeting the criteria of a state.

During the nineteenth century, international law was often regarded as applying mainly between states with a European civilization; other countries were admitted to the club only if they were elected by the other members and the election took the form of recognition.

There were also occasions for example, during the period of the Holy Alliance, immediately after when some states tended to treat revolutionary governments as outlaws, which were likewise excluded from the club until they were recognized.

If the establishment of a state or government is a breach of international law, the state or government is often regarded as having no legal existence until it is recognized. For instance, for many years the Western powers refused to recognize the existence of the German Democratic Republic East Germany , mainly because they considered that its establishment by the Soviet Union was a breach of the Soviet Unions obligations under treaties made between the allies concerning the administration of Germany after the Second World War.

For instance, in the Tinoco case, Chief Justice Taft, the arbitrator, held that Tinocos regime was the government of Costa Rica because it was clearly in effective control of Costa Rica, and the fact that it had not been recognized by several states, including the United Kingdom, made no difference. Nevertheless, Chief Justice Taft indicated that recognition or non-recognition would have assumed greater importance if the effectiveness of Tinocos control over Costa Rica had been less clear, because recognition by other powers is an important evidential factor in establishing proof of the existence of a government.

Where the facts are clear, as in the Tinoco case, the evidential value of recognition or non-recognition is not strong enough to affect the outcome; in such circumstances recognition is declaratory.

Akehurst's modern introduction to international law

But in borderline cases, where the facts are unclear, the evidential value of recognition can have a decisive effect; in such circumstances recognition is semi-constitutive. On the other hand, recognition has little evidential value if the granting or withholding of recognition by other nations is not based on an assessment of the governments control over the country: when recognition vel non of a government is by such nations determined by inquiry, not into itsgovernmental control, but into its illegitimacy or irregularity of origin [as in the Tinoco case], their non-recognition loses something of evidential weight on the issue with which those applying the rules of international law are alone concerned.

Even before being recognized, the State has the right to defend its integrity and independence. The declaratory theory leaves unresolved the difficulty of who ultimately 71 See G. On the reunification of Germany and the problems of state succession see Chapter 11 below, Granting formal recognition to another state is a unilateral act which is in fact left to the political discretion of states, mostly to the executive branches which national courts generally tend to follow.

Premature recognition in such cases may even constitute a violation of international law and of the rights of the mother country. Most states refused to recognize the secession of Biafra form Nigeria in On the other hand, in the decolonization process there were many examples of the recognition of a territory as a new state while the colonial power was still in military control of it e.

Algeria, Guinea-Bissau. The Smith regime remained unrecognized for a long period until the state of Zimbabwe was established and accepted under a majority government in Examples of the perceived lack of independence of a new entity are the non-recognition by other states of the pre-war puppet-state of Manchukuo created by Japan, of Croatia established by Nazi Germany, the long delay of Western states in recognizing East Germany due to the influence of the USSR, and the refusal of the international community to recognize the South African homelands declared to be sovereign states by South Africa.

In most of the relatively few cases in which entities claiming statehood have allegedly come into existence by an illegal threat or use of force by another state, the dispute often cannot be resolved authoritatively. The secession of Bangladesh from Pakistan, supported by Indias armed intervention, gave rise to different views on the legality of the intervention, but states nevertheless generally recognized or treated Bangladesh as a state, which was also admitted to the United Nations and the British Commonwealth.

Many rules are applicable in spite of non-recognition, such as the prohibition of the use of force. Simmler, Kehrt die Staatengemeinschaft zur Lehre von der konstitutiven Anerkennung zurck?

Gruppe AAA 9 , Frowein , op.

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See also Chapter 22 below, See E. See Chapter 22 below, Nor does the termination of diplomatic relations automatically lead to de-recognition. See J. See also Chapter 8 below, Legal effects in domestic law If state A recognizes state B, this usually entails that the courts of state A will apply the law of state B and give effect to its sovereign acts. Courts in Switzerland and Germany have always applied the effective law governing a foreign territory even if it was not recognized as a state.

English and American courts originally had a tendency to completely disregard the law and sovereign acts of a foreign state, unless it was recognized by their governments. However, changes in the United States and Britain then went in the direction that courts could apply the law of a non-recognized entity if the executive confirmed that this was not harmful to the foreign policies behind the non-recognition.

Recognition is accorded to the head of state, and so no problem of recognition arises when a revolution does not affect the head of state for example, the military coup in Greece in April , which overthrew the Prime Minister but not the King.

Nor does any problem of recognition arise when there is a constitutional change in the head of state, for example, when a British monarch dies and is succeeded by the eldest son, or when a new President of the United States is elected.

States have often used recognition as an instrument of policy; for instance, the United States has often regarded recognition as a mark of approval, and in President Wilsons time it withheld recognition from Latin American regimes which had come to power by unconstitutional means, such as Tinocos regime in Costa Rica.

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