Recognition of Governments in International Law: With Particular Reference to Governments in Exile STEFAN TALMON

CLARENDON PRESS • OXFORD 1 9 9 8 ..•

Contents Abbreviations Table of Cases Alphabetical Table Classification According to Countries and Courts Table of Treaties Bilateral Treaties Multilateral Treaties Table of National Legislation

Introduction Abolition of Recognition of Governments? Recognition of Governments in Exile

XV

xxvii xxvii XXXV

Ivii lvii lxii lxvii

3 3 14

Part I. Meanings of Recognition of Governments in International Law 1. Meanings of 'Recognition' 1. 2. 3. 4.

Introduction Indication of Willingness to Enter into Official Relations Manifestation of an Opinion on Legal Status Relationship Between the Two Meanings

2. Recognition and its Variants 1. Variants and their Meanings 2. Early Usage of de facto, Diplomatic, and de jure Recognition: The Recognition of the New States in America (1) Original Meanings of the Variants (2) Reason for the Introduction of the Variants (3) Distinction between de jure Recognition by the Former Sovereign and Recognition by Other States 3. Modern Usage of de facto and de jure Recognition (1) Relationship between de jure/de facto Recognition and Recognition of or as a de jure/de facto Government

21 21 23 29 33 44 44 49 49 54 56 59 59

xii

Recognition of Governments (2) (3) (4) (5)

Meanings of de jure Recognition Meanings of de facto Recognition Use of the Terms lde facto' and 'de jure Recognition' Areas of Use of de facto and de jure Recognition (a) Secession, Decolonization, or Partition of States (b) Annexation of States (c) Rival Governments of the Same State (d) Effective Governments of States (6) Meanings of Other Variants

65 77 89 95 95 102 105 107 108

Part II. Legal Status of Authorities in Exile Recognized as Governments 3. Preliminary Considerations

115

4. International Representation

117

1. Legal Transactions (1) Treaties (a) Treaty-making Competence (b) Limitations upon Treaty-making Competence (c) Rights and Duties under Existing Treaties (2) Unilateral Acts 2. Foreign Relations and Judicial Proceedings (1) Bilateral Relations (a) Formal Diplomatic Relations (b) Diplomatic and Consular Missions to States whose Governments are in Exile (c) Status of Diplomatic Agents Following the Government into Exile (d) Severance of Diplomatic Relations and Withdrawal of Recognition Distinguished (2) Multilateral Relations (a) Representation of Members in Inter-State Forums (b) Admission to Membership of Inter-State Forums (3) Judicial Proceedings

117 117 117 129 136 142 149 149 149

3. State Property Abroad

191

(1) Access to State Property Abroad (2) The Role of the State of situs

159 165 168 173 173 184 189 191 195

Contents

xiii

(a) The Practice of Freezing Foreign Assets 195 (b) US Legislation: The Edge Act 1941 196 (c) The Case of Panamanian Property in the United States 196 (3) Succession to Property Abroad Controlled by Authorities in Exile 199 4. Protection of Nationals 5. Jurisdiction 1. Introduction 2. Exercise of Jurisdiction in the Host State (1) Existence of Jurisdiction (2) Consent of the Host State 3. Legislative Jurisdiction (1) Legislative Authority Inside National Territory (a) National Territory under Belligerent Occupation (b) National Territory under Control of a de facto Government (2) Extraterritorial Legislative Authority 4. Enforcement Jurisdiction 5. Recognition and Enforcement of Legislation in Exile by Foreign Courts (1) General Rule (2) Validity of the Law (3) Public Policy 6. Privileges and Immunities 1. Introduction 2. Government in Exile (1) Jurisdictional Immunities (a) Action in personam (b) Action in rem (c) Action against a Third Party (2) Inviolability of Seat of Government in Exile 3. Individual Members of the Government in Exile and its Army (1) General Principle: Qui in territorio meo est, etiam meus subditus est

202 207 207 208 208 215 218 219 219 227 231 238 243 243 246 248 251 251 252 252 252 254 255 256 258 258

xiv

Recognition of Governments (2) (3) (4) (5)

Heads of State Members of Government and Senior Staff Junior and Subordinate Staff Members of the Armed Forces of the Government

259 261 266

in Exile

267

Conclusion

269

Appendices I. Questionnaire on the Recognition of Governments and Answers Received II. Authorities in Exile Claiming to be 'Governments': Profiles III. List of Treaties Concluded by Authorities in Exile Recognized as Governments Bibliography Books and Articles Sources of State Practice

275

Index

375

275 286 318 343 343 367