Non-recognition of unlawful situations as customary international law: A case-based approach
Date
2024
Authors
Trung, Nguyen Quoc Tan
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Abstract
Non-recognition, resembling the ancient legal principle ex injuria jus non oritur (Rights shall not derive from an illegal act), is supposedly an organic and inherent concept of public international law, if not the intuition of law in general. The objective of non-recognition is simple: it amounts to a refusal of recognition of any attempts to create a title of rights or consolidate a situation as a legal reality because what leads to it is contrary to international law. In the words of the late ICJ judge Hersch Lauterpacht, non-recognition is to “prevent the validation of what is a legal nullity”. In practice, non-recognition can include actions such as declarations, the exclusion from an organisation, and non-cooperation with the perpetrator in certain aspects of international life that might imply the acquiescence of such unlawful situations and even severance in other multilateral and bilateral ties with the perpetrator.
Non-recognition indeed has manifested its utilities and powers in some instances, including the non-recognition campaigns against South Africa’s apartheid regime and their attempts to internationalise the system and Israel’s occupation of Palestinian territories. However, many scholars and statespeople also argue against non-recognition, citing its empirical inconsistency and operational incoherence. Others insist that ex jactis jus oritur (effectiveness), a principle emphasising accepting the law-creating influence of facts, would overshadow non-recognition in a corporeal practice of international politics. The cases of Ethiopia, Tibet, Goa, Afghanistan and especially the infamous contemporary cases of Kosovo and Crimea, to name a few, are major talking points of this argument.
This dissertation is a systematic investigation of non-recognition. From exploring the possible theoretical roots of non-recognition in East-West international philosophicalisation to its historical development and then forming a tangible idea of non-recognition through the case studies database, I argue that not only is non-recognition already a custom in international law, but its behavioural foundation has been more relevant in the history of Confucious international order rather than the often-assumed Westphalian international order.
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non-recognition, state responsibility, TWAIL, customary international law, constructivism, Ethiopia, Manchuria, Palestine, Israel, China, Tibet, Vietnam, Cambodia, India, Russia, Ukraine, South Africa