University of Sydney - Faculty of Law
December 16, 2013
Chinese (Taiwan) Yearbook of International Law and Affairs, 2014 Forthcoming
In the early 20th century a practice developed of refusing to recognise the legality of a situation resulting from a breach of international law. This became known as the doctrine of non-recognition and was regarded as an appropriate, but largely discretionary, response by individual states, and the international community generally, to particularly serious breaches of international law. At some point this doctrine came to be regarded as a duty, and is now widely accepted as such, especially where the breach is of a jus cogens norm. Beyond that deceptively simple proposition, however, views differ and the law is undeveloped. Is the duty self-executing, or does it depend on a binding decision by an organ such as the Security Council or the General Assembly? If the latter, is it really an independent duty at all? If it is self-executing, when precisely does it arise? A further question that has scarcely been addressed in the literature is, what are the legal effects for, and remedies against, a state violating the duty of non-recognition? Was the 1989 Timor Gap treaty between Indonesia and Australia, for example, void as alleged by Portugal in the East Timor case, and was the responsibility of Australia and Indonesia therefore engaged?
This paper offers some tentative answers to these questions. It analyses the history and development of the duty of non-recognition, and endeavours to identify when the doctrine of non-recognition became – if indeed it has become – a legally binding duty on all states. It challenges the commonly held view that the duty is self-executing, and suggests that the application and effects of the duty are not as clear as many writers assert. In particular it argues that while a treaty recognising, for example, sovereignty over seized territory may be in breach of the principle of non-recognition, it will not necessarily be void.
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