The recognition of states under international law with particular reference to the Maltese perspective

Abstract

This thesis studies the recognition of States in public and private international law. It traces the historical and current developments of the theoretical underpinnings of recognition, its relation to law and the creation of States. This work delves into different facets of the act of recognition, such as its manifestation de jure and de facto, its formal and tacit exercise, its retroactivity and means of expression. The thesis also tackles the factual and legal effects of the exercise of recognition, or the withholding thereof, particularly with regard to unrecognised putative States and it examines the constitutional interplay of State organs in relation to the same. The research also presents a study of Maltese recognition practice in recent history. This work's primary contribution to the Maltese context, is the presentation of a succinct set of norms, based on international law and practice, which seek to strengthen local confidence in the exercise of recognition of States. These guiding norms specifically prohibit recognition in cases of jus cogens breaches in State creation. Conversely, they invite recognition where the external right to self-determination is applicable and in situations where the parent State acquiesces to independence. The thesis also delineates the limits of these presumptions. The research also recommends particular considerations which can be referred to by Maltese courts whenever questions arise involving the effects of recognition, vel non, in the municipal and private international law spheres. These suggestions call for judicial sensitivity to the private realm of persons exposed to prejudice due to non-recognition. This work draws upon various foreign and local sources including treaties, international court decisions, State practice, writings of authoritative publicists, travaux preparatoires, foreign statute and case law, parliamentary debates and personal communications with past Foreign Ministers and persons from the Legal Unit of the Ministry for Foreign Affairs, Malta.