Book Reviews

Talmon, Stefan. Recognition of Governments in International Law: With Particular Reference to Governments in Exile. Oxford: Clarendon Press, 1998. Pp. lxxii + 393, £50.

This book forms part of the series of Oxford Monographs in International Law under the general editorship by Professor Ian Brownlie. Dr Talmon is to be congratulated on this valuable contribution to the ever-topical issue of recognition of governments in international law.

A few general comments on the subject matter and method of study need to be made in order to demonstrate two aspects of Dr Talmon's understanding of the topic. First of all, Talmon's analysis of recognition of governments in international law informs the reader that there are cases in which this type of recognition has legal effects which differ from the recognition of states. Second, it is not the author's intention to discuss general rules and principles of international law regulating the recognition of governments, except where these may be identified on the basis of particular state practice. This approach reinforces the understanding that recognition may be an exercise of state discretion, especially with regard to the recognition of governments. At the same time, certain rules and principles have emerged through state practice and apply in cases which are referred to in this study on recognition of governments in international law. The strength of this study lies in its broad, almost exhaustive, collection of state practice, which serves as the main source for Talmon's synthesis of legal rules and principles relevant to the recognition of governments.

The author has divided his study into two parts. In Part I he examines the meaning of recognition of governments in international law. This he does by raising questions concerning the willingness of states to recognize governments (p. 12), whether states may refuse to recognize governments, and whether the opinion of states concerning the fact of existence of governments can be prescribed by, or should comply with, rules of international law (pp. 39-40). The author then proceeds with the examination of different variants of recognition of governments in international law, beginning with references to older examples and leading to more recent ones

In what seems to be the main point of inquiry in Part I, Talmon questions whether the thesis that there no longer exists a distinction between de jure and de facto recognition of governments, or any other formal categorization of acts of recognition of governments in modern international law, is supported by state practice. For example, he identifies at least six different situations in relation to which the term 'de facto government' has been used in state practice (p. 60). Different terms could be used by different states in similar circumstances. The obvious question is whether the various terms have correspondingly different legal and practical consequences or whether the same term, as used in different cases, has similar legal and practical effects in relation to the recognition of governments. Talmon concludes that the degree, form and consequences of recognition are to be determined by looking at the intention of each state rather than at the wording used - a conclusion which is certainly consistent with the pattern of international law process.

One of the examples which the author has studied is the recognition of the Estonian National Council in 1918 and the Latvian National Council in 1917 by the British Government as de facto governments of the territories identified at that moment as Estonia and Latvia respectively. The author argues that, despite the somewhat confusing language of these statements, they were intended to recognize the governmental authority of the two Councils and nothing more. Talmon explains his argument by referring, among other things, to the contemporary situation in the Baltic region, where Estonia and Latvia were battlefields for German and Soviet troops in 1918-1919 (pp. 69-71). It is worth noting that the British statements provoked similar interpretative confusion in the two Baltic states.

In further showing the possible distinction between de jure and de facto recognition of governments, the author distinguishes between four groups of cases: (a) secession, decolonization or partition of states, (b) annexation of states, (c) rival governments of the same state, and (d) effective governments of states. The introduction for each category begins with a summary of what seems to be the established state practice in that type of case, which could thus be considered as forming the customary rule of international law, even if the author does not express it in such terms. For example, in the case of annexation of states, it is claimed that:

As long as a government has not yet recognised the annexation of a State (i.e. the sovereignty of the annexing State over the annexed territory) it cannot recognise (de jure) the annexing State's government as the government of the annexed territory (p. 102).

This seems to be one of the rules which derives from the principle of ex injuria jus non oritur. Recognition of the annexation of a state is a matter which operates at another level and is subject to other rules of international law. It is, however, directly relevant to what happens to governments.

The situation in the Baltic states in 1990-1991 provides an interesting example of this type of case. It may be recalled that the three Baltic states adopted independence declarations in 1990, proclaiming either full independence, as in Lithuania's case, or independence following a period of transition, as occurred with Estonia and Latvia. Apart from the question whether these actions on the part of the Baltic states represent an example of secession or decolonization (the Baltic states asserted the continuity and identity of their states, based on the earlier violation of the rule prohibiting the use of force between states by the USSR), questions certainly arise here in relation to recognition of governments in international law.

It must be noted that the wording used in inter-state relations is often nuanced and even indeterminate, including for political reasons, which increases the difficulty of discovering what legal consequences may arise between the two states. It should be noted that it does not fall within Talmon's primary aims to provide an answer to the usual question whether recognition is constitutive or declaratory of a government. The answer to this question, if it can be answered at all, will only emerge from an inquiry into different cases of recognition and their legal and practical effects. In principle the question cannot be answered a priori.

This is an incomplete picture, however, because it raises the question whether everything done by states in recognizing governments is accepted in international law, thereby giving rise to legal consequences. This question is not the main subject-matter of the study, as identified by the author, but it is answered by implication when he discusses cases and draws upon rules and principles which have emerged through these practices.

In Part II, Dr Talmon examines the competence of governments-in-exile, as recognized by third states. This question is studied in relation to such matters as international representation, jurisdiction and privileges and immunities. Part II offers the reader a very thorough description and analysis of possible treaty-making capacity (pp. 117-136), maintenance of diplomatic relations (pp. 159-168), protection of property and nationals by governments-in-exile, as well as an analysis of the conditions under which these capacities may be exercised. A careful study of the practice makes one quite sceptical about the issue of state discretion in matters of recognition of governments in international law. After a thorough examination of cases, the author suggests that recognition of governments may be both legal and illegal (e.g. p. 123, p. 146). Recognition as international delict or an illegal act under international law (p. 273) raises the obvious question as to the nature of the consequences of such an act between the two states and/or vis-à-vis third states. This, however, is beyond the scope of Talmon's study, though it is certainly a topic which merits consideration and which could be linked with rules and principles discussed in relation to state responsibility.

Dr Talmon's study clearly shows that recognition of governments cannot be given consideration as one category. Each case may be different, making it difficult to identify discrete rules and their content. The traditional question whether recognition is 'constitutive' or 'declaratory' of a government appears superfluous, even invalid, when the issue is dealt with in the manner suggested by Talmon. On the other hand, the very positivist approach to recognition of governments in international law, as undertaken by this author, does not preclude the ongoing debate concerning the existence of general rules and principles relevant to these matters, which may in turn lead to a certain presumption about the nature of recognition in particular cases.

Apart from its specific conclusions, the book is useful for its wealth of information, both historical and contemporary (including its Appendices). Given the limited recent research on recognition of governments, especially governments-in-exile, this volume certainly fills a gap in the literature, at least within the confines determined by the author. It provides an essential sourcebook for anyone attempting to answer more general questions as to the legal character of recognition, whether or not one accepts the answers the author himself provides.

Dr. Ineta Ziemele
Directorate of Human Rights
Council of Europe

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