The recognition of new States at international law: UK Parliament passes motion on Palestine

When it comes to questions of recognition, "..there is probably no other subject in the field of international relations in which law and politics appear to be more closely interwoven." (Hersch Lauterpacht, 1947)

The Motion

On 13 October 2014 a backbench motion passed in the House of Commons of the United Kingdom (UK). The motion, put forward by Member of Parliament (MP) Grahame Morris, stated after amendment:

That this House believes that the Government should recognise the state of Palestine alongside the state of Israel, as a contribution to securing a negotiated two state solution.

The number of votes cast represented less than half of all MPs (650 in all) but among those who voted the motion passed by a wide margin: 274 to 12. The recognition of States is within the purview of the executive branch as a discretionary power of the Crown and the vote does not bind the government of the UK. Current UK policy is to reserve "...the right to recognise a Palestinian state bilaterally at the moment of our choosing and when it can best help bring about peace".

Recognition

At a basic level, identifying whether a new State has been recognised is a matter of assessing a recognising State's intentions. The intention to recognise can be express or implied but there is support for the view that implied recognition is not easily found. Being a party to a multilateral treaty to which an unrecognised entity is also a party will not, for example, be sufficient to imply recognition. Express recognition, for its part, is easier to identify but does not have a uniform type or form nor is the terminology used in making declarations of recognition consistent across State practice.

The legal impact of recognition depends on which of two schools of thought one accepts concerning the international law of recognition. Broadly speaking these are the declaratory view and the constitutive view and can respectively be understood as status-confirming (declaratory) and status-creating (constitutive). According to the declaratory view, legal personality is conferred on a State by operation of law and express recognition by another State is simply an acknowledgment of the operation of law and existing facts. Conversely, advocates of the constitutive view generally hold that the act of recognition is a precondition to the existence of legal rights. According to this view, then, a new State cannot claim rights against other States of the international community until it too is a member of the international community, i.e. as properly constituted by recognition.

Regardless of which view of the law of recognition is correct, express recognition of a new State by the government of the UK would have certain concrete bilateral consequences including, but not limited to:

• enabling the UK and the new State to establish full diplomatic relations and to conclude bilateral treaties,
• the new State acquiring the right of suing in UK courts and attracting sovereign immunity, and
• the new State acquiring the right to have certain of its legislative and executive acts recognised by UK courts which previously may have been treated as invalid.

For further information, please contact Dominic Roughton, Partner, Colin Trehearne, Associate, Joanne Greenaway, Professional Support Lawyer, or your usual Herbert Smith Freehills contact.