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Question: To what extent does the legal status of acts of unrecognized States and governments remain a problem under English law?
There are 2 contentious issues in this question: 1) the assumption that there is /was a "problem" regarding the law on acts of unrecognized states and governments, and 2) the changes to the law (we might provocatively call them solutions, given the term "remain" in the question) and their effect on the problem. Before we identify the potential "problems" in the law and evaluate the solutions, it is clear that the debate must be placed within the context of recognition more broadly. Then we shall examine the development of the law in the UK, and in the process of documenting the change will identify the changes that arguably have "fixed the problem". These changes will be examined and then evaluated. The conclusion will be drawn that the potential problem that the judiciary and executive are not "speaking with one voice" is not a real problem, that the private act exception and the delegated authority exception have improved the substantive fairness problem in English law. However, it will be argued that Kibris is evidence of the uncertainty in the exceptions and as such, it remains a problem. Recognition The International Community is not "static" or a "closed club" of States: new states emerge, new governments come to power. It is as important for the rest of the international community as it is for the new entity to know the status of the entity in question, as it is this status that prescribes the obligations and rights of this entity in international law: this is not to say that non-recognised states may freely contravene international law, but only that, by having status as a State, the entity is fully exposed to the legal consequences of having such a legal personality: in the UK, a recognized state or government has standing in a UK Court, enjoys immunity from suit if it does not
consent to the action and perhaps more importantly, its legislative and administrative acts will be given effect to within the UK. The status is certainly confirmed by recognition, which denotes a willingness on the part of the recognising entity to enter into relations with the entity. Detailed analysis of whether recognition is constitutive of statehood, or merely declaratory (evidentiary) is outside the scope of this work: simply put, if recognition is constitutive, it is a pre-condition of legal status, but if, as state practice indicates it is, recognition is declaratory, it is a formal acknowledgment of existing circumstances, and most importantly here, it is "discretionary" [Badinter Commission]. For the purposes of the question above, the distinction between recognition of states and governments must be explained: recognition is the formal acknowledgement by a State that the entity being recognised possess the attributes of statehood and thus signifies a willingness to treat the latter as a state. This is normally a one-off act: recognition will not usually be retracted, and even if the requirements of statehood are no longer fulfilled, de-recognition will not be necessary. Recognition of a government is the formal acknowledgment by the recognising State that the regime in question is the effective government and accordingly satisfies a willingness to treat the regime as such. Refusal to recognise a government will not negate a State's statehood. Before the specifics of UK law and policy are given, we must identify the potential problems in the legal status of acts of unrecognized States and governments remain a problem under English law: Justice Brandeis famously observed "it is often more important that a law is settled than that it be settled right" - this however is exactly the problem identified by Lord Wilberforce, below, in the strictness of the "no recognition, no existence" rule: if the law is unfair, this is just as much of a problem as if it is uncertain. Following this, there are 2 potential problems: 1) Substantive fairness - it will be concluded that
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