Trial lecture - time and place
Adjudication committee
- Professor Ola Mestad, University of Oslo (leader)
- Professor Jørn Øyrehagen Sunde, University of Bergen (1. opponent)
- Assistant Professor Astrid Kjeldgaard-Pedersen, University of Copenhagen (2. opponent)
Chair of defence
Summary
International law seeks to realise the political values, interests and preferences of various international actors. As these values, interests and preferences change, international law changes. International law also evolves as a standard of criticism and means of controlling those in powerful positions. In this study I refer to international theory where appropriate. Rather than attempting to confront the different theories of recognition on their own terms, the study more modestly applies aspects of state practices that are highlighted in the academic treatment of recognition of states and governments in a study of Norway’s recognition of states and governments.
Norway’s recognition of States and Governments
This work is a comprehensive study of the main questions connected with the evolution of Norway’s recognition of states, governments and national liberation movements from 1905 until the end of 2014. My starting point has been events and issues treated in the theory of recognition in international law. I discuss whether state practice was in line with international developments at the time, how Norwegian values, interests and preferences have contributed to the development of international law, how Norwegian courts have addressed the issue of recognition, and what prompted Norway to recognise unlawful acts.
The Evolution in the Theory of Recognition
My study shows that the theory of recognition has been through an almost revolutionary change since the beginning of the twentieth century. Norway’s evolving approach to recognition reflects these developments.
The number of states has increased from some fifty acknowledged states to almost 200. The emergence of so many states is one of the major developments since 1905. Equally important is the exponential growth of sub-state identities and international organisations and institutions, all being subjects of international law, and all influencing the theory of recognition. Recognition is not limited to states and governments. As a consequence, what is actually recognised has become more indeterminate, and has to be examined on the factual and legal basis of each individual case.
The number and extent of international legal obligations has increased, covering legal areas traditionally left to the exclusive discretion of the state. States transfer sovereignty on a daily basis, leaving less leeway for traditional politics as a result.
International organisations have taken centre stage in the development of the theory of recognition in international law. The authority given to specific bodies within international organisations is based on the legal instruments establishing the international organisations. The UN Security Council has taken on powers beyond what was stipulated in the legal instruments, and today holds the power to make internationally binding decisions, with direct impact on international legal personality, status and recognition. Regional organisations, in particular the OAU/AU and EC/EU, have taken on similar powers.
International tension and legal activism
My study discusses the Norwegian response to international political tension threatening peace and thus the international legal order, and the concerted legal activism of the nonaligned movement to increase the powers of the UN General Assembly and change the course of international law, including the law on recognition. Although the source and aim of the attacks on the legal system were very different, Norway’s response shows that the attacks on the international legal order made international law less binding. In the 1930s international tension led to Norway’s recognition of the illegal state of Manchoukuo, the Japanese puppet state set up in Manchuria. It also led to Norway’s recognition of Anschluss, the German illegal annexation of Austria, and Norway’s recognition of the illegal dissolution of Czechoslovakia. The day before Germany attacked Norway, Norway recognised Slovakia as an independent state. Legal activism led to a decade of controversial recognition decisions, with the parliament putting pressure on the Norwegian government over the recognition of North Vietnam and the non-recognition of the military government in Greece. The recognition of Kosovo has also proven controversial, with both the UN and the EU in limbo. Opposition parties have over the last few years tried to force the hand of the government over the recognition of Palestine.
Legal activism
The legal activism had an enduring impact on the theory of recognition in international law. Today it is hardly possible to address international law or discuss international legal issues without referring to self-determination, the decolonisation process, the law against discrimination on the grounds of race, creed or colour, the particular legal status of Palestine, or the legal status of national liberation movements. These are principles, norms and rules accepted as international law.
Norway was very much the reluctant bystander, following the legal activism with a fair amount of concern. The nonaligned movement played hardball, not willing to compromise or otherwise soften their positions. The role of the UN Security Council in the handling of the illegal state of Southern Rhodesia was a turning point for the UN, and proved also to be a turning point in the Norwegian approach to legal activism. As the UN Security Council took on many of the positions of the nonaligned movement, new legal principles were increasingly accepted by Norway, influencing the Norwegian approach to recognition. Although the binding Security Council decisions were met with resistance from ministers within the Norwegian government, the sanctions against the illegal state of Southern Rhodesia were implemented without reservations.