"Municipal law' is the technical name given by international to lawyers is state, The question of the relationshig or internal law

of the national 1 between international law municipal law can Bive Tise to many practical problems, especially and if Bra
conflict between the two,! There a Which rule prevails in the case conflict? How do of rules of International law take effect in the
Law internal of states?Dualist and monist theories There are two basic theorics, with a number of variations S the In literature,
on the relationship between International and g domestic lawThe first doctrine ic called the dualist ( (or pluralist) vicw, and
assumes that international law and municipal law are two separate legal systems which exist independently of cach other. The
central questionthen is whether one system is superior to the other. The second doctrine, called the monist view, has unitary
perception of the "law' tend understands both international and municipal law as forming part of one and the same legal order.
The most radical version of the monist approach was formulated by Kelsen.2 In his view, the ultimate source of the validity of
all law derived from a basic rule ('Grundnorm') of international law. Kelsen's thcory led to the conclusion that all rules of
international law were supreme over municipal law, that a municipal law inconsistent with international law was automatically
null and void and that rules of international law were directly applicable in the domestic sphere of states In reality, the opposing
schools of dualism and monism did not adequately reflect actual state practice and were thus forced to modify their original
positions in many respects, bringing them closer to cachother, without, however, producing a conclusive answer on the
truerelationship between international law and municipal law.As a rule ofthumb, it may be said that the ideological background
to dualist doctrinesis strongly coloured by an adherence to positivism and an emphasis onthe theory of sovereignty, while
monist schools are more inclined tofollow natural law thinki <ing and liberal ideas ofa world socicty.'It is also notable that the
controversy was predominantly conducted among authors from civil law countries.' Authors with a common lawand background
tended to pay lesser attention tol these theoretical issues preferred a more empirical approach secking practical solutions in a
given My Queen, [20-03-2024 02:03 AM]case, Lecturing at the Hapue Academy of International Law in 1997Fitzmaurice
considered that the entire monist-dualist controversy Is unreal, arficial and strictly beside the point, because it assumes
something that has to ovist for there to be any controversy at all- and which in fact does: notexist- -namely a common field
which the wo legal orders under discussion both simulaneously have their spheres of activily,Itis more useful to Icave this
dogmatic disputc aside here and to turnpeneral atitude of international law to municipal law and then briellto the describe the
various approaches taken by national legal systems toward international law in practice My Queen, [20-03-2024 02:03 AM] The
attitude of international law to municipal law International law does not entirely ignore municipal law. For instance, as ○ have
seen, municipalaw, may be used as evidence of internationa custom or of general principles of law, which are both sources of
international law.' Morcover, international law leaves certain questions to be decided b municipal law; thus, in order to
determine whether an individual is a national pf state X, international law normally looks first at the law of state X provided that
the law of state X is not wholly unreasonable, However, the general rule of international law is that a state cannot plead G rule
of or e gap In Its own municipal law as a defence to claim based on international law. Thus, in the Free Zones case, the
Permanent Court of International Justice said: 'It is certain that France cannot rel on her own legislation to limit the scope of her
international obligations.' This IS particularly true when, as often happens, a treaty or other rule of international law imposes an
obligation on states to enact particular a ule as part of their own municipal law. A similar rule can be found in Article 27 of the
Vienna Convention on the Law of Treaties:" 'A part may not invoke the provisions of its internal law as justification for it failure
to perform a treaty. In other words, all that international law says is that states canno invoke their internal laws and procedures
as a justification for not complying with their international obligations. States are required to perform their international
obligations in good faith, but they are at liberty to decide on the modalities of such performance within their domestic legal
Systems. Similarly, there isa general duty for states to bring domestic la w into conformity with obligations under international
law. Bu international law leaves the method of achieving this result (described in the literature by varying concepts of
'incorporation 'adoption" transformation or reception') to the domestic jurisdiction of states. They ire free to decide how best to
translate their international obligationg into internal law and to determine which legal status these have domestically On this
Issue, in practice there is a lack of uniformity in the My Queen, [20-03-2024 02:05 AM] Recognition of statos and governmonts
Recognition one S the most difficult topics in international law.o ktisa confusing mixture S politics, international law and
municipal law. The legal and political clements cannot be disentangled; when granting or witholding recognition, states are
influenced more by political than legal considerations, but their acts do have legal consequences. What is not always realized,
however, is that the legal effects of recognition in in international law are very diferent from the legal effects of recognition
municipal law. Once this distinction grasped, the whole topic of recognition should becomc easier to understand; apparent
conflicts between tvo sets of cases will be easily resolved when it is realized that one set is concerned with international law
and the other with national law. Another reason why recognition is a difficult subject is because it deals with a wide variety of
factuals Isituations; in addition. to recognition of states and governments, there can also be recognition of territorial claims,s3
the recognition of belligerency or of insurgents,"' the recognition of national liberation movements, such as the Palestine
Liberation Organization, or the recognition g of foreign legislative and administrative acts.' In the present section of the book it
is proposed, for purposes of simplicity, to concentrate on recognition of states and governments Today a clear distinction must
be made between the recognition of a state and the recognition of a government. The recognition of a state acknowledges that
the entity fulfils the criteria of statchood. The recognition of a government implies that the regime in question is in effective
control of state. The basic difference is that the recognition of a government necessarily has the consequence of accepting the
statehood of the entity which the regime is governin g, while the recognition of a state can be accorded without also accepting
that a particular regime is the government a of that state, Recognition My Queen, [20-03-2024 02:05 AM] Recognition of
governments great discretion when granting International law allows states to exercise recognition, especially when a new
government comes into i power in withholding an or state by violent means. Recognition accorded to the existing no problem of
recognition arises when revolution head of state, and SO does no affect the head of state (for example, the military coup
Greece in April 1967, which overthrew the Prime Minister but not the King), Nor anyproblem of recognition arise when there is a
constitutional change does in the head of state for example, when British monarch dies and is succeeded by the eldest son, or
when anew President of the United States is son, 0I elected. States have often used recognition as an instrument of policy; for
instance, the United States has often regarded recognition as a mark o approval, and in President Wilson's time it withheld
recognition from Latin American regimes which had come to power by unconstitutional means, such as Tinoco's regime in Costa
Rica. ◦ A refusal to recognize is sometimes based on a belief that the new state or government is not in effective control of the
territory which it claims. but a refusal to recognize can also be based on other factors; for instance, the United States at one
time refused to recognize foreign governments simply because it disapproved of them; in the eyes of the United States, My
Queen, [20-03-2024 02:08 AM] De jure and de facto recognition One of the most confused aspects of recognition IS the
distinction between de jure and de facto recognition. For Start, the expressions de jure recognition ' and 'de facto recognition ',
although commonly used are technically incorrect; de jure recognition really means recognition of de jure government; the
words jure or de facto describe the government, not the act of recognition The terminology implies that a de facto government
does not have the same legal basis asa de jure government, But it is difficult to find any body of legal rules by which this legal
basis can be determined. The distinction between de Jure and de facto recognition usually arises in the case of governments. It
is sometimes said that a state can be recognized only de jure, but there are ^ few examples of states being recognized de jure;
for instance, Indonesia was recognized de facto by several states while was fighting for independence against the Dutch in
1945-9 Similarly its independeuet toe1 clnims being there are a few examples of territorial claims being given only de facto
recognition; the United Kingdom, for example, granted only de facto recognition to the Soviet annexation of Estonia, Latvia and
Lithuania in 1940. 0" De facto recognition of states and territorial claims is governed by roughly the same rules, and gives rise
to roughly the same problems. as de facto recognition of goverments When recogninon is granted by an express statement, it
should probably always be treated as de jure recognition, unless the recognizing state announces that it is granting only de
facto recognition When recognition is not express, but implied, there will often be uncertainty as to the intentions of the
recognizing state: did it intend to grant de jure recognition, or did it intend to grant de facto recognition? Whatever the basis for
the distinction between de jure and de facto recognition, the effects of the two types of recognition are much the same.
Howeverifa state or government has been established (or D territorial change brought abou) in violation of international law, it
seems that only de jure recognition can cure the llegalty; facto recognition T insufficient to cure it.10 L, like Chief lustice Taft in
the Tinoco case,10" one thinks of recognition as having an evidential valuc, then presumably de iure recognition would have
greater evidendal force than de facto recognition; but the diference is probably not very great. My Queen, [20-03-2024 02:09
AM] In reality the distinction between de jure and de facto recognition has ahwvays been a source of diffieuly, and in practice in
most cases of the recognition of states ft will nor be qualified in cither of these I the case of the recognition of governments the
distinetion teriis has also become obsolete 10 The Restatement (bird) thus avoids these uncertain terms. 106 A separate matter
altogether that has become more important since 1945 is the impaet of the United Nations and other international
organizations on the recognition of states and governments a The developments in Eastem Europe, the Soviet Union and in
former Yugoslavia induced the European Community and its member states to adopt a common position on guidelines for the
formal recognition of new states in these areas on 16 December 199 1,"" These guidelines start from reaffirming the principles
of the Helsinki Act of 1975w0 and of the Charter of Paris of 1990,"10 'in particular the principle of self- determination ".u The
Community and its member states RECOGNITION OF BTATEDA afirm their readiness to recognize, subject to the normal
standards of international practice and the political realities in each case, those new states which, following the historic
changes in the region, have constituted themselves on a democratic basis, have accepted the appropriate international
obligations and have committed themselves in good faith to a peaceful process and to negotiations Specific requircments laid
down in the European Community guidelines for recognition and the establishment of diplomatic relations are: respect for the
provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the
Charter of Paris, especially with regard to the rule of law, democracy and human rights; guarantees for the rights of ethnic and
national groups and minoritics in accordance with the commitments subscribed to in the framework of the CSCE; respect for the
inviolability of all frontiers" which can only be changed by peaceful means and by common agrcement; acceptance of all
relevant commitments with regard to disarmament nuclear non-nralifas e."""thents with regard to and nuclear non-proliferation
as well as to security and regional stability; commitment to setle by agrement, including where appropriate by recourse to
arbitration, all questions concerning state succession and regional disputes. Recognition S 'entities which are the result of
aggression is expressly excluded and the 'effects of recognition on neighbouring states' are also to be taken into account. While
non- recognition of entities which are the result of aggression ' reflects the principle of not accepting the acquisition of territory
by the use of force," the meaning of the phrase that the European Union also intended to take into account the 'effects of
recognition on neighbouring states' remains rather cryptic At any rate, these guidelines, as applied by the Badinter Arbitration
Commission, served to My Queen, [20-03-2024 02:10 AM] determing the policy of European Union member states with regard
to the recognition of the new states emerging from the break-up offormer process on this basis, it should only be noted that, as
far as the Serbian Yugoslavia. Without entering into the complicated details of the recognition of controlled Federal Republic
Yugoslavia was concerned, in 1995 the European Union made onc ol the conditions for its recognition that all successor states
to former Yugoslavia had recognized eacl other. The case of the former Yugoslav Republic of Macedonia is instructivo Macedonia
had held a referendum on independence 8 September 1991 and confirmed this on 17 November 1991 Grecce was concerned
about the name ofthe new state and the use o the Star of its own republic's flag. because it feared possible claims Vergina on
the new province of Macedonia.'" The former Yugoslav Republic of Macedonia was admitted to the UN on 8 April 1993, however,
leaving the dispute over the proper name of the country undecided.ls Grecce and the former Yugoslav Republic of Macedonia
finally settled their dispute by an Interim Accord of 13 September 1995 andaMemorandum of1E October 1995 on diplomatic
relations. The Interim Accord provides for the former Yugoslav Republic of Macedonia to change its flag, respec its neighbours'
territorial integrity and change its constitution so that it does not contain anything which can be considered as a threat to its
neighbours. An arbitration commission was set up which on 18 September 1995 decided that the former Yugoslav Republic of
Macedonia should be referred to in the English language as the 'Former Yugoslav Republic of Macedonia This is the name under
which the country was recognized by the Community and its member states. For practical purposes, the former Yugoslav
Republic of Macedonia was treated by the Community and its member states as having achieved a very high level of statehood
The current author has attempted to analyse the process of recognition in a different way. From a practical point of view, the
distinguishing feature of recognition is the readiness to establish diplomatic relations with the new state or government. In
some cases the decision to recognize will have legal effects within the recognizing state, as when the national courts of the
recognizing state apply recognition of a government or of a state as a ground for granting immunity from jurisdiction to the
government or the state in question. But in many cases recognition has no immediate legal consequences My Queen, [20-03-
2024 02:12 AM] At any rate, the decision to recognize is an important act of foreign policy; it is an expression of approval of the
state or government which is recognized, and an expression of disapproval of other states or governments which are not
recognized. Not recognizing another state can be an important weapon of foreign policy: by not recognizing a state, a state can
prevent it from acquiring international personality, and from becoming a member of the United Nations or other international
organizations. Moreover, recognition is a cheap instrument of foreign policy; it does not involve any expenditure of money. On
the other hand, recognition is also a risky instrument of foreign policy; it can involve a state in disputes with other states. A
state which recognizes another state implicitly undertakes an obligation to establish diplomatic relations with it, and to extend
to it certain rights and privileges. For example, recognition of a government may imply recognition of the state; by establishing
diplomatic relations with the government of a state, a state may be held to have recognized the state as well. Recognition may
also involve an obligation to protect; by recognizing a state, a state may be held to have undertaken an obligation to protect it.
All these consequences of recognition, and the possibility of disputes about them, give rise to difficulties, and to disputes about
difficulties. One possible solution to the problem of recognition would be for states to recognize each other automatically, as
soon as they fulfill certain objective criteria. In other words, recognition would be depersonalized, and would be governed by
rules rather than by discretion. But such a solution is unrealistic; it is too mechanical, and it ignores the political element in
recognition. Another possible solution to the problem of recognition would be for states to adopt a rule that they will not
recognize any government which comes to power by unconstitutional means, or any state which is established in violation of
international law. But such a solution is also unrealistic; it is too rigid, and it ignores the fact that states often have good
reasons for recognizing governments or states which come to power or are established in violation of international law. A third
possible solution to the problem of recognition would be for states to adopt a rule that they will not recognize any government
or state which does not respect human rights, democracy and the rule of law. But such a solution is also unrealistic; it is too
idealistic, and it ignores the fact that states often have good reasons for recognizing governments or states which do not
respect human rights, democracy and the rule of law. A fourth possible solution to the problem of recognition would be for
states to adopt a rule that they will recognize any government or state which is recognized by a certain number of other states,
or by a certain number of states which fulfill certain objective criteria. But such a solution is also unrealistic; it is too
mechanical, and it ignores the fact that states often have good reasons for not recognizing governments or states which are
recognized by a certain number of other states, or by a certain number of states which fulfill certain objective criteria. A fifth
possible solution to the problem of recognition would be for states to adopt a rule that they will recognize any government or
state which is recognized by a certain number of states which fulfill certain objective criteria, but that they will not recognize
any government or state which is not recognized by a certain number of states which fulfill certain objective criteria. But such a
solution is also unrealistic; it is too mechanical, and it ignores the fact that states often have good reasons for not recognizing
governments or states which are recognized by a certain number of states which fulfill certain objective criteria, but not by a
certain number of other states which fulfill certain objective criteria. A sixth possible solution to the problem of recognition
would be for states to adopt a rule that they will not recognize any government or state which is not recognized by the United
Nations or by some other international organization. But such a solution is also unrealistic; it is too mechanical, and it ignores
the fact that states often have good reasons for not recognizing governments or states which are not recognized by the United
Nations or by some other international organization. A seventh possible solution to the problem of recognition would be for
states to adopt a rule that they will not recognize any government or state which is not recognized by the majority of the
people who are governed by that government or state. But such a solution is also unrealistic; it is too idealistic, and it ignores
the fact that states often have good reasons for recognizing governments or states which are not recognized by the majority of
the people who are governed by that government or state. A eighth possible solution to the problem of recognition would be for
states to adopt a rule that they will not recognize any government or state which does not respect the rights of minorities. But
such a solution is also unrealistic; it is too idealistic, and it ignores the fact that states often have good reasons for recognizing
governments or states which do not respect the rights of minorities. A ninth possible solution to the problem of recognition
would be for states to adopt a rule that they will recognize any government or state which comes to power or is established in
accordance with international law, but that they will not recognize any government or state which comes to power or is
established in violation of international law. But such a solution is also unrealistic; it is too rigid, and it ignores the fact that
states often have good reasons for recognizing governments or states which come to power or are established in violation of
international law. A tenth possible solution to the problem of recognition would be for states to adopt a rule that they will
recognize any government or state which comes to power or is established in accordance with international law, but that they
will not recognize any government or state which comes to power or is established in violation of international law, unless they
have good reasons for doing so. But such a solution is also unrealistic; it is too vague, and it ignores the fact that states often
have good reasons for recognizing governments or states which come to power or are established in violation of international
law, even though they may not be able to articulate those reasons. In conclusion, there is no easy solution to the problem of
recognition; it is a complex issue, and it requires careful consideration. However, it is important to remember that recognition is
not the only way in which states interact with each other; there are many other ways in which states can influence each other's
behavior, and recognition is just one of them. Therefore, while recognition is an important aspect of international relations, it is
not the only aspect, and it should not be given undue weight in the analysis of international relations. My Queen, [20-03-2024
02:16 AM] which suggests that they are subordinate to the other three sources listed: treaties, custom and general principles of
law. Judicial decisions usually carry more weight than learned writings, but there is no hard- and-fast rule; much depends on the
quality of the reasoning which the jndge or writer employs."It 'is doubtful whether equity is a source of international law at all;
even if it is, the existence of such doubts would appear to indicate that it 1S. at most, a very low-ranking source. (However,
when tribunal 1 authorized to decide ex aequo et bono, the tribunal is allowed to substitute is own ideas of equity for any and
every rule of international law.) In sum, the different sources of international law are not arranged in a strict hierarchical order
hierarchical order. Supplementing each other, in practice they are often applied side by side. However, if there Is a clear
conflict, treaties prevail over custom and custom prevails over general principles and the subsidiary sources."