Frithjof Ehm

Demokratie und die Anerkennung von Staaten und Regierungen

Rubrik: Beiträge und Berichte
Archiv des Völkerrechts (AVR)

Jahrgang 49 () / Heft 1, S. 64-86 (23)

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Since the end of the cold war the world and the international relations have changed dramatically. One of the changes is the spread of generally acknowledged values. This has diminished the scope of domestic jurisdiction or the so-called domaine réservé of the State and has caused that human rights, democracy and the rule of law form an inseparable and steadfast trinity or trilogy of international law. However, which consequences this major development has with regard to international law, is not clarified in all aspects yet or even picked out as a central theme. One aspect of this change is that democracy is a reality in international law. This reality has many aspects and features. One of these aspects is that the adherence to democracy is more and more advancing into the field of the recognition of States and Goverments. Recognition is a unilateral act performed by the Government of the recognizing State. Recognition of States must be distinguished from recognition of Governments, each form having its own theories and practices. However, an identic pattern is that democracy is becoming a precondition for the recognition of new States and Goverments. This can be exemplified with the »Declaration on the Guidelines on the Recognition of the New States in Eastern Europe and in the Soviet Union« accepted by the EC Foreign Ministers on 16 December 1991. In this declaration the EC-Member-States demanded inter alia, also the adherence to democracy from the new States. These criteria were also applied to the States emerging from the dissolution of Yugoslavia. Additionally, with regard to the recognition of Montenegro, Kosovo and further new States, a number of countries stressed that their recognition was because of the clearly visible democracy improvements. The same applies to the recognition of new Goverments. A very prominent example is the so-called Tobar-doctrine of 1907 according to which recognition of a Government should only be granted if the respective administration came to power by legitimate democratic means. This idea has become an international leitmotif in the last couple of years. In practice States frequently condemne coups d'état of democratically elected Goverments and object to recognize the coup leaders. Therefore, the effective control over the State's territory is not the only criterion anymore for the recognition of an authority as the Government of a State. This State practice is also accompanied by the necessary opinio juris. It is today definitly allowed under international law to link the recognition of a State or a Goverment to the adherence of certain democratic standards. Furthermore, in certain regions of the world like Europe and America it is today already an obligation to restrain a State or a Goverment the recognition, if only basic democratic standards are not fulfilled. In the residual parts of the world this process is at least in statu nascendi. For the future this development implies a number of challenges, as the reluctance of granting a recognition can cause serious legal uncertainty. However, at the same time the new path of international practice might lead to more security, as it can also hold possible coup leaders off overthrowing a Goverment. But the future will show this.

Frithjof Ehm Geboren 1981; Studium der Rechtswissenschaften in Mannheim, Göttingen und Dublin (Trinity College); Ergänzungsstudiengang »Rechtsintegration in Europa« (MLE.); 2008–10 wissenschaftlicher Mitarbeiter einer internationalen Wirtschaftskanzlei; 2011 Promotion an der Bucerius Law School in Hamburg; 2012 Zweite Juristische Staatsprüfung vor dem Landesjustizprüfungsamt Celle.