3 - The obligation of non-recognition

Summary

Introduction

In order to assess the implications of the illegality of the regime and of the obligation of non-recognition for the law and policy governing transition, it is necessary to begin by ascertaining the consequences of illegality and non-recognition during the period of the illegal regime's existence, as these consequences set the legal scene into which the post-transition regime enters and the background against which it operates.

There exists a wealth of literature on the circumstances that give rise to the obligation of non-recognition of territorial regimes, and various writers have examined the obligation with regard to specific norms. But few authors link the normative aspects of the obligation with its practical consequences. One approach to this link is that the obligation not to recognize the legal effect of an act does not necessarily extend to all consequences of that act. A different approach, which puts greater emphasis on the non-derogability of peremptory norms, suggests that the practical consequences of the illegality are extensive.

A useful point of departure is the Namibia Advisory Opinion, which continues to be the most authoritative text on the content of the obligation of non-recognition under customary international law. The bulk of the Advisory Opinion addresses the preliminary question of whether the revocation of the South African mandate was lawful and whether it was binding upon states.