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Diplomatic Recognition in International Law: The Libyan Case under International Law. (3)

By Professor Dr. Emmanuel Omoh Esiemokhai
July 24th, 2011

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After the Second World War, relations between sovereign, independent states that were subjects of International Law were based on international law and diplomatic law and practice.

Recognition in international law has been a controversial issue, because “it is facultative”, according to Podesta Costa. This means that each state has to weigh its decision to recognize a new state, a liberation movement, an ex-colonial state, according to the dictates of its foreign policy and national interests.

It therefore, falls within the prerogative of states to extend either de jure or de facto recognition to new entities or not to recognize at all. Of course, there are international legal and diplomatic consequences, when premature recognition is given to a nation in its fight for self-determination or after its unilateral declaration of independence like the State of Israel did in 1948.

When a state is recognized de jure, this confers on the new state the legitimacy to enter into diplomatic relations with the state that has so recognized it. Recognition de facto is a mere diplomatic noting that an entity seeks to establish itself as a state. It could succeed or fail as was the case of Biafra (1967-70). With regards to the recognition of Libyan rebels by some Euro-American states, it is within their discretion to recognize the Transition Authority, for the purpose of extending to them, the means to liberate themselves from the oppressive sway of the Kaddafi regime.

One cannot dispute the right of the rebels to fight their just cause. Without rebellion, many African, Asian and Latin American states would have still been under vicious colonial rule, which was a monumental violation of human right s and the rights of nations to self-determination. It is palpably ironic that former colonial states are in the vanguard to help the Libyan rebels gain independence. The fact that the recognizing states have not opened diplomatic missions in Benghazi or Tripoli suggests that their recognition is de facto and that the situation of belligerency is yet to stabilize.

It must be observed that contemporary international society has moved away from the strict observation and adherence to international legal rules and etiquette. Power political considerations have over-ridden norms of jus cogens, thus militating against the cogency of international legality.

The lack of formal declaration of war with Iraq, ignoring the advice of the United Nations by the Bush administration in the Iraqi conflict, forcible interventions in other states internal affairs in both psychological and power political fashions, show total evidence how much international law and its guiding, cardinal principles have disrespected.

There are often remarks made by states about other states violating international law, which creates the erroneous impression that some states are not supposed to observe the rules of international law.  In the last ten years, the United Nations Organization, has not shown that dexterity in calling states to order as we witnessed, when international lawyers were Secretaries-General of the United Nations, like Dr Kurt Waldheim, Boutros Boutros Ghali and others. Some timidity is discernible in calling erring states to order.
During his visit to Nigeria, which was cut short by unpleasant political developments in the hacking scandals in Britain, the British Prime Minister stated the British view on the Libyan invasion to save the lives of Libyans in Benghazi and other strongly held positions on the imbroglio.

The British Prime Minister possesses great oratorical skills, which he may have imbibed from perhaps ,active participation in the Oxford Debating Society and as an ebullient, parliamentary debater. However, his oratory did not sway me to overlook some flaws in his disquisitions. There are some fine international legal arguments, which he glossed over. British Foreign Office diplomats, who maintain studied silence over politician’s rhetoric, would agree with me that the Prime Minister based his arguments purely on moral grounds. As Sir Fredrick Pollock pointed out in his 1893 lecture at Oxford University, Foreign Office diplomats “ do not base their arguments only on moral grounds, they resort to international Conventions and other legal arguments”.

The international legal arguments the British Prime Minister overlooked are, relevant sections of the UN Charter, especially Article 2(4) and the UN Declaration on principles of International Law Concerning Friendly Relations and Cooperation Among states in accordance with the Charter of the United Nations. States should refrain from the use of force against the territorial integrity and political independence of other states and states should seek amicable solutions to international conflicts.

The South African President, Jacob Zuma, diplomatically brought this home to the British Prime Minister during their meeting in South Africa. The AU position seems more acceptable than the use of force in Libya, which has destroyed buildings that belong to ordinary Libyans.  If the British Government wants to be accommodated in African trade and diplomatic relations, Her Majesty’s Government must learn that Africans automatically feel for fellow Africans, no matter the eloquence and logic, one seeks to convince them to the contrary.

In one of my articles, which was published in  and in other news media, I had called on the British Prime Minister to expand the British trade and diplomatic quest to African nations.
There is no evidence that his hurriedly ended visit was in response to my call, although I have gained satisfaction from his visit. I am sure he would come back.

Britain may wish to transfer most of those moribund factories that could still be made functional to my estate in Fugar, Edo State, where repairs can be effected by our ingenious crop of mechanic s for modest production to begin in my city, where there has been no single factory in the last fifty years of Nigeria’s independence.
Ships lying waste at the River Thames in London could be made sea-worthy, brought to our riverside areas as means of maritime transportation. The problem with inter-state relations is that things are subjected to bureaucratic slow-pace, cynicism and indifference by civil servant, who sneer at every rational suggestion that emanates from civil society.

Governments must recognize the opinion and inputs of those, who have valid, workable ideas that can promote inter-personal relations. The various business men in Nigeria, who have been doing good business with Britain since 1956, have proudly demonstrated their panache and sophistication.

As the Chief Legal Consultant to the late Chief Henry Fajemirokun, who was the President of the West African Chambers of Commerce and Industry, the Vice President of the Commonwealth Chambers of Commerce, the President of the Nigerian Association of Chambers of Commerce, Industry, Mines and Agriculture and the President of the Lagos Chambers of Commerce and Industry, we prepared the grounds for the establishment of the Economic Community of West African States. Our efforts were recognized by the Gowon regime, which helped to establish ECOWAS.

Later, the Nigerian Military Government turned ECOWAS into ECOMOG, a destitute state in which it has remained.Chief (Dr) Henry Fajemirokun used his personal wealth to promote the economic relations between Britain and Nigeria, more than any Nigerian government, past or present. When Henry Stephens Group Ltd brought Rank-Xerox to Nigeria, it was the result of hard, imaginative negotiations between our team and those of Mr. Thomas of the Rank Organization of England and Mr. Peter Macghlough of the Xerox Corporation of America.

Recognition of states and recognition of individuals stand on a footing of manifest inequality, but since individuals govern states, the inputs by well-educated, serious-minded, upright persons can move societies forward. States must go beyond titles and protocols to establish lasting relations between citizens of the world. The good understanding between peoples last longer than temporary ministerial postings and the click of the champagne glasses.Recent experience has shown me that the decline of societies begins, when the untutored lead those, who are better endowed.

In his provocative speech at Harvard University, USA, entitled, “The Decline of the West”, the Russian writer, Alexander Solzhenitsyn rightly observed that the timidity, with which the Western intellectuals criticized the oppressive Soviet Government, marked a decline in intellectualism.  Ever since, this decline has become accelerated as a result of the modern practice in Western and in fact in African societies, in which those, who mould public opinion are artists, , fiction writers and romanticists, low-cadre journalists, dancers and glib talk-show hosts, who love to laugh at their own jokes.The recognition that brains and brawns cannot be mistaken, since the difference is always clear, In spite of grandstanding, is a lesson for us all.

My well-cultivated modesty and sympathy for political under-achievers is often over-powered by their pretense to stage impossible demonstrations of the relevant knowledge in diplomatic affairs, which they do not possess. Diplomatic knowledge and culture are acquired after long-time studies and practice.

The recognition of Libyan rebels could promote their cause, but it is difficult to see how well-entrenched Kaddafists, who have imbibed the ideology of his Green Book, will accept a new regime without resistance.
Kaddafists convinced against their will, could be of the same opinion still.

Professor Dr. Emmanuel Omoh Esiemokhai, a Writer and Academic is the Academic Chancellor, BOSAS INTERNATIONAL LAW, New Covenant House, Fugar, Edo State.

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