Constitutional Interpretation

Topics: De facto, International relations, United States Pages: 45 (15829 words) Published: August 21, 2013
THE NEW AUSTRALIAN RECOGNITION POLICY IN
COMPARATIVE PERSPECTIVE
BY HILARY CHARLESWORTH*
1. INTRODUCTION
Until recently, the recognition of foreign governments played a role of some consequence in Australian foreign policy. In January 1988 the then Australian Minister for Foreign Affairs and Trade, Bill Hayden, announced a Cabinet decision to alter Australian practice with respect to recognition: Australia would continue to recognize states but would nolonger formally recognize governments.' The given reason for this change was that, although Australia's former policy of recognizing governments was

technically a formal acknowledgement that the Government was in effective control of that State and in a position to represent that State internationally . . ., recognition of a new Government inevitably led to public assumptions of approval or disapproval of the Government concerned, and could thereby create domestic or other problems for the recognising Government. On the other hand, 'non-recognition' limited the non-recognising Government's capacity to deal with the new regime.'

Doing away with recognition of governments, it was said, allowed quicker and more flexible reactions to international developments and avoided assumptions of approval of recognized regime^.^ Australia's attitude to a new regime in an existing state, particularly one installed by violent or unconstitutional means, would be ascertained by 'the nature of our policies towards and relations with the new regime.'4 These policies and relations would be indicated by factors such as public statements, the establishment or conduct of diplomatic relations, ministerial contact and other contacts such as aid, economic, defence arrangements or technical and cultural exchanges.'

The official announcement made explicit that the new policy did not imply any change in Australia's attitude towards Afghanistan or Kampuchea (now Cambodia). Australia had refused to recognize the government in Afghanistan since the Soviet invasion in 1980 and had withdrawn recognition of the government of Kampuchea in 198 1.

Although the change in recognition policy had been contemplated for some time,6 it provided an immediate way out of an impasse in Australia's relations * B.A. (Hons) (Melb.), LL.B. (Hons) (Melb.), S.J.D. (Ham.). Barrister and Solicitor of the Supreme Court of Victoria. Senior Lecturer in Law, University of Melbourne. The author thanks Penelope Mathew for her valuable research assistance.

I Minister for Foreign Affairs and Trade, Press Release 19 January 1988, reprinted in [I9881 Australian International Law News 49.
2 'Australia's New Recognition Policy' Foreign Affairs Backgrounder January 1988. 3 Ibid.
4 lbid.
5 Ibid.
6 In a radio interview after the announcement, Mr Hayden said that the policy change had not been announced earlier at the behest of the members of ASEAN who feared that it might be construed as an implicit recognition of the Vietnamese-backed regime in Kampuchea. Radio National Asia Pacific January 1988.

2 Melbourne University Law Review [Vol. 18, June '911
with Fiji. The Fijian coup in May 1987 led by Colonel Sitiveni Rabuka had brought down the elected government of Dr Timoci Bavadra and suspended the Constitution. The Governor-General, Ratu Sir Penaia Ganilau, refused to acknowledge the Rabuka military government and appointed an interim Council of Ministers to govern Fiji. A second coup led by Rabuka in September 1987 annulled the Constitution, declared Fiji a republic and Rabuka head of state. Subsequently an 'interim' civilian regime headed by the former Governor- General as President and the former Prime Minister, Ratu Sir Kamisese Mara, who had been defeated at the elections that brought Bavadra to power, as Prime Minister was installed with the support of the military.

Australia had strongly criticised both Fijian coups, recalling its High Commissioner after the first coup and suspending civil and military aid to Fiji. It did not...
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