Recognition important issues in international law
Recognition is one of the most important issues in international Law, change is said to be a permanent thing, and this is also applicable to the international community as a whole. International society is said to be alive and constantly evolving in doing this it comes with new states emanating from the old ones, examples of this as mentioned by Wallace (2005) is the disbanding of the Socialist Federal Republic of Yugoslavia in 1991/92 and the creation of Bosnia-Herzegovina, Slovenia, Croatia and Macedonia as independent states. Recognition therefore is subject to debate. Basically there are two theories of recognition, The Declaratory and Constitutive theories. This debate brings out two schools which in the study of law of recognition or international law, people/ writers find themselves supporting one of these schools. It can be deduced however that the declarative perspective is the preference of the legal idealist which denotes that on meeting the requirements of statehood as in the Montevideo is a state already in existence and recognition by other states is simply acknowledging what has been uncertain, while the constitutive school which is upheld by the positivist school emphasizes that recognition creates a state. This paper will therefore look with keen interest at the facts of these two schools, the issues in each of the theories. No doubt recognition has a rule guiding it; this will also be pondered upon, an analysis will be made using important cases as they apply to recognition. The paper will be divided into four parts this first will talk about the facts of recognition, the second will look at the issues of and rules of recognition, the third part will analyse the issues with relevant examples and the last part will be the conclusion.
Recognition though very important is also amongst the most complicated issues in international law, the states/nations of the world is a club and an emerging state can join this club. But the complexity of recognition in international law is such that is a combination of politics, national and international law. Its legal and political rudiments are inter-woven and cannot be separated, but the fact is the political influence is more though their acts have legal significance. Recognition can be deduced as the willingness of a recognising entity to have intercourse with the entity being recognised.This (recognition) act takes numerous forms, ranging from entering into full diplomatic relations, or sending a formal letter to the newly recognised state, an official pronouncement, and others. However there are a number of criteria required before a state can be considered a state. The Montevideo convention (1933) on rights and duties of states identify four criteria's provided in Article 1: The state as a person of international law should possess a permanent population, a defined territory, government and the capacity to enter into relations with other states. The recognition of a state acknowledges that the entity fulfils the criteria of statehood. There is a clear cut distinction between the legal effect of recognition and that of Municipal law knowing this and also how distinct they are, that one has to do with international law and the other national law will make the subject easier to resolve. Recognition includes partaking in the international legal procedure generally, maintaining also bilateral relations and also domestic relations too.Recognition how ever is seen as a thing of choice of nations, nations decide when and how to recognise new state as there is no such thing like the uniform recognition or non-recognition.
The Declaratory And The Constitutive Theories Of Recognition
There are two major debates on recognition as a matter of international law. The Declaratory, which is status confirming. Constitutive status creating theories. Article 3 of the Montevideo Convention points out clearly that the political existence of a state does not rest solely on the relations between the state and other states and also its foreign policy position. The Declaratory Theory is of the view that recognition is a political act that recognises a pre-existing state of affair. Brownlie asserts that the legal effects from the declaratory perspective is limited adding that legal personality already exist. This school sees that an entity which fulfils the requirement of statehood should be seen as one and should be awarded respect like every other state because it is a state with international right and duties. A declaratory theorist ‘Hall' as stated in Brownlie (2008) further asserts that ‘states being the persons governed by international Law, communities are subjected to law…..from the moment and from the moment only, at which they acquire the marks of a state'. Objectively, in an international court it would be totally acceptable to reckon with the existence of a state even if it is not recognised by other states but by the party which it is in dispute with. Thus, Britain in Two cases had demanded compensation from the Jewish state in respect of British aircraft shot down by Jewish Air men over Egypt in 1957 also from the unrecognised Taiwan Government for damage done by Taiwan forces to British vessels. Also the United States and North Korea which it did not recognise asserted that it had violated International law by attacking the United States vessel, The Pueblo. From the foregoing it can be said that a degree of capacity is awarded to a new state in real situations in international law not considering the benefit of assent of other states. Thus in 1936 the Institut de Droit International stress that “existence of the state with all the legal effects connected with the existence is not affected by the refusal of one or more states to recognise”.The recognition of Poland therefore in the Treaty of Versailles according to a tribunal is said to declaratory as the state was already existed 'par lui meme'.The effect of recognition by other states is chastely declaratory because the actuality or vanishing of the state is a query of fact opinion No. 1 as stated in the Arbitration Commission established by the international conference on Yugoslavia 1991. Also the Badinter Commission on the Yugoslavia case asserts its view on whether the dissolution of the Socialist Federal Republic of Yugoslavia call for recognition responded that
While recognition is not a prerequisite for the foundations of a state and is purely declaratory in its impact, it is nonethe less a discretionary act that other states may perform when they choose and in the manner of their own choosing……. Unlike the constitutive school that sees recognition as the act that creates states the Declaratory school sees recognition as just a formal acknowledgement of an existing situation, recognition in this case is of minimum importance and is not seen as the creation of state solely depends on it (recognition).
The constitutive Theory, the profound thrust of this theory is that unrecognised states have no rights or obligation in international law.These school in recognition tend to streamline the situation of unrecognised states, stating “that political right of recognition is a precondition of the existence of legal rights”.Meaning the personality of a state basically depends on what the political decision of other states is.As decided in the case of the international Registration of Trademark (Germany) case in 1959 that East Germany was not a protected state using the 1883 and 1934 Conventions as defence West German national court ruled that East Germany was not recognised and that recognition is important that the mere fact that an entity exist does not mean it is automatically a state in international law. This case was meant to protect the rights of West Germans which have its origin from East Germany but because it was not recognised by East Germany it has no cover for such rights in West Germany. The formal condition of recognition according to some constitutive jurist includes the instituting of official, elective, and bilateral relations, including diplomatic relations and the conclusion of treaties.Lauterpacht and Guggenheim accept that recognition is constitutive.it is maintained therefore by the constitutive school that the act of recognition by other states is what creates a new state and it comes automatically with legal personality, here the process undergone by the state does not really matter.
Malcolm however sees these theories as very important in international law he sees the argument between these two schools as bringing out the functions of recognition and accentuating effect of states in the improvement of international law.some attempts have been made however to accustom these theories, Lauterpacht explains thus that if the criteria for statehood as agreed in international law is reach, then it is the responsibility of the existing nations to give recognition to the new state. He asserts further that the state has to act in the capacity of the international society since there is no government in international law to evaluate and harmonise legal personality. The declaratory theory is fulfilment of the criteria for statehood and other states recognising the new state as Constitutive. This however leaves out the political aspect of recognition which has to do with either states consenting or resolving not to recognise the new states.
Dixon on the other hand sees the declaratory theory as the best in international practicehe attach more importance to practice rather than theory and he stress that countries not recognised does not make them not subject to international law. An example of this is the case of Israel and the Arab states that refuse to recognise Israel as a state but that did not stop it from pointing out that Israel has desecrated international law.He sees this theory (Declaratory) “as holding more water though not watertight”.
Views On Political Act Of Recognition
Political act in recognition is use to either support or reject a State or government which is new in the international community. Recognition is seen as a highly political subject in international relations; other writers in international law see it as a complicated issue as it is a mixture of politics and legal implications, in fact this is the field in international law where law and politics are closely interwoven. The political sense of recognition seems to over shadow the legal aspect as there is no central authority in international law that states that at a particular stage a state would have attained the level of recognition. Instead recognition in international law is a thing of choice if a state does not want to recognise a particular state it has its reasons and to a large extend this reasons if checked are political reasons. As buttressed by Wallace “Recognition is a complex issue”she adds that a suitable explanation of recognition is that it is a political act which produces legal values.This concept has impact both on the National and the International level i.e it considers some rights and duties in Municipal Law that once a state is recognised it can exercise those rights otherwise no such rights will be allow, for example the appearance of a recognised state in a municipal court is one right a recognised case enjoy. Some states view recognition as a mark of approval and so because of chastely political reasons they refuse to recognise other states this can be seen in the case of America and the Communist China. This point as emphasised in May 1948 by a representative of America in the middle East case in the course of Security Council discussions asserts that it would be: “highly improper for one to admit that any country on earth can question the sovereignty of the United States of America in the exercise of the high political act of recognition of the de facto status of a state.”
His view is that no state can question this decision adopted by the United States. The Yugoslav Arbitration commission in July 1992also reaffirmed that recognition is a discretionary act adding that it depends on a state how a state wants to and when they choose to recognise other state in as much as it is in accordance with the requirements of international law.
Recognition Of States And Government In The United Kingdom And The United States Of America
Recognition is left to the executive to decide in the United Kingdom and the United States, recognition in its real sense is a political act so this is the duty of the executive to decide if a state should be recognised or not. This therefore means that what so ever is decided by the executive is applicable to the Judiciary so they would have to work with it and will not go contrary to the executive political decisions.This therefore means if the executive informs the judiciary of their position as regards recognition the judiciary works with it not asking questions this can be introduced to the judiciary by a foreign office certificate. This also gives the country automatic seeking to be recognised recognition and also acknowledging the rights and privileges of the state in the Municipal law. This right includes Diplomatic immunity, influence in court of the legislative and executive deeds of the recognising state, right to sue and be allowed immunity in the national court (locus standi) though it is not applicable in all cases. For example the formal recognition of Eritrea in 1993 and Yugoslavia (Serbia and Montenegro) in 1996 these was done out rightly by the government not the judiciary it is also said that the organs of government in the United Kingdom Speak with one voice. In the past the United Kingdom was lineate about recognition, once a state fulfilled the requirements of statehood recognition was granted. Although in some cases of doubt of the status of the state seeking to be recognised an appeal will be sent to the foreign office by the court which will in turn send an “executive Certificate” same procedure applies in the recognition of government. An example is the Luther v Sagor case.
In 1980 the British Government adopted its new policy on the recognition of government.These new policy stipulates that the recognition of state will remain in agreement with the International doctrine but from hereafter the United Kingdom will no longer recognise governments.States are recognised by Britain not minding the discrepancy between Statehood and recognition itself, except in extreme cases of which is typically a legal sort. Although this practise was not constant in some cases de facto recognition is given if there is uncertainty about the solidity of a state though recognition in the UK context was not seen as approval. The decolonisation period made this a less difficult approach as new states were recognised either by attendance of Independence ceremony or by sending congratulatory letters or messages. However newly emerging states had other things as criteria for recognition, as said by the British foreign Secretary that Britain has its own test on recognition of states with the traditional criteria and if the government in question can safeguard its people and maintain the recognition granted i.e. active administration of its external forces.These criteria's were relatively new because it implied civil rights, democracy, unilateral disarmament and economic obligations.Another fact considered by the UK government on recognition is states having genuine independence. The South African homeland of Bophuthatswana is not recognised by the UK government, it is said to enjoy illegitimate independence.So also recognition of government in the UK new policy of 1980 states that any government that that comes into power unlawfully will not sent a testimonial of recognition this will also curtail how the UK relates with the regime in question.