Transcript
INTERNATIONAL LAW
TOPIC RECOGNITION
According to International Law, Recognition is the formal acknowledgment of the status of an independent State by other existing states.Every State has to have some essential features, called attributes of statehood, in order for other States to recognize the State as independent.States are considered as the principal persons in International Law.The recognition of a state is often a political act of a state.Recognition is not a conclusive proof of the existence of the state.
THE SIGNIFICANCE OF RECOGNITION OF STATE
1. To obtain equality status with other members of the international community
2. To acquire international rights and contracting international obligations
3. To engage in international relations
Is it important for a state to obtain a recognition from another state?
Slovenia
England
FranceGermany
TYPES OF RECOGNITION
Recognition of States
Recognition of
Government
What is the difference between recognition of state and government?
The tree is the state
The leave is the government
THE DIFFERENCE BETWEEN RECOGNITION OF STATE AND GOVERNMENT
Analogy:The tree is the state. The leaves are various governments. While governments (leaves) may come and go, the state (the tree remains)
Once the recognition is given to a state, the recognition cannot be withdrawn.
Recognition of a government may be lawfully withheld or withdrawn.
THE REAL CASE Saudi Arabia and the United Arab Emirates
withdrew their recognition to Afghanistan Taliban government when it refused to surrender Osama bin Laden in the aftermath of the events of September 11, 2001.
Is it permissible for the two state to withdraw their recognition to Taliban
government? Can they also withdraw their
recognition to the state of Afghanistan?
THEORIES OFRECOGNITIONThere are two popular theories laid down for the purpose of understanding the nature of recognition:1) Constitutive Theory2) Declarative or Evidentiary Theory
COMPARISON BETWEEN THEORIES
According to this theory, recognition is a necessary condition for statehood and personality. It is a process by which a political community acquires personality and becomes a member of the family of nations. A State comes into existence through recognition only and exclusively.
CONSTITUTIVE This theory states that
declaration is a mere formality and has no legal effect as the existence of a State is a mere question of fact.Every new state becomes a member of the family of nations ipso facto by its coming into existence. Recognition only provides the evidence to this fact. This theory says recognition is not important.
DECLARATIVE
EXAMPLES OF CONSTITUTIVE THEORYPoland and Czechoslovakia were recognized by the instrumentality of the Treaty of Versailles.Germany was divided into two parts after the World War II by a treatyKorea was divided into two parts
Taiwan is a democratic country and is adjoining areas where Chinese territory. Only few countries recognize Taiwan yet it had business dealings with almost every country.
EXAMPLE OF DECLARATIVE THEORY
DISADVANTAGESCONSTITUTIVE DECLARATIVE
Recognition is political and diplomatic but not legal. This theory imposes an obligation on all member states to recognize a State. Practically, no states wants to do something on obligation. There is no law the obliges established states to recognize new States.
The theory fails to explain legal rights and consequent of a recognized state.
TYPES OF RECOGNITION OF STATES
Expressed recognition
Implicit recognition
Collective recognition
Premature recognition
1. EXPRESS RECOGNITION An existing state recognizes another
state byreleasing a public statement by way of
notificationor a declaration announcing the intention ofRecognition.Grant is expressed in written words.
Diplomatic letters/notes, statements, telegrams.
Example: The statement of French President to recognize the independency of Algeria on 3 July 1963.
International treatyExample: Japan recognized Korea via article 12 of Peace Treaty on 8 September 1951.
2. IMPLICT RECOGNITION
Does not release a formal state but recognizes the state by some acts which imply that the state is being recognized.
Sending a diplomatic agent
Having a talk with an official or a head of state
Making an agreement with the state
Example: Prime Minister of Israel, Shimon Perez, visited Morocco on 21 July 1986 and had a talk with King Hassan II to seek solutions for Middle East problems.
3. COLLECTIVE RECOGNITION
Via international treaty or multilateral conference
Example: 5 ASEAN countries on 18 April 1975 recognized Cambodia
4. PREMATURE RECOGNITION
Recognition is given to a state although the state does not have complete constitutive components (no constitution, territorial borders are not clear)
Example: recognition of a number of states to Palestinian
TYPES OF RECOGNITION1. DE FACTO
RECOGNTION
2. DE JURE RECOGNITION
3. RECOGNITION OF BELLIGERANCY
4. RECOGNITION OF NATIONAL LIBERATION MOVEMENT
DE FACTO RECOGNITION This is a provision recognition and not a
permanent one. i.e., it can be withdrawn by other States at any time. It is the first step towards becoming a recognized country. Recognition is only by fact and not legal. State may have more than one Governments. No exchange of diplomatic representatives takes places. State succession might not happen. Mere de facto recognition is not sufficient to get UN membership.
Example: Israel, Bangladesh, Taiwan, Arab Republic etc.
DE JURE RECOGNITIONThis is a permanent recognition which
one granted cannot be taken back or withdrawn by other States. It is regal and rightful. State will have only one Governments. Exchange of diplomatic representatives takes places. State succession happens smoothly. de jure recognition by majority states his essential for UN membership.
RECOGNITION OF BELLIGERENCY
A belligerent group seizes power in its own country or a portion of it
A belligerent group has a de facto power
Example: France and Mexico officially recognized a leftist guerilla movement that had fought several years against the Colombian government.
RECOGNITION OF NATIONAL LIBERATION MOVEMENTNot yet applied
universallyWestern countries such
as USA and UK still reject this type of recognitionExample: the recognition of PLO through UN resolution No.3237 dated 22 November 1974, the UN renders PLO a rights to be the permanent UN observer.
LEGAL EFFECTSAccording to present-day state practice, recognition has only a declaratory character, not constitutive (i.e. fundamental or determining). The state comes into existence as soon as it has fulfilled the objective preconditions, especially the three elements of statehood referred to above. Recognition also constitutes a declaration by a state that in its opinion the country it has recognized must be regarded as a "state" within the meaning of international law, and hence also as a subject of international law.
In legal theory the question of whether it is not in fact the act of recognition that actually creates statehood – whether recognition has a constitutive effect, in other words – remains under discussion. In practice, however, the existence of a state is not dependent on whether it has been recognized as such. The sole determining factor is whether or not the elements of statehood under international law (state people, state territory, state power) are actually present in the specific case. Realistically, however, an entity cannot function as a state unless at least a certain number of states recognize it as such. The Turkish Republic of Cyprus, for example, which is only recognized as a state by Turkey, lacks statehood.
In recent state practice recognition has often been made contingent on the fulfilment of certain conditions, for example compliance with the UN Charter or observance of the rule of law, democracy and human rights. From the viewpoint of international law, however, these are not criteria for recognition but conditions of a political nature, formulated in relation to the establishment of diplomatic relation.
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