We found that recognition is a political matter (Gabriel Burcea, 2019). Although many would argue that it is a rule of law and it can be defined as a unilaterally act performed by a state for support the independence of another state or government, our thought is it is a political theory. This act is offered discretely as a sign of friendliness through an official letter or a congratulatory note. The post was written by Kaniz Suborna.
It is not a secret that, state recognition is typically for a new state. It is usually an explicit thing and unilateral diplomatic thing. But there is no body to recognize the new state. It comes from international relationship between the states or among the states. It is important for the identification of a sprouted state for the international trade and travels.
There are some theories and models to understand the recognition process. We will try to define the recognition, why it is important and what the legal consequences of it are.
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Meaning of Recognition
According to dictionaries, not only state, but Identification of anything is also recognition. It is a process of pointing out. The Cambridge Dictionary gave the definition as recognition is an “agreement that something is true or legal” (Cambridge University Press, 2020).
Recognition of state under the International Legal System can be defined as the formal acknowledgement or acceptance of a new state as an international personality by the existing States of the International community. It is the acknowledgement by the existing state that a political with the characteristics of statehood.
Political scientist Kelson gave a definition of the recognition. “A community to be recognized as an international thing” (Kelsen, 1941).
Famous political analyst Hegel’s definition is “A state comes into existence only after recognition” (Younkins).
We also have many other definitions but we should look at the definition of recognition by Phillip C. Jessup. He wrote “Recognition is such a function of a state by which she accepts that any political unit contains the essential elements of nationality” (ILSA, 2020).
Apart from the definition, we can see some aspects of recognition to understand it clearly. There are some general conditions to be recognized.
Conditions for Recognition
- Politically Organized: They should have the political party/s or political organizations to engage in political activities like lobbying, community organizing, campaign advertising, etc. to achieving recognition.
- Definite Control: It is the power to influence people or to give directions to the people’s behavior or the course of events.
- Independent: It is the fact or state of being independent.
- Constituted: Giving legal or constitutional form to the institution.
Recognition is very much Important. It has many effects in its run in the future.
Importance of Recognition
In fact, recognition’s importance is big. It has many effects when it got the recognition from other states.
Effects of recognition as its importance
Having recognition states can do these things. They can-
- Sign Treaties with other states
- Build diplomatic relationship with other states
- Form of Alliances with other states
- Build commercial relations with other states
- File suits against other states if necessary
- Create defense system for the safety of the territory of the state
- Take aid from people and from others states
- Travel to other states
- Finance projects
These effects show that how much important recognition is. Furthermore, it is necessary to develop the nation.
Recognition effects in importance has two division
- Legal effects or consequences of recognition
When a state acquires recognition, it gains certain rights, obligations and immunities such as.
- The state is able to enjoy the rights and privileges of international statehood.
- The state can undergo state succession.
- With the recognition of state comes the right to sue and to be sued.
- The state can become a member of the United Nation’s organizations.
- Retroactive effect of recognition (Abdulrahim)
Other effects parted from legal effects are retroactive effects of recognition. Such as: receiving taxes.
Extending in scope or effect to a prior time or to conditions that existed or originated in the past especially is made effective as of a date prior to enactment, promulgation, or imposition retroactive tax.
When to be recognized?
Egg –Chicken debate again. The answer is true—the egg comes first or the chicken comes first. When you narrow it down to states and the specific recognition from which they emerge. Recognition comes first.
Indeed, the state can come first- The first state. The very first thing in existence would have been the result of a state in older times. The debate is not necessary to recognize which was first. The necessary thing is process. The process of recognition has some legal issues.
The process of Recognition
- A state is or is not a state legally because, amongst other things, other states have unquestionable to treat it as such. Recognition can play a role in the international legality of the body of recognition.
- The recognition itself is regulated by international law, in that states are sometimes constrained in their choices when comes to appreciation.
Legal Consequences of Recognition in Focus
With directly involving issues of sovereignty when states are recognizing statehood the legal position depends in part on a distinction between matters which are needed in international law. These are left to the state’s will. Sovereignty includes territorial integrity and political independence. States should respect the sovereignty of other states.
As a fact of international law, If, then, an entity is a state, all other states are slightly bound to ‘recognize’ this, even if they object in some way to that state’s legitimacy or some features of its rule.
If an entity claims to be a state and it is formed of the territory but it is a part of an existing state, and formed without the consent of existing state, then other states are not inevitable to recognize this as they have obligations owed to the existing state (Kelsen, 1941).
In many areas of international relations, states are free to limit their joint relations. Certain other core obligations also operate on the basis of recognition, including, most obviously, the international law relating to the use of force. Every so often such a policy is concerned with a political hostility to what may eventually be a lawful procedure.
They are actually bound to do so in these capacities, then, states can, in effect, choose not to ‘recognize’ another unit as a state, even if, as a matter of the basic contours of their relationship.
As an example, states may wish to stay outside the political process surrounding Kosovo’s independence, their position amounting to one of remaining on the fence, or failing to give clear provision, rather than a clear denial of Kosovo’s eminence as a state, something which would be illegitimate if indeed Kosovo is a ceremonial.
However, states in their recognition or non-recognition exercise are taking a clear stand on the question of rank itself, this has to be in conformism to the legal position of the entity in interrogation in order to be legal.
The possibility arises whereby given the constitutive role that recognition can play in effect; states are seeking through respect to render legal something that would otherwise be unlawful.
Because of the jus cozens nature of that law, it is doubtful that states can through recognition alone render lawful something that would be unlawful as a matter of the law of autonomy,
Indeed, the recognition would not itself alter the unlawfulness of the situation, so the recognition would itself be illicit.
Those states who recognized Indonesia’s occupation of East Timor between 1975 and 1999 not only failed to alter the illegality of Indonesia’s claim to title over East Timor, they also themselves violated their obligations to the people of East Timor through this process of recognition (Wilde, Cannon, & Wilmshurst, 2010).
It is not of the related matter of self-determination. It is a situation that would be unlawful only as a substance of the right of an existing state to respect for its territorial integrity.
If recognition was not of this nature, then the pre-existing right would remain intact, and those states recognizing the new situation would be violating it.
Such as the Palestinian Territories and the Western Sahara, it was noted that to some extent, cogency depends on what is expressly or impliedly being agreed. In response to a enquiry regarding the legitimacy of contracts concluded with respect to the natural resources of doubtful territories, agreements will, by compulsion, make certain molds about sovereignty.
For instance, the Dayton Accords (Clinton) were decided with Serb President Milosevic despite many of the witnesses not recognizing the legitimacy of the Federal Republic of Yugoslavia (FRY). Likewise, a number of contracts have been reached regarding financial relations with Taiwan, but such contracts are not government-to-government.
Two Theories of recognition
- Constitutive theory
- Declaratory theory (Chicagounbound)
Constitutive Theory:
This theory has been advocated by Oppenheim, Hegel, Anzilloti, etc. An entity does not become a State by possessing essential attributes of Statehood according to this theory; it becomes so, when other States recognizes it. The act of recognition is clearly a legal act, with new States having the legal right to be recognized and casemented states having the legal duty to recognize them.
It implies at other States constitute the personality of a State by granting recognition.
Declaratory/ Evidentiary Theory:
This theory has been revealed by Fisher, Hall, Wagner, Brierly etc. Statehood or the authority of the new power exists as such prior to and independently of recognition according to this theory. There is no legal duty to recognize States even after it has attained statehood.
Recognition is only a formal credit through which established facts are granted. The act of recognition is merely declaratory or evidence of a present fact that a particular State or government possesses the vital attributes as obligatory under international law. It enables new State to enter into official intercourse with other States. That is why recognition is necessary.
Models of Recognition
By sanction models are-
- De facto recognition
- De Jure recognition (Gabriel Burcea, 2019)
De facto Recognition
Provisional recognition of statehood is the De facto recognition. The state having de facto recognition is not eligible for being a member of the United Nations. e.g., Taiwan, Bangladesh, Israel. It is a temporary and factual recognition as a state, and it can either be conditional or without any condition.
We can consider it as a test of control for newly formed states. This mode recognition to a new state is granted with a sufficient territory. Other existing states consider that it does not have enough stability or any other unsetting issues.
De facto recognition is a process of acknowledging a new state by a non-committal act. It is a primary step to de jure recognition.
De jure Recognition
Either with or without granting de facto recognition, the de jure recognition can be granted. De jure recognition is the recognition of a new state by the existing state. They need to consider that the new state fulfills all the vital characteristics of a state. There is no distinction between de facto and de jure. In the case of Luther v. Sagar, it was held in this case that for the purpose of giving effect to the internal acts of the recognized authority.
If the newly formed state acquires permanent has the stability and statehood, The De jure mode of recognition grants the permanent status of a newborn state as a sovereign state. This mode of recognition is granted to give honor to new state’s peoples.
Types of recognition
Types of recognition by express
- Implicit
- Implied
- Explicit
Types of recognition by group
- Individual: When single state gives recognition to a new state. For example-India recognized Bangladesh.
- Collective: When EU or ASEAN recognizes a new state, that would be collective recognition.
Types of recognition by condition
- In condition
- No condition
Types of recognition by Maturity
- Mature/delay
- Premature
Obligation to give recognition
There is no obligation to recognize a new state in international law. No one state is bound to recognize a new state. Example: Egypt, Turkey, USA recognized Israel but Bangladesh has not recognize that country. Obligation is not implied to give the recognition to a new body. But this is a common to give recognition. It brings profit of trade and travel between states. It helps people exchange money, education and culture.
Elements of statehood
Population: Switzerland, Canada and other states have small population. On the other hand, with very large populations there are States like China, India and others. It is a human political body. State is a community of people. Population can be more or less but it has to be there. Without a population there can be no State.
Territory/territorial sovereignty: State is a territorial unit. Definite territory is its vital component for a new state. But it is the second vital element for recognition. As it is essentially a territorial State, a state can be recognizing. A state cannot exist in the air or at sea. It has to be a definite, well-marked portion of territory. It is not important how much its size. The size of the territory of a State can be big or small. Russia is a state and Vatican City also is a state.
Effective government: Government is the third essential element of the State. Government is the body or equipment or support or magistracy of the State which implements, brands, applies and adjudicates the rules of the state. Through its government, the state cultivates its sovereign power. (Wikipedia, 2020)
In conclusion, Nations choose when and how to recognize new state as there is no such object like the uniform recognition or non-recognition (All Answers Ltd., 2019). Recognition includes sharing in the global legal procedure generally, preserving also bilateral relations and also inland relations too. The most significant issue in international Law is Recognition. It is a political theory. Recognition of state under the International Legal System can be defined as the formal acknowledgement or acceptance of a new state as an international personality by the existing States of the International community.
Consequences of recognition as its importance – they can- Sign Treaties with other states, Build diplomatic relationship with other states, Form of Alliances with other states etc.
Recognition is necessary to develop a nation. The recognition itself is regulated by international law. Theories of recognition include constitutive theory and declaratory theory (Chicagounbound). Models of recognition are De facto recognition and De Jure recognition (Gabriel Burcea, 2019). Population, territory/territorial sovereignty and effective government are the elements of statehood. There is no obligation to recognize a new state in international law.
References
Abdulrahim, D. W. (n.d.). Private Site for Legal Research and Studies. Retrieved July 30, 2020, from Google: https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/8-recognition
All Answers Ltd. (2019, July 17). Recognition Important Issues in International Law. Retrieved July 29, 2020, from Law Teacher: https://www.lawteacher.net/free-law-essays/international-law/recognition-important-issues-in-international-law.php
Cambridge University Press. (2020). Cambridge Dictionary. Retrieved July 30, 2020, from Meaning of recognition in English: https://dictionary.cambridge.org/dictionary/english/recognition
Chicagounbound. (n.d.). Recognition in International Law: A Functional Reappraisalt. Retrieved July 30, 2020, from Chicagounbound: https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=3544&context=uclrev
Clinton, B. (n.d.). Dayton Accords: international agreement. Retrieved July 31, 2020, from ENCYCLOPÆDIA BRITANNICA: https://www.britannica.com/event/Dayton-Accords
Gabriel Burcea, L. (2019). WHAT IS THE ROLE OF RECOGNITION OF NEW STATES IN CONTEMPORARY INTERNATIONAL LAW. Research Gate, 3.
ILSA. (2020). ABOUT THE JESSUP. Retrieved July 29, 2020, from ILSA: https://www.ilsa.org/about-jessup/
Kelsen, H. (1941, October). Recognition in International Law: Theoretical Observations. The American Journal of International Law, 35(4), 607.
Korman, S. (1996). The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice. Oxford: CLARENDON PRESS OXFORD.
Wikipedia. (2020, June 29). International law. Retrieved July 30, 2020, from Wikipedia: https://en.wikipedia.org/wiki/International_law
Wilde, R., Cannon, A., & Wilmshurst, E. (2010). Recognition of States: the Consequences of Recognition or NonRecognition in UK and International Law. Summary of the International Law Discussion Group meeting (pp. 3, 6, 9). London: Chatham House.
Younkins, E. W. (n.d.). CAPITALISM & COMMERCE: HEGEL’S AUTHORITARIAN STATE. Retrieved July 30, 2020, from Quebecoislibre: http://www.quebecoislibre.org/05/051115-11.htm