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  3. 3. 2INTRODUCTIONSome definitions of “international law” can be found on the Web as follows:“The body of laws governing relations between nations”1, “International law isthe term commonly used for referring to the system of implicit and explicit agreementsthat bind together nation-states in adherence to recognized values and standards, differingfrom other legal systems in that it concerns nations rather than private citizens. ...”2, “Acomplex network of principles, treaties, judicial decisions, customs, practices, andwritings of experts that are binding on States in their mutual relations.”3The commonpoint of the definitions is that, international law deals with the states and states activities.Addition to the States and the State’s activities international law has a wide range ofinterests, as Shaw indicates “Public international law covers relations between states...and regulates the operations of the many international institutions”4Nevertheless, “thestates were the original and remain the primary actors in the international legal system.”5This essay considers an important case of international law, “recognition”. Tomake it easier to understand, first it describes the states and the criteria of statehood.After that, it will focus on the concept of recognition, the difference ways in which it canoccur and the kinds of situations it may apply in. Finally this paper will conclude byoutlining the legal results of recognition.1wordnet.princeton.edu/perl/webwn, accessed on 02 January 20092Wikipedia, “ International Law”, en.wikipedia.org/wiki/International_law, accessed on 02 January 20093Political Geography Glossary,www.umsl.edu/~naumannj/geog%202001%20glossaries/political%20geographyh/POLITICALL%20GEOGRAPHY%20GLOSSARY.doc, accessed on 02 January 20094M.N. Shaw, International Law, (6thed., Cambridge University Press, Cambridge 2008) 25n 4 above, 218
  4. 4. 3I. STATES AS THE MAIN SUBJECTS OF INTERNATIONAL LAWIn all legal systems, the subject of law is an entity, which has enforceable rights andduties at the law. It can be a company or an individual and both are defined as “legalperson” by the law.6Legal personality is the main clause for the entities to function or inother words to allege and enforce a claim.7International law is constituted by States and it is generally concerning the activitiesand the transactions of States. As Warbrick says “International law..... has something todo with States”8Fifty years ago it was generally admitted that “ States are the only legalpersons of the international law” 9, but today conception is rather different, theparticipants can be regarded as; states, international organisations, regional organisations,non-governmental organisations, public companies, private companies and individuals.10International law states that, an entity which meets the international legal criteria ofstatehood is able to be a State.11And the Article 1 of the Montevideo Convention onRights and Duties of States provides the criteria of the statehood. According theConvention a state should have; a) a permanent population b) a defined territory c)government and d) capacity to enter into relations with other states. Similarly, theArbitration Commission of the European Conference on Yugoslavia in Opinion No. 1declared that “ the State is commonly defined as a community which consists of aterritory and a population subject to an organised political authority” and that “such aState is characterized by sovereignty”12a) a permanent population; there must be some people to establish the existence of aState but there is not a specification of a minimum number of people and again there isnot a requirement that all of the people be national of the state.13b) territory; the second qualification is territory where the permanent populationlive on. However, there is not a necessity of having well- established boundaries as the6Ibid, 1957ibid, 1958C. Warbrick, ‘States and Recognition in International Law’ in Malcolm. D. Evans (ed.), InternationalLaw, 2nded., OUP, 2006, chapter 7., 2189D.P. o’connel, International Law for Students, (Stevens & Sons ltd., 1971)10n 4 above, 19611n 8 above, 21812n 4 above , 19813I. Brownlie, “Principles of Public International Law”, (7th. ed. Oxford University Press, Oxford 2008)70; Shaw, n 4 above 199; Warbrick, n 8 above 232;
  5. 5. 4international Court of Justice said in the North Sea Continental Shelf cases, “ ... there is...no rule that the land frontiers of a state must be fully delimited and defined”.14The well-known example is the uncertainty of the land frontiers of Israel when it was admitted as aState. 15c) government; A State requires a government that functions as a political bodywithin the law of the land. But it is not a condition precedent for recognition as anindependent State16d) capacity to enter into relations with other states; the fourth and last qualificationis about independency, in other words independence is indicated by the criterion ofcapacity to enter into relations with other states.17What are the rights and duties, the powers and immunities that attach to an entitybecause it is a State? Crawford (2006, pp 40-41) gives a list of five “exclusive andgeneral legal characteristics” of States:“(1) States have plenary competence to perform acts in the international sphere-make treaties and so on.(2) States are exclusively competent with respect to their internal affairs-“exclusive” means plenary and not subject to control by other States.(3) States are not subject to international process without their consent.(4) States are regarded in international law as “equal”, it is a formal, not a moral orpolitical principle(5) States entitled to benefit from the Lotus presumption, especially that anyderogation from the previous principles must be clearly established.”18These are the criteria and the consequences of being a State, the next chapter willfocus on to be accepted as a State.14North Sea Continental Shelf, Judgment,ICJ Reports 1969, p.3, para 4615Warbrick, n 8 above 23316Shaw, n 4 above 20017I. Brownlie, “Principles of Public International Law”, (7th. ed. Oxford University Press, Oxford 2008) 7118Warbrick, n 8 above, 242
  6. 6. 5II. RECOGNITIONAt the first years of 20th. century, there were nearly fifty states in the world arena,just before the World War II the number reached approximately seventy-five and in 2005,there were almost 200.19Each State creation, again and with some problems, put therecognition concept on the agenda of international community. Recognition has becomemuch important especially by reason of its results. What is meant by recognition ofStates? Grant defines it as “a procedure whereby the governments of existing states re-spond to certain changes in the world community.”20Then, it can be said that,recognition is an activity of States as a “legal person” of international law.As mentioned above because of its results, today recognition is a popular subject ofinternational law. Recognition of an entity doesn’t mean only that this entity has met therequired qualifications, but also that the recognising state will enter into relations with therecognised State and let that State to enjoy usual legal consequences of recognition suchas privileges and immunities within the domestic legal order21Therefore it is claimedthat, generally the decision of to recognise or not, depends on political views rather thanlegal grounds.22It is right because to enter into relations with a foreign State and permitsome privileges to her, is directly relevant to the State’s interests. Thus, when States givea decision about recognition, of course they will weigh the advantages against thedisadvantages of this decision.Is there a duty of recognition? Lauterpacht and Guggenheim hug the opinion thatrecognition is constitutive, but that there is a duty to recognise.23This point of view hasbeen criticised as bearing no relation to the State practice and for its inconsistency.24Browlie asserts that, “recognition is an optional and political act and there is no duty inthis regard.”2519J. Crawford, “The Creation of States in International Law”,(2th., Clarendon Press, Oxford 2006) 420T.D. Grant, “The Recognition of States: Law and Practice in Debate and Evolution”,(Praeger Publishers,Westport, CT.1999)21International Law, “Recognition”, http://web.wits.ac.za/NR/rdonlyres/E0A48346-CB0B-4BEC-95B1-DD3FD4DEDD58/0/Overhead15.doc , accessed on 02 January 200922Shaw, n 4 above, 44523Browlie, n 17, 8624ibid 8725ibid 88
  7. 7. 6A-RECOGNITION OF STATESThere are mainly two theories relevant to recognition, the constitutive and thedeclaratory theory. The constitutive theory asserts that States and governments do notlegally exist until recognised by the international community and the declaratory theoryadopts that States and governments gain in the international personality when they comeinto existence.26According the constitutive theory, creation of a new State depends on theacceptance of present States. The new State will have the rights and duties at the time ofbeing recognised. However, this theory has some queries, such as what will happen ifsome existing States recognise the new one and the others do not? And how it could bepossible to put in force some restrains, like prohibition on aggression, against theunrecognised State?27The declaratory theory claims that a State will be formed free fromthe consents of the other States, just after she meet the international requirements. Thisapproach is laid down in the first sentence of Article 3 of the Montevideo Convention(1933), "The political existence of the state is independent of recognition by the otherstates." The declaratory theory seems to be more adequate for practice than the other.28Since the recognition has a political side, in practice the States prefer a middle waybetween these two doctrine; in addition to classic qualifications to seek some basicrequirements of international law for recognition.29In the past, it was sufficient for a newState to fulfill the four criteria. In 1930s some States also looked for that a new Statemust obey some fundamental standards of the international community.30As an examplefor recent times, in the European Communities Declaration on the "Guidelines on theRecognition of new States in Eastern Europe and the Soviet Union" it is indicated that“The Community and its member States adopt a common position on the process ofrecognition of these new States, which requires:- respect for the provisions of the Charter of the United Nations and thecommitments subscribed to in the Final Act of Helsinki and in the Charter of Paris,especially with regard to the rule of law, democracy and human rights;- guarantees for the rights of ethnic and national groups and minorities inaccordance with the commitments subscribed to in the framework of the CSCE26Dr. A. Kirchner, “Public International Law: Recognition of States and Governments” ,accessed on 02 January 200927Shaw, n 4 above, 44628ibid 44629ibid 44630A. Cassese, “ International Law”, (2nded., Oxford University Press, Oxford 2005)
  8. 8. 7- respect for the inviolability of all frontiers which can only be changed by peacefulmeans and by common agreement;- acceptance of all relevant commitments with regard to disarmament and nuclearnon-proliferation as well as to security and regional stability;- commitment to settle by agreement, including where appropriate by recourse toarbitration, all questions concerning State succession and regional disputes.The Community and its member States will not recognise entities which are theresult of aggression.”At the end of the Declaration, as a conclusion, it is added that “The commitmentto these principles opens the way to recognition by the Community and its member Statesand to the establishment of diplomatic relations.” However, it will be well-advised torepeat that, in practice recognition is used for to point out political approval ordisapproval. Political assessments always effect the decision.31B-RECOGNITION OF GOVERNMENTSAs mentioned above the third criteria of the statehood is an “effective government”,therefore a decision to recognise a new State generally includes the recognition ofgovernment.32They might be seen as similar concepts; however, recognition of agovernment is different from recognition of a State. Recognition of government would bediscussed where the change of the government is unconstitutional.33In practice, theeffective control of the new government over the territory is a preferable criterion for therecognition but it requires being settled and likely to continue.34The other difference isthat, the recognition of a State is about its legal personality on the other hand recognitionof a government is relevant to the status of the administrative authority.35Effective control has a common use but it is not the only approach for therecognition of government, the Tobar doctrine handles it in a different way. According toTobar doctrine, an unconstitutional change of the government should be recognised onlywhen the people accept it. This was used by United States in Central America especiallyin order to protect stability.36In 1980 UK declared that, it would not recognise the governments apart fromStates. Shaw argues that correctly, “the reason of this declaration was the perception thatrecognition meant approval and was often embarrassing for instance in case of regimes31n 21 above32Warbrick, n 8above, 25333Shaw, n 4 above, 45434Ibid 44635ibid 45636ibid 457
  9. 9. 8violating human rights.”37This political change, to not recognise governments officially,was followed by the other countries after a short time.C-DE FACTO AND DE JURE RECOGNITIONAkehurst argues that the distinction between de facto and de jure recognition is oneof the most confused circumstances of recognition and at first hand he objects theexpressions de facto and de jure recognition. According to him, they are technically incorrect, since the words de jure or the de facto describes the government not the act ofrecognition.38Indeed, the subject is about the legal status of the government. Similarly,Aust gives a definition of the de facto and de jure recognition by relying on the legalstatus of the government: “Recognition de jure means that the entity fully satisfies theapplicable legal criteria; recognition de facto is only of the current position of the entity,and is therefore usually provisional”39De jure recognition is of course stronger, while de facto recognition is moretentative and more connected with effective control of the recognised state over itsterritory, as when the United Kingdom recognised the Soviet Union de facto in 1921, butde jure only in 1924. 40The assessments or the definitions of the both concepts can be change in differentsituations but it is the fact that everything is relevant to the intention of the governmentconcerned and the general context of fact and law.41De facto recognition can be thoughtas an attitude of wait and see, since it includes ambiguity. This method gives therecognising state the opportunity of acting in accordance with the political facts and itsinterests.42D-PREMATURE RECOGNITIONSince it is a political decision of States, in some circumstances, the recognitionoccurs before the criteria of statehood have been fulfilled by the new State. In such cases,the problem is to determine the premature recognition is an intervention in the internal37ibid 45838P. Malanczuk, M.B. Akehurst, “Akehurst’s Modern Introduction to International Law” ( Routledge,1997) 8839A.Aust, “ Handbook of International Law” (Cambridge University Press, 2005) 2640Wikipedia,“Recognition of states and governments,http://en.wikipedia.org/wiki/Diplomatic_recognition,accessed on 05 January 200941Brownlie, n 17 above, 9142Shaw, n 4 above, 460
  10. 10. 9affairs of another state or is an admissible recognition of a new state that has emerged oris emerging as a result of secession.43Recognitions of Bosnia-Herzegovina and Croatiawere the well-known examples of premature recognition in the near past as both stateshad not an effective control on their whole parts of territories at the time beingrecognised.E-IMPLIED RECOGNITIONRecognition is about intention and may be expressed or implied.44To understandhow a State may recognise another State by implication it is necessary to look into thesome certain circumstances. Lauterpacht states that, the establishing of diplomaticrelations and maybe, to grant the exequatur or signing a bilateral treaty includes extensiverelations between the two states justify the implication.45A congratulation message to anew State for obtaining sovereignty will bear recognition of that State, but unofficialcontacts do not have the same result, just like the informal relations established betweenUnited States and Communist China in the 1960s and early 1970s.46It does not mean recognition when two states both signed a multilateral treaty suchas United Nations Charter. Israel and many Arab countries are UN members at thepresent but it does not change Arab non-recognition of the Israel State. On the other handwhen a State affirms the membership in the UN of an entity, needless to say thatrecognition occurs. As an example, United Kingdom recognised the Former YugoslavRepublic of Macedonia by supporting its membership in the UN. 47In practice the implied recognition is not preferred since the states want to havetheir control of recognition and in general they use a formal way for it.48F-CONDITIONAL RECOGNITIONConditional recognition means that to recognise an entity as a State only when itfulfills some conditions. It was first seen in the Berlin Congress of 1878, Great Britain,France, Italy and Germany marked the recognition of Bulgaria, Serbia, Romania andMontenegro with the condition that these countries would not impose any religiousdisabilities on any of their subjects.43ibid 46144Brownlie, n 17 above, 9145ibid 9146Shaw, n 4 above, 46347ibid 46448ibid 464
  11. 11. 10It may cause some political problems but the non-observance of the conditionwould not invalidate the recognition. Since the law does not attach value to any conditionunless it depend upon agreements made by the particular parties.49G-COLLECTIVE RECOGNITIONIn 1971 the International Law Commission stated that collective recognition “meansthat States act collectively during the process of receiving information of the situation,evaluating that information and reaching a decision, and communicating that decision”50This may be seen as a result of increased corporation between the States. The idea of actcollectively has been a subject of a debate since the foundation of the League of Nationsand the establishment of the United Nations.51However, the States preferred to keep thecontrol of recognition in their authorised bodies. As Shaw stated “The most that could besaid is that membership of the United Nations constitutes powerful evidence ofstatehood” 52H- WITHDRAWAL OF RECOGNITIONSometimes it is possible to withdrawn a granted recognition. Especially, it is easierfor the de facto recognition53since the position is different with the de facto recognitionwhich includes an ambiguity for the future of the entity. If the government of the entityloses the effective control on its territory there will be no ground for recognition and itmay be taken back. On the other hand de jure recognition is more difficult to withdrawbecause as mentioned above it is stronger than de facto recognition. De jure recognitionmay be the case only if the State is annexed or conquered by another State.III- NON-RECOGNITIONThe doctrine of non-recognition, also known as the Stimson Doctrine of non-recognition, means to not grant recognition to the new entities or the some factualpositions which are the result of any illegal actions such as using force.54It supported the49ibid 46550“Document:- A/CN.4/245, Survey of international law - Working Paper prepared by the Secretary-General in the light of the decision of the Commission to review its programme of work” Extract from theYearbook of the International Law Commission:-1971, vol. II(2), p.1851Shaw, n 4 above, 46652ibid, 46653ibid, 46654S. K. Verma, “An Introduction to Public International Law”, (PHI Learning, 2004) 110
  12. 12. 11principle that legal rights cannot obtain from an illegal situation. ( ex injuria jus nonoritur)55The doctrine was brought forward by the United States Secretary of State, Mr.Stimson in 1932, relevant to the Japanese occupation of Manchuria.56It was accepted bya resolution of the Assembly of the League of Nations. In the resolution it is stated that;“Considering that the principles governing international relations and thepeaceful settlement of disputes between members of the League above referred to are infull harmony with the Pact of Paris, which is one of the corner-stones of the peaceorganization of the world, and under Art. 2 of which the High Contracting Parties agreethat the settlement or solution of all disputes or conflicts, of whatever nature andwhatever origin they may be, which may arise among them, shall never be sought exceptby pacific means; . . . proclaims the binding nature of the principles and provisionsreferred to above and declares that it is incumbent upon the members of the League ofNations not to recognize any situation, treaty, or agreement, which may be brought aboutby means contrary to the Covenant of the League of Nations or to the Pact of Paris. . . .”57However this intention did not reflect to the practice until the Second World War;“the Italian occupation of the Empire of Ethiopia and the German takeover ofCzechoslovakia were recognised de facto over the years by Western Powers.”58After1945 it was again discussed and took place in some international instruments such as UNCharter (Article 2(4)), the draft Declaration on the Rights and Duties of States andSecurity Council resolution 242 (1967) on the solution to the Middle East conflict.59Especially draft Declaration on the Rights and Duties of States indicated that, every Statehas the duty to refrain from recognizing any territorial acquisition by another State whereachieved by means of the threat or use of force or in any other manner inconsistent withinternational law and order. In this context, “in 1990, the Security Council adoptedresolution 662, which characterised the Iraqi annexation of Kuwait “null and void” andcalled on all states and institutions not to recognise the annexation.”60IV- LEGAL CONSEQUENCES OF RECOGNITION“Recognition is a unilateral act of a State and one that has international legalconsequences”, for instance where State grant recognition to an entity, it accepts that theywill have relations subject to international law on basis of State/State.61In practice, likeclaimed by declaratory theory, the political existence of a State is not bound to therecognition of other States, therefore an unrecognised State has to act comply with the55Shaw, n 1 above,46856ibid,46857“Events 1932”, http://www.ibiblio.org/pha/events/1932.html, accessed on 06 January 200958Shaw, n 4 above 46859ibid, above, 46960ibid, above 47061Warbrick, n 8 above 250
  13. 13. 12international law rules.62It means that, when the States sign an international agreementwhich is signed by a State they have not recognised, they will have the right to ask fromthat state to fulfill the responsibilities grow out of the agreement.63After recognition, the recognising States would respect to the rights of the newState which indicated in the International Law Commission Draft Declaration on Rightsand Duties of States, 1949, such as “right to independence and hence to exercise freely,right to exercise jurisdiction over its territory and over all persons, right to equality in lawwith every other State, right of individual or collective self-defense against armedattack”64The participation in the international process is not the only result of recognition,at the same time the recognised State will be able to enjoy usual legal consequences ofrecognition such as privileges and immunities within the domestic legal order. As anexample, Plessis lists some privileges and immunities within the municipal law of UnitedKingdom as follows:“ ● Only a recognized state or government has locus standi in the UK courts● Only a recognized state or government (or its agents), may plead immunityfrom suit. It cannot be sued without its consent.● Only the legislative, executive or judicial acts of a recognized state orgovernment will be given legal effect within the United Kingdom”65Shaw adds one more “it will be entitled to possession in the recognising state ofproperty belonging to its predecessor.”66V- CONCLUSIONRecognition is one of the most difficult and complicated topics in internationallaw. It is complicated because it involves important political results and legal effects bothin international and municipal law. Political assessments always effect the recognitiondecision. Where the States give a decision about recognition, of course they will weighthe advantages against the disadvantages of this decision. If it is looked into the somecases relevant to recognition in international law, I think it can be understood clearly, to62Shaw, n 4 above 47163ibid 47164Text adopted by the International Law Commission at its first session, in 1949,65M.D. Plessis, “Recognition Of States & Government”, University Of Kwazulu-Natal Faculty Of LawInternational Law 2007(1), http://www.library.und.ac.za/Recognition_states_governments.doc , accessedon 07 January 200966Shaw, n 4 above 472
  14. 14. 13grant recognition completely depends on political considerations. In my point of view,recognition for a State means merely to decide that, whether it is suitable for her needs ornot.There are basically two theories to explicate recognition; the constitutive and thedeclaratory theory. The constitutive theory asserts that States and governments do notlegally exist until recognized by the international community and the declaratory theoryadopts that States and governments gain in the international personality when they comeinto existence. I think the declaratory theory is more conformable to reason and parallelto the practice of international law and it is supported by the Montevideo Convention onRights and Duties of States. However, I think it is very difficult to lay down a regulationon state activities, since they are not stable. They may change time to time. Rulesconcerning recognition have the same character. Every case should be assessed in itself.International law is made by States and again breached by States. There is alwaysan exception of rules in international law. The important thing is to find a legal cover andnowadays it does not seem to be so difficult. I think in the past States were more honest,it was easy to understand what they really intend to do but today the situation is different,an explanation or a behavior can be understood only after seeing the results. And it iscalled policy which the decision of recognition rely on.BIBLIOGRAPHY1- wordnet.princeton.edu/perl/webwn,2- Wikipedia, “ International Law”, en.wikipedia.org/wiki/International_law,
  15. 15. 143- PoliticalGeographyGlossary,www.umsl.edu/~naumannj/geog%202001%20glossaries/political%20geographyh/POLITICALL%20GEOGRAPHY%20GLOSSARY.doc4- SHAW, M.N. International Law, (6thed., Cambridge University Press,Cambridge 2008)5- WARBRICK,C., ‘States and Recognition in International Law’ in Malcolm.D. Evans (ed.), International Law, 2nded., OUP, 2006, chapter 7.,6- O’CONNEL, D.P., International Law for Students, (Stevens & Sons ltd.,1971)7- BROWNLIE, I., “Principles of Public International Law”, (7th. ed. OxfordUniversity Press, Oxford 2008)8- North Sea Continental Shelf, Judgment,ICJ Reports 1969, p.3, para 469- CRAWFORD J., “The Creation of States in International Law”,(2th.,Clarendon Press, Oxford 2006)10- GRANT, T.D. “The Recognition of States: Law and Practice in Debate andEvolution”,(Praeger Publishers, Westport, CT.1999)11-International Law,“Recognition”,http://web.wits.ac.za/NR/rdonlyres/E0A48346-CB0B-4BEC-95B1DD3FD4DEDD58/0/Overhead15.doc12-KIRCHNER, Dr. A. “Public International Law: Recognition of States andGovernments” CASSESE, A. “ International Law”, (2nded., Oxford University Press,Oxford 2005)14-AUST, A. “ Handbook of International Law” (Cambridge UniversityPress, 2005),http://books.google.co.uk/books?id=EqO9rKIcoQMC&pg=PA26&lpg=PA26&dq=de+jure+and+de+facto+recognition&source=web&ots=r3cNfYCi1s&sig=q3LDDPG_fF0Ae_HJDTKWOYNVzY&hl=en&sa=X&oi=book_result&resnum=5&ct=result15-WIKIPEDIA,“Recognition of state and governments”,
  16. 16. 15http://en.wikipedia.org/wiki/Diplomatic_recognition,16- VERMA, S.K. “An Introduction to Public International Law”, (PHILearning, 2004)http://books.google.co.uk/books?id=1oQxRzp9MoAC&pg=PA102&lpg=PA102&dq=%22conditional+recognition%22&source=web&ots=SKLROLw6o0&sig=GF7bfEVT6Ti2vNmi0hXglpJA_B8&hl=en&sa=X&oi=book_result&resnum=1&ct=result#PPA102,M117- “Events 1932”, http://www.ibiblio.org/pha/events/1932.html,18- PLESSIS, M.D. “Recognition Of States & Government”, University OfKwazulu-Natal Faculty Of Law International Law 2007(1),http://www.library.und.ac.za/Recognition_states_governments.doc ,