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Theories of Recognition and Consequences of Non-Recognition

"A State - wherefrom the study of politics starts and where it ends." -- J.W. Garner

Abstract:
Recognition of the state is an important topic in the field of international law. Firstly, this Article deals with the meaning of recognition of the state, then its theories of recognition, consequences of non-recognition, and finally with some case laws related to the recognition of the state. This brings a basic understanding of the topic.

Recognition is the status of the Political Community. Constitutive and Declarative are the two main theories of Recognition but none of them is perfect. Each theory has its Merits and Demerits. There are certain legal effects of recognition and also consequences of non-recognition.

Recognition in international law plays a crucial role in shaping the international community and establishing diplomatic relations between states. This process involves acknowledging the legitimacy of a new or existing state or government, thereby conferring certain rights and obligations upon them.

Introduction:

The term recognition as an international legal term may be defined as under:

The acknowledgment or acceptance by the members of the international community, that a new state has acquired international personality, is said to be recognition.

According to Professor G. Schwarzenberger, "The growth of international law is best understood as an expanding process from a nucleus of entities which have accepted each other's negative sovereignty and based on consent, are prepared to maintain and possibly expand the scope of their legal relations. Like most clubs, the society of sovereign States is based on the principle of co-option. In exercising this prerogative, the existing subjects of international law employ the device of recognition"

Definitions of Recognition:
  • J. Jessup: It is a political community acquiring or satisfying the requirements of statehood, qualifying itself to be a member of the international community.
  • Prof. Oppenheim: In recognizing the state as a member of the international community, the existing state declares that in their opinion the new state fulfils the condition of statehood as required by International law.

According to Montevideo Convention, of 1933 the minimum requirements of Statehood are as follows:

  • Definite territory
  • Definite population
  • Representative/Government
  • Capacity to enter into a contract/Sovereignty

There are two popular theories laid down to understandthe nature of recognition:

  1. Constitutive Theory
    This theory is supported and propounded by Hegel, Anzilloti, Holland, and Oppenheim. Hegel is a pioneer of this theory, which is supported and propounded by Anzilotti, Holland, and Oppenheim. Recognition is a process whereby a State is constituted; hence it is called as a constitutive theory.

    According to Holland, a State cannot be said to have attained maturity unless it is stamped with the seal of recognition, which is indispensable to the full enjoyment of rights which it connotes.

    According to Oppenheim, a State is and becomes an international person through recognition only and exclusively.

    According to this theory, recognition gives the rights and duties to recognized states under international law. Thus, a new state can acquire rights and duties only when the former old states have recognized it. Thus, even though an entity may possess the criteria of statehood a new community cannot claim to participate in international law unless and until there has been a formal act of recognition. This theory views that after the recognition a State gets its status of an internationalperson and becomes a subject to International Law.

    This doesn't mean that the State doesn't exist unless recognized, but in this theory, the State gets the exclusive rights and obligations and becomes subject to International Law after its recognition by other existing States.

    The traditional constitutive theory is criticized on a number of grounds:
    1. Firstly, if this theory were accepted, it would mean that other States would determine the fate of the new State. It may be noted that recognition by no means produces subjects of international law. The acceptance of this theory would mean that a State exists for some States (which have granted recognition) and does not exist for others (which have not granted recognition). This situation shows that recognition is not conclusive proof of the existence of a State.
    2. Secondly, there is no legal duty on the part of the existing States to recognize any community that has acquired the characteristics of Statehood.
    3. Thirdly, a State exists before its recognition.
    4. Fourthly, a State does have some rights and obligations under international law, even without recognition.
       
  2. Declarative or Evidentiary Theory
    ARTICLE 3 of the Montevideo Conference, 1933 lays down the Declaratory theory. The declaratory theory is also called an Evidentiary theory. The chief exponents of this theory are Professor Hall, Wagner, Pitt Cobbett, and Brierly.

    According to Professor Hall, the State, which is theoretically a politically organized Community, enters as of right into the family of States and must be treated according to the law as soon as it can show the marks of statehood no state has a right to withhold recognition when it was being earned.

    According to Brierly, the granting of recognition to a new State it is not a 'constitutive' but a 'declaratory' act it does not bring into legal existence a State which did not exist before. A State may exist without being recognized, and if it does exist then, whether or not it has been formally recognized by other states, it has a right to be treated by them as a State.

    As Moore says, the rights and attributes of sovereignty belong to it independently of all recognition, but it is only after it has been recognized that it is assured of exercising them. Like an infant who obtains majority without expressed recognition similarly a community that has satisfied the objective conditions of international law, obtains statehood. This thus results in the setting up of standard objectives like population, territory, independence, and the existence of government.
This theory requires evidence/declaration. It is some sort of confirmation of the already existing State. This theory is exactly the opposite of the constitutive theory i.e. in this theory it is first statehood and then recognition. It is a formal acknowledgment of an already existing state.

According to this theory statehood or authority of a new government existed even before and independently of recognition. When the entity acquires the attributes of statehood then it automatically turns into a state and becomes subject to the rights and duties of the international law without any formal action on the part of the other members of the international system.

Criticism of this theory:
The declaratory theory has also been criticized. The reason for criticizing the theory is that the theory alone cannot be applied to the recognition of the state. When a country with essential characteristics is established as a country, it can exercise international rights and obligations. This is the application of declarative theory, but when other countries recognize its existence and the country obtains recognized legal rights, then consecutive theory plays a role.

Analysis of the theories:
Both theories of recognition are appropriate within their limited spheres and the term 'recognition' contains too many concepts that can be usefully distinguished. Many activists have tried to merge the two theories but it was not possible as the theories are not entirely convincing. Lauterpachtattempted to create a synthesis´┐Żthat the constitutive theory should be applied for the notion that the new state begins its existence upon recognition and the declaratory theory for the notion that states' discretion in recognizing the new state was constrained.

Practically, in today's world, for a community to be recognized as a state by the United Nations, it has to qualify the attributes of statehood. However, as the act of recognition is the free will of each State, even in the case of recognition by the U.N., the States, that did not vote in favor, are not deemed to have recognized a new State. India also considers the legal qualifications a state must comply with to be recognized. The recognition is widely influenced by political, economic, and strategic considerations.

Consequences Of Non-Recognition
  • An unrecognized state does not have the power to sue in the courts of a non-recognizing State.
  • A state which has not been recognized, is not entitled to enter into diplomatic relations with the non-recognizing states.
  • The diplomatic representatives of a state which has not been recognized do not possess immunities from legal processes in foreign states.
  • Such states are not entitled to get their properties situated in foreign states.

Stimson Doctrine (Non-Recognition):
It was a statement of the United States' national policy. The doctrine imposed a duty of non-recognition of all territorial acquisitions brought about in breach of international law. Thus, if a State grants recognition to another State in violation of an international treaty (Paris Pact, 1928), such recognition would be invalid. Although this doctrine has much to recommend itself, the States do not always follow it.

The distinction between the Recognition of States and Government Recognition of a State is entirely different from the recognition of a government. Recognition of a government means that the recognizing State regards it as the sole representative of the given State in international intercourse. When the regime of a State is changed, it is required to be recognized by other States. Change in the government of a State may take place either in the normal course of political life or when it is affected through a revolt or revolution, unconstitutional means.

In the latter case, a new government usually receives recognition only when the other States are satisfied that it commands the support of the majority of the people and may become stable. Willingness and capacity to carry out its international obligations are also considered relevant. Since the non-recognition of a new government has nothing to do with the recognition of a State, official intercourse and treaties are not terminated but only suspended; they revive when the old government comes to power again or when the new regime is recognized.

The consequences of state Non-Recognition: the cases of Spain and Kosovo:
The principal objective will be to explain the reasons behind the non-recognition of the statehood of Kosovo. This situation has led to international sanctions on Kosovo that prevent the maintenance of regular relations with some key actors on the world stage, as well as the threatening possible accession to the European Union.

Our premise is that some non-recognizing EU member states have adopted a new understanding of what constitutes 'nationhood' since a more pragmatic approach was taken in the early 90s. Spain has been chosen as a case study, both due to its failure to recognize Kosovo, and also due to its hardening position, which has become even more extreme than that of Cyprus. We will assess the extent to which the domestic situation in Spain has affected actions taken regarding Kosovo.

This relationship will be shown by looking at the political discourse since 2007, covering the months before the Kosovo Unilateral of Declaration Independence (UDI), to the events of the Bulgarian Presidency of the EU in the first semester of 2018. Parliamentary debates, official documents, and press conferences will be analyzed as the main sources of information, together with interviews being held between Spanish and Kosovar officials between 2014 and 2018.

Conclusion:
The world today is globally connected and weaved into one international community, with each sovereign state as it's member. And thus, to enjoy the membership of such a global community it is crucial to be recognized as a state. So first and foremost, A state can be briefly defined as a conglomeration of a certain population, living in a territory, with a sovereign government ruling them.

Thus, as laid down by the Montevideo convention (1933), the elements required to be validly construed as a state can be narrowed down to population, territory, government and sovereignty. To get a status of a state, the recognition i.e. a unilateral acknowledgement is given by the other states.

Even though States are not the exclusive international actors and nor are they the only ones to have an international legal standing and yet primarily are the result of international recognition. These recognitions are for getting a statehood, a status of the sovereign state, and a part of the community where the other states exist.

One might ask what benefit does a state get after acquiring such statehood. Firstly, it incorporates such a state into the already existing international community; secondly, the recognition is a proof that all the requisites for a state have been complied with; and, thirdly the status of a state gives it the rights and obligations to enjoy and follow in the global community. Long term survival, or end to the territorial wars or have a stable status, there may be several reasons.

The main entities in the international community are sovereign states. Under international law, states have inherent rights and obligations. These are not easily defined, but a state typically can choose its form of government, make laws that promote its interests, provide services to its population, exercise jurisdiction over its territory, have equal legal standing with other states, and use self-defence against armed attacks.


Award Winning Article Is Written By: Ms.Anshu Janmeda
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Authentication No: OT364141476601-2-1023

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