CSS International Law Solved Paper 2016 Question No 7

What is Recognition? Discuss Dejure and Defacto recognitions. Also, explain the constitutive and declaratory theories of recognition. Discuss the disabilities of unrecognized states.

Introduction

New states are created and old units fall away. New governments come into being within states in a manner contrary to declared constitutions whether or not accompanied by force. Insurgencies occur and belligerent administrations are set-up in areas of territory controlled by the legitimate government. These events create new facts and the question that recognition is concerned with revolves around the extent to which legal effects should flow from such occurrences. Each state will have to decide whether or not to recognize the particular eventuality and the kind of legal entity it should be accepted as. 2. 2.

Recognition of States

i. Constitutive Theory

It maintains that it is the act of recognition by other states that creates a new state and endows it with legal personality and not the process by which it actually obtained independence. Thus, new states are established in the international community as fully fledged subjects of international law by virtue of the will and consent of already existing states.

The disadvantage of this approach is that an unrecognized 'state' may not be subject to the obligations imposed by international law and may accordingly be free from such restraints as, for instance, the prohibition on aggression. A further complication would arise if a 'state' were recognized by some but not other states.

ii. Declaratory Theory

It adopts the opposite approach and is a little more in accord with practical realities. It maintains that recognition is merely an acceptance by states of an already existing situation. A new state will acquire capacity in international. Law not by virtue of the consent of others but by virtue of a particular factual situation. It will be legally constituted by its own efforts and circumstances and will not have to await the procedure of recognition by other states. This doctrine owes a lot to traditional positivist thought on the supremacy of the state and the concomitant weakness or non-existence of any central guidance in the international community.

iii. Politics of Recognition

In more cases than not the decision whether or not to recognize will depend more upon political considerations than exclusively legal factors. Recognition is not merely applying the relevant legal consequences to a factual situation, for sometimes a state will not want such consequences to follow, either internationally or domestically.

To give one example, the United States refused for many years to recognize either the People's Republic of China or North Korea, not because it did not accept the obvious fact that these authorities exercised effective control over their respective territories, but rather because it did not wish the legal effects of recognition to come into operation.

The Charter of the Organization of American States adopted at Bogota in 1948 notes in its survey of the fundamental rights and duties of states that:

the political existence of the state is independent of recognition by other states. Even before being recognized the state has the right to defend its integrity and independence.

A factor which leans towards the constitutive interpretation of recognition is the practice in many states whereby an unrecognized state or government cannot claim the rights available to a recognized state or government before the municipal courts.