CSS International Law Solved Paper 2018 Question 4

According to Starke, the subject of recognition can be presented, "Less as a body of clearly defined rules or principles than as a body of fluid, inconsistent and unsystematic state practice". Discuss.

Introduction

Recognitions is simply defined as an act through which one state acknowledges that the recognized state possess the essential characteristic of statehood. These essential characteristics are population, territory, government and sovereignty. The act of recognition implies that the both the recognizing state and the recognized state accept that the other is entitled to exercise all expertise of statehood in international law.

Furthermore, it also implies that both will treat each other as entitled to represent their respective states in international law. Professor L. Oppenheim has defined recognition as: "In recognition of a state as a member of international community, the existing state declares that in their opinion, the new state fulfills the conditions of statehood as required by international law.

Prerequisites/Conditions of Statehood for Recognition

According to the Article 1 of Montevideo Convention on the Rights and Duties of States (1933), the four essential conditions of statehood are:

  1. A permanent population
  2. A defined territory
  3. A government which represents the population
  4. Sovereignty; the capacity to enter into relations with other states

Where international law has unanimously established that the aforementioned characteristics are a prerequisite for statehood, it does not provide as to how these essential conditions are to be determined. It leaves the members of the international community to determine these characteristics. It is because of this reason that experts like Starke have opined on recognition as "Less as a body of clearly defined rules or principles than as a body of fluid, inconsistent and unsystematic state practice". There are two main theories of recognition of state which differ in explaining the effects of recognition the legal status of an entity being recognized.

i. Theories of Recognition of State

There are two main theories which debate the effects of recognition on the legal status of a being recognized. Both of these theories are oppositional in nature. They are explained below:

1. Declaratory Theory

Chief Exponents

The main proponents of Declaratory Theory are Hall, Wagner, Brierly and Fisher. Main Idea The basic idea or the crux of Declaratory Theory is that if an entity satisfies the four conditions of statehood, it will be a state irrespective of recognition. Thus, in effect, the body will be subject to the duties, and will be able to claim general rights accorded to a state in international law. Therefore, statehood exists prior to the formal recognition.

This means that recognition is merely the formal acknowledgment through which state's already existing legal capacities are accepted. Hence, legal personality of a state (ability to exercise rights and duties under international law) does not depend on recognition as such by other states. Therefore, the recognition of other states is not important to have legal personality in international law.

According to Hall: "A state enters into the family of national as of right when it has acquired the essential attributes of statehood".