Some definitions of “international law” can be found on the Web as follows: “The body of laws governing relations between nations”, “International law is the term commonly used for referring to the system of implicit and explicit agreements that bind together nation-states in adherence to recognized values and standards, differing from other legal systems in that it concerns nations rather than private citizens. ...”, “A complex network of principles, treaties, judicial decisions, customs, practices, and writings of experts that are binding on States in their mutual relations.” The common point 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 of interests, as Shaw indicates “Public international law covers relations between states...and regulates the operations of the many international institutions”. Nevertheless, “the states were the original and remain the primary actors in the international legal system.” This essay considers an important case of international law, “recognition”. To make 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 can occur and the kinds of situations it may apply in. Finally this paper will conclude by outlining the legal results of recognition.
I. STATES AS THE MAIN SUBJECTS OF INTERNATIONAL LAW
In all legal systems, the subject of law is an entity, which has enforceable rights and duties at the law. It can be a company or an individual and both are defined as “legal person” by the law.6 Legal personality is the main clause for the entities to function or in other words to allege and enforce a claim. International law is constituted by States and it is generally concerning the activities and the transactions of States.
As Warbrick says “International law...has something to do with States”. Fifty years ago it was generally admitted that “. States are the only legal persons of the international law”, but today conception is rather different, the participants can be regarded as; states, international organizations, regional organizations, non-governmental organizations, public companies, private companies and individuals.
International law states that, an entity which meets the international legal criteria of statehood is able to be a State. And the Article 1 of the Montevideo Convention on Rights and Duties of States provides the criteria of the statehood. According the Convention 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, the Arbitration Commission of the European Conference on Yugoslavia in Opinion No. 1 declared that “ the State is commonly defined as a community which consists of a territory and a population subject to an organized political authority” and that “such a State is characterized by sovereignty”.
a) A permanent population. There must be some people to establish the existence of a State but there is not a specification of a minimum number of people and again there is not a requirement that all of the people be national of the state;
b) Territory. The second qualification is territory where the permanent populations live on. However, there is not a necessity of having well- established boundaries as the international 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”. The well known example is the uncertainty of the land frontiers of Israel when it was admitted as a State;
c) Government. A State requires a government that functions as a political body within the law of the land. But it is not a condition precedent for recognition as an independent State; d) Capacity to enter into relations with other states; the fourth and last qualification is about independency, in other words independence is indicated by the criterion of capacity to enter into relations with other states.
What are the rights and duties, the powers and immunities that attach to an entity because it is a State? Crawford gives a list of five “exclusive and general 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 or political principle.
(5) States entitled to benefit from the Lotus presumption, especially that any derogation from the previous principles must be clearly established.”
These are the criteria and the consequences of being a State, the next chapter will focus on to be accepted as a State.
At the beginning of XX 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. Each State creation, again and with some problems, put the recognition concept on the agenda of international community. Recognition has become much important especially by reason of its results. What is meant by recognition of States? Grant defines it as “a procedure whereby the governments of existing states respond to certain changes in the world community.”20 Then, 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 of international law. Recognition of an entity doesn’t mean only that this entity has met the required qualifications, but also that the recognizing state will enter into relations with the recognized State and let that State to enjoy usual legal consequences of recognition such as privileges and immunities within the domestic legal order.
Therefore it is claimed that, generally the decision of to recognize or not, depends on political views rather than legal grounds. It is right because to enter into relations with a foreign State and permit some privileges to her, is directly relevant to the State’s interests. Thus, when States give a decision about recognition, of course they will weigh the advantages against the disadvantages of this decision.
Is there a duty of recognition? Lauterpacht and Guggenheim hug the opinion that recognition is constitutive, but that there is a duty to recognize. This point of view has been criticized as bearing no relation to the State practice and for its inconsistency. Browlie asserts that, “recognition is an optional and political act and there is no duty in this regard.”
A-RECOGNITION OF STATES
There are mainly two theories relevant to recognition, the constitutive and the declaratory theory. The constitutive theory asserts that States and governments do not legally exist until recognized by the international community and the declaratory theory adopts that States and governments gain in the international personality when they come into existence.
According the constitutive theory, creation of a new State depends on the acceptance of present States. The new State will have the rights and duties at the time of being recognized. However, this theory has some queries, such as what will happen if some existing States recognize the new one and the others do not? And how it could be possible to put in force some restrains, like prohibition on aggression, against the unrecognized State?
The declaratory theory claims that a State will be formed free from the consents of the other States, just after she meet the international requirements. This approach 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 other states." The declaratory theory seems to be more adequate for practice than the other.
Since the recognition has a political side, in practice the States prefer a middle way between these two doctrines in addition to classic qualifications to seek some basic requirements of international law for recognition. In the past, it was sufficient for a new State to fulfill the four criteria. In 1930s some States also looked for that a new State must obey some fundamental standards of the international community. As an example for recent times, in the European Communities Declaration on the "Guidelines on the Recognition 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 of recognition of these new States, which requires:
- Respect for the provisions of the Charter of the United Nations and the commitment 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 in accordance with the commitments subscribed to in the framework of the CSCE;
- Respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement;
- Acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as well as to security and regional stability;
- Commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning State succession and regional disputes.
The Community and its member States will not recognize entities which are the result of aggression.”
At the end of the Declaration, as a conclusion, it is added that “The commitment to these principles opens the way to recognition by the Community and its member States and to the establishment of diplomatic relations.” However, it will be well-advised to repeat that, in practice recognition is used for to point out political approval or disapproval. Political assessments always effect the decision.
B-RECOGNITION OF GOVERNMENTS
As mentioned above the third criteria of the statehood is an “effective government”, therefore a decision to recognize a new State generally includes the recognition of government. They might be seen as similar concepts; however, recognition of a government is different from recognition of a State. Recognition of government would be discussed where the change of the government is unconstitutional. In practice, the effective control of the new government over the territory is a preferable criterion for the recognition but it requires being settled and likely to continue.
The other difference is that, the recognition of a State is about its legal personality on the other hand recognition of a government is relevant to the status of the administrative authority. Effective control has a common use but it is not the only approach for the recognition of government, the Tobar doctrine handles it in a different way. According to Tobar doctrine, an unconstitutional change of the government should be recognized only when the people accept it.
This was used by United States in Central America especially in order to protect stability.36 In 1980 UK declared that, it would not recognize the governments apart from States. Shaw argues that correctly, “the reason of this declaration was the perception that recognition meant approval and was often embarrassing for instance in case of regimes violating human rights.” This political change, to not recognize governments officially, was followed by the other countries after a short time.
C-DE FACTO AND DE JURE RECOGNITION
Akehurst argues that the distinction between de facto and de jure recognition is one of the most confused circumstances of recognition and at first hand he objects the expressions de facto and de jure recognition. According to him, they are technically in correct, since the words de jure or the de facto describes the government not the act of recognition. Indeed, 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 legal status of the government: “Recognition de jure means that the entity fully satisfies the applicable legal criteria; recognition de facto is only of the current position of the entity, and is therefore usually provisional.”
De jure recognition is of course stronger, while de facto recognition is more tentative and more connected with effective control of the recognized state over its territory, as when the United Kingdom recognized the Soviet Union de facto in 1921, but de jure only in 1924.
The assessments or the definitions of the both concepts can be change in different situations but it is the fact that everything is relevant to the intention of the government concerned and the general context of fact and law.41 De facto recognition can be thought as an attitude of wait and see, since it includes ambiguity. This method gives the recognizing state the opportunity of acting in accordance with the political facts and its interests.
Since it is a political decision of States, in some circumstances, the recognition occurs 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 internal affairs of another state or is an admissible recognition of a new state that has emerged or is emerging as a result of secession.43 Recognitions of Bosnia-Herzegovina and Croatia were the well-known examples of premature recognition in the near past as both states had not an effective control on their whole parts of territories at the time being recognized.
Recognition is about intention and may be expressed or implied.44 To understand how a State may recognize another State by implication it is necessary to look into the some certain circumstances. Lauterpacht states that, the establishing of diplomatic relations and maybe, to grant the exequatur or signing a bilateral treaty includes extensive relations between the two states justify the implication. A congratulation message to a new State for obtaining sovereignty will bear recognition of that State, but unofficial contacts do not have the same result, just like the informal relations established between United States and Communist China in the 1960s and early 1970s.
It does not mean recognition when two states both signed a multilateral treaty such as United Nations Charter. Israel and many Arab countries are UN members at the present but it does not change Arab non-recognition of the Israel State. On the other hand when a State affirms the membership in the UN of an entity, needless to say that recognition occurs. As an example, United Kingdom recognized the Former Yugoslav Republic of Macedonia by supporting its membership in the UN In practice the implied recognition is not preferred since the states want to have their control of recognition and in general they use a formal way for it.
Conditional recognition means that to recognize an entity as a State only when it fulfills 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 and Montenegro with the condition that these countries would not impose any religious disabilities on any of their subjects.
It may cause some political problems but the non-observance of the condition would not invalidate the recognition. Since the law does not attach value to any condition unless it depend upon agreements made by the particular parties.
In 1971 the International Law Commission stated that collective recognition “means that States act collectively during the process of receiving information of the situation, evaluating that information and reaching a decision, and communicating that decision.”
This may be seen as a result of increased corporation between the States. The idea of act collectively has been a subject of a debate since the foundation of the League of Nations and the establishment of the United Nations.51 However, the States preferred to keep the control of recognition in their authorized bodies. As Shaw stated “The most that could be said is that membership of the United Nations constitutes powerful evidence of statehood.”
H- WITHDRAWAL OF RECOGNITION
Sometimes it is possible to withdrawn a granted recognition. Especially, it is easier for the de facto recognition53 since the position is different with the de facto recognition which includes an ambiguity for the future of the entity. If the government of the entity loses the effective control on its territory there will be no ground for recognition and it may be taken back. On the other hand de jure recognition is more difficult to withdraw because as mentioned above it is stronger than de facto recognition. De jure recognition may be the case only if the State is annexed or conquered by another State.
The doctrine of non-recognition, also known as the Stimson Doctrine of no recognition, means to not grant recognition to the new entities or the some factual positions which are the result of any illegal actions such as using force. It supported the principle that legal rights cannot obtain from an illegal situation (ex injuria jus non oritur).
The doctrine was brought forward by the United States Secretary of State, Mr. Stimson in 1932, relevant to the Japanese occupation of Manchuria. It was accepted by a resolution of the Assembly of the League of Nations. In the resolution it is stated that: “Considering that the principles governing international relations and the peaceful settlement of disputes between members of the League above referred to are in full harmony with the Pact of Paris, which is one of the corner-stones of the peace organization of the world, and under Art.
2 of which the High Contracting Parties agree that the settlement or solution of all disputes or conflicts, of whatever nature and whatever origin they may be, which may arise among them, shall never be sought except by pacific means; . . . proclaims the binding nature of the principles and provisions referred to above and declares that it is incumbent upon the members of the League of Nations not to recognize any situation, treaty, or agreement, which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris…”
However 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 of Czechoslovakia were recognized de facto over the years by Western Powers.” After 1945 it was again discussed and took place in some international instruments such as UN Charter (Article 2(4)), the draft Declaration on the Rights and Duties of States and Security Council resolution 242 (1967) on the solution to the Middle East conflict.
Especially draft Declaration on the Rights and Duties of States indicated that, every State has the duty to refrain from recognizing any territorial acquisition by another State where achieved by means of the threat or use of force or in any other manner inconsistent with international law and order. In this context, “in 1990, the Security Council adopted resolution 662, which characterized the Iraqi annexation of Kuwait “null and void” and called on all states and institutions not to recognize the annexation.
IV- LEGAL CONSEQUENCES OF RECOGNITION
“Recognition is a unilateral act of a State and one that has international legal consequences”, for instance where State grant recognition to an entity, it accepts that they will have relations subject to international law on basis of State/State. In practice, like claimed by declaratory theory, the political existence of a State is not bound to the recognition of other States, therefore an unrecognized State has to act comply with the international law rules. It means that, when the States sign an international agreement which is signed by a State they have not recognized, they will have the right to ask from that state to fulfill the responsibilities grow out of the agreement.
After recognition, the recognizing States would respect to the rights of the new State which indicated in the International Law Commission Draft Declaration on Rights and 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 law with every other State, right of individual or collective self-defense against armed attack”.
The participation in the international process is not the only result of recognition, at the same time the recognized State will be able to enjoy usual legal consequences of recognition such as privileges and immunities within the domestic legal order. As an example, Plessis lists some privileges and immunities within the municipal law of United Kingdom 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 immunity from suit. It cannot be sued without its consent;
- Only the legislative, executive or judicial acts of a recognized state or government will be given legal effect within the United Kingdom.
Shaw adds one more “it will be entitled to possession in the recognizing state of property belonging to its predecessor.”
Recognition is one of the most difficult and complicated topics in international law. It is complicated because it involves important political results and legal effects both in international and municipal law. Political assessments always effect the recognition decision. Where the States give a decision about recognition, of course they will weigh the advantages against the disadvantages of this decision.
If it is looked into the some cases relevant to recognition in international law, I think it can be understood clearly, to grant 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 or not. There are basically two theories to explicate recognition; the constitutive and the declaratory theory. The constitutive theory asserts that States and governments do not legally exist until recognized by the international community and the declaratory theory adopts that States and governments gain in the international personality when they come into existence.
I think the declaratory theory is more conformable to reason and parallel to the practice of international law and it is supported by the Montevideo Convention on Rights and Duties of States. However, I think it is very difficult to lay down a regulation on state activities, since they are not stable. They may change time to time. Rules concerning 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 always an exception of rules in international law. The important thing is to find a legal cover and nowadays 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 is called policy which the decision of recognition rely on.