Recognition & Law

Modern international law establishes two major theories with regard to the application and practice of international law for state recognition. The first of these two is the constitutive theory of recognition. Under this theory, recognition is deemed to be a legal principle that has some action as its outcome. Recognition provides the legal status of statehood to a state. Such recognition endows the government of that state with the necessary legal capacity to enter into international agreements and diplomatic relations.

According to the constitutive theory, recognition is an act of law, which attaches certain legal consequences of statehood on the applicant state . The second theory is the declaratory theory of recognition. This theory maintains that statehood is independent of the act of being recognised by some other state. Statehood exists per se, and consequently, there is no need for any state to seek the recognition of some other state.

This declaratory theory reiterates that the accord of recognition by some other state, merely serves to acknowledge the fact of existence of the state that is accorded recognition. As such, the existence of a state is a fait accompli. Therefore, mere recognition would not provide any further legal affirmation. However, such recognition is indispensable for establishing international relations. Nevertheless, none of these theories provides a clear explanation or definition of the legal condition of a polity just prior to its recognition .

The declaratory theory of state recognition seems to have been applied to the new states that had emerged from the former Yugoslavia. These new states had sought state recognition. Subsequently, the EU and its Member States accorded recognition to Slovenia and Croatia on 15 January 1992. However, such complete recognition was not accorded to the states of Macedonia, Bosnia and Herzegovina. These states were provisionally recognised.

All the same, the independence of Slovenia, Croatia and Macedonia had been announced much earlier to their recognition. This grant of recognition after the declaration of independence had created several legal consequences . In the recent past some new states had been created. This can be attributed to cases of newly formed states. In order to declare independence, some states have to withdraw from their previous association with some other country. This would connote that there was dissolution of extant states.

However, the unification of the two German states did not bring about the emergence of any new state . In order to obtain a diplomatic recognition, any state has to meet the basic requirements of independence and clear colonial – drawn national borders. Somaliland had fulfilled these fundamental requirements. It is an independent state, whose borders had been established by the colonial power. Therefore, Somaliland has the legal basis to be accorded diplomatic recognition by the international community .