THE CONCEPT OF STATE RECOGNITION UNDER INTERNATIONAL LAW

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THE CONCEPT OF STATE RECOGNITION UNDER INTERNATIONAL LAW

ABSTRACT

State recognition is one of the oldest practice in international relations, and one of the most vexed concepts in international law since the middle ages, political communities have interacted with each other as sovereign, territorial states under an accepted system of rules. Determining which entity is to be recognized as state subject to these rules has hence been a basic component of international relations. As such, it is one of the most common discussed topics in the international law literatures. The main aim of this dissertation is to examine the legal framework for the practice of the concept of state recognition in international law in relation to the existing provisions of relevant international and regional constitutive instruments on one hand and the activities of the international community on the other hand. In view of this the main objective of this dissertation is to identify the adequacy or otherwise of the existing international regimes on the practice of state recognition (if any) and subsequently to proffer solutions to the lacunas identified so as to bring about an efficient practice in accordance with the provisions of the constitutive instruments. In the cause of this research the findings of the researcher is that lack of uniform criteria for the practice of state recognition among the international regimes, for example, the provisions of the U.N., the Montevideo Convention and E.U. are at variance. Therefore, in the light of this, the researcher concluded by recommending that there should be a singular and uniformly accepted mode of practice of state recognition so as to foster international cooperation which will go along way to reduce controversies in international jurisprudence. Doctrinal method of acquiring data has been adopted, using primary and secondary sources of information such as relevant text materials, statutes (including international instruments), judicial authorities, articles in journal publications and internet materials.

CHAPTER ONE

INTRODUCTION

1.1 Background to the Study

The term ―recognition‖ implies a process whereby a person or an entity admits to the existence or the being of another person, entity or state of affairs. The Chambers Twentieth Century Dictionary defines the concept as a sign, token or indication of acknowledgment of a thing or a state of being in relation to nation state.

Recognition of statehood grants an entity international legal personality and binds it to comfort it according to the rules established by international law in its relations with other states and peoples. At the same time, it makes the entity eligible to enter into treaties and alliances with other states as well as to participate in the development and enforcement of international law. Most importantly recognition is an affirmation of an entity‘s right to territorial sovereignty and integrity and its right to exercise coercive jurisdiction within this territory.

The right and powers attached to statehood make it desirable for a political entities to attain such a status, at the same time the expectation that each new state will abide by the rule of international law makes it desirable to include as many qualified political entities as possible in so far as this will further the goals of peace and stability.

While in conformity with the above the Monte Video Convention of 1933 made a preliminary attempt to codify specific descriptive criteria for statehood thus:

(1) Permanent Population

(2) Define territory

(3) Functional government able to control the territory

(4) Capacity to enter into relation with other state voluntarily

Together these four requirements defined a state and presumably any entity aspiring independent statehood that met these criteria would automatically be regarded as a state under international law.

However and unfortunately the present practice of recognition is not in conformity with the above criteria. According to the present recognition an entity is considered a state to the extent that other state recognized it as such, since new state cannot exercise right and obligation against state that do not recognize it. For example taking into consideration the case of Palestine, applying the Montevideo criteria for statehood, it becomes clear that Palestine should be considered a state and also be recognized, as it has a permanent population, concentrated in a defined territory, a functional representative authority (P.A), and has already entered into various agreements with other sovereign entities. However, as was already noted, its statehood bid is bound to be frustrated unless Israel and USA choose to alter their policy of non-recognition. Regardless of whether or not the U.S and Israel are right in denying recognition it is clear that recognition in this case is a matter of policy discretion from part of the states on both sides of the controversy. As this example shows recognition is often an opportunity for powerful states to express their approval or disapproval of a political entity, and hence recognition end up bringing a high selective and strategic policy decision.

Moreover, recognition does not tend to a single form. There is need to establish a generally acceptable form of recognition. Blix states, ―Recognition being an institute that has existed for a long time, it may not be unreasonable to assume that it has some political function in international relations or several that is not merely an empty fetish.

This function should also tell sometimes about the way the institutions operate‖

Against the above backdrop, therefore, this dissertation seeks to discuss the procedures of implementation of the criteria for state recognition in international law to identify reasons for the lack of exhaustiveness of Monte Video Convention criteria, and irregular practices within the international community which may eventually escalate conflict among states.

1.2 Statement of Problem

As stated above, state recognition is one of the oldest practice in international relations, and one of the most vexed concepts in international law since the middle ages, hence the states practices in relation to the concept is marred with some problems. Some of those problems are stated as follows:

i. the first problem is that in the last centuries, the criteria of statehood were mainly based on legitimacy of state, which was expressed through recognition. For example the Montevideo convention defined four elements as requirement in order to claim statehood. The UN was born and created as a subject of international law, and the UN charter redefined international law and coming to an end resulting in the creation of many new states in Africa, Asia, South America, the breakdown of the so called communist, Soviet Union which has lead to another wave of state creation hence the issue of recognition.

ii. Recognition is given in a number of cases for purely political reasons. This point of view was emphasized by the American representative on the Security Council during discussion on the Middle East in May 1948, where it states that it would be highly improper for one to admit that any country on earth can question the sovereignty of the United States of America in the exercise of the highly political act of recognition of the de facto status of a state …. Indeed they added that there was no authority that could determine the legality or validity of the act of the United States. For example, the US and Israel deliberately refused to recognized

Palestine, China refused to recognized Taiwan etc. Recognition need to be reemerged as an important legitimizing criterion for statehood and be modified through the changes in the world. The concept of unilateral recognition can be discarded; it is outdated to believe that the recognition of one or a few more states can be constitutive. Unjustified political reason and preferences can affect the decision of a state to or not recognize a state. Moreover, unilateral recognition is incompatible with international law since the implementation of the UN charter. To decide alone who should be a state the crucial principle of sovereign equality of state will be shunned. The limit and impact of political recognition of statehood also posed a problem for state recognition under international legal parlance.

iii. There is lack of exhaustiveness of the Monte Video Convention legal criteria for state recognition under international law.

1.3 Research Questions

i. why is it that some principal legal instruments for state recognition under international law are at variance with one another?

ii. Why does political requirement on state recognition in the modern time has more impact than the legal instruments in the international community?

iii. Why is Monte Video Convention legal criteria not exhaustive by state actors in state recognition under international law?

1.4 Aim and Objectives of the Study

This dissertation aims at appraising the concept of state recognition in international law.

In view of this the objectives of this dissertation are as follows:

a. to examine the extent criteria of statehood vis-à-vis the concept of recognition and its impediments.

b. examine the concept of recognition, the failure or refusal of a state recognizing another state, the various provision of international statute, charter and convention with a view to addressing the issues in line with the current situation, for example the case in Palestine, Southern Sudan, Taiwan, Kosovo and a host of others..

c. Examine the practice of state recognition within the international community vis a vis views and opinions of the World political leaders, international institutions and organizations on the issue of recognition of states in international law and practice.

d. to identify the adequacy or otherwise of the constitutive international and regional legal instruments to provide some recommendations to the issues identified.

1.5 Scope and Limitation of the Research

The scope of this research covers the concept of state recognition under international law in accordance with the provisions of the various international and regional legal instruments. This study also covers some aspects of state practices in early international law as a basis for the development of the practice of state recognition within the international community.

It also covers State recognition in modern international law in accordance with the existing legal regimes on state practice that is international and regional legal instruments. It further covers issues constituting challenges to the effective practice of the concept of state recognition in international community with particular reference to Nigeria.

The study is limited to the applicability of state recognition in international legal parlance.

1.6 Justification

The justification of this work is that it would be of great importance to its readers such as judges, justices and all members of the bar in relation to the knowledge of the current trend of state recognition under international law. It will help lawyers who are practicing international law. The work brings out the reforms brought through the modern practice of state recognition. This work will be of great help to lecturers and students of international law in this country.

1.7 Literature Review

There are plethora of current existing literatures on the overall meaning, nature and scope of the concept of self-determination under international law. Some of these materials would be used as source of acquiring data and informational and be reviewed accordingly.

The problem of recognition under international law is because perhaps it is a subject of a far flung practice of states, of many practice and enormous literature. It is obvious that many scholarly literatures have been written on the topic. This is because the subject is quite refreshing and topical. Even though a lot was elicited on this topic and abundance literature was also in place, most of the existing literature on this field either by time and current happening or as a result of oversight did not cover some important aspects; for example the requirement of having one standard criteria of recognition as in the case of statehood. In this piece of research, it is proposed to review some literature with a view to finding out the extent to which other scholars have studied, the filed on the one hand and on the other hand, to examine lapses or lacunae in their argument or presentation and further development that have taken place which they did not include in their discussions.

According to William , International law is dominated by two competing theories of state recognition, with the ―declaratory‖ view currently in prominence but possibly just beginning its decline in favor of the ―constitutive‖ view. However, if indeed the constitutive view is gaining ground, then its slow and partial re-emergence is forcing us to rethink the nature of the state in international law. The constitutive theory states that recognition of an entity as a state is not automatic. A state is only a state when it is recognized as such and other states have a considerable discretion to recognize or not.

Moreover, only upon recognition by those other states does the new state exist, at least in a legal sense.

Some practice in contemporary situations may evidence the application of the constitutive theory rather than the declaratory. Numerous classical scholars have weighed in support of the constitutive theory, and many modern scholars are beginning to reexamine the constitutive theory, considering whether it provides a firmer foundation for the determination of statehood status.

The declaratory theory looks to the purported state‘s assertion of its sovereignty within the territory it exclusively controls to determine if it can access the international plane. It is the opposite of the constitutive theory in that it holds that recognition is almost irrelevant because states have little to no discretion in determining whether an entity constitutes a state. The status of statehood is based on fact, not on individual state discretion. The majority of contemporary scholars and commentators favor this theory.

There is considerable support for the argument that recognition is irrelevant for whether a state exists as such or not. The Montevideo Convention of 1933 states: ―The political existence of the state is independent of recognition by the other states.‖ According to the author the International Court of Justice has held in the Genocide Convention case that it adheres to the declaratory view, in the sense that the failure to maintain effective control over territory does not extinguish the legal entity in the eyes of the United Nations. It has also held in the South West Africa cases that the state as an entity with rights and obligations does not cease to exist. This opinion on the declaratory theory was also supported by the Arbitration Commission of the European Communities Conference on Yugoslavia, chaired by Robert Badinter, discussing the independence and status of states of the successor to the S.F.R. Yugoslavia. Furthermore, many national courts have recognized international rights in states that accrued before international recognition of the entity as a new state, suggesting a rejection of the notion that the state did not exist before recognition.[6] Many commentators have held that state practice clearly favors the declaratory model, that is, that the entity exists as a state before recognition.

On the other hand, we have the alternate view which is that states only exist upon recognition and there is support for this perspective, although we may need to read between the lines to see it. Some authorities who claim to support the declaratory view appear to also endorse the constitutive theory in practice. The Badinter Commission initially adopted declaratory language but seems to have applied a constitutive approach to balance major tensions between the various European states.

Milenko Kreća, the ad hoc Judge in the Genocide Convention case implied in his critical dissent that the Court was applying the constitutive theory. The Permanent Court of International Justice, the predecessor to the International Court of Justice, appeared to endorse the constitutive theory in two opinions: the Lighthouses case, where effectiveness was disregarded for the fiction of continued sovereignty of the Turkish Sultan, and the Rights of Nationals of the United States of America in Morocco case, regarding the continued sovereignty of Morocco although under the French Protectorate.

Also the International Criminal Tribunal for the former Yugoslavia, the International Court of Justice‘s neighbor in The Hague is also supportive of the constitutive theory.

In the Čelebići case, the I.C.T.Y. held that the conflict within the former Yugoslavia was only of an international nature after international recognition of the independent statehood of Croatia and Bosnia and Herzegovina. In the Tadić case also at the I.C.T.Y., Judge Li, in a separate opinion, criticized the majority for applying the constitutive theory. Judge Li argued that the conflict should have been seen as international from the moment of Slovenia‘s and Croatia‘s declarations of independence, not because of recognition by others.

In addition to these decisions of international tribunals or commissions, the act of recognition seems to increasingly be attributed with constitutive effect within the international legal system. States such as Croatia, Eritrea, and Central and Eastern

European states arising from Woodrow Wilson‘s dismemberment of the Habsburg and Ottoman Empires, have survived extinction or been revived from extinction by the international community.

Bosnia-Herzegovina and Croatia arguably did not fully satisfy the criteria for declaratory recognition, so the recognition of those entities as new states may have had constitutive effect despite the supposed intended application of the declaratory theory. For some microstates, their relatively recent admission to the U.N., as well as recognition by other states, may have clarified their position in international law, crystallized their rights, and assisted in their constitution, regardless of the intended effect of their recognition.

We can also see situations where the existence of emerging states was blocked by other, more powerful states, which would only be possible if statehood was in the control of existing states. Also, we can see situations where states, that had lost all factual qualification as such, were maintained as essentially legal fictions by the international community. This suggests that recognition both constitutes and maintains the legal personality of other states whose reality would suggest that they no longer existed, or existed in a fictitious state.

Although this finding is usually argued because of the illegality of the occupation of the state, if statehood was truly declaratory, then the ending of effective control and independence would necessarily mean the extinction of the state.

These cases are significant because they evidence that entities only receive international rights and obligations when they are recognized by other states as states. It is commonly observed that ―only states sit on the United Nations Security Council, only states petition the International Court of Justice and only states participate in the Nuclear Non-

Proliferation Treaty regime.‖ Recognition of statehood changes the range of actions available to an entity and also changes the expectations of the international community regarding the behavior of the new state.

It would appear that the support for the declaratory theory is partly legal and partly the more politically correct position. The constitutive theory does still attract some legitimacy; possibly partly due to the way it appears to be applied surreptitiously by tribunals. The difficulty with the either/or approach is that there is an interrelation of the two sides of the question. The declaratory theory concentrates on the internal factual situation and the constitutive theory concentrates on the external legal rights and duties. They both miss a portion of the analysis.

Furthermore, the two sides of the issue interact between themselves. By having rights a collective group may become more cohesive and may begin to have an internal political dialogue. Recognition alone does not create the internal factual situation of statehood, but may help to inspire such coalescence. Nationalism is not unknown in many apparently highly artificial states. However, recognition of the factual situation merely acknowledges facts and does not mean there are necessarily international rights, although it can lead to it.

Every act of recognition must necessarily contemplate both aspects, but generally one will be the predominant legitimizing force (though it could conceivably change retrospectively). When we choose between the recognition theories proposing the existence of the state prior to or only following recognition, we are choosing to concentrate our definition of the state on one of these two aspects of the state and, from that source, derive the other. It is to this conclusion that the re-emergence of the constitutive theory leads us.

The work of Abhimanyu has also been acknowledged. In his work, the author discusses as to what extent is the recognition of a state undermined by charges of corruption? The author then viewed thus, ―as an analytical exercise it is interesting to think through the implications of corruption on the recognition of statehood in international law‖9.

According to this author statehood and recognition are distinct legal concepts, but in practice recognition can be dispositive of whether an entity is a state. In light of the importance of recognition for the creation and existence of states, the possibility of corruption influencing the recognition process is disconcerting. In the case of Taiwan, ―dollar diplomacy‖ is an established phenomenon, and allegations similar to those raised against Guatemalan president Portillo seem to be surfacing in El Salvador as well. Nor does it seem implausible that other instances of recognition, of and by other states, may have been similarly motivated.

To be clear, the issue discussed here is not recognition based on inducement or incentive to the recognizing state, but recognition based on inducement or incentive to key officials in the recognizing state. States routinely make binding political and legal decisions based on political and economic, tangible and intangible, inducements and incentives: defence deals, monetary aid, concession agreements and diplomatic manoeuvres just a few examples.

The issue that forms the subject of this post is whether the validity of an act of recognition can be impugned on the grounds that it was induced through the corruption of key government officials? Is it possible for Guatemala, or China to argue that the original act of recognition is invalid by reason of President Portillo‘s corruption? This question of possible invalidity has two aspects. First, does the act of recognition bind the recognizing state, notwithstanding the fact that it was a result of a mala fide exercise of powers by a key government official? Second, does the act of recognition vest an irrevocable right or status in the recognized state, such that notwithstanding the taint of corruption on the act of recognition, it cannot be invalidated?

The first question deals with the effect of the act of recognition on the recognizing state. I would argue that such recognition, even if motivated by the corruption of a particular official, retains its validity. To begin with, it is well established that ―the conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions‖ . Further, analogies from other areas of international law support this conclusion. In the matter of ‗full powers‘ for the conclusion of treaties, the actions of persons who appear to represent the state with the state‘s consent bind the state. Similarly, the concepts of immunity rationae personae and rationae materiae, in protecting senior government officials from prosecution by other states, assume that the senior officials of a state act in the name of the state and bind the state by their actions.

Conversely, it might perhaps be possible to analogize from the doctrine of ‗odious debt‘ that actions taken by corrupt government leaders in the recognizing state, in their own interest, against the interest of the people they represent, when the recognized state knows that the actions benefit the officials and not the recognizing state, should not bind the recognizing state. There are two problems with this argument: first, it is unclear whether the odious debt doctrine applies outside of government debts, strictly construed; second, in relation to the recognition of states, it would be rather onerous to prove damage to the interests of the people of the recognizing state and knowledge by the recognized state of this damage.

Therefore, the recognizing state probably cannot seek to void its recognition because it was induced by individual corruption. To be clear, Guatemala is not restrained from separately revoking its recognition of Taiwan; it is, however, constrained from arguing that its original recognition was invalidated by the corruption of President Portillo. This is a narrow distinction in theory, but a broad distinction in practice. For instance, the difference between revocation and invalidation will have an effect on the scope of involvement of third states. If the validity of the original act of recognition is capable of being impugned, it may be possible for third states (for instance, China in this case) to challenge the recognition. But if the original act of recognition can only be revoked and not challenged, then it is only Guatemala that can revoke the recognition.

The second question deals with the effects of the recognition on the recognized state. Is it possible for the recognized state to argue that the act of recognition vests an irrevocable right or status? At least two possible arguments to this effect come to mind.

First, it could be argued that such a revocation amounts to denial of self-determination, but this argument is not persuasive. The right to self-determination does not include an unqualified right to independent statehood. Moreover, the impact of a singular instance of revocation of recognition on the self-determination of a recognized state would probably be difficult to determine, and would require an analysis of how many states have recognized the state, what the effect of a single revocation would be, whether that revocation would produce a knock-on effect, and so on. A second, more plausible, argument focuses on the violation of sovereign equality. Once an entity meets the criteria of statehood, and is recognized as such, the ability of individual states, or the international community, to revoke recognition and statehood would infringe the fundamental right of sovereign equality. International law does provide for such ability in limited circumstances, for instance through directives of the UNSC, but those circumstances are very limited, and restricted to situations involving threats to international peace and security.

Neither of these arguments is ultimately persuasive. The recognition of states in international law is a political act; there is no duty in international law to recognize a state, nor a right to be recognized. Similarly, the revocation of recognition is a political act. However, if these two arguments, or other similar arguments, were to be accepted, they would have the effect of preventing the revocation of recognition of statehood. And that is contrary to the accepted position in international law.

The author then concluded that an act of recognition of statehood induced by the personal corruption of individuals in the recognizing state is valid in international law. But it is difficult for the recognized state to argue that the recognition is permanently irrevocable, and it is possible tor the recognizing state to separately revoke its recognition.

The work of Crawford has further been acknowledged in this study, according to the author, at the beginning of the 20th century, there were some fifty acknowledged States. By 2005, this number rose to exactly 192 States. The emergence of so many new States represents one of the major political developments of the 20th century. It has changed the character of international law and the practice of international organizations, and has been one of the more important sources of international conflict. But the fact that some development is of importance in international relations does not entail that it is regulated by international law. Fundamentally, the question is whether international law is itself, in one of its most important aspects, a coherent or complete system of law. The work investigates whether, and to what extent, the formation and existence of States is regulated by international law, and is not simply a ‗matter of fact‘.

The author suggested that the ‗great debate‘ over the character of recognition has done nothing but confuse the issues, that it is mistaken to categorize recognition as either declaratory or constitutive in accordance with some general theory. He quoted Brownlie as saying, ―in the case of ‗recognition‘, theory has not only failed to enhance the subject but has created a tertium quid which stands, like a bank of fog on a still day, between the observer and the contours of the ground which calls for investigation. With rare exceptions the theories on recognition have not only failed to improve the quality of thought but have deflected lawyers from the application of ordinary methods of legal analysis.‖

He maintained that one can sympathize with these views, but at a fundamental level a choice has to be made. The question is whether the denial of recognition to an entity otherwise qualifying as a State entitles the non-recognizing State to act as if it was not a State—to ignore its nationality, to intervene in its affairs, generally to deny the exercise of State rights under international law. The answer must be no, and the categorical constitutive position, which implies a different answer, is unacceptable. But this does not mean that recognition does not have important legal and political effects. Recognition is an institution of State practice that can resolve uncertainties as to status and allow for new situations to be regularized. That an entity is recognized as a State is evidence of its status; where recognition is general, it may be practically conclusive. States, in the forum of the United Nations or elsewhere, may make declarations as to status or ‗recognize‘ entities the status of which is doubtful: depending on the degree of unanimity and other factors this may be evidence of a compelling kind. Even individual acts of recognition may contribute towards the consolidation of status: in Charpentier‘s terms, recognition may render the new situation opposable to the recognizing State.

According to him, in some situations, the term ‗recognition‘ may also be used to describe acts that are properly speaking constitutive of a particular State; for example, a multilateral treaty establishing a new State will at the same time extend the signatories ‘ recognition of that State. But the constitutive acts here are those involving the establishment of the State, the stipulation of its constitution, the definition of its borders, etc. Collective recognition is ancillary and is not a substitute for action by the competent authorities.

The conclusion must be that the status of an entity as a State is, in principle, independent of recognition, although the qualifications already made suggest that the differences between declaratory and constitutive schools are less in practice than has been depicted.

But this conclusion assumes that there exist in international law and practice workable criteria for statehood. If there are no such criteria, or if they are so imprecise as to be practically useless, then the constitutive position will have returned, as it were, by the back door.

John M. B. Balouziyeh highlights General Assembly Resolution A/67/L.28 on the Status of Palestine at the United Nations was adopted on November 29, 2012 by a vote of 138 in favor to nine against and forty one abstentions. According to him, the Resolution, which has upgraded the status of the Palestinian Authority from a United Nations permanent observer entity to that of a non-member observer State, raises several questions under international law? For example, what place does the Resolution have in the creation of binding international law? Has Palestine been officially conferred statehood as a result of the Resolution? What rights does Resolution A/67/L.28 grant Palestine that Palestine did not previously hold? In response to these questions, this article will discuss the Resolution and its place in customary international law and general principles of law.

He was of the view that Resolutions issued by the General Assembly are not per se legally binding. The General Assembly, unlike the Security Council, only issues binding resolutions in the area of budgetary matters regarding the allotment and collection of dues. Therefore, the Resolution A/67/L.28 will have a largely symbolic effect without any real, immediate impact on the on-the-ground situation in Palestine.

However, he maintains that while General Assembly resolutions are not legally binding on United Nations member States, they can contribute to the creation of binding international law. Resolutions of the General Assembly are a means through which States express their opinions about the status of international questions. A resolution that receives widespread support may therefore shape the content of customary international law, a source of international law. When a legal principle becomes customary international law, it becomes binding on States to the extent that they do not repeatedly and publicly announce opposition to the principle.

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