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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.
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.2
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.
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