Paper Sample. Recognition in the Creation and Viability of a New State

Although states are not only entities that have international legal standing, they form the primary subjects of international law in possession of the rights and obligations. It means that states are essential and play a critical role in the legal relationships which are commenced, modified, and extinguished at the international level. When it comes to international relations, there is a need for sovereignty and equality in the way states act and interact. Some states indeed tend to act based on their power and such that they could enforce their interests at the global level, which creates massive inconsistencies in the strategies that are applied. Thus, recognition is one of the instruments used in diplomacy based on the identified reason. The recognition of the State plays a vital role in international law as a unilateral act that acknowledges its existence and status as subject to this law. In any case, a state is not recognized, its capability to enter relations with others is significantly limited since it is isolated from the international community. The Constitutive theory and the Declarative theory are the two opposing theories that explain and order the admission of states into the larger international community. The current paper examines the importance of recognition in the establishment of the State, drawing on relevant theories and examples from current affairs.

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Statehood: Creation of States

Creating new states is a process which involves both fact and law, where specific factual compliance and conditions are established together with the relevant rules. The conditions and compliance of the states were provided for in the Montevideo Convention (1933), which laid down the accepted criteria of statehood. According to the Montevideo Convention (1933), a state must possess a defined territory, a government, a permanent population, and the capacity to conduct its international relations. The provision for statehood is evident in the need for a permanent population and a defined territory though this does not include the boundary disputes. The international community, such as the United Nations, has been in the frontline to recognize various states as they were embroiled in the civil war. In 1992, countries like Bosnia and Croatia were recognized as new states by much of the international community even though they could not exercise effective control over their territories. Fundamentally, creating a state requires more formal constitutional independence than its independence. The extinct of the State occurs through various processes, which include a merger, absorption, dissolution, and reestablishment as new and separate states. Similarly, states with smaller territory may continue being identified with the larger State, and such a state may become extinct through limited dismemberment, which may be coupled with the emergence of the new states from part of the territory of the lager state.

Recognition

In recognition, certain facts are accepted supported with specific legal statuses such as sovereignty, statehood over the acquired territory, or the international effects of a given nationality. Recognizing the new entity as a state that meets the criteria of the statehood involves the political process where each country decides on whether it wants to extend its acknowledgment. The extending of the normal sovereign and diplomatic immunities occurs after the executive authority of the State recognizes another state formally. Therefore, when the State is identified international, it shows that such State has fulfilled the factual criteria of the statehood as required. Drawing from the declaratory theory of recognition, it happens that recognition does not go beyond accepting a factual situation that already exists, meaning that it is only conforming to the statehood criteria. According to the constitutive theory of recognition, the act of recognition already creates the State.

Even before the states get recognition, additional conditions need to be fulfilled. For example, in 1991, the European Community declared on the new states that were forming by the in Eastern Europe, Yugoslavia, and the former Soviet Union. These states required respect for minority rights, commitments to disarmament and nuclear nonproliferation, and the inviolability. It is essential the time for recognition is considered, especially in a situation where a new state is formed from the existing one. The timing is essential since premature recognition can be seen as an interference with the internal affairs of the State, especially in a case of secession, which amounts to the violation of the international law fundamental principles.

The Declaratory and the Constitutive Theories of Recognition

The two theories, the declaratory theory, and the Constitutive theory, have been identified as to the nature, functions, and the effects of recognition of the State. Drawing from the constitutive theory, it emerges that the act of recognition by other states results in the creation of a new State granting it the legal personality internationally. It means that the establishment of the new State is regarded as an international person based on the willingness and the consent of the already existing States. The constitutive theory is profound on neither thrust that states which have not been recognized have nor obligation or rights in international law. The constitutive theory streamlines the situation of the unrecognized State that the political right of recognition is based on the existence of legal rights. Thus, the political decision of other states is essential in determining the personality of a state.

The constitutive theory applied in the case of the International Registration of Trademark in Germany when the court ruled that East Germany was not recognized. The court declared that in international law, recognition is essential that an entity is not automatically a state based on the mere fact that it exists. The case is a perfect example in which the rights of the State are protected. In this case, an attempt was made to protect the rights of West Germans, considering that it originated from East Germany but had not been formally recognized, meaning that it lacks the cover for any rights in West Germany. The constitutive theory has historical merits as the international law applied mainly between the States with European civilisation. Countries could only be admitted as states into this community upon being recognized by the member states.

On the other hand, the declaratory theory opposes the constitutive theory such that declaratory theory finds that recognition lacks the legal effects. According to declaratory theory, statehood exists before and independently of recognition. This theory demands that a state exists based on the question of pure fact and requires formal acknowledgment of the facts entailed in the establishment. The theory demands that the State only needs to satisfy the requirements objectively as a state with all rights and duties, and other states need to treat it as such. Thus, from the view of this theory, recognition is a political act that identifies the pre-existing State of the affair. The declaratory perspective of recognition lacks the legal effects considering that the legal personality already exists for a state. The theorist asserts that since states are persons that are governed by international law, the communities become the subject of law from the time they acquire the marks of being a state.

Objectively, it is acceptable that a party in the dispute with an existing state can reckon with it in an international court if the party recognizes the State itself rather than other states recognizing it. The application of the declaratory theory came about in Britain in Two cases that demanded compensation from Jewish State and unrecognized Taiwan government. The fact that the vanishing or actuality of the State is a question of opinion number one that was stated in the Arbitration Commission that was established in 1991 by the international conference on Yugoslavia makes the effect of recognition by other states a chastely declaratory. However, it should be noted that recognition is not prerequisite for the foundations of a state, and its impact is purely declaratory. Though, other states may perform it when they choose to and the manner of their choosing. Thus, the declaratory school differs from constitutive school such that that it views recognition as a formal acknowledgment of the existing State. This is different from constitutive such that the school sees recognition as an act which creates the states. In declaratory theory, it is true that recognition is of little importance, considering that it is not seen as a way to create a state. The declaratory theory is seen as the best in international practices considering that it attaches more importance to practice instead of the theory and insists that unrecognized countries are not subject to international law.

Legal experts and theorists such as Malcolm view the two theories as essential when it comes to international law. According to them, the arguments brought forth by these theories dictate the functions of recognition and the role the states play in improving international law. There have been attempts to clarify the theories with critics saying that reaching the agreed criteria for international law means that the existing nations have the responsibility to grant recognition to new State. Such State is guaranteed to act in the capacity of the international society since no government in international law that can evaluate and harmonise the legal personality.

The Framework and Process of International Recognition

In recognition, every State earns the autonomy to conduct its relations with others based on the given understanding of the legal status of the rest of the states. The said understandings are often not controversial, which makes it possible to amount to the recognition of the status quo of a state. An excellent example of the perceptions that lead to recognition is given in the case of the United Kingdom and its dealings with France. It is, however, true that a state sometimes may decide to take a position that challenges any order that exists, such as recognizing the new State. An excellent example of a position challenging the existing order is the 2008 Kosovo claim to form a state with the territory which formerly constituted Serbia. Alternatively, a state may take another position rejecting a claim which challenges the status quo. In either case, it emerges that recognition forms an attempt that can reaffirm or alter any existing order.

When examining the framework and the process of recognition, two significant aspects of international law emerge. One of the aspects entails that recognition plays a critical role in the international legality of the recognition object. It means that any state may be a state legally or not owing to many factors, which include the decision by other states either to accept it and treat it as such or not. The other aspect is that the recognition itself is under the regulation of the international law, where the states may be constrained in the choices through recognition. There is a relationship between the two aspects, and all play a critical role when the State attempts to achieve recognition by creating a new sovereignty arrangement challenging the status quo that legally exists. Such a decision by the State may potentially be at odds with the mandate to other states that may be affected by the potential change undertaken by the State.