THE CONCEPT OF STATE RECOGNITION UNDER INTERNATIONAL LAW

THE CONCEPT OF STATE RECOGNITION UNDER INTERNATIONAL LAW

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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

GENERAL 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.1

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.

1 McDonald, A.M. (1972) Chambers Twentieth Dictionary, 1 & A Constable Ltd., p. 1128

2 Maraina O. Secession, Statehood and Recognition: Princeton University pdf document available at http://psujja.files.wordpress.com/2012/04/secession.final.pdf. Accessed on 27/2/2013

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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.3

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

3 Erticle 3 of Monte video Convention (1933)

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