Acquisition and Formation of States

Introduction

The acquisition and formation of states is a very important topic in international law, as states are generally considered as the main subject in the international legal system. The quest for a suitable definition of a state as a person of international law has largely raised the idea of recognition in the international legal system.

The world war era marks the period where many territorial entities struggled for independence and to achieve statehood. The need for criteria for defining statehood therefore became a necessity. Scholars of different schools of thought have come up with several definitions of a state but all have fallen short of general acceptance and faced numerous criticisms.

Though subject to controversies in international law, the most widely accepted definition has been one provided by the Montevideo Convention which proposes in article one that for an entity to qualify as a state, it must possess a permanent population, a defined territory, an effective government and must have the capacity to enter into legal relations with other states. Further, the first line of article three incorporates recognition into the scope of defining a state by stating that, ‘the political existence of the state is independent of recognition by other states’. This simply gives precedence to the declaratory theory of statehood. What this means is that, it remains a fact that, an entity becomes a state as soon as it meets the minimum criteria of statehood notwithstanding its recognition by the international community, therefore recognition by other states is purely ‘declaratory’.

In practice, the Montevideo criteria for statehood have been insufficient in defining a state because the essence of a state will not be realised if an entity fulfils the criteria but no state is willing to enter into any form of diplomatic or bilateral relations with it. It would be impossible for that state to exercise its rights and duties under international law. This leads to the second school of thought which is the constitutive theory of state recognition which stipulates that, a state lives solely by its acknowledgement by other states.

It must however be noted that, whiles both theories play important roles in establishing a state, neither theories satisfactorily interprets an up to date practice. The declaratory idea supposes that territorial entities can gladly, by virtue of their mere reality, be classified as having a lawful status, it therefore in a way bewilders ‘fact’ with ‘law’. On the other hand the constitutive idea whereas it sketches vigilance to the need for identification and cognition, it may fall short to address the likelihood that identification of new topics may be accomplished in agreement with general directions or values, other than on discretionary basis which may be prone to bias decisions and conclusions.

Distinction Between Recognition Of States And Governments

Recognition constitutes the acceptance of a specific position by identifying an entity both in periods of the applicable factual criteria and in periods of resultant lawful repercussions and may generally take two forms, de jure or de facto. De jure recognition is one that is bound by a constitution and considered as legitimate and so accepted by all. When a government as a matter of fact, has effective control over a territory and exercises this control ‘in good faith’, but not recognised formally by the existing states, such an entity or government is said to have a de facto recognition. A classical example of such a situation is the Tinoco arbitration. In many cases, this may happen when the existing states are unsure of the stability of the government or entity. Recognition in such a situation may therefore depend on the intention of the recognising states and in some cases, could be political. South Ossetia for instance has had a de facto government from the history of the territory. The recent recognition of the entity as a state by Nicaragua and Venezuela following the unilateral declaration of recognition by Russia is argued to have political grounds.

The government of a territorial entity, whether de jure or de facto only exercises the sovereignty conferred to it by the state. If that is true then it is plausible to say that when a government changes, the new government inherits the same rights and obligations under international law as its predecessors. It is possible for the government of state to be recognised but not the state itself. For instance, contacting the foreign affairs ministry of an entity with regards to the welfare of the citizens of the recognised state does not necessarily mean that the state is recognised. It may merely signify the recognition of a governing entity of that territory. If this is the case, the international status and the rights of the peoples and their territory will seem to depend on arbitrary decisions and political contingencies.

Recognition may be expressed or implied. It must however be noted that, recognition does not necessarily mean the establishment of diplomatic and bilateral relations between states or governments (the fact that the United States is in hostilities with Afghanistan and Iraq does not mean that the government ceases to exist). But with regards to diplomatic relations the two are interrelated because, a state cannot establish relations with a territorial entity whiles refusing to recognise it. A state, once recognised and qualified as a state, cannot cease to be a state but in terms of recognition of governments, this could be a possibility.

Role And Funtion Of The Declaratory And Constitutive Theories Of Recognition

If recognition is constitutive of statehood, it may refer to the free act by which one or more states acknowledge the existence of a definite territory of human existence, politically organised, independent of any other existing state, and capable of observing the obligations of international law by which they manifest their intentions to consider it as a member of the international community. Thus both in practice and in theory, recognition is the sovereign prerogative of those states that are already recognised within the international legal system.

The difficult question here will relate to the determination of the status of an entity that meets all the objective criteria of statehood but goes unrecognised by the international system , or even, when some but not all states recognise the entity since states are not legally obliged to publicly recognise other states. If these states that have formally recognised an entity and are willing and able to enter into bilateral relations using procedures prescribed by international law, then the status of such a state within the international system, even though its government is effective and generally accepted as a de facto government, maybe difficult to determine.

According to the declaratory theory, a state exists without being recognised and if it does exist in fact, then whether or not it has been formally recognised by other states, it has the right to be treated by states in a manner which conforms to international law. According to this view, when recognition actually follows, other states merely recognise a pre-existing situation. However this answer is not satisfactory as it is not evident why the act of recognition is still important. Indeed it is only by recognition that the new states acquire the status of a sovereign state under international law in its relations with the third state recognising it as such. If it were to acquire this legal status before and independent of recognition by the existing state, this legal consequence under international law would occur automatically and would no longer be prevented by withholding recognition. Such an evolution of recognition theory was inspired by the attempt to ensure that international law would be universal in application to all entities that meet the objective criteria of statehood within the system by insulating the objective achievement of statehood from the subjective criteria of recognition. This view has also been difficult to exist in a vacuum. The main reason being that the it limits the scope of statehood in a very narrow way and also with the emergence of new theories and principles of international law such as the principle of self determination and independence for colonial people, and the legality of acquisition, the interpretation and application of the Montevideo criteria may pose difficulties in defining a state.

In matters regarding territorial claims, recognition becomes a very important subject. When an entity claims to statehood within a territory that is being disputed, and if, in this case, they eventually acquire it, most certainly than not require the recognition of existing states. Their recognition will mean that they get support both military and economic while they develop their own strength to resist international threat.

Following the breakdown of the soviet union, the European community published its declaration on Yugoslavia and the guidelines for recognition of new states. There is clear evidence that stipulated that, this approach to recognition was to be guided by the notion that the existence or disappearance of a state is a question of fact that the effects of recognition by other states is purely declaratory. This ‘declaratory’ interpretation of recognition must be examined more closely given the fact that the European community’s own recognition policy effectively went a long way towards creating such ‘facts’ by redefining the terms of statehood, the way in which narrow political, economic and strategic interests served to structure the recognition process. This process in actual fact makes recognition constitutive in nature. In this effect, in the determination of changes in title of sovereign and the granting and withdrawal of nationality of persons, recognition could not be ignored.

Some Applications Of The Theories Of Recognition And The Consequencies Of Non-Recognition In The International Legal System

There is no doubt that some level of pragmatism has prevailed in many decisions relating to recognition of states and government. There has been few instances such as the recognition of Kosovo and the existence of Bangladesh as a state following the invasion of India by Pakistan. This notwithstanding, the theories of recognition of existing states in relation to other territorial entities have also been inherent in the international legal system.

According to international law, the use of force, or racial discrimination or the general abuse of the principle of self determination cannot form grounds for acquisition of statehood. For instance, the Rhodesian unilateral declaration of independence in was considered as illegal according to the security councils’ resolution 216. In this case, all members of the UN were obliged to desist from recognition of Rhodesia in accordance with article 25 of the UN charter. If recognition was purely declaratory, Rhodesian declaration would have been automatic.

Where a state is invaded by force or incorporated into the territory of the invading state, the conquered state continues to continues to exist in its old form. For instance Kuwait retained its old status and was not recognised as a new state under the Iraqi control after the invasion by Iraq.

Non-recognition simply means the failure to accept an entity as a sovereign. The implication here is that the possibility of an existing state accepting any ruling is rather complicated. For instance UK requirement for a certificate of foreign office to acknowledge diplomats of states is constitutive in nature. The message here is that the fact that certain entities are not recognised as states does not imply that they can deviate from international law or a territorial entity can exist as a terra nullius. The united states and the united kingdom recognised the government of Israel before it was granted statehood. The Arab states however made certain claims against Israel even though at time it did not formally recognise it as a state.

Conclusion

In recent practice of international law, recognition in no doubt exerts enormous influence in state recognition. The two theories cannot exist purely independently. Whiles territorial entities acquire the objective criteria of statehood, it must be complemented by the subjective constitutive theory whereas the principles and rules of international law acts as checks and balances to regulate the way in which the theories are applied in the international legal system.

Bibliography

Akehurst Michael, A modern introduction to international law (6th edn Unwin Hyman limited, London 1987) 47, 67-9

Bennett A Leroy, International Organizations Principles and Issues (5th edn Prentice-Hall, New Jersey 1991)112-3, 351-72

Brownlie Ian, Principles of public international law (6th edn Oxford University press, oxford 2003) 85-101

Caplan Richard, Europe and the Recognition of

New States in Yugoslavia, (Cambridge university press, Cambridge 2005) 95- 145, 189-90

Dixon Martin, International Law (6th edn Oxford University press, oxford 2007)111-141

Evans Malcolm D, International Law Documents (9th edn Oxford University press, oxford 2009)8-9

Harris D. J, Cases and Materials of International Law (5th edn London, 1998) 144-189

Jennings Robert and Arthur watts, (ed) Oppenheim’s international law (9th edn Harlow 1992) 126-203

Lowe Vaughn, International law (Oxford university press Inc., New York 2007)

Schwarzenberger Georg, A Manual of International Law (6th edn professional books limited, Oxon 1976)

Shaw Malcolm N, International Law (6th edn Cambridge university press, Cambridge 2008) 444-486

Sally McNamara, ‘Russia’s Recognition of Independence for South Ossetia and Abkhazia Is Illegitimate: They Are Not Kosovo’ Heritage Foundation (America 28 August 2008) accessed 4 December 2009