International Business Law -- Recognition International Recognition Essay
- Length: 8 pages
- Sources: 6
- Subject: Business - Law
- Type: Essay
- Paper: #36345103
Excerpt from Essay :
International Business Law -- Recognition
International Recognition Law -- Recognition
The number of states in the world map is constantly increasing. In the beginning of 20th century it was fifty five, in the middle it touched the figure of seventy five and by 2005 it soared up to 200 in total (Crawford, 2006). With increase in number of states, the concept of state recognition is also emerging on the international platform, where the states are recognized as an entity or legal authority. The concept has gained much importance by virtue of its consequences. It has been formally defined as a process which enables state governments to face the changes taking place internationally (Grant, 1999). The change can either be creation of new state or change in its internal situations and foreign relations.
The concept of state recognition is emerging in International Law primarily because of producing significant results. Meeting required qualifications is not the sole criteria for state recognition. The state opting for recognition has to build relations with other states as well. There are certain legal consequences attributed with states. The recognized states are given certain privileges associated with domestic legal framework. There are certain immunities as well. Hence, the political influences are more important than the legal jurisdictions in the perspective of state recognition (Shaw, 2008). The matter of state recognition is more related to interests of the state and the present states who are expected to build relations with the recognizing state carefully analyze the interests. They thoroughly estimate the associated pros and cons of the foreign relations with prospecting recognized state.
There is an important question about duty of recognition that should be addressed in the phase of recognizing a state. The experts have mixed views about it. Brownlie is of the opinion that state recognition is political practice and no element of duty is associated with it. On the other hand, certain practitioners support the existence of an element of duty with recognition and they also consider recognition as covered in the constitutional purview (Brownlie, 2008).
The practice of state recognition takes place on the basis of either one of the two theories i.e. declaratory theory and the constitutive theory. The former theory deals mainly with qualifying the recognition requirements laid down by international bodies. It does not need approval of any other state which has already acquired the recognized status. This theory is more practical and acceptable at the international forum (Shaw, 2008). It is also supported by the clause of Montevideo Convention (1933), Article 3. The latter theory ie. constitutive theory is totally the opposite of declaratory theory. It strongly calls for acceptance by the present states of the world if a state needs to qualify for recognition. This theory is criticized on the possibilities of state acceptance by few states and rejected by few others. In this situation, the protection of new state against the unfavourable acts of present states also becomes a burning question.
The Theories related to Recognition
As mentioned earlier, state recognition is not only the matter of meeting international state definition and criteria by an entity. It also requires fulfilment of certain duties and responsibilities by both recognizing and newly recognized state. It is important to mention that acquiring status of state complies with certain legal consequences gor both the parties (Ramzan, 2012).
With this perspective, state recognition becomes a matter of political as well as international importance. As discussed previously, both recognizing and recognition seeking states have interests related to recognition and both of them carefully look into them. It is also possible that not recognizing a state is more beneficial to the existing states. Before finalizing their decision, the existing states give fair thought to both perspectives (Ramzan, 2012) in terms of creating or avoiding foreign relations with the new state.
The internal state of affairs in the prospecting state plays major role in deciding if it is advantageous to recognize a state. If the prospecting state is internally disturbed and populace is protesting for liberty and separation, seeking recognition by the state which supports the protestors will further advance the protests. It will bring no good for the state that actually applied for recognized status (Ramzan, 2012).
International Law also plays an active role in granting recognition to a state. There exists strong difference of opinion among international scholars. Some consider it a duty while others totally reject the notion. Few of them believe in the sufficiency of compliance with international state definition. There are scholars who believe that there should be no laid down criteria and procedures for state recognition and it should be left at the liberty of prospecting state. On such grounds, state acceptance by other states may also be questionable in terms of the only criteria for granting recognition to new states (Ramzan, 2012).
Guggenheim and Lauterpacht support the view that states should comply with the defined criteria while the present states should also provide the recognition easily. Ian Brownlie negates the attribution of any responsibility of granting recognition in the hands of other states (as cited in Ramzan, 2012). He simply regards recognition as an option which a state can adopt as per its will. There is no responsibility attached to the present states in this context. There are two major theories related to recognition of new state as aforementioned (Ramzan, 2012). The first one is declaratory, and the second one is constitutive.
1) Constitutive Theory: This theory finds its roots in 19th century and it strongly focuses on the International Law and the role of states which have been recognized. It is because the new state will have considerable impact over the international community in terms of foreign relations with other countries. The probability of respectable relations is strong only if the states recognize and accept each other. Additionally, there's also a common belief that new states cannot join international bodies automatically; instead, once other member states admit and accept the membership then the new state could be given membership (Ramzan, 2012).
2. Declaratory Theory: The central idea behind this theory is that a state's membership is visible in factual terms and not in legal terms. This is one of the leading political laws, which endorses the view that a state should build and develop relations with other countries. However, in doing so, there are many legal, ethical and administrative responsibilities of that state, which must be respected. Montevideo Convention is the most prominent specimen for this theory and highlights the following two aspects (Ramzan, 2012):
a. Article 3: Whether other states recognize or not, a state exists in the terms of politics. Moreover, in any case, the newly established state has complete freedom to defend its honour and sovereignty and micromanage the internal affairs without dictations (Ramzan, 2012).
b. Article 6: The sole output of state recognition is that other recognized states have accepted the new entrant as a separate entity (Ramzan, 2012).
It is normally considered that there is a standard for allowing a territory to be a state. But it cannot be declared practical because of inability of the states to secure recognition after approaching a given goal. International law and the policies of a state were considered to be a mixture but with the changing times the states and its policies have taken more important and appreciation than these international laws (Ramzan, 2012).
Declaratory Role of Recognition in the Law of Statehood
A question arises that, "what is the difference between the recognition and non-recognition of a state?" Without studying overall significance of the law, structure and its vital role in the system of state, it's virtually impossible to discuss the subject (Wilde et al., 2010).
It is assumed by the James Crawford in his own theoretical framework that (Wilde et al., 2010): if you look at the broader picture, there is a big difference simply getting a state and the entrenched status of recognition (Wilde et al., 2010). If you look over the literature about this matter; it has been observed commonly, that the progressive system and structure for a state is more appreciated than the slow but established state (Wilde et al., 2010).
When the scholars ended their speeches, a great number of people asked frequent questions about many occupied and undecided territories. However, in this session, the public seemed unsatisfied with the answers provided by the scholars and majority of the issues remained under discussion with no specific outcome. Though, Dr. Wilde's statement about Somaliland was a bit interesting which endorsed that the continuity is the only reason for considering the Somaliland as the part of the Somalia (Wilde et al., 2010).
Some people might think that the territorial title should be considered first and foremost in statehood than the status quo. But the state's title and the establishment of a state have been assumed but the new and establish states are to be proved. But in any and every given scenario both possibilities and assumptions are considered applicable when there is…