By Alphonce Barrack, LLB (2017)
1.0
Introduction
If a state
does not enjoy recognition, it is irrelevant whether the requirements of the
Montevideo Convention have been satisfied. Without recognition, statehood is
meaningless and requirements of Montevideo Convention [1] are at best a guide to determine
recognition. This area of law has shown numerous complexities for a good range
of time, in fact since time immemorial. The major complexity in this area of
law is compacted into the doctrinal dispute between the declaratory[2]
and constitutivists views on recognition of states and governments.[3]
Taking
into account the provisions of the Montevideo Convention guidelines on
recognition of statehood,[4]
non-recognition by other nations of a state claiming to be a national person or
a member of the family of nations, is usually an evidence to the effect that
that entity or territory has not attained the independence and control
entitling it by international law to be classed as an international
personality.[5]
This leaves us with the question as to whether recognition is a prerequisite of
statehood to an extent that it supersedes the Montevideo guidelines.
[1.1]
Discussion
The
Montevideo Convention provides that a state as a person of International Law
should have a permanent population, a defined territory, a government and
capacity to enter into relations with other states;[6]
perhaps this is the most coherent criterion of establishing statehood, that no
other international legal instrument can surpass.
However of
the above set criterion, recognition by other states supersedes the rest. Since
this in many occasions is deemed to be capable of curing the defect of an
imperfect claim of a statehood.[7]
That is to mean that even if a people within a territory have not satisfied the
objective criteria of the Montevideo Convention or have achieved them through
unlawful means, they may still acquire statehood in International Law because
the formal defect is waived by the international community at large.
As a
matter of definition, state recognition as defined by Prof. Oppenheim,[8]
is the act through which it becomes apparent that an old state is ready to deal
with a new state as an International Person and a member of the Family of
Nations; and such (recognition) is given either expressly or tacitly.[9]
Recognition
by other members of the Family of Nations is perhaps the most important
criterion that many at times supersede the other requirements of the Montevideo
Convention.[10]
For instance, the case of the Holy See and the Pope, the Holy See clearly does
not meet the threshold of the Montevideo Convention , for it has no legal
capacity to enter into intercourse with other foreign nations, it has no
permanent population. However, a tacit recognition by other members of the
family of Nations can be inferred from its dealings with other nations.
Pursuant
to the Law of Guaranty, the Pope enjoys all honors of a sovereign and retains
the privileges conceded to him by the Roman Catholic monarchs.[11]
Secondly and of importance The Pope has the right to send and receive envoys
who enjoy all the privileges of the diplomatic envoys sent and received by
Italy.[12]
Of importance is that the Law of Guaranty is not an international instrument
but Italian Municipal Law.[13]
Although the Holy See is not a state per se, the envoys sent by her to foreign
Nations are treated by the latter on the same footing with other foreign
diplomatic envoys. Furthermore, even though the Pope is not a head of state,
the privileges due to a head of Monarchical state are still granted to him as a
head of state. From this a tacit recognition is undeniable.
Therefore
to generally produce a satisfactory definition of statehood is not easy, for
even a roll call of the United Nation or any other international organization
does not confer statehood upon any territory per se,[14]
for reasons that United Nations membership wholly depends on political
considerations and legal facts.
In light
of the above, state recognition by other states emerges as an important stage
of statehood, other prerequisites of Montevideo Convention notwithstanding. In International
Registration of Trademark (Germany) case[15],
a West Germany court ruled that a trademark originating from East Germany was
not entitled to protection in West Germany’s territory for reasons that West
Germany did not recognize East Germany as a state, whereas East Germany has
achieved the objective criteria of the statehood. In the Courts opinion, an
entity which actually exists does not thereby become a state in international
law without some form of recognition of its existence and therefore recognition
of a state is essential to international personality.
There is
no denying that the concept of state recognition is heavily clouded by politics
or politically motivated, especially by the permanent members of the Security
Council. Oppenheim in ascertaining this says that it must be mentioned that
recognition by one State is not binding upon other States, so that they must
follow it. But in practice, such example if set by one or more great powers and
at a time when the new State is really established on a sound basis, will make
other States at a later period give their recognition.[16]
For instance, Russia has used its veto power to oppose admission of Republic of
Kosovo to the United Nations despite other one hundred and ninety two members
recognizing Kosovo as a sovereign state. And secondly the United Kingdom’s vote
a member of the Security Council in favor of the Admission of the Former
Yugoslav Republic of Macedonia to the United Nations on the 8th
April 1993 was considered as a formal recognition.
Furthermore
the United States government did not recognize the Soviet government until 1933
even though it had been effect within the Soviet state for at least ten years.
Tied to this, Russia has been universally accepted as being capable of
succeeding to the Soviet Union’s place in the Security Council and the United
Nations.
[1.2]
Duty of recognition.
As a
general approach, no state has the duty to recognize an aspiring state.
However, if any state bears the mark of statehood, it is undeniable that other
states legally expose themselves to a serious legal risk if they deliberately
ignore the basic obligations of state relations. Prof. Oppenheim in his
profound wisdom is of the considered view that no new state or an aspiring
state has the right to demand recognition of statehood from other states and
other states have no duty or legal obligations to recognize any such state upon
any such demands.[17]
Even
though no new state has by International Law a right to demand recognition,
recognition of statehood cannot be unreasonably withheld, for simple reason
that if the same is for any length of time refused, the interests of the old
state are exposed to jeopardy just as those of the new states.[18]
[1.4]
Conclusion
From the
above analysis, statehood can only be properly acquired through recognition by
other members of the Family of nations, Montevideo Convention requirements
notwithstanding. Such recognition whether express or tacit must as shown in the
discussion above be initiated by Great Powers for other nations to follow suit.[19]
State recognition appears to be more political than states willingness to enter
into legal relations with other nations on legal basis.
BIBLIOGRAPHY
1.)
International Instruments.
- Montevideo Convention on the
Rights and Duties of States 1993
2.)
Municipal Law
- The Law of Guaranty, Italian
Act of Parliament.
3.) Books
- Oppenheim, International
Law: a treatise, vol 1 (Making of Modern Law Print Editions)
- Martin Dixon, International
Law (7th edn, Oxford University Press 2013)
- Harris, Cases and Materials
on International Law (7th end, Sweet & Maxwell 2010)
- Ian Brownlie, Principles of
Public International Law (7th edn, Oxford university Press
2008)
[5]
Ian Brownlie, Principles of Public International Law (7th
edn, Oxford university Press 2008) 86.
[8]
Prof. Oppenheim, M.A., LL.D (Professor of International Law in the University
of Cambridge, Member of The Institute of International Law, Honorary Member of
the Royal Academy of Jurists at Madrid.)
[18]
The case of the United States refusal to recognize the Soviet Union as a state
after the first world war until 1933.
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