Recognition Is Essentially a Political Act & Declaratory in Nature but Clothed in Legal Reasoning
"Recognition is essentially a political act & declaratory in nature but clothed in legal reasoning”
Introduction
Traditionally any discussion on recognition in international law considers two theories: constitutive and declaratory. The constitutive theory perceives recognition as “a necessary act before the recognized entity can enjoy an international personality,” while the declaratory theory sees it as “merely a political act recognizing a pre-existing state of affairs.” In the constitutive perception the question of “whether or not an entity has become a state depends on the actions of existing states.” However, the situation in which one state may be recognized by some states, but not by others, is an evident problem and thus a great deficiency of the constitutive theory. In the absence of a central international authority for granting of recognition, this would mean that such an entity at the same time has and does not have an international personality.
Most contemporary writers have thus adopted a view that recognition is declaratory. This means that a “state may exist without being recognized, and if it does exist, in fact, then whether or not it has been formally recognized by other states, it has a right to be treated by them as a state.” According to this view, when recognition is granted, other states merely recognise the pre-existing situation; that of the existence of a new state.
Recent practice of new state creations indeed shows that in some situations international recognition merely acknowledges the emergence of a new state. Even if recognition is virtually universally withheld, sometimes there will be no doubt that the non-recognised entity is a state.
This article will demonstrate that international involvement, possibly also through the act of recognition, may sometimes produce rather than merely acknowledge the fact of an emergence of a new state. Does this mean that, under some circumstances, recognition can be constitutive?
In
Introduction
Traditionally any discussion on recognition in international law considers two theories: constitutive and declaratory. The constitutive theory perceives recognition as “a necessary act before the recognized entity can enjoy an international personality,” while the declaratory theory sees it as “merely a political act recognizing a pre-existing state of affairs.” In the constitutive perception the question of “whether or not an entity has become a state depends on the actions of existing states.” However, the situation in which one state may be recognized by some states, but not by others, is an evident problem and thus a great deficiency of the constitutive theory. In the absence of a central international authority for granting of recognition, this would mean that such an entity at the same time has and does not have an international personality.
Most contemporary writers have thus adopted a view that recognition is declaratory. This means that a “state may exist without being recognized, and if it does exist, in fact, then whether or not it has been formally recognized by other states, it has a right to be treated by them as a state.” According to this view, when recognition is granted, other states merely recognise the pre-existing situation; that of the existence of a new state.
Recent practice of new state creations indeed shows that in some situations international recognition merely acknowledges the emergence of a new state. Even if recognition is virtually universally withheld, sometimes there will be no doubt that the non-recognised entity is a state.
This article will demonstrate that international involvement, possibly also through the act of recognition, may sometimes produce rather than merely acknowledge the fact of an emergence of a new state. Does this mean that, under some circumstances, recognition can be constitutive?
In