Exploring the boundaries of international law
Exploring the boundaries of international law

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Exploring the boundaries of international law

2.3 The effects of recognition

The effect of recognition appears to be straightforward and is set out in the Montevideo Convention.

Activity 2

Read Articles 3 and 6 of the Montevideo Convention [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] and summarise what you consider the effect of these articles to be.

Comment

Article 3 states that the political existence of the state is independent of recognition by the other states. Even before recognition, the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organise itself as it sees fit – to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.

Article 6 states that the recognition of a state merely signifies that the state which recognises it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.

Articles 3 and 6 indicate that statehood is a fact, irrespective of whether a state is recognised. Recognition is the acknowledgement or declaration of the existing legal capacity of that state, rather than being a decisive factor in the creation of statehood.

The declaratory effect of Articles 3 and 6 may seem clear. However, it has been argued that recognition by other states is a vital part of statehood, providing something more significant and constitutive:

The full international personality of rising communities [...] cannot be automatic [...] as its ascertainment requires prior determination of difficult circumstances of facts and law, there must be someone to perform their task. In the absence of a preferable solution, such as the setting up of an impartial international organ to perform that function, the latter must be fulfilled by States already existing.

(Lauterpacht, 1978, p. 55)

The constitutive approach relies on the subjective and invariably self-interested assessment of other states to determine the existence of a state. It also raises questions about the degree of recognition required for statehood. For instance, does it require unanimity or would recognition by an international organisation be sufficient?

The declaratory approach views recognition as the acceptance of the factual occurrence of a state and not as a vital part of the existence of statehood:

The existence or disappearance of the state is a question of fact [...] the effects of recognition by other states are purely declaratory.

(Badinter, 1991, pp. 164–5)

This has been the preferred view and is supported by the wording of the Montevideo Convention.

States are usually reluctant to recognise ‘maverick’ states or governments who have breached international law as they risk damaging their own reputations by doing so.

As you read earlier, the Montevideo Convention does not stipulate that a state must have legitimacy and be democratic. In theory, recognition does provide an opportunity for states to demand more stringent standards of emerging states and governments in return for recognition. For instance, the EC set out the criteria for the recognition of the new post-Cold War Eastern European states in Annex 1 of their 1991 Declaration on the ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’ (Türk, 1993).

The UN, as an international organisation, does not possess authority to recognise states or governments, but it does require new states applying for membership to formally declare their acceptance of the obligations in the UN Charter. The granting of UN membership provides valuable evidence of statehood.

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