International Law
Statehood encompasses an important issue in the discourses of international affairs. For example, it was raised in the International Criminal Court’s (ICC) decision-making process regarding alleged charges of crimes committed in the Palestinian territory. This matter was brought up amid the Palestinian Liberation Organization’s (PLO) claims that Palestine was being recognized as a state among some members of the UN.
With the UN now constituting 193 members, about 63% of all states making up this organization recognize Palestine’s statehood (Al-Arian & Ali, 2017). However, neither does PLO’s website discuss Palestine as a state nor does the territory participate in international affairs, an observation that has made many nations question the country’s statehood. Therefore, if recognition is not an official prerequisite for the establishment of statehood, it becomes crucial to examine its meaning in international affairs.
The Significance of Recognition
Regarding the international operation of different states, parties relate with one another depending on some agreed conditions. In most situations, such relationship terms are not controversial. As such, they translate into the recognition of states’ status quo. However, in some scenarios, one country may take a radical position that challenges an existing order, such as the recognition of statehood of a particular territory.
For instance, the 2008 claim that Kosovo consisted of territories that included Serbia received criticism whereby many states refused to recognize its statehood (Roseberry, 2013). Nations may also defy a status quo. In particular, several countries challenged the incorporation of parts of Cyprus as territories within the Turkish Republic of Northern Cyprus. Therefore, in international affairs, recognition creates room for refuting or affirming an existing order.
The international law framework establishes policies that define what constitutes a state. For example, the 1933 Montevideo Conference requires a state to have a stable population and a well-demarcated territory, including the power to form relations with various other parties or governments. Indeed, at the time of making these pacts, the prevailing law regarded a state as a form of sui generis lawful body functioning and prevailing under its self-established supremacy (Bryant, 2014). Article 3 of the Montevideo Conference acknowledges the autonomy of the process of recognizing a state and its political existence.
Hence, even before the recognition procedure, a state reserves its right to territorial integrity and organization. In this case, recognition is not obligatory for statehood. Indeed, according to Article 6 of the 1933 Montevideo Conference, recognition only acts as an indication of a state’s acknowledgment by another party or country (Bryant, 2014; Middleton, 2015). This clause appreciates a state’s qualities, uprightness, and roles spelled out in international law discourse. As a result, recognition is immutable and unrestricted. However, debates in international law raise the question of whether merely satisfying the 1933 Montevideo Conference is adequate for a territory to constitute a state or whether recognition should be compulsory.
In international affairs, recognition serves two principal purposes. Firstly, it enhances intercontinental legitimacy. Finck (2016) supports this assertion by noting that a state can or cannot have statehood authenticity in some situations, depending on the way other states treat it. Secondly, recognition provides a mechanism through which international law can regulate the creation of states. Directly congruent with this allegation, Tudoroiu (2017) asserts that states are constrained in terms of their choices regarding issues related to recognition.
Based on these two purposes of recognition in international affairs, understanding legalities applicable to any regime requires an examination of objects that constitute the phenomenon under investigation. According to Roseberry (2013), a government can only be recognized subject to what it claims to be. Consequently, it becomes hard to precisely determine the importance of recognition in the context of the acknowledged state, including whether such respect should be viewed as lawful while ignoring legalities of claims raised by a given territory that seeks statehood honor.
It is crucial to find out whether recognition leads to the acceptance of a government in international affairs. The concept of agency constitutes an important paradigm that helps to respond to this concern. Indeed, a government does not constitute an officially authorized entity by itself but stands out as an agent acting in place of the legal body or the state (Finck, 2016). Consequently, a mere inspection of the party in control serves as an incomplete mechanism for resolving the issue of the legality of a recognition arrangement (Primmer, 2015). Rather, one needs to consider the context in which the control is being exercised in relation to the claimed status of a given territory.
Recognition has a constitutive role in some marginal international scenarios. For instance, regarding the Prosecutor v. Tadić (1995) case, presented at the International Criminal Tribunal for the former Yugoslavia, the constitutive hypothesis was deployed. However, Judge Li challenged it by arguing that the ensuing Slovenia-Croatia clash needed to be viewed as an international issue immediately after the two countries gained sovereignty but not based on the notion that they had received recognition from other nations (Prosecutor v. Tadić, 1995).
Nevertheless, the constitutive function requires an entity to be of a particular magnitude. The concept of constitutive role arises from the knowledge that parties can alter or make international law subject to the observation of a general trend in the majority of states. Consequently, one may anticipate the recognition of a state based on the decision reached by the UN in its move to allow claimants in its membership (Caspersen, 2015).
For example, the process of recognizing and accepting Herzegovina and Bosnia as independent states followed by their incorporation into the UN demonstrates this role of recognition in international affairs. However, the constitutive function of recognition faces the challenge of embracing a policy-based approach to determining statehood. For example, consider a situation where nations recognize claims of statehood contrary to the self-determination rule. Such an arrangement violates international law doctrines since self-determination entails one of the key aspects of having a Jus Cogens status (Ben-Dor, 2013). Hence, violating international law principles leads to non-acknowledgment.
Recognition plays the role of de-legitimization. Failing to appreciate the validity of any claimed statehood produces constitutive implications regarding the de-legitimization of changes in territorial entitlements of existing states. This role arises from the fact that states in the international discourse reject illegal recognition scenarios. Consequently, a case whereby an existing recognized country acquires other territories using military forces may lead to an active rejection of the legality of statehood of a given territory (Roseberry, 2013).
For example, states in international relations actively rejected Iraq’s claim regarding its right to the entitlement of Kuwait. Rather, a contrary position was reinforced to protect international law philosophies. In such situations, recognition is presented as a strategy that enhances clarity on otherwise contentious matters that may lead to long-term antagonism.
Conclusion
Although recognition is not a necessary aspect during the determination of statehood, it is significant in international affairs. A state must have a permanent population, administration, territory, and the capacity to engage in international dealings with other nations. In particular, active involvement in intercontinental relationships can only occur when other parties treat the country in question as a state. Therefore, if interested parties were to use recognition as the only criterion for the formation of a state, it is possible that any territory’s political affairs would be ignoring a country’s actual operations and behavior on the ground.
References
Al-Arian, A., & Ali, M. (2017). Palestine: Growing recognition. Al Jazeera. Web.
Ben-Dor, O. (2013). The one-state as a demand of international law: Jus Cogens, challenging apartheid and legal validity of Israel. Holy Land Studies: A Multidisciplinary Journal, 12(2), 181-205.
Bryant, R. (2014). Unrecognized states: The struggle for sovereignty in the modern international system. Journal of Southeast European and Black Sea Studies, 14(4), 626-631.
Caspersen, N. (2015). The pursuit of international recognition after Kosovo. Global Governance, 21(3), 393-412.
Finck, F. (2016). The state between fact and law: The role of recognition and the conditions under which it is granted in the creation of new states. Polish Yearbook of International Law, 36(1), 51-81.
Middleton, T. (2015). The demand of recognition: State anthropology and ethnopolitics in Darjeeling. Stanford, CA: Stanford University Press.
Primmer, J. (2015). Beyond the law-state: The adequacy of Raz’s account of legal systems in explaining intra-state and supra-state legality. Ratio Juris, 28(1), 149-158.
Prosecutor v. Tadić, Case No. IT-94-1-I. (1995).
Roseberry, P. (2013). Mass violence and recognition of Kosovo: Suffering and recognition. Europe-Asia Studies, 65(5), 857-873.
Tudoroiu, T. (2017). Taiwan in the Caribbean: A case in state de-recognition. Asian Journal of Political Science, 25(2), 194-211.