Rayees Ahmed Wani Author is Senior lecturer at KCEF Law College Pulwama
Lessons From The Law
Recognition is a process whereby certain facts are accepted and endowed with a certain legal status, such as statehood, sovereignty over newly acquired territory, or the international effects of the grant of nationality. The process of recognizing as a state a new entity that conforms with the criteria of statehood is a political one, each country deciding for itself whether to extend such acknowledgment. Normal sovereign and diplomatic immunities are generally extended only after a state’s executive authorityhasformallyrecognizedanotherstate(seediplomaticimmunity).International recognition is important evidence that the factual criteria of statehood actually have been fulfilled. A large number of recognitions may buttress a claim to statehood even in circumstances where the conditions for statehood have been fulfilled imperfectly (e.g., Bosnia and Herzegovinain1992). According to the “declaratory” theory of recognition, which is supported by international practice, the act of recognition signifies no more than the acceptance of an already-existing factual situation—i.e., conformitywiththecriteriaofstatehood.The“constitutive”theory,incontrast,contendsthattheactofrecognitionitself actually creates the state.
Before granting recognition, states may require the fulfillment of additional conditions. The European Community (ultimately succeeded by the EU), for example, issued declarations in 1991 on the new states that were then forming in eastern Europe, the former Soviet Union, and Yugoslavia that required, interalia, respect for minority rights, the inviolability of frontiers, and commitments to disarmament and nuclear non proliferation. The timing of any recognition is crucial—particularly when a new state has been formed partly from an existing one. Premature recognition in a case of secession can amount to intervention in a state’s internal affairs, a violation of one ofthefundamentalprinciplesofinternationallaw.Recognitionofgovernmentsisdistinguishedfromtherecognitionofastate.Thecontemporary trend is in fact no longer to recognize governments formallybuttofocusinsteaduponthecontinuation(ordiscontinuation)of
diplomatic relations. By this change, states seek to avoid the political difficulties involved in deciding whether or not to “recognize” new regimes taking power by non constitutional means.
Although states are not obliged to recognize new claimants to statehood, circumstances sometimes arise that make it a positive duty no tto recognizeastate.Duringthe1930s,U.S.SecretaryofStateHenryStimsonpropounded the doctrine of the non recognition of situations created as a result of aggression, an approach that has been reinforced since the end of World War II. In the 1960s, the UN Security Council “called upon” all states not to recognize the Rhodesian white-minority regime’s declaration of independence and imposed economic sanctions. Similar international action was taken in the 1970s and ’80s in response to South Africa’s creation of Bantustans, or homelands, which were territories that the white-minority government designated as “independent states” as part of its policy ofapartheid.TheSecurityCouncilalsopronouncedthepurportedindependence of Turkish-occupied northern Cyprus as “legally invalid”(1983) and declared “null and void” Iraq’s annexation of Kuwait (1990). The UN also has declared that Israel’s purported annexation of the Golan Heights (conquered from Syria in 1967) is invalid and has ruled similarly with regard to Israel’s extension of its jurisdiction to formerly Jordanian-controlled East Jerusalem.
