Recognition

Recognition involves consequences both on the international plane and within international law. if an entity is recognized as a state in, for example, the united kingdom, it will entail the consideration of rights that would otherwise not be relevant. there are privileges permitted to a foreign state before the municipal courts that would not be allowed to other institutions or persons.

In more cases than not, the decision will usually rest upon political factors rather than purely legal.

This is because a state may not wish for the legal effects of recognition to come in to play i.e. the US and North Korea

Tho Theories:Constitutive: maintains that it is the act of recognition by another state that creates a new state and endows it with legal personality and not the process by which it actually obtained independence....disadvantage is that an 'unrecognized' state may not be subject to the obligations imposed by international law and may accordingly be free from such restraints as for instance the  prohibition on aggression....what if a state was recognized by some states but not others? would they still gain a full legal personality?Declaratory: Maintains that recognition is merely an acceptance by states of an already existing situation. a new state will acquire capacity in international law not by the consent of others but by virtue of a particular factual situation.

Intl conference on Yugoslavia 1991:the existence or disappearance of the state is a quesion of fact and the effects of recognition are purely declaratory.

Yugoslav Arbitration Commissionwhile recognition of a state by other states has only declarative value, such recognition, along with membership of international organisations, bears witness to these state's conviction that the political entity so recognized is a reality and confers on it certain rights and obligations under international law

View of UK govt on recognitionnormal criteria are that it should have and seem likely to continue to have, a clearly defined territory with a population, a government who are able of themselves to exercise effective control of that territory  and independence in their external relations. other factors including some UN resolutions may be relevant

Other factors?Under the EC Declaration ‘Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union’ (1991) recognition requires: •  Respect for law, democracy and human rights • •  Respect for the inviolability of frontiers • •  Acceptance of commitments on disarmament and regional stability • •  Commitment to arbitration and agreement

For those states that have recognized a new state, the state will be entitled to all privileges and responsibilities of statehood in the international community and within the legal systems of the recognizing states. for those that do not recognise  the state will not be entitled to diplomatic and state immunities. this was the position in relation to Kosovo whose recognition as a state was controversial and disputed.

Once given, courts have generally regarded recognition as retroactive so that the statehood of the entity recognized is accepted as the date of the statehood is accepted as the date of the statehood (which is a question of fact) and not from the date of recognition

Where a government has come into power by extra constitutional means, they should not be recognized  at least until the change has been accepted by the people. in american eyes, this is known as the Wilson policy of democratic legitimacy where if the revolution was supported by the people, it would be recognized.this is however merely a political qualification for recognition

De Jure recognition usually follows when the recognizing state accepts that the effective control displayed by the governments is permanent and firmly rooted and that there are no legal reasons detracting from this, such as constitutional subservience to a foreign power   De facto recognition involes a hesitant assessment of the situation, an attitude of wait and see to be succeeded by De Jure recognition whn doubts are successfully overcome to extend formal acceptance.   Premature recognition

Premature recognition

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