The Role of Recognition

These are vague criteria for determining existence of State, and probably most important factor is the recognition or not of a new legal entity.

Act of recognition has no legal effect in itself – it does not create rights or obligations. This is opposed to view of some scholars in past (19th century) who thought that states were created by recognition, which is wrong because:

· who created the first state?

· It would mean even effective entities (w/ control over territory and population) would not be states if not recognised.

· It goes against principle of equality of states, because other states would have authority just by virtue of being born first of acknowledging existence of others.

Present - Recognition has following significance:

1. Political importance, as it testifies to the will of recognizing states to initiate int’l interaction w/ new state

2. Legal relevance, proves that the recognizing states consider that the new entity has all factual conditions to become an international subject (this is not binding on other states, but it helps pave the way).

3. Legal relevance, as it bars recognizing State from altering its position and claiming new entity now lacks Statehood (can’t go back once you’ve been recognized)

If recognition is granted too soon – before factual conditions of statehood are met, like they’re in a civil war – it may amount to unlawful interference in internal affairs of State (e.g. Recognition of Croatia in 1992 by EC, Austria and Switzerland when Croatia only controlled one-third of its territory).

Factual conditions required for state recognition:

· Effective control over human community and territory

· New conditions added in 1930s about following fundamental standards (such as ban on wars).

· 1990s – concerns about respect for human rights & minorities and respect for existing international frontiers

(e.g. 1991 – EC Declaration on Guidelines on the Recognition of new States in eastern Europe and in the Soviet Union, & Decision of Arbitration Commission in 1992 re Bosnia).

State recognition happens over a period of time, rather than at once by all members of international community. Recognition by some States helps lead the way for others.

BUT without recognition by all States, these new entities are still under some obligations towards non-recognizing nations – e.g. on high seas, respect for territorial and political sovereignty, creates duties on the non-recognizing States not to invade or occupy the new State, jeopardize its political independence, subvert its domestic political system, or impede its rights to sail on high seas.

There can be situations where a State meets all the conditions (of effective control of territory and people) but is still deprived of statehood – e.g Southern Rhodesia (which states refused to recognise for its racist policies), Taiwan. There can also be cases where statehood is granted but rules clearly have been broken (e.g. Northern Turkey, recognised by Turkey only).