Creating New State: Law, Facts, Rules, Conditions, Sovereignty and Recognition - Essay Sample

Introduction

Creating a new state combines both law and facts, which also involve compliance with various rules and conditions. States are required to honor the sovereignty of other states. Sovereignty includes the independence and integrity of the states. Independence is a crucial factor as it illustrates that an entity is not under the sovereignty of other countries. Recognition thus gives assurance to a state that it will be able to hold its place and rank in the character of an independent political organism in the society of nations.

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Recognition of states should be both in terms of legal consequences and relevant facts. It ensures the recognition of a state by looking at its government. It also ensures that the government has not only fulfilled the requirements but also that it will be a superior authority and that the state will adhere to the rules and accept the consequences whether in terms of immunities or privileges granted to it.

What is it that makes a state? The criteria for an entity to become a state were defined in the Montevideo convention in 1933. The Montevideo convention defines recognition as a requirement for a state to participate in international affairs. Whereas the Montevideo criteria contain the legal requirements for statehood, recognition is largely dependent on the political will of other states . However, there also exist other conditions that must be met before recognition. The European community in 1991, identified that entities must have respect for minority rights, commitments to nuclear non-proliferation, and inviolability of frontiers.

The Montevideo criteria suggest that states are actors who have must have a permanent and defined territory, a permanent population, an effective government, and the ability to relate with other nations. Other additional requirements in the Montevideo criteria include protection for the minorities, abiding by international laws, democracy, independence, and good governance. The Montevideo criteria although it reflects the changes in normative standards, it still inserts some form of ambiguity in terms of establishing the juridical personality of the states into the system.

In the United Kingdom, the government decides whether or not a state is recognized. The executive upon recognizing a state grants the state a full legal personality, and in many areas of international relations, the states remain free to limit their mutual relations. In case of a revolution, a state needs to renew its recognition. It does not, however, need to renew when acts of the constitution such as elections take place.

Recognition implies that an entity is ready to face the legal consequences that accompany it. Recognition may grant access to the courts, the right to recover state property, the legal status of individuals and the judicial cognizance of foreign legal acts. Without recognition, states lack access to international courts where they vindicate their rights due to a lack of diplomatic relations. Although recognition is considered a political act, it has vast legal effects including having an impact on the international legal system. The legal effects are both in domestic and international orders.

Recognition also reveals that a state has an international personality. Certain elements are associated with attaining an international legal personality; A treaty-making power, a right to present claims based on international responsibility, right to send and receive diplomatic envoys, and the right to use armed force. In the absence of an international organ that can ascertain and declare the presence of requirements of an international personality, states that are already established are considered to have fulfilled that function as organs of international law. The rule demonstrates that when granting or withholding recognition, states cannot claim and cannot be entitled to serve exclusively national policy convenience and interests regardless of the rules and facts of international law.

Only recognized states can be members of Intergovernmental organizations such as the World Bank, the International Monetary Fund and the United Nations. Therefore, only the recognized states can apply and be granted loans from the International Monetary Fund and the World bank. Some international organizations can aid in concluding treaties and may increase domestic political support. The organizations can also increase the chances that the initiatives of the states cannot be challenged in other countries' courts because of the act of state doctrine and the principle of the sovereign community.

States that gain recognition can make binding political and legal decisions based on political and economic, tangible and intangible, inducements and incentives, defence deals, monetary aid, concession agreements, and diplomatic manoeuvres. Based on the legal nature of state recognition, a state can provide certain benefits such as scholarships, health services, and grants.

Recognition began to be crucial when political liberalism challenged dynastic rights. Only when a state has been recognized, it becomes a subject of international law with all the rights and obligations that it encompasses. After recognition, an entity can sue but it can also be sued. Recognition may also play a role and clarify where the law is not clear.

Recognized states benefit from assets that are not available to unrecognized entities. The assets can be in the form of both political influence and tangible goods. Foreign direct investments are mostly limited to only recognized states. International trade exchange is also mostly limited to recognized states. State recognition can also be employed to assert that a state supports cultural diversity, commemorate historical locales, and enhance tourism.

Through recognition, an entity obtains an equal status with members of the international community. The effects of recognition have also been noted to be pronounced, especially where the community recognized did not enjoy firm footing in international society. A state after recognition acquires international rights and obligations. Recognition determines whether or not statehood can be exercised within the international community. Recognized states are more stable than the unrecognized entities. It may be because recognition and membership within the international community provide legitimacy and stability.

Recognition is an essential element to close the gap between the general rules of international law and the specific facts on which the rules should be applied, and hence it is a determination of the existence of an effective and independent government over a population and territory. Such approval grants the possibility of the existence of a state. When recognition is given, the state's territory is recognized as the territory of a subject of International Law, and it does not matter how the territory was acquired before recognition.

International recognition of states is a pre-condition for the prosperity of states. State recognition can be a prerequisite to state benefits that may be reserved for indigenous communities. For small states, recognition enhances peace and stability by protecting and securing them from potential threats. Recognition may also ensure that a state has opportunities and resources which enhance the chance of the states remaining in power.

In the United States, recognition has been used to advance economic imperialism, to halt the spread of communism, to promote constitutional government, and as a political tool to support antimonarchical governments. Recognition has a consolidating effect. It can compensate for the doubts on the existence of the elements of statehood especially those that concern effectiveness.

The importance of recognition can be illustrated by Zimbabwe when it gained independence in 1965 and separated from Great Britain. Most great powers refused to recognize Zimbabwe as a state. It could not conduct international relations and be isolated. It could not fully exercise the privileges of acquiring legal statehood. Therefore, the political act of recognition of a state implies that the recognizing state is willing to enter into political and other relations with the recognized state of which the type of relations is those that exist among the members of the family of nations.

Recognition comes into play with regards to maintaining the status of neutrality, international organizations, insurgencies, belligerencies, and issues such as frontiers. Recognition can thus contribute to legal security in matters of international relations. Recognition can mediate the question of the continued existence of a state. The statehood of Bosnia and Herzegovina demonstrates the constitutive role of recognition: the potential to determine, legally that an existing state has ceased to exist .

Recognition can have a constitutive role in certain marginal cases: It is capable of pushing things further in favour of a particular outcome towards which the existing criteria are pointing but which itself is not reached by considering them alone. For instance, if an entity has not fulfilled or is deficient in conforming to the criteria, recognition from other states and strike a balance which may favour the claim for statehood. Recognition can take on a constitutive character when an immediate problem constitutes the extension of the effectiveness of foreign law into the recognizing state. Recognition, therefore, plays the evidence of a constitutive act role.

The Luther v. Sagor & Co case brings out the importance of recognition. In the case, it was established that the retroactive force of recognition was a legitimate act and must be respected. The decision of the court, in this case, was set aside, and recognition ruled.

After recognition, a state becomes subject to international law and any subject of international law may decide how it construes and interprets the facts that may be objects of recognition. Recognition of a state can also lead to declaring the illegality of existing claims. A state that has recognition can reject the claim to statehood of other entities or alter the territorial claims by existing states. For instance, in 1990, Iraq had a title claim over Kuwait but was rejected and led to the reinforcement of the current position...