Question Analyze The Legal Issues On State Recognition Refer To International Practices.pdf

lOMoARcPSD|38362167 MINISTRY OF JUSTICR HANOI LAW UNIVERSITY GROUP ASSIGNMENT SUBJECT: PUBLIC INTERNATIONAL LAW Question: Analyze the legal issues on state recognition Refer to international practices GROUP 04 Group members: Bùi Phương Linh 453511 Nguyễn Thu Hương 453512 Hà Phương Anh 453513 Phạm Thị Huyền Thảo 453514 Phạm Thu Huyền 453515 Trần Thị Hương Giang 453516 Hanoi, 2023 Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 BIÊN BẢN XÁC ĐỊNH MỨC ĐỘ THAM GIA VÀ KẾT QUẢ THAM GIA LÀM BÀI TẬP NHÓM Ngày: 19/04/2023 Địa điểm: Trường Đại học Luật Hà Nội Nhóm số: 03 Lớp: N02.TL1 Khóa: 45 Tổng số thành viên nhóm: 06 Có mặt: 06 Nội dung: Chấm điểm tập nhóm Tên tập: Bài tập nhóm mơn Cơng pháp Quốc tế Mơn học: Công pháp Quốc tế Xác định mức độ tham gia kết tham gia sinh viên việc thực tập nhóm số: 03 Kết sau: STT Mã SV Họ tên Đánh giá SV kí Đánh giá GV SV tên Điểm Điểm GV (số) (chữ) kí A B C tên 453511 Bùi Phương Linh 453512 Nguyễn Thu Hương 453513 Hà Phương Anh 453514 Phạm Thị Huyền Thảo 453515 Phạm Thu Huyền 453516 Trần Thị Hương Giang Kết điểm viết: Hà Nội, ngày 19 tháng năm 2023 Kết điểm thuyết trình:…………… NHĨM TRƯỞNG Điểm kết luận cuối cùng:………….…… Giáo viên đánh giá:………………….…… Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 Table of Contents INTRODUCTION BODY I State definition and Theory of State recognition Definition of state recognition Essentials of recognition of a state The necessity of recognition of a state II Legal issues on state recognition Theory of State recognition State recognition is a unilateral legal act Legal effects of Recognition Forms of Recognition Withdrawal of Recognition III International practices of Stage recognition CONCLUSION REFERENCES Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 INTRODUCTION State recognition is a crucial aspect of international relations and plays a key role in determining status in the international community The legal provision on state recognition contributes to maintaining international peace and building good relations between countries International law builds specific provisions on state recognition but it is still a complex and dynamic area of international relations To better understand this issue, our group has chosen the topic: “Analyze the legal issues on state recognition Refer to international practices.” BODY I State definition and Theory of State recognition Definition of state recognition State Recognition can be defined as a state acknowledgment or acceptance as an international personality by the existing State of the international community Even though a state already exists before recognition, recognition brings more power and unity The declaration to fulfill certain essential conditions of Statehood as required by International Law Essentials of recognition of a state According to Article of the Montevideo convention, four qualifications must be gained for a state to be recognized in international law: (i) a permanent population; (ii) a defined territory; (iii) government; and (iv) capacity to enter into relations with the other states The first step to being recognized is that the state must have a stable population High or low population density is not so important The population is counted as the number of residents living here and excluding tourists Moreover, it must have a territory and be clearly shown on the map of that country's territory Another qualification is effective government The government manages the stable order and development of the country The last one is having the ability to cooperate with other countries, demonstrating the independence of a country in trade, cooperation in fields contributing to socio- economic development, and creating good relations with other countries Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 The necessity of recognition of a state Recognition of a country shows that the supreme power of that country is exercised in its territory and is expressed in two main aspects: the power aspect and the material aspect The power aspect is exclusive so that the state has the right to exercise its power over its citizens and territory without restriction and to conduct all activities except those prohibited by international law In addition to demonstrating territorial, sovereignty, a country must respect and not infringe on the territory of another country The material power means that the state has full ownership status, uses national resources such as forests, and minerals for use and development, and no one has the right to interfere without the permission of that country In the case of leasing territory to another country, it is necessary to make arrangements in accordance with the interests of both parties II Legal issues on state recognition Theory of State recognition The Constitutive theory also known as the founding theory of the subject of international law, appeared in the early nineteenth century and has been deeply rooted in the legal knowledge of many capitalist jurists According to the basic content of constituency theory, newly established states can only become subjects of international law, becoming independent members of the international community if new states are recognized by other states This theory is criticized by many jurists because it’s a theory that contradicts modern international law This theory, first of all, contradicts the basic principles of modern international law, especially the principle of self-determination of nations and colonized peoples, the principle of equality, respect for sovereignty, and the principle of self-determination rights and friendly cooperation among nations under the Charter of the United Nations In addition, the constitutive theory is the opposite of the science that studies the emergence, development and death of the State, contrary to the research works on sociology and human history of many doctors studying reputation in other countries, contrary to the objective reality of human society.1 Devine D.I., Does South Africa Recognize Rhodesion Independence?," The South African Law Journal ", Vol LXXXVI, 1969, pp 75 Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 The Declaratory theory emerged as a reaction to the unprincipled implications and conceptual difficulties inherent in a strictly constitutive approach to recognition The declaratory theory argues instead that statehood is independent of recognition; that the act of recognition by other states in the international system is purely declaratory In terms of international public law, therefore, it argues that a state becomes a subject of international law the moment it meets the conditions of statehood notwithstanding its recognition by the international community Such an evolution of recognition theory was inspired by attempts to ensure that international law would be universal in application to all entities that meet the objective criteria of statehood within the system by insulating the objective achievement of statehood, from the subjective criteria of recognition In light of these motivations, it is natural that a key component of the declaratory theory is the establishment of objective criteria for statehood State recognition is a unilateral legal act It is possible that at one time or another, countries will face this recognition problem, especially if diplomatic relations are necessarily maintained with other states to confirm the right to recognition Recognizing a new state is a serious step that other countries only take after careful consideration and is made by an official declaration In terms of form and content, state recognition is often considered a unilateral legal act because it involves the decision of one state or international organization to acknowledge the sovereignty and legitimacy of another state No collective, organic procedure for granting recognition based community, although the provisions in the United Nations Charter (Articles 3-4) directed to the admission of states to membership of the Organisation may incidentally in most instances amount to a certificate of statehood It is important to note that state recognition is not solely a legal act, but also a political one If there is indeed such a legal obligation to recognize it is difficult to be enforced Legal effects of Recognition Recognition produces legal consequences affecting the rights, powers, and privileges of the recognized state both in international law and under the Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 municipal law of states which have given it recognition Also, when the subject of recognition arises for examination, however incidentally, by the municipal courts of such states, various problems of evidence, legal interpretation and procedure enter into consideration.2 There are many opinions on the international legal consequences arising from the act of recognition, but in general, in a typical case, recognition performs two legal functions consistent with recognition Firstly, thoroughly solve the problem of the legal status of the recognized object and secondly, create favorable conditions for the parties to establish certain relationships with each other At international law, the status of a de jure recognized state carries with it the full privileges of membership in the international community Thus it acquires the capacity to enter into diplomatic relations with other states and to conclude treaties with them Also, such other states become subject to various obligations under international law in relation to the newly recognized state, which in its turn incurs similar reciprocal obligations Upon it, therefore, as from the date of recognition, fall both the burden and bounty of international law Official recognition between states will create and ensure favorable conditions for the establishment and development of relations between states, creating a premise for establishing relations The establishment of diplomatic relations between the recognized state and the recognized state is one of the most important international legal outcomes of state recognition.3 The signing of international treaties on both sides, which clearly show the unification of aspirations and intentions of the parties regarding the rights and obligations specified in specific fields, is also recognized as one of the important legal consequences of state recognition When a state is recognized it’s assumed that it is accepted as a legal entity in the eyes of the world However, if a state is not recognized that does not mean that it has no duties and obligations in international law There are many states which are not recognized but still, if they enter into a treaty or an agreement then it is binding on them They can not excuse themselves because of their Peter Malanczuk, Akehurst’s Modern Introduction to International Law, Seventh edition 1997, pp 134 Hanoi Law University, Textbook on International Law, 2020, pp 73-73 Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 unrecognized state Even if they are not recognized they have to follow the rules of disarmament, nuclear weapons, peace agreements… State recognition, in addition to the conditions mentioned above, has other legal consequences, such as enabling the newly recognized state to have a practical capacity to protect international and judicial immunity to its property in the territory of the recognized state With the recognition, the state comes the right to sue and to be sued, entitled to succession and possession of the property Forms of Recognition a Recognition De facto Firstly, there are definitions of de facto recognition De facto recognition is a provisional recognition granted by an existing state to a new state that has not yet acquired sufficient stability It may have a significant role in international law for states that have policies of expressly recognizing or withholding recognition of new states.4 Secondly is the condition of de facto recognition This mode of recognition is granted when a new state holds sufficient territory and control over a particular territory, but the other existing states consider that it does not have enough stability or any other unsetting issues So, we can consider it as a test of control for newly formed states Thirdly, the reason for granting de facto recognition is that it is doubted that the state recognized may be stable or it may be able and willing to fulfill its obligations In terms of time, the recognition of de facto is the transitional period to the recognition of de jure b Recognition De jure Firstly, there are definitions and characteristics of de jure recognition: De jure recognition means that according to the recognizing state, the state recognized formally fulfills the requirements laid down by international law for effective participation in the international community.5 De jure recognition is a crucial foundation for the parties to establish regular diplomatic relations based on bilateral international treaties and the resolution of disputes and any issues arising between the two parties In the process of implementing international So - called “de facto” recognition, The Yale Law Journal, Vol 31, No (Mar, 1922), page 469-488 Hanoi Law University, Textbook on International Law, 2020, pp 130 Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 relations, the recognition of De Jure is an important legal basis for the parties Secondly is the condition This mode of recognition is granted when the newly formed state acquires permanent stability and statehood The De jure mode of recognition grants the permanent status of a newborn state as a sovereign state through the de-jure mode of recognition c Difference between De Jure recognition and De facto recognition Firstly, the fundamental difference between De Jure recognition and De Factor recognition is the legal consequences De-jure recognition is the most perfect and complete form of recognition, so it often leads to the establishment of diplomatic relations, consular relations, economic relations, and other types of relations Secondly, it has different certain circumstances to be withdrawn Actually, this is more easily done with regard to de facto recognition than to de jure recognition, because of the nature of the former one, which is temporary De jure recognition, on the other hand, because it is intended to be generally a definitive act, it is more difficult to be withdrawn Thirdly, about the measure, de facto recognition is a lesser degree kind of recognition as compared to de jure recognition as de jure is recognition to its fullest extent Fourthly, is condiction De facto recognition may be given when a state comes to power through revolt whereas de jure recognition may be given in case the new state came to power peacefully and constitutionally Fifthly, are immunities The representatives of de jure recognized states have full immunities while the immunities given to de facto recognized states are not full Besides that is about claiming property The de facto recognized state cannot claim property situated in the territory of the recognized state as it lacks such extra-territorial jurisdiction Whereas the de jure recognized state can claim so Finally, The state with de facto recognition cannot undergo state succession while the state with de jure recognition can under state succession Withdrawal of Recognition The withdrawal of de facto recognition under international law is not explicitly addressed in any international treaty or convention However, the principle of sovereignty and the right of states to recognize or not recognize other states are recognized under international law When a State has De Facto recognition but Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 fails to obtain or fulfill the essential conditions then the recognition can be withdrawn through declaration or through communicating with the authorities of the recognized State It can also be withdrawn by issuing a public Statement On the other hand, the withdrawal of de jure recognition is seen as a more serious matter than the withdrawal of de facto recognition and may have more significant legal consequences including the loss of diplomatic relations, economic sanctions, political isolation… This recognition can be withdrawn when a State loses the essential elements or other circumstances III International practices of Stage recognition Recognition is, as the practice of most states shows, much more a question of policy than of law The policy of the recognizing state is conditioned principally by the necessity of protecting its interests, which lie in maintaining proper relations with any new state including diplomatic relations, economic interests, strategic considerations…6 Overall, the international legal framework for state recognition is guided by principles of sovereignty and is based on customary international law and international treaties such as the Montevideo Convention on the Rights and Duties of States However, political considerations often play a significant role in the recognition of states by other states An example is the case of Palestine The Palestinian Authority has sought recognition as a state by the international community, and it has been recognized by over 130 states (as of April 2022, Palestine has been recognized by 138 states) However, it is not recognized as a state by some powerful states such as the United States, Germany, France, Japan and Israel.7 From a legal standpoint, Palestine meets many of the criteria for statehood, including a permanent population, a government, and the capacity to enter into relations with other states But the territory factor is a subject of ongoing conflict and controversy The borders of a future Palestinian state have been the subject of negotiations between Israel and the Palestinians for many years, with no clear resolution to date, so it can be assumed that Palestine has no defined territory.8 However, it’s a question of Professors H A Smith (1932) “Smith Great Britain and the Law of Nations”, Vol 1, pp 77-80 “Countries that Recognize Palestine 2023” https://worldpopulationreview.com/country-rankings/countries- that-recognize-palestine, accessed on 12/04/2023 Montevideo Convention, Article Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 policy Some states argue that the recognition of Palestine as a state could undermine the peace process between Israel and the Palestinians Palestine declared its independence on November 15, 1988.9 Vietnam recognized Palestine as an independent state as a way to support the rights of peoples who are struggling for their self-determination and to strengthen relationships with Palestine Palestine's struggle against Israel’s occupation and independence resonated strongly with the Vietnamese people When Palestine declared its dependence in 1988, Vietnam saw it as an opportunity to reaffirm its support for the Palestinian cause and its commitment to the principles of national sovereignty and self-determination On the other hand, the US has not recognized Palestine because of political reasons As mentioned above, the relationship between Palestine and Israel has been marked by conflict and tension for many decades Meanwhile, the US has a strong alliance with Israel10, so the Israeli – Palestinian conflict is a sensitive and complex issue in US politics In addition to the case of Palestine, there are many other cases such as Taiwan, Kosovo… Overall, the practice of state recognition is complex and can have significant implications for the status of a state in the international community It is often influenced by political and strategic considerations However, adherence to the criteria for statehood and respect for the principles of international law are critical to ensuring the legitimacy and stability of the international system CONCLUSION The legal status of national recognition is a major development in marking national sovereignty, demonstrating the independence and inviolability of that country However, there are still some downsides that have not been resolved and these are sensitive issues that need the opinions of countries to work together to overcome Hopefully, the above issues will be resolved soon in the future so that the relations between countries can limit conflicts and develop better in both exchanges and fields of economic life, helping each other in difficult times United Nations, “Declaration of State Palestine”, https://www.un.org/unispal/document/auto-insert-178680/, accessed on 12/04/2023 10 US Department of State, “U.S Relations with Israel” https://www.state.gov/u-s-relations-with-israel- 2/#:~:text=The%20U.S.%2DIsrael%20economic%20and,)%2C%20solidify%20bilateral%20economic%20relati ons, accessed on 12/04/2023 Downloaded by luanvan moi (luanvanmoi@gmail.com) lOMoARcPSD|38362167 REFERENCES Hanoi Law University, Textbook on International Law, 2020 Montevideo Convention Devine D.I., Does South Africa Recognize Rhodesion Independence?," The South African Law Journal ", Vol LXXXVI, 1969 Peter Malanczuk, Akehurst’s Modern Introduction to International Law, Seventh edition 1997 So - called “ de facto” recognition, The Yale Law Journal, Vol 31, No (Mar, 1922) Professors H A Smith (1932) “Smith Great Britain and the Law of Nations”, Vol 1, pp 77-80 “De Facto and De Jure Recognition: Is There a Difference?”, American Journal of International Law, Volume 62, Issue 2, April 1968 H Lauterpacht (June 1944) “Recognition of states in international law”, the Yale law journal, volume 53, number J Dugard, 1987, Recognition and the United Nations 10 “Countries that Recognize Palestine 2023” https://worldpopulationreview.com/country-rankings/countries-that- recognize-palestine, accessed on 12/04/2023 11 United Nations, “Declaration of State Palestine”, https://www.un.org/unispal/document/auto-insert-178680/, accessed on 12/04/2023 12 US Department of State, “U.S Relations with Israel” https://www.state.gov/u-s-relations-with-israel- 2/#:~:text=The%20U.S.%2DIsrael%20economic%20and,)%2C%20solidi fy%20bilateral%20economic%20relations, accessed on 12/04/2023 13 Recognition of States and Governments, law explorer, https://lawexplores.com/recognition-of-states-and- governments/?fbclid=IwAR0I3Gr19nOGJ-WJHKgUuE0w9dV70- PuGfZqB6Ac-CEKQ2lZtKL6YcNbUpw, accessed on 12/04/2023 Downloaded by luanvan moi (luanvanmoi@gmail.com)