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

MINISTRY OF JUSTICR HANOI LAW UNIVERSITY GROUP ASSIGNMENT SUBJECT: PUBLIC INTERNATIONAL LAW Question: Analyze the legal issues on state recognition... INTRODUCTION State recognition

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 Nguyễn Thu Hương

Hà Phương Anh Phạm Thị Huyền Thảo

453511

453512

453513

453514 Phạm Thu Huyền

Trần Thị Hương Giang

453515

453516

Hanoi, 2023

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

Tổng số thành viên của nhóm: 06

Có mặt: 06

Nội dung: Chấm điểm bài tập nhóm

Tên bài tập: Bài tập nhóm môn Công pháp Quốc tế

Môn học: Công pháp Quốc tế

Xác định mức độ tham gia và kết quả tham gia của từng sinh viên trong việc thực hiện bài tập nhóm số: 03 Kết quả như sau:

Mã SV Họ và tên

Đánh giá của

SV

SV kí tên

Đánh giá của GV

(số)

Điểm (chữ)

GV

kí tên

1 453511 Bùi Phương Linh

Nguyễn Thu Hương

Hà Phương Anh Phạm Thị Huyền Thảo Phạm Thu Huyền Trần Thị Hương Giang

2 453512

3 453513

4 453514

5 453515

6 453516

Hà Nội, ngày 19 tháng 4 năm 2023

Kết quả điểm bài viết: NHÓM TRƯỞNG

Kết quả điểm thuyết trình:………

Điểm kết luận cuối cùng:………….……

Giáo viên đánh giá:……….……

Table of Contents

INTRODUCTION 1

BODY 1

I State definition and Theory of State recognition 1

1 Definition of state recognition 1

2 Essentials of recognition of a state 1

3 The necessity of recognition of a state 2

II Legal issues on state recognition 2

1 Theory of State recognition 2

2 State recognition is a unilateral legal act 3

3 Legal effects of Recognition 3

4 Forms of Recognition 5

5 Withdrawal of Recognition 6

III International practices of Stage recognition 7

CONCLUSION 8

REFERENCES 9

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

1 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

2 Essentials of recognition of a state

According to Article 1 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

3 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

1 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

1

Devine D.I., Does South Africa Recognize Rhodesion Independence?," The South African Law Journal ", Vol

LXXXVI, 1969, pp 75

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

2 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

3 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

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

2

Peter Malanczuk, Akehurst’s Modern Introduction to International Law, Seventh edition 1997, pp 134

3

Hanoi Law University, Textbook on International Law, 2020, pp 73-73

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

4 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

4

So - called “de facto” recognition, The Yale Law Journal, Vol 31, No 5 (Mar, 1922), page 469-488

5

Hanoi Law University, Textbook on International Law, 2020, pp 130

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

5 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

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

6

Professors H A Smith (1932) “Smith Great Britain and the Law of Nations”, Vol 1, pp 77-80

7

“Countries that Recognize Palestine 2023”

8

Montevideo Convention, Article 1