International law, Sixth edition
participation in the international legal process generally while also be-
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International Law MALCOLM N. SHAW
participation in the international legal process generally while also be- ing important within the context of bilateral relations and, of course, domestically. Recognition of states There are basically two theories as to the nature of recognition. The con- stitutive theory maintains that it is the act of recognition by other states that creates a new state and endows it with legal personality and not the process by which it actually obtained independence. Thus, new states are 2 See e.g. H. A. Smith, Great Britain and the Law of Nations, London, 1932, vol. I, pp. 77–80. 3 See e.g. M. Kaplan and N. Katzenbach, The Political Foundations of International Law, New York, 1961, p. 109. 4 See e.g. Carl Zeiss Stiftung v. Rayner and Keeler [1967] AC 853; 43 ILR, p. 23, where the Court took the view that the German Democratic Republic was a subordinate agency of the USSR, and the recognition of the Ciskei as a subordinate body of South Africa, Gur Corporation v. Trust Bank of Africa Ltd [1986] 3 All ER 449; 75 ILR, p. 675. 446 i n t e r nat i o na l l aw established in the international community as fully fledged subjects of international law by virtue of the will and consent of already existing states. 5 The disadvantage of this approach is that an unrecognised ‘state’ may not be subject to the obligations imposed by international law and may accordingly be free from such restraints as, for instance, the pro- hibition on aggression. A further complication would arise if a ‘state’ were recognised by some but not other states. Could one talk then of, for example, partial personality? The second theory, the declaratory theory, adopts the opposite ap- proach and is a little more in accord with practical realities. 6 It 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 virtue of the consent of others but by virtue of a particular factual situa- tion. It will be legally constituted by its own efforts and circumstances and will not have to await the procedure of recognition by other states. This doctrine owes a lot to traditional positivist thought on the supremacy of the state and the concomitant weakness or non-existence of any central guidance in the international community. For the constitutive theorist, the heart of the matter is that fundamen- tally an unrecognised ‘state’ can have no rights or obligations in interna- tional law. The opposite stance is adopted by the declaratory approach that emphasises the factual situation and minimises the power of states to confer legal personality. Actual practice leads to a middle position between these two percep- tions. The act of recognition by one state of another indicates that the for- mer regards the latter as having conformed with the basic requirements of international law as to the creation of a state. Of course, recognition is highly political and is given in a number of cases for purely political rea- sons. This point of view was emphasised by the American representative on the Security Council during discussions on the Middle East in May 1948. He said that it would be: 5 See e.g. Crawford, Creation of States, pp. 19 ff. and J. Salmon, La Reconnaissance d’ ´ Etat, Paris, 1971. See also R. Rich and D. Turk, ‘Symposium: Recent Developments in the Practice of State Recognition’, 4 EJIL, 1993, p. 36. 6 See e.g. J. L. Brierly, The Law of Nations, 6th edn, Oxford, 1963, p. 138; I. Brownlie, Principles Download 7.77 Mb. Do'stlaringiz bilan baham: |
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