Pruebas de mutación

Recognition constitutes the acknowledgment of statehood, whereas statehood is the gateway to international legal personality, recognition may be seen as the key to statehood.

Accordingly, Kreijen argued that ‘recognition indirectly enables a political community to accept the full range of rights and obligations constituted by international law, though it is for the community concerned to decide to what extent it will bind itself.’⁴⁹¹ Okafor explained that, recognition may be seen as a principle of peer review, 'the process of the determination of the legitimacy of a State, according to the ipse dixit or say-so of a given pre-existing society of States without necessary reference to the standpoint of the would-be State, or any of its constituent sub-State groups.'⁴⁹² If this is the case, Kreijen demonstrated that, such as, for example, in the ‘colonialism era, recognition is used as a means to exclude. whilst, modern international law rather is inclined to use recognition primarily as a means of inclusion in order to guarantee the existence of a universal community of formally equal and sovereign States.’⁴⁹³

The term 'recognition' can be used in at least two ways. First, ‘a State may explicitly express its view with regard to the legal status of a certain political community. An example of such an explicit recognition is the recognition of Israel as a sovereign State by the United Kingdom. In April 1950, the government of the United Kingdom declared: ‘His Majesty's Government have decided to accord de jure recognition to the State of Israel’. Secondly, a State may indicate that it considers a community to be a State under international law, by entering into certain relations with that community (for example, by concluding a treaty with the State, by entering into diplomatic relationships, or by beginning a dispute settlement proceeding before the ICJ). Such a form of recognition is also called an implicit or tacit recognition. Whether entering into such relations may be considered the recognition of a

491 Kreijen, State Failure, Sovereignty, and Effectiveness: Legal Lessons from the Decolonization of Sub-Saharan Africa (Developments in International Law) (n 428) 13.

492 O C Okafor, Re-Defining Legitimate Statehood: International Law and State Fragmentation in Africa (Brill 2000) 54-65.

493 Kreijen, State Failure, Sovereignty, and Effectiveness: Legal Lessons from the Decolonization of Sub-Saharan Africa (Developments in International Law) (n 428) 14.

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particular political entity as a State under international law, must be inferred from the specific circumstances.’⁴⁹⁴

The recognition of a new State or a new government of an existing State is a unilateral act, which the recognising government can grant or withhold.⁴⁹⁵ In the eighteenth century, the existence of a State was believed to be founded on its internal sovereignty and did not require recognition by other States or monarch.⁴⁹⁶ Under the influence of the positivist theory, ‘which is based on the obligation to respect international law on the consent of individual States, effective statehood became more dependent on international recognition.’⁴⁹⁷ In other words, once the three classic criteria of a territory, a population, and government are met, ‘this factuality must then be confirmed by the existing States, only then, after being constituted, may it enjoy rights inherent in States under international law.’⁴⁹⁸ Talmon argued that, ‘this interpretation fits within the 19th century positivist view of international law as a purely consensual system, where legal relations may only arise with the consent of those concerned.’⁴⁹⁹ The positivist theory believed that the creation of a new State also created legal obligations for existing States.⁵⁰⁰ As such, ‘the existing States either had to consent to the creation of new State, or to its accession to international law and international community.’ This sort of recognition ‘considered matters such as, 'the degree of civilization' as measured by Western standards and dynastic legitimacy.’⁵⁰¹

This argument developed into the constitutive theory in the early twentieth century.

According to the constitutive theory, an entity may only become a State by virtue of recognition.⁵⁰² Thus, recognition was the only way to give an international personality to the State. The formation of a State remained a question of fact, but whether it could become a subject of international law was a question of law, that is of recognition.⁵⁰³ Thereafter, the concept of recognition has become much more important because of its results, as each State creation put the concept on the agenda of international community. According to Crawford,

494 Zadeh, ‘International Law and the Criteria for Statehood’ (n 410) Referring to Horbach, Lefeber and Ribbelink, Handboek Internationaal Recht (n 332) 177.

495 Q Wright, ‘Some Thoughts About Recognition’ (1950) 44 Ame J Int’l L 548.

496 Crawford, The Creation of States in International Law (n 3) 10-11.

497 Duursma, Fragmentation and the International Relations of Microstates (n 373) 110.

498 Zadeh, ‘International Law and the Criteria for Statehood' (n 410) Referring to Horbach, Lefeber & Ribbelink, Handboek Internationaal Recht (n 332) 170.

499 S Talmon, ‘The Constitutive versus the Declaratory Theory of Recognition: Tertium Non Datur?’ (n 489).

500 Zadeh, ‘International Law and the Criteria for Statehood’ (n 410).

501 Zadeh. Referring to Horbach, N, Lefeber, R & Ribbelink, Handboek Internationaal Recht (n 332) 170.

502 ibid.

503 Duursma, Fragmentation and the International Relations of Microstates (n 373) 110.

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‘the beginning of the twentieth century, there were nearly fifty States in the World arena, immediately before the World War II, the number reached approximately seventy-five, and in 2005, there were almost 200.’⁵⁰⁴

Today, recognition doesn’t mean only that the recognised entity has met the required qualifications, ‘but also that the recognising State will enter into relations with the recognised State and let that State enjoy usual legal consequences of recognition such as privileges and immunities within the domestic legal order.’⁵⁰⁵ Hence, it has been claimed that ‘the decision whether to recognise or not generally depends on political views rather than legal grounds.⁵⁰⁶ Hence, ‘the relationship between factual situations and the creation of legal rights by the act of recognition remains controversial in international law, since the act has legal consequences, while it is primarily based on political or other non-legal considerations.’⁵⁰⁷ Recognition has been defined as a ‘statement by an international legal person as to the status in international law of another real or alleged international legal person or of the validity of a particular factual situation’.⁵⁰⁸ Grant has defined recognition as ‘a procedure whereby the governments of existing States respond to certain changes in the world community.’⁵⁰⁹ Recognition is then an activity of States as a ‘legal person’ of international law.⁵¹⁰ Once recognition occurs, the new situation is deemed opposable to the recognising State that is that pertinent legal consequences will flow.⁵¹¹ It constitutes, Shaw argued that ‘participation in the international legal process generally while also being important within the context of bilateral relations and, of course, domestically.’⁵¹² However, the key question is whether the formation of a State is dependent or independent of recognition by existing States; in other words, may a political entity be considered a State under international law, even if it is not recognised as such by the existing State? To answer this question the section will argue both constitutive and declaratory theories of recognition.

504 Crawford, The Creation of States in International Law (n 3) 4.

505 N Yamali, ‘What is meant by state recognition in international law’, [2010] <http://www.justice.gov.tr/e-journal/pdf/LW7081.pdf >accessed 28 March, 2013.

506 Shaw, International Law (n 119) 445.

507 Vidmar, Democratic Statehood in International Law. The Emergence of New States in Post-Cold War Practice (n 365) 43.

508 Shaw, International Law (n 119) 445.

509 T D Grant, The Recognition of States: Law and Practice in Debate and Evolution (GPG 1999).

510 Yamali, ‘What is meant by state recognition in international law’ (n 505).

511 Shaw, International Law (n 119) 445.

512 ibid.

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