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International Law - Essay Example

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Recognition, in the light of 'International Community', has been described as either 'constitutive' or 'declaratory' of statehood. The debate had implications for state and convention practice. A constitutive conception made recognition part of statehood and seemed at times to imply discretion on the part of existing states to bring new states into being…
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International Law
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International Law

(Grant, 1999, p. 1) That refers to the notion that declaratory convention seemed to reduce the inconsistency of legal entities to some states and some non states. However, both conventions ignored critical factors and requirements of legal personality. Instructions as to how, as a practical matter, recognition is to be extended can only be analyzed from the doctrines by implication. The doctrines do not take adequate account of the composite character of the state, ignoring that statehood is probably best described as a bundle of rights, obligations, and functions. And neither doctrine directly addresses where recognition falls along the spectrum between law and politics.
While highlighting the needs of the International Community, there is no doubt that the Montevideo formula was drawn up at a time when self-determination was not generally recognized as a 'need' in international law, and when the implications of the nascent rule prohibiting the use of force between states had not been worked out. That makes it even odder to debate the statehood of entities such as Palestine in terms of the Convention's hackneyed formula. (Gill & Talmon, 1999, p. 113)
Montevideo Convention gives a satisfactory definition of the state ...
(Grant, 1999, p. 3) The central implication of this is that whether or not an entity has become a state depends on the actions of existing states. Recognition by others renders an entity a state; non recognition consigns the entity to non-statehood. Though attributes such as possession of territory, stable power over a defined population, and capacity to respect international agreements are elements of statehood, to the convention these are for nothing in the absence of recognition. Recognition perfects statehood and statehood refers to 'personality'. Moreover, extending or withholding recognition is a political act. In the words of Lauterpacht, "the constitutive conception of statehood deduces the legal existence of new States from the will of those already established". (Grant, 1999, p. 3)

With reference to the legal personality, when state consent was taken as an essential ingredient to all international legal rules, a theory of recognition was preferred which did not posit principles binding on all states. The convention minimized the role of law in the recognition of states. With its emphasis on the power of states to invest legal personality in other international communities, convention accented the character of states as free political actors. Following from this, convention implied a world arena absent rights or rules. Regarding the situation, George Schwarzenberger proposed, "New entities which may fulfil the requirements of international persons have no right to recognition". (George, 1951)

The declaratory conception of state recognition denies that the act of recognition alone imparts legal personality. The declaratory conception detaches statehood from the unilateral and ... Read More
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