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…
(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 ...
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(International Law Essay Example | Topics and Well Written Essays - 1250 Words)
“International Law Essay Example | Topics and Well Written Essays - 1250 Words”, n.d. https://studentshare.net/miscellaneous/297196-international-law.
As a result there is significant uncertainty regarding whether or not a rule of customary international law is created and where a rule of customary international can be found.1 Even so, it has been argued that custom is a valid source of international law because it is derived from state agreement.
However, when the question is asked if international law is really “Law,” the intention is not to essentially inquire as to whether or not international law is actually natural law, for this cannot be proven even by adherents of the natural law tradition.
States build fortresses to defend themselves from marching legions. With the same motive of self-preservation, states also forge alliances to help them ward off potential invaders. Fast forward to the 21st century, sovereign states are no longer threatened by wars waged by an invading enemy.
In addition, the humanity witnessed the failure of UN Security Council, NATO, International Criminal Court, and many other conventions and organisations to control the use of economic and military power by the US and its allies in the name of ‘preventive war’, in stark contradiction with the meaning and ethos of all the measures taken by the international community after the World War II to save succeeding generations ‘from the scourge of war’.
.......................... 2 Overview of the sources of international law..................................................... 2 Treaties............................................................................................................... 3 International Customs.
ds the members of the community together in their adherence to recognised values and standards….Law consists of a series of rules regulating behavior, and reflecting, to some extent, the ideas, and preoccupations of the society within which it functions.”1 Since inception of
??international law” has fuelled academic debate regarding its interpretation, parameters and whether it in fact hinders measures to maintain international order.1 Additionally, notwithstanding the theoretical importance of international law making in areas such as human
istent conduct, then these states may be performing in that manner, for the reason that they owe to themselves a good judgment of legal obligation – as expressed in the Latinism, opinio juris. International law on its part can aptly be considered as a system of rules or
To the extent that it is a restatement of the customary law, the states that are yet to ratify the convention may still acknowledge it to be binding them. According to VCLT, a treaty is “an international agreement concluded between states
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