Essay on "International Business Law -- Recognition"

Essay 8 pages (2705 words) Sources: 6 Style: MLA

[EXCERPT] . . . .

In that accord, one party may have been searching for the resolution of a territorial unit or the territorial state or to become the part of new state or established state. In this situation two questions have been raised simultaneously which are: one, either the established state's title is to be used by the original state or, two, the new state should be mingled with the territorial unites aside them? However, this entirely depends on the situations that work as the baseline of the debate and focus. One may find that a given group favours the idea of side status quo which is being much preferred by someone while the rest find the idea of changing the framework of status quo to be a more attractive. There is no other option rather than accepting any one of the options for any new or established state. Considering both as the same pieces of a larger pie, one side has to be welcomed and the other has to be rejected. (Wilde et al., 2010).

The Relevance of Recognition in the Law of Statehood

However, looking at the world and its affairs, established states are given more advantages in the view of international lawyers, in either way; whether it's the case of recognition or non-recognition. When we consider it in terms of the law and legal point-of-view, the new state or established states are nothing but only a declaration of something. Thus, keeping the requirements and importance of taking the matter of states in the analysis, one might favour the idea that declaration theory can have a positive impact on the creation and development of the state. There are ample points in the favour of this established school of thought and many practitioners have firm belief and support for the established state theory. Additionally, it has the capacity of forwarding the things further for more analysis because this cannot be judged by only considering few assumptions or presuppositions. So, in any case, any state is claiming to become a new state, it should be taken into consideration whether it is conforming to the other established states or recognisable territory. This must be given preference against its right to be a new state. (Wilde et al., 2010).

This constitutive effect needs recognition but it should be limited as this is related to the international law and would be changed when a general trend is identified across most of the states. Thus, the recognition of all the states is significant but isn't necessary from the ideal perspective and the approval of the applicant entity's admission by the United Nations as a new member, which is assumed to be taking statehood for granted. This role of recognition is depicted when Herzegovina and Bosnia were declared as independents state and also new members of UN in early 1990s. On the contrary, the acceptance of Kosovo by the members is enough to mark the differential attitude, despite the fact that there exist 192 member states in the United Nations (Wilde et al., 2010).

A discussion was held over the issue that the recognition by the European Union will also act as recognition on behalf of all member states. It was a very doubtful issue regarding the legal effect caused by EU recognition, apart from the provisions of the Lisbon Treaty. It was noted by Dr. Wilde that generally for the international organizations, the admission to the UN is premised through an application of international law of statehood (Wilde et al., 2010).

Nevertheless, the governance of international organizations by international law is still an open question. Many efforts are being made to link the international organizations with responsibilities and duties related to human rights. One such example is the accession of EU to the ECHR (European Convention on Human Rights). Generally, more work is being done on Draft Articles on the Responsibility of International Organizations by the International Law Commission (Wilde et al., 2010).

The legal significance of this recognition is straightforward and relative to others as far as the viability criteria are concerned. When the policy-based criteria is concerned, things become more complex due to two potentials - one being the outcome suggested by these criteria, while the other being those suggested by recognition, both of which are at odds with each other. A goo instance for this is the likelihood of recognition with the law of self-determination where from one side of the picture, entities can go for external self-determination even if they don't possess the right to do so. The outcome of this and its recognition would be legal if all the other areas with international law are also compiled. Nevertheless, if an outcome turns up towards the violation of self-determination, it is still doubtful that its recognition will cast upon a constitutive effect. The reason behind this is that self-determination is a special field of international law which enjoys the superiority of not being restricted by other international law rules. However, it can be ruled by the ones having the same status as itself. Due to this, if a reasonable number of states accept the agreement; this will not serve as a legal act considering all the things to be at an equal level, and would happen in situations where no clashes will occur with the law of self-determination (Wilde et al., 2010).

Violation of self-determination leads to non-recognition in many cases e.g. In Rhodesia and thus a contradiction cannot be presented at its own. Looking ahead, in case of future arrangements, one hopes this is not true; this may be an issue with respect to the inhabitants of the Western Sahara and the people of Palestine. Whether all facets of the law of self-determination are pertinent in the same regard is an uncertain and interesting issue (Wilde et al., 2010).

Conclusion

In this paper we highlighted that there are 2 theories pertinent to recognition, the declaratory theory and the constitutive theory. The declaratory theory is based on an approach laid down in the Montevideo Convention, Article 3, first sentence, which states that independent of recognition by other states, the state can have political existence. So the declaratory theory basically maintains that creation of a State is free from the approvals of the other States. The constitutive theory claims that acceptance of the existing States is required for the formation of a new State. This however raises some questions such as, how can restrains, such as prohibition of aggression, be enforced against a State that is unrecognized? And what if the existing States' recognition of the new State is not unanimous? Of the two theories the declaratory theory seems more adequate to follow than the constitutive theory.

References

Brownlie, I. Principles of Public International Law, 7th edition. Oxford University Press, Oxford 2008.

Crawford J. The Creation of States in International Law. Clarendon Press, Oxford 2006.

Grant, T.D. The Recognition of States: Law and Practice in Debate and Evolution. Praeger Publishers, Westport, CT. 1999.

Ramzan, M.B. Redefining the Requirements for the Recognition of New and Independent States. Research Report General Assembly Sixth Committee -- Legal, Accessed on February 26, 2012 from www.muimun.org/wp-content/uploads/2012/02/GA6_topicA.pdf

Shaw, M.N. International Law, 6th edition. Cambridge University Press, Cambridge, 2008.

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