Modern International Law - Essay Example

Modern international law is based upon the principle of effectiveness, which implies that it is based upon actual situations which exist, while recognition on the other hand, is based upon subjective criteria. Article 1 of the Montevideo Convention on the Rights and Duties of States 1933 defines the following four criteria, which are essential requirements to claim statehood:
(a) a permanent population
(b) a defined territory
(c) government; and
(d) capacity to enter into relations with other states.
The criterion of the permanent population would also include wandering nomads, while there is no requirement that the size of the population should adhere to any minimal figure; a population less than 10,000 would also qualify as a State. These are the four criteria that will determine whether a nation is a state or not and recognition is not one of the criteria that have been listed above to determine statehood.
The criterion (d) listed above that the states must have the capacity to enter into relations with other States, appears to imply that the State must be recognized by other States before it can exist as a political entity. But this is belied in Article 3 of the Montevideo Convention, which clearly states that “the political existence of the State is independent of recognition by the other States.” Article 6 further clarifies that “recognition is unconditional and irrevocable.” According to Crawford, statehood and recognition must be separated into two distinct categories, for example, Israel was not recognized by many of its neighboring Arab States, but it has existed as a State nevertheless. According to Cassese, it is effectiveness that is at the core of all legal relations and the Community of States has not thus far defined binding legitimate criteria for new States; on this basis recognition is not the relevant criterion that will determine statehood.
However, with the end of the Second World War and the development of the UN Charter, international law has been redefined. According to Article 4.1 of the UN Charter, membership in the United Nations is open to “all other peace-loving states” thereby implying that only a State will be recognized by the collective world body, i.e, the United Nations. Moreover, this article specifies certain conditions for membership; they must be (a) peace-loving (b) accept the obligations of the present Charter and (c) must be willing to carry out these obligations. These provisions imply that there is a degree of acceptance and recognition that must be accorded to a State by other States in the international community before it can be accepted as a State that can function in agreement with other States and have diplomatic relations with them.
Technically, recognition is not a necessary precondition for a State to come into being according to the four principles of statehood. But in actual practice, a State may need the support and recognition of the international community to function effectively, This was the case in South Rhodesia which was able to declare itself a state quite legitimately according to the four principles of Statehood mentioned earlier, however, the United National Security Council declared that Rhodesia was a “racist minority” regime as a result of which Rhodesia or the present day Zimbabwe became a State only in 1980 when it was formally recognized by the United Nations. Therefore recognition may not be a precondition for statehood but would be required to enable States to interact effectively with other states.
As the example of Rhodesia above illustrates, there are legal consequences of the act of recognition. Ian Smith’s regime, established in 1965 with a minority Government self-declared, was challenged in respect of its legal status because it was not by the rights of self-determination. On this basis, the minority Government was declared illegal under Security Council resolution 217, because it did not allow the people the right to self-determination and therefore had no legal basis. As opposed to this, Bosnia became a member of the United Nations on May 22, 1992, when it was accepted as a Member by the United Nations General Assembly. The criteria in this case for its acceptance as a State were the satisfaction of the right to self-determination, which was determined through a referendum. As a result, Bosnia was legally recognized as a State in the international community.
Within the UK as well, recognition has been a mandate for legal statehood. For example, in the case of City of Berne v Bank of England, a revolutionary group that was controlling the City of Berne was not allowed to file a legal suit to recover funds that belonged to previous administrators of the city because, being an unrecognized state, there was no legal personality existent under English law. Unless there is legal recognition, a State cannot sue or be sued.

Only recognized governments can have the locus standing to sue in English courts. In the case of Haile Selassie v Cable and Wireless Ltd, the granting of a de jure recognition to the King of Italy to sue in an English court deprived the Emperor of Ethiopia of the locus standing to sue, because unrecognized governments have no legal standing. Therefore recognition is vital from the perspective of domestic law as well. Read More