Recognition In Contemporary International Law

By the end of the World War II, the status of recognition in the international legal system has relatively declined, which is due to that the traditional rules of recognition has a strong inclination of hegemonism and colonialism. It has taken annexation of territories by the use of force as its important constituent contents. This is in contravention of the principles of sovereign equality, non-interference, and prohibition on the use of force. And it also cannot conform to the reality of great number of newly borne states after the decolonization process. However, compared with the indifferent attitude of some international lawyers, there has existed large amount of state practices related to recognition of states, government, new territories, and new circumstances.This paper attempts to explore the impact on the rules of recognition of the change in the foundation of contemporary international law after the end of the Cold War. Generally speaking, the scholars tend to treat the nature of recognition as a kind of political behavior. However, if we leave the issue like the recognition of new international legal personality still outside the scope of international law, then it will be not easy for us to claim that contemporary international has become the law governing the relationship among sovereign states. The aim of recognition is to solve the problem about the qualification of the new member of international society, which is both the point of departure for the inter-state politics and the basic subject of international principles and rules. Therefore, we need to explore deeply the background of international system and institution behind the actors of states and governments, so as to understand the development process of rules of recognition through the evolution of international system or society. At the same time, the world is experiencing great change after the Cold War, which manifests mainly in the areas such as the deepening of globalization, strengthening of interdependence of states, increase of common interest of mankind, and the increasing role of international organizations. This dissertation is divided into three parts of introduction, main part, and concluding remarks. The main part includes six chapters, which have explored the rules of recognition in international law through theoretical analysis and research on state practices.The first chapter deals with the basic concept and nature of recognition. The constitutive and declaratory theories have been the major ones concerning the rules of recognition, with the former contending that recognition has a kind of constitutive legal effect, which means that the new entity must get recognition before it can really enjoy the rights of international legal person; the latter claiming that the function of recognition only lies in the declaration of a fact, which means that the existence of the new entity is a fact independent of recognition declared by any existing state. These two theories all have their shortcomings. So Professor Lauterpacht presented the theory of duty of recognition. But this is also incompatible with state practices. The author presents three types of theories and agrees with the middle one of restricted constitutive theory. On one hand, it contends that states assume no duty of recognition and have great discretion over the decision of recognition. On the other hand, the separate recognition behaviors of states are interconnected and work as performing the function of international law. With the convergence of ideas, values and interests in international society, the legal issues related to recognition also assimilate great consensus of member states of international society.The second chapter explores the change of international society and development of international legal system. From the perspective of interaction of international system and international law, the author tries to analyze the social and legal foundation of rules of recognition. Anarchy is the starting point for this study, which is also the precondition of prevailing theories of international relations. The constructivists have different view with the neo-realists and neo-institutionalists. They think that the state of anarchy is based on the common ideas of international system. With the calculation of national interest made endogenous to the interaction of states, the collective actions can surmount the scope described by neo-institutionalists, and move toward the community. In the meantime, the coincidence of views on international society between English school and the Grotius tradition in international law tells us the development of international society. Based on that, the international legal system has become more and more complete. It manifests some characteristics: the change of precondition and foundation of international law, the improvement in the basic norms of international law, and the trend of people-orientated, humanized, and humanitarian international law.The third chapter deals with the rules relating to recognition of states. The recognition of states is an issue closely connected with facts. The criteria for statehood constitute the necessary conditions for the existence of new states. Yet the statehood is also deeply concerned with legal stipulations. The state practices after the Cold War demonstrates that the people's right to self-determination and the principle of uti possidetis has become two important legal elements in the recognition of states. During the decolonization era, the right to self-determination has the nature of a priori right, which makes the national liberation movement achieves the status of government of a new state even before it fulfils the requirements of statehood. On the other hand, the principle of uti possidetis has become an established norm of international law, which manifests the importance of stability of boundaries during the recognition of states. The core of this principle lies in the emphasis on peaceful settlement of boundary disputes.The fourth chapter deals with the development of recognition of governments. It's necessary only when a new regime acquires power through means beyond the constitutional method. Generally speaking, the recognition of governments is based on the criteria of effectiveness. However, in the history of international law, there had existed several time attempts at adding of criteria of legitimacy in the recognition of governments. The recent constitutionalism has some impacts on the standards of recognition of governments. But the standard of effectiveness is still the basic testing condition. As for state practice, Both the UK and US have made some reevaluation of their past policies concerning recognition of governments.The fifth chapter explores the formation and development of collective recognition. In its broader meaning, the collective recognition allows the United Nations make decisions on some material issues based on its mandates, which may have the effect of collective recognition. In a decentralized international society, this collective recognition enhances the mutual trust of states in the aspects of security, stability, and order. Apart from the membership and representation of the UN, its involvement in the process of peacebuilding and international territorial management has shown important developments in the function of recognition. In the meantime, the development of regionalism and regional organizations has increased the collective recognition on the regional level.The sixth chapter deals with the legal effect of recognition in the recognizing states. Generally speaking, only the recognized states or governments are qualified to claim sovereign immunity in the recognizing states. The unrecognized governments have no legal standing in the court of recognizing states. As for the allocation of powers, the executive branch has exclusive authority over the decision of recognition. However, considering the de facto circumstances based on effective control, the attitudes of courts have changed a little toward the status of unrecognized governments, so as to realize great extent of equity and justice.