International Community - Essay Example

________________ ________ work: ___________ d: ________________ hood: "International Law" 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. This raised the puzzling scenario of statehood opposable against those states recognizing a new entity but not against others. Grant (1999) mentions, "A declaratory view of recognition, associated by some writers with rule of law, made recognition automatic upon attainment of the criteria for statehood and seemed to reduce the liberty of existing states to choose what entities to regard as states". (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 according to which the constitutive conception of state recognition is summarized famously by Oppenheim in the following words: "A state is, and becomes, an International Person through recognition only and exclusively". (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 discretionary behavior of existing states, making statehood automatic, upon the fulfillment of certain criteria by any entity aspiring to statehood. (Grant, 1999, p. 5) The needs of the International community as highlighted by the legal personality refers mainly towards two aspects of state, social and political. Of greater doctrinal concern is the proposition which seems to flow from social convention that an unrecognized community has neither rights nor duties under international law. Denied recognition, a community is unable to enjoy a freedom from the strictures which govern the conduct of states. The conventional proposition although recognizes 'freedom' as a basic need for a state but still it believes that the state exists independent of recognition thereby avoiding these problems to be fulfilled through political agendas. By contrast, State practice does show that unrecognized communities enjoy protections which identify them as superior to legal no-man's land. Here are some examples given by Brierly. "The putative Turkish Cypriot state offers a contemporary example, Israel before recognition an historical one. Brierly notes, in connection with Israel, that Britain treated with the nascent state before recognizing it. Israeli forces had shot down a British aircraft over Egypt in January 1949. Despite non recognition, Britain addressed to Israeli authorities Britain's intention to seek compensation. Britain dealt with unrecognized Israel as if the country possessed international legal personality". (Brierly In: Grant, 1999, p. 20) If any legal system thereby emphasizing upon short-term concerns add force to collective conduct among states, the system is already tied by other factors. Where a community project of overarching importance intervenes, the collective process of recognition is reinforced. Whether collective recognition is possible without such a project to impose discipline is as yet unclear. The exemplary incident of the recognition of Croatia and Slovenia suggests that a superseding crisis among states infuses them with incentive to behave collectively. The states apprehend that failure to reach a multilateral decision on recognition may endanger some other consensus deemed vital to the International community. There is a need to take collective formalized action in practice within international legal institutions. States avoid any commitment of critical areas of 'sovereign' in competence to the international community. Formalizing such commitment in structured bodies draws all the more attention to it and makes it seem less open to reservation or retraction. (Grant, 1999, p. 169) To adopt the view that the international community has a role in certain areas of legislation may challenge the interests of important groups of authoritative decision makers in the national community, and if the decision-making bureaucracies in the municipal arena apprehend that a competing international bureaucratic structure is absorbing what formally were their competences, they are afforded a clear need for focussing political efforts to impede the process of internationalization. A solution has been advanced to the International Community requirements in context with politics into recognition but on analysis may raise problems of its own. What at first look like political conditions for recognition are better viewed as new elements of statehood. Supposed new elements of statehood tend to reflect contemporary aspirations of the world community the goal of a strengthened international human rights regime in particular. Under the proposed solution, a community claiming statehood is not a state upon attainment of the four criteria enunciated in the 'Montevideo Convention' and traditionally cited as describing the state; further criteria are now called for. The addition of new prerequisites to statehood may explain, within the walls of declaratory doctrine, why recognition is frequently conditioned upon attainment of characteristics initially seemingly political in nature. People moving across frontiers, unless they are citizens; seem to states to challenge the core of their sovereignty, in a world that seems at times to have passed beyond such 'parochial' matters. Why this should be so speaks more, perhaps, to the social psychology of communities, than to any fundamental principle of international law; the fact is, however, that states still cling to the idea that they do and must decide who among non-citizens will be admitted to their territory, on what conditions they will be allowed to remain, and in what circumstances their residence or stay may be terminated and they be required or compelled to leave. (Gill & Talmon, 1999, p. 199) So, the International Community rules' and legal framework requires specific obligations to seek new instruments and methods to combat International crime in the light of 'irregular' or 'illicit' migration. A balance may appear to be needed between competing interests of the character of obligations in this field both constrains options, and offers clear indications on how problems are to be resolved. References/ Bibliography Acquaviva Guido, (2005) Subjects of International Law: A Power-Based Analysis. In: "Vanderbilt Journal of Transnational Law". Volume: 38: 2. Page Number: 345+. Brierly, Law of Nations, 139 n. 1 In: Grant D. Thomas, (1999) "The Recognition of States: Law and Practice in Debate and Evolution: Praeger Publishers: Westport, CT. George Schwarzenberger, Power Politics. In: "A Study of International Society". 2nd ed. (London: Stevens & Sons Limited, 1951), 8 Gill Goodwin S. Guy & Talmon Stefan, (1999) "The Reality of International Law: Essays in Honour of Ian Brownlie": Clarendon Press: Oxford. Grant D. Thomas, (1999) "The Recognition of States: Law and Practice in Debate and Evolution: Praeger Publishers: Westport, CT. Read More