Critically examine, in the context of the Pacific, the criteria for statehood under international law.
Theories of State Recognition
Statehood may be defined as a nation’s sovereignty which is recognized by global institutions and other nation-states. Thus the recognition of a nation as a state would afford it the opportunity to frame its own legal framework and device its own institutions to interpret and enforce these laws. This is ideally carried out by putting three different mechanisms or wings of government in place. These are a legislature, an executive and a judiciary. The functions of respectively are to frame laws, to enforce these laws and to interpret these laws. Following H.L.A. Hart’s rule of recognition it would be stated that if these laws gain the force of law though legal positivism they would constitute valid laws (Kaczorowska 2015). The whole point to sovereignty is the procurement of a nation-state status and thus being able to make and enforce laws within a particular jurisdiction. In the same way it can be assessed that state recognition would confer such powers within a particular jurisdiction to ensure complete authority over the individuals and all institutions functioning within the same (Von Glahn and Taulbee 2017). Thus, in order to ensure that these jurisdictions are conferred all stated powers it must be assessed that this proposed jurisdiction can be identified as a nation-state and that is where the question of the problems with conferring such authority needs to be evaluated and analyzed. The following paragraphs will discuss the essential elements for the grant of statehood within the context of the pacific region.
In terms of state recognition various theories are put in place to ensure that recognition is only implemented in cases where there is a legitimate claim for statehood. The first theory to consider when discussing recognition of nation states is the constitutive theory (Buergenthal and Murphy 2013). This theory propounded that the recognition of a jurisdiction as a state would be dependent on the recognition of such authority by other states. This thus means that if other nation-states recognize this jurisdiction as a nation-state then the same would be considered by the international community as a nation-state. Once recognized this state would be able to participate as a sovereign in the international community and be bound by international laws and conventions which other nation-states are subject to. However, this theory has been widely criticized due to the dependency of recognition placed on other states. In such a case even if the jurisdiction displays the presence of all qualities of a nation state it’s recognition as the same would depend on the qualities displayed by other nation states (De Visscher 2015). In this case such a nation-state would be subject to the judgment of other nation-states in order to be considered as a state and obtain statehood. This is a particularly difficult situation as such a contingent would not be beneficial for any jurisdiction with a newly formed government. This is because the newly formed government would now have to await recognition from the international community in order to gain statehood. This is also true in the Pacific region and thus ensures that these nation states are not able to participate as a part of the international community unless such recognition is obtained (Wolfrum 2013). This also poses another significant problem which is the right of the government over governance of its people. Unless recognized as a state such an imposition of laws on the population may be considered to war crimes and thus would attract intervention from the international community.
Constitutive Theory of State Recognition
Subsequently, when dealing with nation states and recognition the declaratory theory of recognition must be discussed. This theory states that in the international community the recognition of a state would depend on the presence of various elements. If these elements are present then the jurisdiction would gain statehood and thus would be able to participate in the international community (Weil 2017). It may also be stated that in case any of the elements required by the theory are missing the nation state would not be able to obtain recognition and would not be able to participate in the international community and the framework of international law. This theory was propounded in the Montevideo Convention on the Rights and Duties of States and focuses on a jurisdiction’s declaratory ability to become a nation state. Thus according to the theory, if the elements prescribed can be indentified within a particular jurisdiction it would be able to declare statehood (Oppenheim 2014). The first element involved here is a defined territory. The jurisdiction aiming to be a state should have a defined demarcation of the territories that it exercises these rights over. This territory must be distinct and constant. A continually changing authority over various areas would not warrant recognition as a state. This means that the jurisdiction must have a pre-determined area which is constant and is subject to its jurisdiction. The second element to consider here is a permanent population. This criterion is logical as a jurisdiction would ideally require a population that is subject to the laws enacted by it. Moreover, unless the area which is required by the previous requisite is inhabited by a population the question of governance would not arise. In the absence of a need for governance there would not be a need to construct a government and thus the question of state recognition does not arise (Burley 2017). Thus hosting a population within the jurisdiction is absolutely necessary. The third element mandated by this theory of state recognition is a functional government. As proposed by this theory once a constant territorial jurisdiction and a constant population have been established there must be the establishment of a government. This entity would be a body of governance which formulates rules and regulations which this constant population would be subject to. This body would also be responsible for enforcing these laws and if it can adequately discharge such a duty it would be considered as a government. A government is primarily the most important part of being recognized as a nation-state as in case of a lack of such an entity the territorial jurisdiction would not have sufficient representation to be considered a state. This entity would also thus be responsible for protection and enforcement of the rights of all individuals present within the said territorial jurisdiction. This means this entity would also be tasked with observance of human rights obligations within the same in case the jurisdiction is recognized as a state. The final consideration for recognition under this theory is the state’s ability to enter into transactions and relations with other recognized states. As a part of the international community a state is expected to maintain various bi-lateral and multi-lateral obligations towards other states (Gray 2018). This ensures social interaction between these nation-states and additionally imbibes a form of international community which is the ultimate goal of international law. This basically means that unless the proposed jurisdiction can successfully maintain interactions and relationships with other nation-states it would not be recognized as a nation state. This particular aspect of this theory concerning statehood has been criticized on the basis of the rationale that a state does not ideally have to maintain relationships with other states in order to ensure that they discharge their functions as a government towards its people. This thus means that even if the said jurisdiction has a defined territory, a constant population and a functional government the same would not be able to obtain statehood unless this jurisdiction also has the capacity to interact with other nation-states (Cameron and Chetail 2013). This again poses a discretionary mode of obtaining statehood as it would still require the ascent and/or recognition of other states. Similar to the constitutive theory this would thus ensure that obtaining recognition as a state a dependent variable has been placed which is conditional subject to the recognition of other members of the international community. In terms of international law, in order to participate as a part of the legal framework prescribed by the international community the same must be conferred upon the same by the international community. However, in terms of practicality a state can independently function, barring its international trade requirements, within its own jurisdiction and can further enforce laws enacted by it through its own enforcement agencies (Wallace 2013). Moreover, it would thus have an active populous which is governed through those laws. This is why this theory of state recognition is particularly criticized as it considers all logical requirements but places an impractical criterion which makes it equivalent to the constitutive theory of state recognition.
Declaratory Theory of State Recognition
Thus these are the two most prominent concepts of state recognition in international law. It can be inferred from the above analysis that state recognition would confer upon the subject state various protections and would also obtain active representation in the international community according to international law. However, one of the most primary debates attached to the concept of international law is if international law is at all a body of law. This is because there is no active international law enforcement agency which can sufficiently enforce the prescriptions of international law. Additionally, judgments in international law (arising from international disputes between states brought before the International Court of Justice) consider the rights and obligations of all parties involved in the dispute however these rights under international law cannot be enforced within domestic/municipal jurisdictions (Quigley 2016). Thus, in effect these judgments would not be able to obtain the absolute force of law and practically enforce these rights due to the absence of an international enforcement agency. Furthermore, arbitral awards passed in terms of international commercial arbitration can also not be directly enforced within a particular jurisdiction even though all parties to the dispute have agreed to be bound by the decision of the arbitrator. This also poses an equal threat to the status of international law as a body of law that individual’s and states are subject to.
The next theories to be considered have a more practical approach to state recognition even if one only considers the legal validity of such recognition. The first of these is De Jure recognition. De Jure translates into in law and thus considers the validity of the recognition of a particular state in law. This consideration may extend even if the government so recognized does not in fact have any control over the territorial jurisdiction or the populous (Schmitt 2013). This happens in case of sedition and rebellion within a particular jurisdiction. When a government is overthrown by a civil movement or through the intervention of another international entity or state and a newly formed government is put in place, till this government is recognized by the international community as a state the previous government would be considered the De Jure state. Thus in law the previous government would still be the apt representation for this territorial jurisdiction. Thus in theory this concept of De Jure state can be endorsed in terms of state recognition. In the pacific region as well this concept works as an ideal method of state recognition, which considers the recognized body of governance as the ideal representation for the territory. However, in this case it can be stated that this mode of recognition can be an absolute failure in terms of practicality (Tanaka 2015). This is because a new government can be a successful enforcement mechanism and thus would have all the characteristics of a state but would not be considered a state merely due to recognition of the previous government as the De Jure state which resultantly means that it would not be considered the same in the international community.
Criticism of the Theories of State Recognition
Conversely, the concept that embodied the practical approach to state recognition is de facto recognition. De facto refers to a legal recognition of the statehood which is established through fact (Ivory 2014). This basically covers the position of governments which are not considered states in law however in fact these governance entities do exercise control over these areas and thus would have to be recognized as states. Thus in the same way it maybe stated that these entities are in fact the recognized government which discharges the same functions. Thus international law would have to recognize these entities as states in furtherance of the representation warranted for the people. This also means that the rights of these parties would ideally hold the interests of the populous as their priority and in the interests of the international community these would have to be considered (Morgenthau 2017). The aim of international law was the furtherance of international peace and a body of customs and precedents that can govern and regulate international interaction (Schachter 2017). These interactions would resultantly warrant the use of necessary diplomatic relations between states and thus these states would gain recognition under the declaratory theory of state recognition.
Under the present framework of international law guiding recognition in the pacific regions the recognition of a state in international law would require De Jure and De facto states (Dixon 2013). These states would thus be required to be the legal governance bodies for the territorial jurisdiction and its populous it would also have to have actual control over this jurisdiction as far as enforcement of its legislations is concerned (Teson 2018). Thus in order to obtain statehood it would thus have to be able to enact laws and enforce laws within such areas. De Jure and De facto states provide a more practical approach than the constitutive or declaratory theories as these largely depend on the practicality of the situation. In the other theories a mere recognition through other members of the international community would be confer this status on the territory, this conditional dependence cannot be considered to be accurate as it breeds room for arbitrary and discretionary recognition (Ryngaert 2015). This state recognition thus ensures that the people of a particular state would not be subject to a sovereign that is not practically empowered to govern such an area.
In conclusion, from the above analysis what can be inferred is that the constitutive theory of state recognition demands the ascent of the international community in order to confer statehood on a particular jurisdiction. The declaratory theory warrants the consideration of various elements which can determine the capacity of a particular jurisdiction to govern however this to has an inclination towards the recognition of the entire international community in terms of the interactive relationships prescribed among states in international law. The theories of De Jure or De facto legal ensure that the international community undertakes various forms of international considerations which determine statehood based on the capacity of an entity to govern a populous or through a legal recognition of the same. These are thus more logical approaches to state recognition and thus would warrant sufficient consideration of the populous and the needs of the territorial jurisdiction. It is noteworthy to mention here that in light of the Pacific region these theories are involved in granting the status of a nation-state and thus when put in to practice must be made in such a way that ensures that due process of law and the mandates of justice are observed.
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