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The Concept of Recognition - Part-I
March 28, 2008 - Abdirahman Hassan Nur
Due to a wide discussion on the issue of recognition among Somalilanders,
I would like contribute to the discussion in the following manner.
I would like to begin my article by examing the term "recognition". This term,
or word, has a literal meaning as well as a political or legal meaning.
It's literal meaning in the dictionaries is defined as " the action of
recognizing somebody, something or of being recognized".
But, if we look it at if from a legal viewpoint, international law defines it as
"the act of formally admitting the existence of a foreign state and dealing with
it as such".
As well the Institute of International Law has defined the term "recognition" in
the following words:-
It is the "...free act by which one or more states acknowledge the existence of
a definite territory of a human society, politically organized, independent of
any other existing states and capable of observing obligations of International
Law by which they manifest through their intention to consider it a member of
international community".
The context of these definitions shows that the state does not politically exist
if it is not recognized by the international community and it does not have any
consideration without recognition.
Yet, there are some jurists who put conditions for the recognition of a state
solely on the following terms:-
1. The community must be politically organized
2. It should have control over a definite territory
3. This definite control should tend towards permanace
4. The community thus constituted must be independent
Regarding all these things and the conflicting concepts towards the recognition,
there are two main theories of recognition:
1. Declaratory or Evidentiary Theory
2. Constitutive Theory
The dimension of these two theories are on the elements of statehood. When
discussing what constitues a state and its essentials elements, there are four
political elements of a state:
1. Definite Territory
2. Population
3. Government (Executive Authority), and
4. Sovereign (law-making authority according to the western law, in the Islamic
concept, Allah is the sovereign).
According to the law, the capacity to enter into relations with other states is
the fourth element of the state, sovereignty.
There is no concept of sovereignty in the legal phenomena for the statehood
although some jurists like Hans Kelson consider it as one of the essentials of
state.
Anyway, the constitutive theory says that the state must fulfill those elements
and furthermore, it should get recognition from the international community.
And this is (recognition) is the fifth element for statehood.
In the contrary, the declaratory theory says that if the state fulfills those
above mentioned components, it means that state has already existed and is
automatically recognized, therefore no need for declaration of recognition.
In the case the international community declare that they have recognized such a
state, this recognition is merely a formal acknowledgement of the established
facts.
The act of recognition is merely declaratory of an existing fact that a
particular state or government possesses the essential attributes as required
under International Law.
To Continue..
In the next article, we will analyze these two theories and how they are
applied.
May Allah bless you.
Abdirahman Hassan Nur
Email: abdirahman_hn@hotmail.com
Islamabad, Pakistan.
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Source: Qaran News
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