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N. (in international law)

1 The process by which one state declares that another political entity fulfils the conditions of statehood (see state) and that it is willing to deal with it as a member of the international community. Recognition usually takes place when a new state comes into being. Some authorities believe that recognition is constitutive, i.e. it is one of the conditions that create a state in international law (see constitutive theory). Most, however, regard it as being merely declaratory, i.e. an acceptance of a fact that already exists (see declaratory theory).

With the collapse of the Soviet Union and Yugoslavia in the 1990s it became imperative for states of the European Union to adopt a common policy with regard to recognition of the newly emerging sovereign states of E and SE Europe. In December 1991 the EC published its Declaration on Yugoslavia and on the Guidelines on the Recognition of New States. This made it a precondition of recognition that the new state should respect human rights and oppose the proliferation of nuclear weapons. In August 2008, following the Russian intervention in Georgia, Russians recognized the breakaway states of South Ossetia and Abkhazia. Only Venezuela and Belarus followed suit.

2 Acceptance of a government as the legal representative of the state. This may be de facto or de jure. The distinction is a fluid one, often involving a political element, since international law allows states discretion as to whether or not to accord recognition and of which kind. The according of recognition of either kind is usually an acknowledgment that the government recognized has effective control, but the decision to give merely de facto recognition may reflect a wish not to show approval of the nature of the government concerned (and at the same time to be able to continue to give de jure recognition to the ousted government). The significance of the distinction (which is of little legal consequence) therefore depends on the intention of the recognizing government. Recognition may be express or implied (for example, by entering into diplomatic relations with a new government). See also Estrada doctrine; Tobar doctrine.

For purposes of English municipal law, the question of whether or not a state is recognized is sometimes relevant. Thus: (1) only a recognized state is entitled to sovereign immunity from jurisdiction; (2) an unrecognized state cannot sue in English courts; and (3) when a foreign law is to be applied under the principles of private international law, this can only be the law of a recognized state or subsidiary body set up by it. A Foreign and Commonwealth Office certificate stating that an entity is or is not recognized by the British government is usually taken as conclusive evidence in the courts. Since 1980 Britain has abandoned the practice of recognizing governments – only states are now the subject of express recognition (Sierra Leone Telecommunications Co Ltd v Barclays Bank Plc [1998] 2 All ER 821 (HL).

Subjects: Law

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