CYIL 2015

JAN ONDŘEJ CYIL 6 ȍ2015Ȏ created entity is a sovereign state (subject of international law). Consequences of the recognition are therefore declaratory , that is , confirming existing reality. Recognition does not constitute rights and duties. We can also encounter the theoretical approach of, for example, Malenovsky, that recognition is primarily declaratory; 17 however, that state which recognizes also simultaneously shows its willingness to enter into legal relations with the newly created state and these relations go beyond the prescribed basic rights and duties of states. The recognition has therefore important c onstitutive consequences. The recognition of a state has retroactive effect which goes back to the moment the new state was created. International law does not oblige anyone to recognize that entity which conforms with all the conditions of statehood and leaves other states liberty. Failure to recognize a state used to be motivated by political reasons , not by legal arguments (for example, GDR, the former German Democratic Republic, was not recognized for a long time). Sometimes even premature recognition by a state may occur. For example, Croatia was recognized in 1992 by Germany, even though the basic elements of a state were not constituted. Premature recognition may expedite the creation of a state. The political nature of recognition does not allow other states to criticize premature recognition as unlawful international behaviour. These states, however, can consider premature recognition as an unfriendly act and react by extralegal means. After the Second World War acceptance as a member state of the UN has become an important recognition. This acceptance does not have the character of collective recognition , however, if the state meets the acceptance conditions of being a member state of the UN, which conditions are stricter than those required by general international law for the creation of state; the universal nature of the UN provides for the undisturbed performance of competences basically anywhere and at any time. In relation to the creation of new states, recognition is important also in the sense that, even if the newly created entity does not fulfill the three basic criteria of a state or was created in contradiction to the standards of international law , this formal deficiency or non-conformity with the international law can be waived by recognition of the state by the international community. Effectivity , i.e. the ability to act as a state can under certain circumstances prevail over formal legality. 18 An example is the above mentioned case of recognition of Bangladesh. The question is how many states must recognize such an “illegal” state.

17 Ibid ., s. 132. 18 DIXON, M. Textbook on International Law . Fourth edition. London: Blackstone Press Limited, 2000, p. 112.

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