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International Law
Written by Hanumant's Law Journal
Tuesday, 08 September 2009 01:50 - Last Updated Tuesday, 13 September 2011 01:11
Montevideo inter America convention on rights and duties of states.In 1936 prestigious institute
de droit stated, the existence of a new state with al the legal consequences attaching to this
existence is not affected by the refusal of recognition by one or more states. Recognition of
states is the requirement of having part of world community.
The sovereign entities of international community have been used to justify the existence of
state even in the absence of recognition by other state. This criteria was derived from 1933
Montevideo inter America convention on rights and duties of states.
In 1936prestigious institute de droit stated, the existence of a new state with al the legal
consequences attaching to this existence is not affected by the refusal of recognition by one or
more states. Recognition of states is the requirement of having part of world community.
ACTS OF RECOGNITION:
Recognition is a matter of intention and it may be expressed or implied. So the act of
recognition may be affected expressly, by formal announcement or by bilateral treaty of
recognition. Also in some circumstances through an act indicating an intention to affect
recognition e.g. U.K government recognized government of Burma by a treaty in 1947; they
recognized them as fully independent and sovereign state.
There are two theories, which have effect on the recognition of a state.
1: Constitutive theory
2: Declaratory theory
CONSTITUTIVE THEORY:
This theory asserts that the act of recognition by other states confer international responsibility
on an entity purporting to be a state. It means if that state exists this is because of international
community, as they have admitted that state into the community of nations.
So we can say that a state may possess all the attributes and qualifications of state hood but
unless or until recognition is accorded there will be no international personality. If we apply this
theory on Israel and Palestine, for Pakistan Israel is not a state. Similarly before 1974
Bangladesh was not a state for Pakistan.
DECLARATORY THEORY:
The theory asserts that the existence of states depend upon the facts whether these facts
meet with the criteria of statehood laid down in international law. According to this theory a
state may exist without being recognized. Recognition is merely declaratory and the function of
recognition is to acknowledge the fact of states political existence and the willingness of
recognizing states to treat that state as an international entity.
According to American law institute restatement, they accept it but also indicate that although
a state is not required to accord formal recognition to any other state, but it is required to be
treated as international entity that meets with the requirement of statehood.
In contemporary practice it is clear that an entity meets the conditions of statehood as defined
in s201 OF RESTATEMENT, can neither be denied the rights conferred on the states by
international law? States like Taiwan, New Caledonia, Serbia, Western Sahara, Palestine; they
still have to get the membership of UNO.
POLITICAL NATURE OF RECOGNITION:
This kind of recognition is based upon political expediency. Some members of international
community recognize the entity and the recognition is denied by others.e.g. European
community announced that it would recognize those republics that would give assurance of five
points.
1: Continued respect for UN charter.
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International Law
Written by Hanumant's Law Journal
Tuesday, 08 September 2009 01:50 - Last Updated Tuesday, 13 September 2011 01:11
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International Law
Written by Hanumant's Law Journal
Tuesday, 08 September 2009 01:50 - Last Updated Tuesday, 13 September 2011 01:11
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International Law
Written by Hanumant's Law Journal
Tuesday, 08 September 2009 01:50 - Last Updated Tuesday, 13 September 2011 01:11
claim the right to intervene on the basis of "vital interests," they never agree as to what this
term involves.
A group of writers prohibit intervention in all circumstances. According to their point of view
when one state intervenes in the affairs of another state through force then as reaction against
his violation international law permits intervention.
CONCEPT OF INTERVENTION AND UNITED NATIONS CHARTER:
Article 2, paragraph 4, of the Charter provides: "All Members shall refrain in their international
relations from the threat or use of force against the territorial integrity or political independence
of any State, or in any other manner inconsistent with the Purposes of the United Nations."
The North Atlantic Treaty Organization (NATO) intervention in Kosovo in 1999 was said to be
justified on the grounds of such a humanitarian crisis coupled with non-compliance by the
parties with Security Council Resolutions. Similarly whatever is happening in Palestine is
that not a human crises.
Kinds of Intervention:--Winfield refers to three kinds of interventions:-1.Internal Intervention:-- This is intervention by a state in a civil war going on with the territory
of another state. The intervening state in such case may side with insurgents or legitimate govt.
the intervention of number of states in civil war in spain in 1936 was typical of internal
intervention.
2. External Intervention:-- it is an intervention by a state in the foreign affairs of other states.
As a general rule, an external intervention is directed against hostile relations of other states.
While there is a war going on between two states, a third state can make an external
intervention by entering the war on behalf of either of two states.
3. Punitive Intervention:--It is resorted to by a state when it has suffered an injury by some
action state and may be stated as an act of retaliation against the state. The punitive
intervention may take the form of pacific blockade.
GROUNDS OF INTERVENTION:
1: SELF DEFENSE:
Use of force in self defense is justified where it is necessary for self preservation. The right of
self defense under article 51 is subject to following conditions: 1: There should be an armed
attack. 2: Right exist until security council has taken any action. 3: It should be reported to
security council. 4: The right shall not effect security councils responsibility for peace and
security. 5: Right is not available for non member states.
2: INTERVENTION ON HUMANITARIAN GROUNDS:
Intervention was permitted in the past on humanitarian grounds. When human rights were
openly violated in a state and the people were openly persecuted then other states can
intervene in the affair of such a state in order to check such persecution and violation of human
rights. E.g. England, France and Russia jointly intervened in the conflict of Greece and turkey
in 1827to check violation of human rights, other examples include: Bulgaria 1877 Cuba 1898
Haiti 1915
3: TO ENFORCE TREATY RIGHTS:---Intervention was also permitted in the past under
international law to enforce treaty rigts. There are several examples of intervention on this
ground e.g. when Germany attacked Belgium in 1831 England intervened because it had a
treaty eith Belgium whereby it was commited to maintain the neutrality of Belgium. Similarly
USA intervened Cuba in 1962. Now after the enforcement of united nations charter this kind of
intervention is not allowed as states have undertaken not to intervene in the external or internal
affairs of another state. But again question arises is that what was wrong with USA when they
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International Law
Written by Hanumant's Law Journal
Tuesday, 08 September 2009 01:50 - Last Updated Tuesday, 13 September 2011 01:11
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International Law
Written by Hanumant's Law Journal
Tuesday, 08 September 2009 01:50 - Last Updated Tuesday, 13 September 2011 01:11
humanitarian intervention. It argues that the notion of a 'right to intervene' is problematic and
should be replaced with the 'responsibility to protect'. Under Responsibility to Protect doctrine,
rather than having a right to intervene in the conduct of other states, states are said to have a
responsibility to intervene and protect the citizens of another state where that other state has
failed in its obligation to protect its own citizens.
LIMITATIONS:
There are few limitations on intervention which are:
1. When implemented, an intervention mission can contravene the fundamental objectives
of the United Nations, such as maintaining peace, and it contravenes Article 2.7 of the Charter
of the United Nations whenever a recognized state is subject to an intervention: "Nothing
contained in the present Charter shall authorize the United Nations to intervene in matters
which are essentially within the domestic jurisdiction of any state". However, the UN Charter
also justifies interventions under Chapters VI and VII. Advocates of interventions argue that
the creation of a new right is not necessary, but rather the simple application of rights which
already exist.
2. More fundamentally than this legal problem are the contradictions inherent in the concept
of humanitarian intervention, which are primarily due to the confusion created by the blurring of
the right and the duty to interfere. It is difficult, when such confusion occurs, to separate the
humanitarian motives from the political motives and be assured that the powers intervening are
entirely disinterested.
3. Even though it is called universal, the declaration of human rights is strongly influenced
by the work of Western philosophers from the Enlightenment and more generally by a
Judeo-Christian tradition. Intervention has often been an action directed by Northern states
toward Southern states. It is thus unlikely that a Rwandan contingent might one day be
assigned a peacekeeping mission in Northern Ireland, or that the Lebanese might intervene in
Basque country.
4. In reality, the powerful nation-states run little risk of becoming the target of a
humanitarian intervention action. For example, the Chechen population is probably in as much
danger as of 2005 as the Kosovos were in previous years, but Russia is significantly more
powerful in the realm of international relations than Serbia, and so an international action into
Chechnya is much less likely.
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