Global Journal of Human Social Science, F: Political Science, Volume 22 Issue 5

automatically be regarded as a state under international law. This ‘declaratory approach’ is objective in the sense that whether or not an entity is considered a state depends on the empirical characteristics possessed by that entity. Furthermore, it is retrospective in that the international community is not actually granting the entity this status, but merely acknowledging what is already a fact (Chen, 1951, Talmon 2004, Shaw, 2003). Most scholars agree, however, that the present practice of recognition is not declaratory but constitutive. According to the ‘constitutive approach,’ an entity is considered a state to the extent that other states recognize it as such, since a new state cannot exercise rights and obligations against states that do not recognize it. In general, the present practice of recognition follows the constitutive approach. Consider the case of Palestine. Applying the Montevideo criteria for statehood, it becomes clear that Palestine should be considered a state, as it has a permanent population concentrated in a defined territory, a functioning representative authority (the PLO), and has already entered into various agreements with other foreign entities (Menon, 1994, Chernoff, Fred. 2007, Pettman, 2010, Weber, 2004). However, as was already noted, its statehood bid is bound to be frustrated unless Israel and the United States choose to alter their policy of non- recognition. Regardless of whether or not the United States and Israel are right in denying recognition, it is clear that recognition in this case is a matter of policy discretion from the part of states on both sides of the controversy. As this example shows, the practice of recognition is often an opportunity for powerful states to express their approval or disapproval of a political entity, and thus, recognition ends up being a highly selective and strategic policy decision. Neither the declaratory nor the constitutive theory of recognition is entirely satisfactory. On the one hand, the constitutive theory lends itself to strategic manipulation by powerful states that have a vested interest in recognizing or not recognizing a political entity (Naticchia, 2000; Spears, 2004, Van der Pijl, 2014). Furthermore, there are logical and practical difficulties in asserting that an entity is a state according to some members of the international community (i.e. those who confer recognition) and not a state according to the rest. In this case, the entity would be subject to international law according to some states but would exist in a legal vacuum according to others. These inadequacies of the constitutive approach signal a need to establish an objective and impartial procedure for state recognition (Buchanan, 1999; Spears, 2004). On the other hand, the criteria established under the declaratory approach are too weak. Given that the new state is to be granted full sovereignty and international protection of its territorial integrity, the international community has reason not to welcome into the community of states entities that practice injustice, internally or externally. A state that repeatedly engages in aggressive war against other states or systematically commits human rights violations against other peoples should not be granted the sovereignty rights and legal powers that come with being a member of the international community, because these acts are antithetical to the core principles of the international legal system. Likewise, by conferring statehood status to entities that employ their coercive powers internally to oppress their populations, the international community would in effect be acting as an accomplice in injustice (Buchanan, 1999; Spears, 2004, Neff 2005, Schoiswohl 2004, Shaw 2003,). In both cases, the international community would be undermining the commitments to peace and justice that underlie the bulk of international law, and therefore recognition does not make sense in these instances. It is worthwhile to also mention a third approach to recognition proposed by Chris Naticchia. Naticchia (2000) advances a ‘pragmatic’ approach whereby the international community extends recognition only if such an act is expected to further peace and stability in the long run. This approach is act- consequentialist in the sense that the only consideration it regards as relevant in the decision of whether or not to grant recognition is the maximization of overall peace and stability. In this calculation, the extent to which the entity in question conforms to international standards of justice is a relevant factor only insofar as this behavior tends to further long-term peace and stability (Keohane, and Buchanan, 2004; Spears, 2004). As Buchannan (1999) correctly points out in his rejoinder to Naticchia, a rule-consequentialist approach whereby substantive rules are established is more likely to lead to peace and stability in the long-run than a case-by-case approach, which is not only prone to erroneous calculations but also bound to be politicized. Moreover, peace and stability cannot be pursued at any cost. Just like considerations of overall human welfare cannot trump individual rights in the domestic sphere, considerations of peace and stability cannot override the commitment to securing the basic rights and freedoms of a population (Keohane, and Buchanan, 2004; Spears, 2004). IV. T he B ases, C riteria and P rocesses of I nternational R ecognition Each state conducts its relations with other states on the basis of particular understandings of the legal status of those other states. In many instances, such understandings are uncontroversial and amount to a recognition of the status quo : the UK and its dealings with France, for example. Sometimes, however, a state can take a position which challenges the existing order, such as recognizing a new state, for example the claim of Kosovo in 2008 to constitute a state comprising territory formerly part of Serbia, or take a position which © 2022 Global Journals Volume XXII Issue V Version I 39 ( ) Global Journal of Human Social Science - Year 2022 F International Law and the Politics of Diplomatic Recognition of States and Government: Crtical Discuss