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

suggested by recognition, on the other hand to be at odds with each other; for example, if recognition was at odds with the law of self-determination. On the one hand, entities can attain what amounts to external self- determination even if they don’t have a right to this, and such an outcome, and its recognition, would be lawful provided other areas of international law are complied with (Wilde, Cannon and Wilmshurst, 2010, Alexandrowicz, 2017). However, if an outcome involves a violation of self-determination, it is at least arguable that recognition cannot have a constitutive effect. This is because self- determination is regarded as one of those special areas of international law that have jus cogens status, that is, it is non-derogable, incapable of being limited by other rules of international law other than rules which have the same status. As a result, even if, then, a significant number of states recognize such an arrangement, this will not have the legal role that, all things being equal, it would have in circumstances where there would be no clash with the law of self-determination (Wilde, Cannon and Wilmshurst, 2010, Buchanan, 2004). In many cases of violations of self-determination, the violation itself leads to non-recognition (e.g., as previously mentioned, Rhodesia), and so a contradiction does not present itself. But, looking forward, this may be an issue, one hopes not, in the case of future arrangements with respect to the Palestinians and the people of the Western Sahara. One interesting and uncertain issue here is whether all aspects of the law of self- determination are relevant in the same respect. More generally, active non-recognition, that is, not just failing to recognize, but actively rejecting the validity of that which is being claimed can have a constitutive effect in de-legitimizing claims to statehood or alterations in the territorial entitlements of existing states. Just as states will often refrain from recognizing situations that are illegal, so the active rejection of such claims may not make much difference, if at all, to the legality of that being claimed; it is already illegal even if it may have significance in other respects (Wilde, Cannon and Wilmshurst, 2010, Alexandrowicz, 2017, Buchanan, 2004). So the widespread international rejection of Iraq’s claim to title over Kuwait in 1990, for example, amounted to the reinforcement of the existing position as a matter of international law. In circumstances where the law is less clear, however, recognition may perhaps bring clarity to the situation. When states are recognizing a situation, e.g. a claim to statehood, which directly implicates issues of sovereignty-as-title, the legal position depends in part on a distinction between matters which are mandatory in international law, and those which are left to the state’s discretion (Wilde, Cannon and Wilmshurst, 2010, Shaw 2003, Alexandrowicz, 2017, Buchanan, 2004). States are bound to respect the sovereignty of other states, which includes their territorial integrity and political independence. If, then, an entity is a state as a matter of international law, all other states are bound to ‘recognize’ this, even if they object in some way to that state’s legitimacy or some aspects of its policy. Equally, if an entity claims to be a state, but is not, and is formed of the territory that forms part of an existing state, then other states are bound not to recognize this because of their obligations owed to the existing state (Neff 2005, Schoiswohl 2004, Shaw 2003, Evans & Capps, 2009, Dugard, 1987, James, 1986, Wilde, Cannon and Wilmshurst, 2010). Certain other core obligations also operate on this basis, including, most obviously, the international law relating to the use of force. But in many areas of international relations, states remain free to limit their mutual relations. In these areas, then, states can, in effect, choose not to ‘recognize’ another entity as a state, even if, as a matter of the basic contours of their relationship, they are actually bound to do so. Sometimes such a policy is concerned with a political objection to what may ultimately be a lawful arrangement (Wilde, Cannon and Wilmshurst, 2010, Evans & Capps, 2009, Dugard, 1987, James,1986). When, however, states in their recognition or non-recognition practice are taking a clear stand on the question of status itself, this has to be in conformity to the legal position of the entity in question in order to be lawful. Given the constitutive role that recognition can play, the possibility arises whereby, in effect, states are seeking through recognition to render lawful something that would otherwise be unlawful. It is doubtful that states can through recognition alone render lawful something that would be unlawful as a matter of the law of self-determination, because of the jus cogens nature of that law. Just as, and indeed because, the recognition would not itself alter the illegality of the situation, so the recognition would itself be unlawful (Wilde, Cannon and Wilmshurst, 2010, Shaw 2003). Recognition has many positive consequences for its recipients. Recognized States benefit from assets unavailable to unrecognized actors. These can take the form of both tangible goods and political influence. Only recognized States may make treaties with other States, military, economic or otherwise. Only recognized States can be full members of Intergovernmental Organizations (IGOs) like the United Nations, the IMF and the World Bank. Recognized States are also uniquely able to bring grievances against other States for believed transgressions of international law at the International Court of Justice (ICJ). Similarly, only recognized States may receive loans from organizations like the IMF and World Bank. Foreign direct investment (FDI) is almost exclusively limited to the recognized States; and international trade flows and foreign aid tend to be filtered though recognized governments and States as well. All States benefit from their peers’ recognition. Recognition’s practical import has also recently gained prominence regarding African States. External © 2022 Global Journals Volume XXII Issue V Version I 41 ( ) Global Journal of Human Social Science - Year 2022 F International Law and the Politics of Diplomatic Recognition of States and Government: Crtical Discuss