Theories Recognition of Being A New Country and The Legal Consequences of Not Getting Recognition as A New Country

Recognized that sovereignty is an important element for a country. Without the factor of sovereignty, a country is not considered to have perfection in the skills and rights to regulate its interests in and out. One of the reasons for the recognition of a new state is the lack of clarity on the requirements or characteristics that must be met by a new entity to be considered a state. That is how important recognition is for a new country to become a state. There are several known theories in the recognition of the new state, namely Declarative Theory, Constructive Theory, and Collective Recognition Theory.

1. Declarative Theory

This theory was born and developed around the beginning of the twentieth century. The characters are Jellinek, Cavaglieri, and Strip. According to this theory, the birth of a state is a real event that is independent of the provisions of international law. In this theory, recognition is only an act of formality that can be interpreted only as an affirmation or acceptance of existing events. This theory is in line with Article 3 of the 1993 Montevideo Convention which states that the political existence of a country is free from the recognition of other parties. The weakness of the Declarative Theory according to Alina Kaczorowska is that it places recognition at its lowest point.

2. Constitutive Theory

This theory emerged in the 19th century and is based on the positivist view of theory. The figures include Lauterpacht, Kelsen, and Vedross who are known as the Austrian group. According to this theory, a new country is born when it has been recognized by other countries. Even if a new entity has formal attributes and statehood qualifications, without the recognition of the new entity, it cannot obtain international personality. Thus recognition gives birth to and creates a new state and has constitutive power. There are several weaknesses in this theory, which are as follows :

a. New states that do not get recognition will become entities without rights and obligations under international law until they get recognition.

b. State practice shows that giving recognition is a political act for the benefit of the state that gives recognition only. The thing that needs to be questioned here is why the legal status of an entity depends on the political actions of other countries.

c. There is no clarity regarding the minimum number of states that provide the necessary recognition for a new one to become a state.

d, There is no clarity regarding the parameters of a new entity to become a state.

e. Can create instability in a country.

3. Collective Confession Theory

According to Jessup, the existence of this theory cannot be separated from the lack of formal institutions in international law that have the authority to set parameters as well as to give or deny recognition to a new political entity that claims to be a state. For this reason, recognition should be given collectively by a group of countries. Jessup also explained that two institutions such as the International Court of Justice and the UN Security Council were authorized to do so. It can be interpreted that the birth of a new state must go through a recognized institution whose parameters are determined collectively and the grant or rejection must be done collectively.

Legal Consequences of Not Getting Recognition as a New Country

1. Countries cannot open diplomatic representations in countries that refuse to recognize them
2. Diplomatic relations are difficult
3. Citizens of the unrecognized are difficult to enter the territory that does not want to admit
4. Citizens of countries that are not recognized by their country, cannot file claims in front of the national courts of countries that do not want to recognize them

It can be concluded from various international law experts that all countries need recognition from other countries. The more recognition received, the easier it is to be able to establish cooperation for the progress of the country itself. With the recognition of the stronger existence of a country as a subject of international law. When many countries reject a new country, the process of developing a country will be difficult, but that does not mean that the country cannot exist in the future.

References :

• Sefriani. International of Law. 2010
• Coeng coeng. The Politics of Recognition in International Law. 2003
• Sujadmiko Bayu. Recognition of the New State Viewed from the Perspective of International Law (Study of Kosovo's independence). 2012