Legalized Politics of Recognition of States in International Law: A Case of ‘Realpolitik’, Not Law

Abstract

No other subject of international legal theory and jurisprudence appears to interweave politics and law like the politico-legal decisions of recognition of States. It is the element of “recognition” that enables a States to engage as a ‘recognized entity’ in legal relations with other States in the conduct of its foreign relations. This recognition of sovereignty grants legal sanctity to actions like the request for military support from other States, refusal of entry to foreign military forces in home State and rights like negotiation and conclusion of international agreements. Recognition is a denouement of the discretionary power of States. And what crystallizes into this discretion is the diplomatic prejudice and interests of States, including the changes in the domestic political system, the personal preferences of leaders or favouritism of political parties in the deciding state, the relations between the deciding state and the state in which the government has changed, the nature of the provincial subsystem, and the nature of global order. The history of international law has also witnessed decisions being concocted on the distribution of power and the level of ideological consensus between states. Purely political grounds for both recognition and non-recognition are criticized for being arbitrary and self-serving. Recognition as a long-standing legal institution has an important function of identifying major actors in the international system. This article focuses on how the legalized politics of the politicized decision of recognition of States has been maligned by the international community to infuse arbitrariness, uncertainty and instability into the international law regime. The author also attempts to structuralize legal concepts and declassify the power-oriented politics of “recognition” keeping the ne plus ultra of the procedural equity, rule of law and justice as its touchstone.