Copyright (c) 2009 Trustees of Boston University
Boston University International Law Journal
ARTICLE: LAW, POLITICS, AND THE CONCEPTION OF THE STATE IN STATE RECOGNITION THEORY
BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL
27 B.U. Int'l L.J. 115
William Thomas Worster*
The competing theories of state recognition and their failings actively demonstrate that recognition of a state does not have any normative content per se, but rather, that the rules of state recognition, although legal rules, are legal vehicles for political choices. We have the dilemma of concurrently wanting the right cases to result in independent states while prohibiting the wrong ones from becoming so, and so we sail between political choices, using the language of law. The state is neither truly free to recognize another entity nor entirely bound. Differing cases require different legal criteria and different legal results. This flexibility in state recognition theory though, while depriving the act of any inherent legal meaning, has value in its utility for establishing lawful relationships.
Whenever a state recognizes another, there are two questions that are addressed. The first question is how the nature of statehood is conceived, that is, whether it is purely a bundle of legal rights or whether it contemplates a pre-state, non-legal collectivity. The second question is the degree of discretion that states have in acting on the international plane and the source of the international legal system's legitimacy. Is the international legal system legitimate because states have constructed and consented to it or is it legitimate because it constrains state action?
This paper will argue that the reason we find it difficult to resolve the controversy over state recognition theory is because the international legal system translates political controversies into legal questions that can ...
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