The Role And Function Of The Declaratory And Constitutive Theories International Law Essay

The Role And Function Of The Declaratory And Constitutive Theories International Law Essay State recognition is one of the most contested topics in the international law. This problem appears to come back on the international agenda and reopens the great debate with the recent unilateral declaration of independence pronounced by Kosovo in 2008. Further attention was gained in August 2008, when Russia and Nicaragua recognized the statehood of breakaway regions of South Ossetia and Abkhazia. The issue of recognition is of immense importance as it usually confirms the states legal existence as well as allows the new entity full political interaction with existing entities. Legal personality indicates that the new entity is capable of possessing international rights and duties, and has the capacity to maintain its rights by bringing international claims.  [1]  Additionally, it acknowledges that a recognized state must obey standards and regulation posted by international law, which in turns secures stable and peaceful international order. State recognition is a subject of a disagreement between two schools; the one in favour of constitutive theory and the one in support of the declaratory theory of statehood.The latter does not require the recognition of other states as long as it has achieved the known required standards to be a person of international law. In contrast, the constitutive theory does require the recognition of a state as sovereign by other states to be a person of international law.  [2]  This essay will explain the role and function of the two theories and their applications in the international community, and attempt to access which one is more functional. Finally it will clarify the difference between the recognition of the state and the recognition of the government. It is commonly understood, the state arises as a legal and political entity when it achieves certain requirements. Criteria for statehood are defined in 1993 Montevideo Convention on Rights and Duties of State (MC).An entity must posses: a permanent population; a defined territory; a government; and a capacity to enter into relation with other countries  [3]  . Conflict already appears with the effective government requirement. For example Shaw claims that this is not a precondition for recognition as an independent state  [4]  In opposition, Dixon argues that condition of effective government must be first satisfied, before an entity can claim to be a state.  [5]  on the subject of the last condition, Crawford for instance, sees capacity to enter into relations with other states as an attribute of an entity which has already reached statehood.  [6]  In addition to the MC, there is also a very great argument that that self-determination should be given more importance than state recognition; according to Raic : Whether a new State is created as a result of devolution, integration, dissolution, or secession, it is submitted that, in principle, in all of these cases, self-determination forms the legitimizing princi ple for the creation of the new State.  [7]   Overall, the presented legal condition for statehood, alongside with political action and certain facts are the basis for the state recognition in the declaratory understanding. It can be deducted that the declaratory theory, is little more in accord with practical realities  [8]  , as is based on natural law with an objective system of law.  [9]  Additionally, the declaratory theory operates on notion of the sovereignty of the state and the associated weakness or non-existence of any central guiding in the international system.  [10]   Declaratory theory maintains that a new entity will obtain capacity in international law not by asset of the permission of other states but by acceptance of the realistic 10092954 situation, which was result of their own effort and political actions. Moreover new state will not have to wait for the procedure of recognition by others.  [11]  Lall and Khemchand argue that appearance of new state and becoming a new subject of international law are instantaneous processes. Becoming aware of that there is no reason for claiming that states become subjects of law only after they have been recognised.  [12]  Similar reasoning is presented in Article 3 of the MC: statehood is free of recognition by the existent states, and an entity can exist even if others dont recognize it.  [13]  In addition, Brownlie claims that, if an entity bears the marks of statehood, other states put themselves at risk legally, if they ignore the basics obligations of state relations  [14]   The Charter of the Organization of American States, speaking about the fundamental rights and duties of state also declares the state is independent of recognition by other states. Pointing out that even before the recognition, state has the right to protect its integrity and independence.  [15]   Undoubtedly, if state meets the conditions for statehood but is not internationally recognized, it has much more difficult position for operating in international system. Nevertheless, it would not seem in law to amount to a decisive argument against statehood itself  [16]   Another strong argument in favor of the declaratory theory is the fact that even though any state does not recognize a new entity, it cannot deny this country legal obligations and duties obligates by international law. Furthermore, it itself is obliged to pursue the rules of law when dealing with such a state. This is clear in relation to Israel- Arab 10092954 relations. Moreover, the recognition from the declaratory point can avoid laps in time, when state is suspended in the legal, political space, and shun illogicality of considering an entity as a state and non-state at the same time. Even though the concept of obtaining the fully legal statehood through achievement of certain conditions seems very simple and logical, it is not as straight forward from situation where all circumstances are not satisfied. Firstly, if the state is perceived as a state hence fulfilment of statehood requirements, declaratory theory must clearly define in legal terms what state is.  [17]  particularly now, when the era of colonies is over, as well peaceful disintegration of massive powers , the existence of the new state is the result of violent breakouts, wars. Fulfilment of basic criteria to become a person of international law is just simple and many other elements need to be considered; elements that are not clearly and fully defined. Secondly, a question arises if the statehood could be obtained when an emerging entity does not posse one of the conditions for statehood, for example territory? This was case of Greece, and Netherlands during II World War. Another instance is lack of effective government, as in the case of the Annexation of Czechoslovakia by Germany in 1939.The situation can be further complicated when there are two governments: operating externally and acknowledged by international community and government within the state. The declaratory theory does not provide answers for those situations. Evidently then, state recognition is very important but is it enough to grant an emerging state a legal personality ? In 1912 Oppenheim famously concluded that: International Law does not say that a State is not in existence as long as it is not 10092954 recognized, but it takes no notice of it before its recognition. Through recognition only and exclusively a State becomes an International Person and a subject of International Law.  [18]   The constitutive theory maintains that it is the act of recognition that creates a new state and awards it with legal personality, not the process by which it actually gained independence. Lauterpacht claims that once the conditions prescribed by international law for statehood have been complied with, there is a duty on the part of existing states to grant recognition .  [19]  However, it must be emphasized that existing states have a full independence and discretion to either accept or reject a new state. This does not have to be supported with incident to conclude that is a very dangerous political tool. For example, the United States did not recognized the Peoples Republic of China and North Korea because they did not want to have any relations with those states. A further disadvantage of this approach, and possibly the most problematic, is the fact that unrecognized states are sustained in legal limbo. From the constitutive reasoning it follows that an unrecognized state does not posses any rights or obligations. This puts other states in danger as states outside the legal regime can act as they wish, without any legal consequences or jeopardy of being punished. Moreover, an interesting question arises what happens when an entity is recognized by one states but its legal position is denied by others. This creates confusion; moreover put forward a question of partial personality?  [20]   Nevertheless, the constitutive theory has some valuable points. For example, in cases when the state becomes exist as a result of unlawful actions such as violence, occupation or more likely the government through unconstitutional procedures, non recognition of such a state significantly questions the legal position of such an entity 10092954 and it is immensely harden to maintain a political existence.  [21]  Moreover, recognition of a new state by international community can increase the chances and, to some extent, cover defects in satisfying the criteria for statehood. Perhaps the safest and exact position when it comes to the constitutive theory has been expressed by Shaw who stated that recognition is constitutive in a political sense, for it marks the new entity out as a state within the international community and is evidence of acceptance of its new political status by the society of nations . This does not imply that the act of recognition is legally constitutive, because rights and duties do not arise as a result of the recognition.  [22]   Moving to the application of those two theories, it is believed that states and international community tend to apply declaratory position. German-Polish Mixed Arbitral Tribunal stated: the recognition of a State is not constitutive but merely declaratory. (à ¢Ã¢â€š ¬Ã‚ ¦) The state exists by itself and the recognition is nothing else than a declaration of this existence, recognized by the State from which it emanates  [23]  The International Court of Justice in the Genocide Convention case clarify that the failure to maintain effective control over territory does not extinguish the legal entity in the eyes of the United Nations.  [24]  Legal requirements for statehood and the declaratory position where further confirmed by Commission of Jurists on The Aaland Islands, appreciate the importance of the recognition of Finland by other states, but called for conditions required for the formation of a sovereign state  [25]   10092954 The case of Israel is disputed, but clearly, even if the Arab countries are rejecting to recognize it, Israel has legal personality and is bound by international law to follow and respect international system. Considering Israel through constitutive theory it would mean that Israel would not be protected and would not have the legal right to defend its territory. even though that the Arab community do not recognize Israel, still have to acknowledge Israel and their legal duties that flow from international treaties that all parties have signed.  [26]   Despite the fact that Constitutive theory has not been formalized in any treaty, it has some applications in the international cases. . The Permanent Court of International Justice, used the premises of the constitutive theory in the Lighthouses case where effectiveness was disregarded for the fiction of continued sovereignty of the Turkish Sultan .  [27]  A second instance was the Morocco case regarding the continued sovereignty of Morocco although under the French Protectorate.  [28]  . Recognition without completion of statehood requirements of territory, population and effective government are present in some cases of former Yugoslavia. Bosnia was unanimously acknowledged by the General Assembly to the UN on 22 May 1992  [29]  , despite that Bosnia was losing some of the basics of statehood conditions. . 10092954 The different between the recognition of state and the recognition of government: Governments recognition is an acceptance by the recognizing state that the system in question is the effective authority and such demonstrate the will to cooperate.  [30]  Government and state are two inseparable factors; recognition of a state automatically grants recognition to the government.  [31]  It is generally accepted that the legal personality of a state does not affect the change of the government within the state.  [32]   Recognition of a government can be de jure (legally recognised), or de facto (regardless of whether or not it has been legally recognised). Israel was recognized by the United States and the United Kingdom by the device of having its government recognized de facto.  [33]   There are many efforts can arise in time of war or revolution. Crawford argues that belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State  [34]  . Clearly then, recognition neither changes nor determines the legal personality of entity under the international law. This was confirmed in Tinoco case: non-recognition for any reasonà ¢Ã¢â€š ¬Ã‚ ¦cannot outweigh the evidence disclosedà ¢Ã¢â€š ¬Ã‚ ¦as to the de facto character of Tinocos government, according to the standard set by international law  [35]  . When diplomatic relations with unrecognized government are suspended legal bindingness are still applicable. . 10092954 In conclusion, it is important to acknowledge the valuable elements and weaknesses of both theories. In addition, both have found application in the international political and legal scenario. The declaratory theory focuses on the international factual situation while the constitutive concentrates on the external legal rights and duties. As Worster said : Recognition alone does not create the internal factual situation of statehood, but may help to inspire such coalescence.  [36]  . Obviously neither theory is perfect. Because of that the international community leans to adopt the middle position and resolve the happening problems on individual bases by applying the most related element from both theories. It is Clearly that they are not mutually exclusive and on many circumstances confirmed that if they applied together ,it would allow an averting of complex legal questions regarding a new state and they are avoid political disorder. 10092954

Advantages and Disadvantages of Using Computers Essay

I think this is an interesting topic when i am indeliberate in surfing some webs. And i wonder why no one discuss this?. So, i am eager to make the first writing . Nowadays, most of people know to use computer. But what purposes they use it for ?. that ‘s way we really recognize that it is so bad or good to use computer. You know, up to the ages, we classify the benefits of computer are. For people who work in big companies are required to know how to use computer for manage the project or only composing the contract, saving the database, even making a important data security for firm. In fact, A great benefit that a computer certainly work effectively and as replaced thousands of people to solve the complex tasks by only one person or group. That save much money and time and even worker’s strength. And computer is the intelligent device for students to study, especially IT students. They can search documents which are related their curriculum or any information they are interested in their life on internet if that computer has global network. On the other hand, most of people are tired after sitting with computer for work a long time in day, may relax their mind with many kinds of games they want, listen to music, study English and so on†¦ In a word, computer is the best device to everyone for many variety purposes. However, some people use computer for bad idea. it is nothing to useful for children are crazy for games day by day. That makes children don’t continue to study and their marks is gradually lower and lower. Furthermore, it is easy to attract crazy children and student with depraved culture. In my opinion, our government are forbidding strictly behaviors uploading badly depraved things on internet. And certainly have to advice children and their parent to avoid putting bad those in their computer. I am strongly disagree people who make children go down in an our developing country who will be the main leader our country in the future.

Admission to MBA Course

My principal objective and life’s ambition had always been to work in an atmosphere that not only demanded the utmost of my potentiality but also challenged my abilities.   It is commonplace for soldiers to be accoutered with fully loaded weapons and the requisite mental preparedness to emerge victorious in battle.In a similar manner, I have always possessed enormous experience, organizational abilities and psychological preparedness in meeting the demands of the contemporary work environment.I have experience of working in physical care and wellness and I completed an undergraduate course in Kinesiology and Nutrition. Prior to the year 2000 I worked for the United States Army as a Production Controller. My tenure with the US Army helped me to achieve organizing capabilities and expertise in management and supervision.During the years from 2000 to 2003, I was associated with the Women’s Hospital of Texas as an administrative assistant, where I gained expertise in the allotment of duties to office personnel, preparation of medical charts, physician’s reports and the radiology department’s clinical reports.These reports had to be prepared and submitted to the physicians of the hospital on a daily basis. I also assisted the radiologists, physicians, patients and their families and extended my moral support to patients and their near relatives, in order to alleviate their suffering. In this task, I invariably offered my best efforts and always lent a helping hand in a friendly manner.I developed a number of supervisory skills, like keeping track of office supplies and ensuring that stocks were always available. I maintained the secrecy of patients’ records filed with the hospital.My extensive experience helped me to assume positions involving multifaceted responsibilities. Consequently, I gained considerable organizing skill and the competence to be a part of large-scale facility projects.Thereafter there was no turning back. I became very proficient in budgeting, scheduling of events and the promotion of customer relations. All these activities enabled me to become very good at building teams and to assume the position of a role model for others. Subsequently, I acquired program management skills and was extremely successful in providing service in the corporate environment.In addition, I possessed adequate knowledge to recruit, train and encourage professional staff development. I also worked in group facilitation, and in this particular field I emerged as an undisputed leader. My communication skills were proved on many an occasion to be outstanding.I am extremely proficient with the Microsoft Office applications Word, Excel, PowerPoint, Project, Publisher and software applications like FitLinxx, MediTech and Eclipse. Whilst working as a Product Sales Developer in TechnoGym USA, Seattle, WA and I developed programming around Easy Line circuit equipment and provided essential product information to the s ales personnel.This entailed the design of presentations, making conference calls and preparing product literature to improve sales and the preparation, execution and revision of project plans.I have faced a number of challenges in life. One of them relates to my tenure in the military. I joined up at the age of nineteen and to put it frankly I was all at sea. We had to undergo physical exercises six days a week for an hour at a stretch. It was not much different from physical torture.Then we were made to march for twelve miles with a rifle and a forty pound knapsack. Afterwards we had to stand at attention, without making even the slightest of movement. In addition, we had to memorize and answer a number of questions while waiting in line for food.Emotionally our psyche took a tremendous beating, as we were not allowed to see our family members or friends till a month had elapsed, which forced us to develop new friends.This experience proved to be a baptism by fire and I emerged mu ch stronger and better equipped to face the worst in life. I developed self reliance, team spirit and since the targets were never ending it became second nature to strive for attaining goals. This served to enhance my ambition and fighting spirit enormously.I have received several citations and certificates for the exemplary work performed by me. I am a trained instructor in Yoga, Spin, Pilates and CPR. My life’s ambition is to start a Health and Fitness enterprise. To this end I would like to commence studios that take care of fitness and provide personalized training.My observation has been that a significant number of institutions that offer fitness services do not cater to individual needs. My enterprise will take a very close look at the nutritional value of the food being consumed by my clientele. There will be stores for such purchases and these stores will offer customized shopping services.I will implement meal plans that will take into account the specific requirem ents of my customers. My principal objectives are to develop skills related to the management of projects, develop self – sufficiency and conduct a successful business. Moreover, I intend to travel extensively for both business and pleasure, because travel expands the mind.These are my aspirations and a few of my extensive accomplishments. The next logical step is to obtain suitable formal education in management.   This will not only improve my career prospects but also help me to perform at my optimum level. Thus, I made a survey of the different colleges offering the MBA program and concluded that the Marylhurst University’s MBA program was best suited to my unique needs.This program produces professionals with strong interpersonal, analytical and communication skills with a holistic view of the business process from the shop floor to the retail outlet. The faculty members are working professionals, who keenly and unstintingly, impart their professional experience to the students, which renders this course very valuable. Moreover, the curriculum is flexible and pragmatic in its approach and content and emphasizes the application of the principles taught in class to the real world.The cardinal objectives of this program are to enable the student to possess the latest knowledge in such diverse fields as accounting, finance, law, etc; to become extremely proficient in analyzing national and international business environments; to comprehend the latest business concepts and emerging trends in management and information technology and discover one’s professional competencies in order to enhance one’s career prospects.Obviously, such a combination of goals and competencies is unique in the MBA programs available in this country and management graduates from this university perform exceptionally well in the industry. Therefore, it is my intention to register with this great university’s MBA program (Master of Business Administr ation).ReferencesMaster of Business Administration. (n.d.). Retrieved October 29, 2007, from Marylhurst University: http://www.marylhurst.edu/mba/mba.php

Family Is A Gift That Lasts Forever Essay - 1083 Words

Terri Burritt said â€Å"A family is a gift that lasts forever.† The word family has different meanings to different individuals. To some, family may be a positive or negative experience, or a group of blood related individuals. To me the word family has a positive meaning and means when individuals, blood related or not, helps one another, supports each other, loves each individual when they are in times of need, or just everyday living and having a long-term commitment of always being there when ones in a time of need. Family is one of the most important things that I will be apart of in my world. When a family member is in a time of need, other family members rally and give their time, energy and money to help support the one in need. I remember two years ago on January 31st when my dad was very ill and was rushed to the Idaho Falls Hospital. 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