3.3. State Recognition under International Law Regime
In this section of the article, the issue of whether other states should recognize Somaliland as an independent state or not will be addressed. Moreover, I will evaluate the effect of the recognition or the non-recognition by other States on the Statehood of Somaliland in the context of International Law. In the current understanding and discourse of international law regime, there are two different views that deal with the issue of state recognition.
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3.3.1. Constitutive Theory
The first theory that deals with the issue of state recognition is constitutive theory. According to this theory, a new state gets its recognition if and only if it is recognized by the already established states and recognition is mandatory (Lauterpachet, 1947). When we apply this principle to the current understandings of international law regime, a “state” has to be recognized by the member states of the United Nation in order to have a status of international legal personality. If there is no recognition from the member countries of the UN, a new “state” will not have legal personality under international law. This theory is full of criticism. The main criticism is related to the non-recognized state’s obligation and the theory seems to conclude that, prior to recognition there is no obligation. But, this assertion does not work and non-recognized states are also entitled to enter into legal obligation. For example, the unrecognized state Somaliland has signed a treaty with elected with 55 percent of the vote. At the time of our meeting, he’d already met leaders in neighboring Djibouti and Ethiopia for the use of its port of Berbera (Alison, 2007).
3.3.2. Declaratory Theory
The second theory concerning a state recognition is declaratory theory. According to this theory, a state will be recognized and have a legal personality under international law immediately when it fulfills the requirement of statehood under international law and recognition can serve no legal significance than political purpose. The advocates of this theory further argue that, when a state fulfills the requirement of statehood, it immediately establishes an obligation on other states to recognize the new state. Even though the proponents of this theory argue in this way, the current state practice does not show this reality.
Based on the above two theories, it is possible to reach a conclusion that, state recognition is discretionary and it does not have any legal purpose under international law. If sate recognition is discretionary and outside the scope of the law, dealing either with declaratory or constitutive theory lacks any utility (Ian, 1979).
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