Teori-Teori Pengakuan dalam Hukum Internasional

Summary

This video discusses the concept of recognition in international law, focusing on two main theories: the constitutive theory and the declaratory theory. The constitutive theory argues that recognition by other states creates a new country, granting it legal personality, while the declaratory theory asserts that recognition merely acknowledges an already existing state based on factual circumstances. The video also highlights recent European practices regarding the recognition of new states and the conditions tied to recognition, including respect for human rights, democracy, and territorial integrity. Viewers are encouraged to explore these theories further in referenced texts.

Takeaways

• 😀 The video discusses the concept of recognition in international law, specifically how states recognize the existence of other territories or countries.
• 😀 Recognition is considered a political act rather than a legal one, where states acknowledge the existence of a new state or territory.
• 😀 The recognition of a state allows it to join the international community and gain legal personality in international law.
• 😀 There are two main theories of recognition: the constitutive theory and the declaratory theory.
• 😀 The constitutive theory argues that recognition by other states creates a new state, granting it legal personality in international law.
• 😀 According to the constitutive theory, a state without recognition cannot have rights or obligations in international law.
• 😀 The declaratory theory, on the other hand, posits that recognition is merely a formal acknowledgment of an already existing factual situation, where the new state's capacity is based on facts, not the approval of other states.
• 😀 The declaratory theory emphasizes that a state forms independently and does not require recognition by other states to gain legal capacity in international law.
• 😀 According to the declaratory theory, recognition is simply a formal announcement of a state’s existence once it meets the requirements under international law, such as those in the Montevideo Convention of 1933.
• 😀 A recent European practice in recognizing new states, as outlined in the 1991 guidelines for recognition of new states from Eastern Europe and the former Soviet Union, involves requirements related to democracy, human rights, and territorial integrity.
• 😀 The video encourages further study of these theories through books by Malcomson and JG Stark for a more in-depth analysis of state recognition.

Q & A

What is the basic concept of recognition in international law as explained in the video?

Recognition is described as the free act of one or more states acknowledging the existence of a certain territory, enabling the recognized entity to become part of the international community. It is more of a political action than a legal one.

What are the two primary theories of recognition discussed in the video?

The two main theories of recognition are the constitutive theory and the declaratory theory.

What does the constitutive theory argue regarding the creation of a new state?

The constitutive theory argues that recognition by other states is what creates a new state and grants it legal personality in international law. Without recognition, a new state cannot participate in international law.

How does the declaratory theory differ from the constitutive theory in terms of state recognition?

The declaratory theory asserts that recognition is simply an acknowledgment of a situation that already exists. A new state acquires international legal capacity based on factual circumstances, not on the recognition or approval of other states.

What is the view of the constitutive theory on the legal standing of a state that is not recognized?

According to the constitutive theory, a state that is not recognized by other states does not have rights or obligations under international law and is not considered a full international legal subject.

According to the declaratory theory, what determines the status of a state in international law?

In the declaratory theory, a state's status in international law is determined by its factual existence, having fulfilled the criteria set by the Montevideo Convention of 1933, rather than by the recognition of other states.

What is the significance of the Montevideo Convention in the declaratory theory of recognition?

The Montevideo Convention of 1933 outlines the criteria for statehood, such as a defined territory, a permanent population, a government, and the ability to enter into relations with other states. It is used as a basis to determine the status of a state in international law.

What did the 1991 Declaration in Europe state regarding the recognition of new states?

The 1991 Declaration outlined guidelines for recognizing new states in Eastern Europe and the Soviet Union, emphasizing respect for international agreements, democracy, human rights, ethnic and national minority rights, territorial integrity, and peaceful border changes.

What are some of the commitments required by the 1991 European Declaration for recognizing new states?

The declaration requires commitments to uphold the United Nations Charter, respect for human rights, guarantees for ethnic and national minorities, peaceful border adjustments, arms reduction, nuclear non-proliferation, and the resolution of disputes through agreements or arbitration.

What is the main critique of the constitutive theory as presented in the video?

The main critique of the constitutive theory is that it overlooks the practical realities of statehood, where a state's capacity to act and its legal standing can be established without the formal recognition of other states, as argued by the declaratory theory.