PUBLIC INTERNATIONAL LAW PROJECT THE T HE ORI E S OF S T ATE AT E RE COGNI COGNI TI ON:
“
DECLARATORY V. CONSTITUTIVE” CONSTITUTIVE”
PROJECT SUBMITTED TO: MR. MANWENDRA KUMAR TIWARI
(ASSISTANT PROFESSOR OF LAW)
PROJECT SUBMITTED BY: R ISHI ISHI SEHGAL
Semester IV, Section B
R OLL OLL NO. 115
AM MANOHAR LOHIYA NATIONAL LAW DR . R AM
U NIVERSITY. LUCKNOW, UTTAR PRADESH
ACKNOWLEDGEMENT
I, Rishi Sehgal, would like to humbly present this project to Mr. Manwendra Kumar Tiwari. I would first of all like to express ex press my most sincere gratitude to Mr. Manwendra Kumar Tiwari for her encouragement and guidance regarding several aspects of this project. I am thankful for being given the opportunity of doing a project on ‘the theories of State Recognition.’ I am thankful to the library staff as well as the IT lab staff st aff for all the conveniences they the y have provided me with, which have played a major role in the completion of this project. I would like to thank God for keeping me in good health and senses to complete this project. Last but definitely not the least, I am thankful to my seniors for all their support, s upport, tips and valuable advice whenever needed. I present this project with a humble heart.
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TABLE OF CONTENTS
CHAPTER 1: INTRODUCTION .............................................................................................. 3 CHAPTER 2: STATEHOOD ....................................................................................................5 CHAPTER 3: TRADITIONAL CRITERIA OF STATEHOOD............................................... 6 CHAPTER 4: DECLARATORY THEORY OF STATE RECOGNITION ............................. 9 CRITICISM.................................................................................................................................. 11
CHAPTER 5: CONSTITUTIVE THEORY ............................................................................ 12 CRITICISM.................................................................................................................................. 14
CHAPTER 6: ATTEMPT AT SYNTHESIS ........................................................................... 16 CONCLUSION........................................................................................................................ 19
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CHAPTER 1: INTRODUCTION To recognize a community as a State is to declare that it fulfills the conditions of statehood as required by international law. If these conditions are present, existing States are under the duty to grant recognition. In the absence of an international organ competent to ascertain and authoritatively to declare the presence of requirements of full international personality, States already established fulfill that function in their capacity as organs of international law. In thus acting they administer the law of nations. This rule of law signifies that in granting or withholding recognition States do not claim and are not entitled to serve exclusively the interests of their national policy and convenience regardless of the principles of international law in the matter. Although recognition is thus declaratory of an existing fact, such declaration, made in the impartial fulfillment of a legal duty, is constitutive, as between the recognizing State and the new community, of international rights and duties associated with full statehood. Prior to recognition such rights and obligations exist only to the extent to which they have been expressly conceded or legitimately asserted by reference to compelling rules of humanity and justice, either by the existing members of international society or by the community claiming recognition 1. These principles are believed to have been accepted by the preponderant- ant practice of States. They are also considered to represent rules of conduct most consistent with the fundamental requirements of international law conceived as a system of law. However, while followed in practice with some regularity, they cannot be regarded as having formally acted upon or clearly perceived by governments. Neither had they secured the assent of the majority of writers. In today’s 21st Century, the international community continues to develop to the extent that even the existence of a new State is possible as the world map continues to change. But what are Statehood criteria and what does a nation have to do to become a State? What if a nation fulfils the Statehood criteria and yet the international community denies it Statehood? The great gap in the appearance of such a nation, that claims statehood in the international community as a State with full international personality, appears to be the lack of international recognition by the other States, including United Nations’ membership, whic h could demolish its potential Statehood. 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 1
1 Oppenheim, International Law (5th ed. Longman Publishers 1937). 3
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 collectively. 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? In the area of state recognition, no theory of recognition has extinguished competition because no political choice has gained universal acceptance. The predominant political choice is most frequently deliberate indeterminacy, a co-existence of mutually opposing arguments. This indeterminacy is most likely deliberate because it permits the underlying rationale for the legal actor’s policies to change and evolve to suit the situation. International recognition is one of the most difficult concepts in international law because of both its political and legal dimensions. Between the legal framework and the States' practice, it is hard to have a solid position on whether the entity is a State or not. James Crawford, a leading scholar in the field of Statehood, emphasized the linkage between the act of recognition and the notion of Statehood as an inevitable connection. Two well-known competing schools of thought have dominated the debate on this matter, namely the constitutive theory and the declaratory theory. While traditionally commentators have expressed their preference for one theory over the other, the following will endeavour to show that both theories are prone to criticism and hence potentially problematic in practice.
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CHAPTER 2: STATEHOOD Legal writers have suggested many definitions of statehood. Though there are pre-modern antecedents to defining 'state,' these are discussed thoroughly elsewhere2. By the turn of the century, Franz Von Liszt was writing that independence (Selbstdndigkeit) and supremacy over territory (Landeshoheit) were indispensable attributes of the state3. Earlier, Pasquale Fiore, in Italy, emphasized political power as well, along with law: The State is an association of a considerable number of men living within a definite territory, constituted in fact as a political society and subject to the supreme authority of a sovereign, who has the power, ability and means to maintain the political organization of the association, with the assistance of the law, and to regulate and protect the rights of the members, to conduct relations with other states and to assume responsibility for its acts. Thomas Baty, in his 1930 Canons of International Law, called a state "an organized people, that is, an assemblage of human beings among whom the will of an ascertainable number habitually prevails." 4 This would appear to continue the emphasis on "sovereignty"-the existence of an organized political power over a territory and people. Baty went a little further than some legal writers in defining the internal character of the state. "It is a complex function," he wrote, "whose elements are the people, their culture and traditions, the land they live in, and their organization as a coherent whole." Finally, Baty proposed as a criterion of statehood a characteristic akin to independence, though perhaps better described as self-containment: "the existence among the people, or the bulk of the people, of a certain mutual reliance, not participated in by the outside world. In a departure from other writers, Hans Kelsen attempted to define statehood in terms of law: The state is not its individuals; it is the specific union of individuals, and this union is the function of the order which regulates their mutual behaviour . One of the distinctive results of the pure theory of law is its recognition that the coercive order which constitutes the political community we call a state, is a legal order. What is usually called the legal order of the state, or the legal order set up by the state, is the state itself. Law and state are usually held to be two distinct entities. But if it be recognized that the state is by its very nature an ordering of
2
Malcolm Shaw , International Law (5th ed, Cambridge University Press 2003). Franzvon Liszt, Das Volkerrecht: Systematisch Dargestellt ¶ 65-66,70-72 (1904). 4 Thomas Baty, The Canons of International Law ¶ 9-10 (1930). 3
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human behaviour, that the essential characteristic of this order, coercion, is at the same time the essential element of the law, this traditional dualism can no longer be maintained 5. To Kelsen, territorial supremacy was less a criterion in itself than a reflection of the real defining characteristic. The essence of the state was a legal system exercising control over a territory and a people: If a power is established anywhere, in any manner, which is able to ensure permanent obedience to its coercive order among the individuals whose behaviour this order regulates, then the community constituted by this coercive order is a state in the sense of international law. The sphere in which this coercive order is permanently effective is the territory of the state; the individuals who live in the territory are the people of the state in the sense of positive international law.6 Kelsen's formulation did not emphasize independence, as had previous definitions, nor territoriality. In light of future developments, its most noteworthy omission, however, would be the element of international legality. Though states in the 1930s had expressed doubt whether an entity was a state if brought into existence through violations of international law (e.g., the Japanese-sponsored state in Manchuria), Kelsen did not view this to be significant. It is interesting that a writer conceiving of statehood as a legal order-a progressive conception in comparison to one based solely on effectiveness-did not much develop the idea that statehood required international legality. Kelsen nonetheless offered a departure from notions of statehood founded on undisciplined power.
CHAPTER 3: TRADITIONAL CRITERIA OF STATEHOOD
In order to determine which entities meet the legal conception of statehood outlined above, specific indicia have been developed and advanced. The source most widely cited as providing the basic criteria for statehood, and the standard most commonly referenced in state practice, is Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933 7. Specifically, the Montevideo Convention enumerates four criteria the aspiring entity should possess: a permanent population, a defined territory, an effective government, and the capacity to enter into relations with other states.
5
Hans Kelsen, The Pure Theory of Law and Analytical Jurisprudence, 55 HARV. L. REV. 44, 64-65 (1941-42). Id. 7 Convention on the Rights and Duties of States, 26 December 1933, 49 Stat. 3097, 165 L.N.T.S. 19. 6
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First, the requirement of a permanent population speaks to the notion that states, at the very least, are regarded as “aggregates of individuals.”8 This aggregate is needed to provide support and stability to the overarching structure of the state. Second, states should be in possession of a defined territory. Specifically, in order to be a candidate for statehood international law requires that an entity be able to exhibit actual and effective possession or control over a defined piece of territory. Similar to the population criterion, international law does not require a particular minimum area or a certain type of terrain. The third requirement is an effective government. According to James Crawford, it is arguably the most important criterion of statehood, since all the others are dependent upon it. As with the other criteria, the content of this requirement is quite scant. Rather than requiring a certain type of government, such as a democracy or dictatorship for example, the focus has been on the idea of ‘effectiveness.’ In short, as long as a government is able to exercise effective control over its territory, including the maintenance of law and order and the like, to the exclusion of all others, then this requirement will largely be viewed as satisfied. The fourth, and final, criterion is the capacity to enter into relations with other states. In order to achieve statehood it is essential that the entity be able to fully engage with other actors as an equal at the international level. Thus, the emphasis here is on ‘capacity.’ The entity desiring to become a state must demonstrate that it possesses all the attributes associated with sovereignty, and the “institutional capacity” to stand or exist on its own. However In spite of the numerous references made to it, the Montevideo criteria must be treated with caution. This is because many scholars have not only called into question whether these criteria are sufficiently detailed, or if they are altogether necessary indicia of statehood, but they have also cast doubt on its authoritative importance 9. The crux of this uncertainty, as elucidated by John Currie, is that despite the objective nature of the Montevideo criteria there exists no centralized authority that can interpret and apply these criteria in practice. Crawford specifically identifies as problematic. Capacity, he writes, "is not a criterion, but rather a consequence, of statehood, and one which is not constant but depends on the status and situation of particular States While this is a common problem with international law generally, the result here is that there have been numerous situations where
8
James Crawford, The Creation of States in International Law (2d ed. Oxford Clarendon Press, 2006). Thomas D Grant. The Recognition of States: Law and Practice in Debate and Evolution (Westport Praeger Publishing, 1999). 9
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entities have been regarded as states by members of the international community without meeting these requirements, or conversely have been denied statehood status despite meeting all of them. For example, in the first instance one can consider the acknowledgement of the Democratic Republic of Congo as a state in 1960 even though this status was conferred at a time when a significant part of Katanga was trying to secede. Similarly, the recognition of Bosnia-Herzegovina as a state occurred at a time when its very existence was very much reliant on the physical presence of the UN and NATO. In the second instance, one can look at the Turkish Republic of Northern Cyprus, which appears to fulfil all the Montevideo criteria and yet remains largely unacknowledged as a state. A second element of the Montevideo definition sometimes criticized is that of territory. Starke and Shearer take the view that territory is not necessary to statehood, at least after statehood has been firmly established 10. Crawford even suggests that effectiveness-the linchpin of Montevideo-is not critical to statehood. States annexed from 1936 to 1940, Crawford notes, continued to enjoy legal personality. Though their governments lost all territorial power, the Polish, Yugoslav, Czechoslovak, and Baltic states r etained recognition, at least by the Allied Powers. In the context of the recent civil strife in Somalia, it has also been noted that statehood survives illegal occupation 11. It therefore appears to be the case that once an entity has established itself in international society as a state, it does not lose statehood by losing its territory or effective control over that territory. Going a step further, it may even be that an entity can become a state in the first instance without having yet acquired territory. Though not a common event in state practice, 'nationhood' has been attributed to entities that never before enjoyed any territorial control. France recognized Poland and Czechoslovakia as 'nations' during World War I. Though Poland had once been a state, this had little direct legal consequence. The Polish National Committee which benefitted from French recognition was headquartered at Paris, had never had a seat in Poland, and could make no realistic claim of continuity to a state which had disappeared from the map of Europe in 1815. Poland and Czechoslovakia had no territory, yet the French act "recognized their right to raise an army, to have a national flag, to have military tribunals authorized to judge their nationals."' An extensive set of state-like
10
Starke's International Law 85 (I.A. Shearer ed., 1st ed. 1994). Yemi Osinbajo, Legality in a Collapsed State: The Somali Experience, 45 INT'L & COMP. L.Q. 910, 910 -11 n.4 (1996). 11
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competencies was thus recognized in entities lacking any territorial foothold, and, more remarkably, never having had a territorial foothold. However, arguably the criterion that has come under the most scrutiny has been the capacity to enter into relations with other states. Although the notion of capacity is potentially useful, since it is an indicator of ability or competence, many academics argue that taken as a whole this criterion is not a necessary prerequisite for statehood. Crawford argues representatively that capacity is not a condition for statehood, but instead a consequence of statehood, “and one which is not constant but depends on the status and situation of particular states 12.” Instead, he asserts that capacity is the result of the conflation of two other important criteria, namely effective government and independence. Although the latter is not specifically mentioned by name in the Montevideo definition, Crawford argues that independence, both formal and actual, is a generally accepted criterion for statehood. This classic statement regarding ‘independence’ was articulated in the Austro-German Customs Union Case 13. In its decision, the Court outlined the two main elements of independence: the separate, sovereign existence of a state; and it’s not being subject to the authority of any other state or states. Whereas the first element is largely dependent on the ability of a supposed state to meet the other Montevideo criteria discussed above, it is argued that the second element suggests that something more is required – the absence of foreign control. In short, even if the other Montevideo criteria are met, this will mean little if the state is not free from undue foreign influence.
CHAPTER 4: DECLARATORY THEORY OF STATE RECOGNITION The declaratory theory looks to the purported state’s assertion of its sovereignty within the territory it exclusively controls to determine if it can access the international plane. an entity becomes a state as soon as it meets the factual criteria of statehood. In other words, the conditions of statehood, however defined, confer a legal status on the entity in question independent of recognition. Therefore, recognition would actually play no part in constituting a state, but would merely be an acknowledgment of an already pre-existing state of affairs. According to Crawford, where a state factually exists, “the legality of its creation or existence 12
James Crawford, The Creation of States in International Law (2d ed. Oxford: Clarendon Press, 2006). Customs Regime Between Germany and Austria, Advisory Opinion (1931), P.C.I.J. (Ser. A/B) No.41 [AustroGerman Customs Case] ¶ 45. 13
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must be an abstract issue: the law must take account of the new situation. Thus, the status of statehood is based on fact, and not on the discretion of individual states. In effect, the declaratory theory suggests that recognition is, at most, a diplomatic or political act and not a legal one. In so recognizing, a state merely acknowledges and accepts the legal personality of the new state in order to further international relations. This notion that recognition has a status-confirming effect rather than a status-creating effect is rooted in the view that a state is not merely a bundle of legal rights. Instead, a state is more than a purely legal construction, that can factually “precede the acquisition of international legal rights” and “presumably survive” their loss. Consequently, the existence of a state is not contingent upon the acquisition of such rights meaning that recognition should be, in principle, automatic if certain objective criteria of statehood are satisfied. According to Brownlie, “if an entity bears the marks of statehood, other states put themselves at risk legally, if they ignore the basic obligations of state relations. 14” Hence, proponents argue that by limiting discretion, the declaratory theory seeks to establish a process that is more legal, than political in nature. A significant body of opinion supports the declaratory theory. Many commentators argue that this predominance has been supported in practice. For instance, the German-Polish Mixed Arbitral Tribunal held – in regards to the existence of the ‘new’ state of Poland after the First World War – that, “the recognition of a State is not constitutive but merely declaratory. The State exists by itself and the recognition is nothing else than a declaration of [its] existence”15 Proponents argue that similar sentiments can be found in the pronouncement of the ICJ in the Bosnian Genocide case, where the Court held that Bosnia-Herzegovina was competent to bring the claim as of the moment it became a state regardless of when the FRY decided to recognize it16. This support for the declaratory theory can also be seen in the words of the Arbitration Commission established to advise the European Peace Conference on Yugoslavia (Badinter Commission). In its first opinion on 29 November 1991, the Badinter Commission
14
Ian Brownlie, cited in Crawford, “Creation of States”, ¶ 25. Deutsche Continental Gas-Gesellshaft v. Polish State (1929), 5 I.L.R. 11 ¶ 14-15 (German- Polish Mixed Arb. Trib.). 16 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) , [1996] I.C.J. Rep. ¶ 5 95, 612-613. 15
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stated that, “the effects of recognition by other States are purely declaratory.” 17 Despite this substantial body of opinion, there still remain several drawbacks to the declaratory theory. CRITICISM
Arguably, the main criticism levelled against the declaratory theory is that it tends to too completely disregard the importance recognition has in enabling entities to fully participate as states at the international level. For instance, it may be difficult to substantiate that an entity, which has not been recognized by any other states, can claim to actually function as a state if it cannot effectively demonstrate that it possesses the ‘ability’ to enter into legal relations with other states. In other words, even if a state has met the criteria for statehood, of what use is this practically if other states choose to take no notice of its status and thereby constrain its ability to act at the international level? In short, mere existence may not matter if other states are unwilling to treat an entity as having the rights of a state. Thus, even if an act of recognition is not constitutive, it still arguably remains a vitally important step in the process of a state’s accession to full statehood in practice. Similarly, critics of the declaratory theory contend that if an act of recognition were devoid of all importance then there would be virtually no consequences attached to a threat of non-recognition. In short, the decision to not extend recognition to a supposed state would be futile under the declaratory model. However, acts of non-recognition have occurred in state practice meaning that some manner of consequence must be attached to such an act. This leaves proponents of the declaratory model with a theoretical dilemma if they wish to justify such an act of non-recognition in a manner that is consistent with their point of view – i.e. that acts of non-recognition do not result in the withholding of the rights and privileges which are inherent to statehood. Thus, these proponents attempt to justify acts of non-recognition on the basis of a particular entity’s failure to meet the legal criteria of statehood in the first place, or because of its failure to comply with international law and not because the act of recognition itself has some sort of constitutive effect. Another drawback of the declaratory model is that it ignores the fact that even if the mantel of statehood is ‘automatically’ bestowed on a given entity, the issue of state discretion has not necessarily been removed from the equation. Although the theory emphasizes that entities will automatically become states upon meeting the prescribed criteria for statehood, it still
17
Conference on Yugoslavia, Arbitration Commission, Opinion No. 1 [ Disintegration of the S.F.R.Y.], 29 November 1991, 92 I.L.R. 165. 11
remains up to individual states to ascertain whether this is indeed the case. As described above, there are two problems with the existing statehood criteria that would impact any such determination. First, there is a lack of consensus on what exactly are the criteria for statehood. The possibilities for criteria are currently contentious and are often not consistently applied. This undermines the supposed strength of the declaratory model, which is that it allows for predicable determinations as to which entities are states and which entities are not. Second, even if the criteria to be used are clear, a further problem is their consistent and objective application. Thus, the political attitudes and interests of individual states remain a potential obstacle to the neutral assessment of supposedly fixed legal criteria.
CHAPTER 5: CONSTITUTIVE THEORY According to the constitutive theory, recognition by other states is an essential prerequisite of statehood18. Only recognition makes a state a state: “a state is, and becomes, an International Person through recognition only and exclu sively.”19 From this standpoint, recognition is viewed as an additional requirement of statehood implying that the entity in question is not a state, at least in a legal sense, until others recognize it as such. In short, the act of recognition creates or ‘constitutes’ the state. Consequently, this theory presumes that the entity seeking recognition possesses neither the rights nor duties pertaining to statehood, regardless of whether they satisfy the criteria of statehood outlined above, until the international community recognizes its existence. The constitutive theory reflects a particular conception of statehood, namely that a state is a “bundle of rights” at the international level, “and nothing more.” 20 From this perspective, a state’s existence is contingent upon the acquisition of those rights. Rights, in other words, are determinative of status. Since proponents of the constitutive theory hold that a supposed state’s enjoyment of rights and privileges at the international level is dependent on their ‘conferral’ by existing states, the act of recognition becomes key. In light of the fact that putative states acquire rights only as a result of the ‘consent’ of existing states, the constitutive theory also reflects a particular conception of the role that state discretion plays in the granting of recognition. 18
John H. Currie, Public International Law (2d ed. Toronto Irwin Law, 2008). Talmon, Stefan, “The Constitutive Versus the Declaratory Theory of Recognition: Tertium Non Datur ?” (2005) 75 Brit. Y.B. Intl L. 101; Oppenheim, L International Law. (9th edn. Longman Publishers, 1992). 20 Worster, William Thomas, “ Law, Politics, and the Conception of the State in State Recognition Theory ” 19
(2009) 27:115 B.U. Int’l. L.J. 115. 12
The Permanent Court of International Justice, the predecessor to the International Court of Justice, appeared to endorse the constitutive theory in two opinions: the Lighthouses case, where effectiveness was disregarded for the fiction of continued sovereignty of the Turkish Sultan,21 and the Rights of Nationals of the United States of America in Morocco case, regarding the continued sovereignty of Morocco although under the French Protectorate 22. Also the International Criminal Tribunal for the f ormer Yugoslavia, the International Court of Justice’s neighbour in The Hague is also supportive of the constitutive theory. In the Čelebići case, the I.C.T.Y. held that the conflict within the former Yugoslavia was only of an international nature after international recognition of the independent statehood of Croatia and Bosnia and Herzegovina 23. In the Tadić case also at the I.C.T.Y., Judge Li, in a separate opinion, criticized the majority for applying the constitutive theory. Judge Li argued that the conflict should have been seen as international from the moment of Slovenia’s and Croatia’s declarations of independence, not because of recognition by others 24. In addition to these decisions of international tribunals or commissions, the act of recognition seems to increasingly be attributed with constitutive effect within the international legal system. States such as Croatia, Eritrea, and Central and Eastern European states arising from Woodrow Wilson’s dismemberment of the Habsburg and Ottoman Empires, have survived extinction or been revived from extinction by the international community. Bosnia-Herzegovina and Croatia arguably did not fully satisfy the criteria for declaratory recognition, so the recognition of those entities as new states may have had constitutive effect despite the supposed intended application of the declaratory theory 25. For some microstates, their relatively recent admission to the U.N., as well as recognition by other states, may have clarified their position in international law, crystallized their rights, and assisted in their constitution, regardless of the intended effect of their recognition. We can also see situations where the existence of emerging states was blocked by other, more powerful states, which would only be possible if statehood was in the control of existing states. Also, we can see situations where states, that had lost all factual qualification as such, were maintained as essentially legal fictions by the international community. This suggests 21
Light House (Fr. v. Greece), 1934 P.C.I.J. (ser. A/B) No. 62, at 4 (Mar. 17). Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), 1952 I.C.J. 175, 188. 23 Prosecutor v. Delalić, Case No. IT-96-21-T, Judgment (Nov. 16, 1998) 24 Prosecutor v. Tadić, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Oct. 2, 1995) (separate opinion of Judge Li). 25 Matthew C.R. Craven, The European Community Arbitration Commission on Yugoslavia, 1995 Brit. Y.B. Int’l L. 333, 375. 22
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that recognition both constitutes and maintains the legal personality of other states whose reality would suggest that they no longer existed, or exis ted in a fictitious state. Although this finding is usually argued because of the illegality of the occupation of the state, if statehood was truly declaratory, then the ending of effective control and independence would necessarily mean the extinction of the state. These cases are significant because they evidence that entities only receive international rights and obligations when they are recognized by other states as states. It is commonly observed that “only states sit on the United Nations Security Council, only states petition the International Court of Justice and only states participate in the Nuclear Non-Proliferation Treaty regime.” Recognition of statehood changes the range of actions available to an entity and also changes the expectations of the international community regarding the behaviour of the new state. Generally speaking, the constitutive theory affords states considerable discretion in deciding whether a new state has emerged. Thus, despite the fact that constitutive theory attributes significant legal consequences to the act of recognition, the decision to extend recognition is subject to the discretionary, political inclinations of each and every individual state. In sum, the constitutive theory stipulates that a state is only a state upon the political act of recognition by existing states, which is status-creating in its effect. CRITICISM
In spite of arguments by its proponents that constitutive theory brings a measure of legal certainty to the process of recognition, the theory nevertheless suffers from several drawbacks. First, a criticism that is often cited is that there exists little evidence in practice that states are treated as merely bundles of legal rights and obligations as the constitutive theory suggests. State practice does not indicate that states regard unrecognized states as terra nullius26 . For instance, states have often chosen to not extend recognition to a nascent state, and yet treated that entity as a “de facto state with many of the rights of a de jure state.”27 This implies that some form of international legal personality must exist in the entity in question, which predates statehood. Similarly, the constitutive theory has difficulty explaining the responsibility of non-recognized states under international law. In other words, if an entity has not been recognized as a state, meaning that it is not a subject of international
26
Worster, William Thomas, “ Law, Politics, and the Conception of the State in State Recognition Theory ” (2009) 27:115 B.U. Int’l. L.J. 115. 27 Id. 14
law and is without rights and obligations, how can the international community ascribe violations of international law to such an entity? By way of illustration, the researcher points to the attribution of responsibility to Rhodesia, which had not been recognized as a state, for several acts that violated international law. Thus, if a non-recognized state can violate international law, it must also (at least partially) be a subject of that law. Second, and perhaps the main objection to the constitutive theory, is its relativism. A state exists legally only in its relations to other states.”28 Since, the theory maintains that the existence of a state is dependent upon its recognition by other states, the potential exists for entities to be considered both states and non-states at the same time. This is due to the fact that what one state may consider to be a state, may not be shared by others. Thus, the subjective nature of this evaluation may lead to a situation where a given entity’s legal status, including its corresponding rights and obligation at the international level, is only effective vis-à-vis those states which have recognized it. This raises the question of whether an entity can be considered as having and not having an international legal personality at the same time. As a matter of law, can a state both exist and not-exist concurrently? Similarly, one might then wonder how many acts of recognition, or ‘how much’ leg al personality has to be conferred on an entity in order for it to be treated as a ‘real’ state. Arguably, such uncertainty would be undesirable. A further criticism that is often cited is the considerable discretion that the constitutive theory affords existing states in determining whether a new state has indeed emerged. One of the major concerns raised by placing such discretion in the hands of states is that the process of recognition would then be potentially subject to the influence of state politics and national interests. In essence, it reduces the state “to a subject of another states’ politics.” This influence may prompt states to either recognize entities prematurely, before they have met the other criteria for statehood, or to refuse to grant it recognition regardless of the factual situation.29 This in turn raises the related concern that the effect of this discretion may serve to undermine the principle of the sovereign equality of states. As discussed previously, the notion of the sovereign equality of states is one of the basic rights associated with statehood. Hence, the idea that one state can use its unlimited discretion to refuse to recognize the 28
Hans Kelsen, “ Recognition in International Law: Theoretical Observations” (1941) 35 Am. J. Intl. L. 605609. 29 This may provide a vehicle for major states to exert their inf luence over a given territory or region. For example, Russia’s quick, and arguably premature, r ecognition of the independence of Georgia’s t wo breakaway regions of Abkazia and South Ossetia, suggests the influence of political interests . 15
existence of another, thereby denying the extension of certain rights and privileges to it, seems to be inconsistent with the principle of sovereign equality. At its core, the above criticisms appear to largely stem from the notion that the constitutive theory is problematic in practice because it allows states to ignore the facts on the ground – that is, the factual existence of a state. If states are free to completely refuse to acknowledge the reality of such a situation, then at some point this insistence on the non-existence of a given entity has the potential to become “absurd.” In response to these criticisms, proponents of the constitutive theory have argued that states do have an obligation to recognize entities as states as soon as they have fulfilled the criteria of statehood.30 Thus, it is suggested that there exist limits on the discretion of states to deny, or to confirm, the factual existence of any would-be state. However, there is little evidence of state practice to suggest that states accept or recognize such a general obligation. Moreover, it is argued whether states can properly be said to owe obligations under international law to a state, which does not yet exist. In fact, the mere suggestion of an obligation presupposes at the very least some measure of pre-existing legal personality, which the putative state is only supposed to acquire through the process of recognition. Prima facie, this seems to undermine the essence of the constitutive theory. On the other hand, even if one accepts that such an obligation exists and that there are limits on the discretion of states this begs the question as to what criteria or what standard(s) should be employed to limit that discretion. This in turn brings one back to the issue of statehood itself, and whether the Montevideo criteria, or any additional criteria need to be fulfilled before such an obligation to recognize arises.
CHAPTER 6: ATTEMPT AT SYNTHESIS Some commentators have attempted to merge the two theories into a coherent whole, but these theories are not entirely convincing. In his classic work, Hersch Lauterpacht attempted a nuanced merger of various aspects of the two theories. 31 While accepting the hypothesis that “recognition is a momentous, decisive and indispensable function of ascertaining and declaring the existence of the requisite elements of statehood with a constitutive effect for the 30
Hersch Lauterpact, Recognition in International Law (Michigan: University Press, 1947). Id.
31
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commencement of the international rights and duties of the entity in questions,”32 Lauterpacht attached a duty of recognition to mitigate extreme cases of denial of reality. If there is, however, a duty to recognize and thus constitute a new state, then the particular legal actor holding the power to constitute the new state is not important. But if the states are indeed empowered to create new states, then there is no adequate explanation of the source of such a duty. Lauterpacht’s attempt to create a synthesis— that the constitutive theory should be applied for the notion that the new state begins its existence upon recognition and the declaratory theory for the notion that states’ discretion in recognizing the new state was constrained — suffers from a flaw as well. Although he was quick to observe that the opposite view was untenable (that the state existed regardless of recognition, but that other states had the discretion to refuse to recognize), he did not perceive the weakness of his own theory – that it might not matter where the source of the power to create a new state lies if its creation is compelled by international law. John Dugard has expanded on Lauterpacht’s theory but has found the source of the duty to recognize in admission to U.N. membership. Although Dugard appears to acknowledge the crucial role of state consent in recognition, and perhaps the constitutive effect of recognition, the discretion of those acts is tempered by international oversight. While states may have a duty to the U.N. or the international community generally to recognize a U.N. member, there is no clear remedy for a violation of an obligation to the U.N. The denying state might be liable to the U.N. for a violation of U.N. law, but the remedy for the violation might not necessarily reverse the denying state’s refusal to recognize the purported state. Thomas Grant suggests that there is more than one institution of recognition 33. This theory sounds reasonable. However, states do not seem to distinguish between rigid types of recognition. Grant’s classification is helpful because it acknowledges different legal results flowing from the same act. Because states do not appear to have the intention to create more than one institution, there might be one institution with more than one possible consequence, or an intermingling of several consequences, with certain consequences more predominant in different situations.
32
33
John Dugard, Recognition and the United Nations (1987). Thomas D. Grant, An Institution Restored?, 39 VA. J. INT’L. L. 191 (1998). 17
Michael Schoiswohl has proposed a “dissolving succession” theory in relation to Somalia, but which might apply more widely. 34 This theory proposes that recognition is declaratory when the new state’s status is not disputed, but that it is constitutive (or semi -constitutive) when the state’s personality is disputed. There is, however, no evidence that states intend for this to be the result, so we must wonder whether this can be practice and opinio juris and thus whether it is a legal principle. There is also nothing to suggest that a non- disputed state’s new existence was not constituted by recognition rather than merely declared, only that the effect of the constitution in that case was not acknowledged. It is an easy matter to argue that an act is merely declaratory when no one objects to it.
34
Michael Schoiswohl, Status and (Human rights) obligations o f non- recognized de facto regimes in International Law: The case of ‘Somaliland’ (2004). 18
CONCLUSION
International Recognition is a complicated issue under International Law where the spheres of law and politics are the basis for consideration outside the realm of the objective. Some argue that this dual feature of recognition seems to be reasonable, because the States play two roles in the International System i.e. protecting their own interest and acting in favour of international system. It is concluded that recognition does not create a new State but it is a good evidence of its existence. New states do not require recognition. Recognition of a foreign entity has both international and domestic ramifications, where countries use it to further their foreign and domestic policy goals. International Law is made by the States and breached by the States. Arguing that an entity’s existence should be dependent on recognition by other states brings a risk of abuse of this power because we cannot guarantee the objectivity of States since each works for its political interests. In light of the above it is clear that despite the declaratory theory’s supposed predominance in the literature and in the practice of states, neither theory of recognition has been able to completely ‘occupy’ the field in this respect. Given the plethora of factors faced by states when making recognition decisions, it has been suggested that neither theory sufficiently explains the emergence of new states. The principal feature of the declaratory view assertion that as the existence of a State is a fact, recognition formal act of political rather than legal relevance. Therefore a State becomes a subject of law as soon as it exists or that a State exists as soon as there exist the requirements of statehood . While this has led some academics to advance an intermediary theory of recognition, which in turn has been met with its own criticism, some state practice nevertheless suggests that a strict division between the two may be misleading. Malcolm Shaw points out that this does not imply that the act of recognition is also legally constitutive, because State rights and obligations do not arise automatically as the result of recognition. Equally, Shaw argues that if an entity went totally unrecognised, this would not amount to a decisive argument against statehood. Where facts surrounding an entity’s satisfaction of the criteria for statehood are clear, the evidentiary value of recognition or nonrecognition will not be strong enough to affect the outcome, and in such cases recognition is declaratory. Thus in declaratory theory a State exists as a matter of fact and States recognition-whether individually or collectively is not required since it is merely an
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expression of willingness by an existing state to accept the new member and to have relations with it. Finally, the fact that recognition, or non-recognition, can be a collective act, i.e. coordinated between states, as well as an individual one is an important corollary to keep in mind when one is considering the nexus between statehood and recognition as well as the blending of the declaratory and constitutive theories of recognition in state practice. In spite of its criticisms, the essence of the declaratory theory remains the one most widely endorsed by commentators who argue that this affirmation is confirmed by state practice. In other words, once an entity satisfies the criteria of statehood, the international community will treat such entities as if they were already states subject to specific obligations under international law. Recognition, then, is intended to be a declarative act that has a purely political effect. This further supports the contention that many states generally consider recognition to be a political matter governed by its own interests and independent from the issue of statehood. To this end, Crawford cites as an example the fact that even states that choose not to recognize other entities as states nevertheless do not treat them “as exempt from international law.”
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BIBLIOGRAPHY BOOKS
1. Crawford, James, The Creation of States in International Law , 2d ed. (Oxford: Clarendon Press, 2006). 2. Currie, John H. Public International Law, 2d ed. (Toronto: Irwin Law, 2008). 3. Dugard, John & David Raic, “The Role of Recognition in the Law and Practice of Session” in Marcelo Kohen, ed., Secession: International Law Perspectives (New York: Cambridge University Press, 2006) 94. 4. Grant, Thomas D. The Recognition of States: Law and Practice in Debate and Evolution (Westport: Praeger Publishing, 1999). 5. Lauterpact, Hersch, Recognition in International Law (Michigan: University Press, 1947). 6. Brownlie, Ian, Principles of Public International Law (5th ed, Claredon Press Oxford, 1998) 7. Talmon, Stefan, “The Constitutive Versus the Declaratory Theory of Recognition: Tertium Non Datur ?” (2005) 75 Brit. Y.B. Intl L. 101. 8.
Vidmar, Jure. “International Legal Responses to Kosovo’s Declaration of Independence” (2009) 42 Vand. J. Transnat’l L. 779.
9. Oppenheim, L International Law. (9th edn, Vol. 1: Peace. ‘Introduction’ and Part I, Harlow, Longman, 1992). 10. Shaw, Malcolm N, International Law (4th ed, Cambridge University Press, 1997).
ARTICLES
1. Worster, William Thomas, “Law, Politics, and the Conception of the State in State Recognition Theory” (2009) 27:115 B.U. Int’l L.J. 115. 2. Talmon, Stefan, “The Constitutive Versus the Declaratory Theory of Recognition: Tertium Non Datur ?” (2005) 75 Brit. Y.B. Intl L. 101 3. Kelsen, Hans, “Recognition in International Law: Theoretical Observations” (1941) 35 Am. J. Intl L. 4. Grant, Thomas D. “Defining Statehood: The Montevideo Convention and its Discontents” (1998-1999) 37 Colum. J. Transnat’l L. 403.
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