Introducing William Worster William Worster (1972, Boston, USA) currently serves as a lecturer at the Hague University, in the Hague, Netherlands; Research Director International Law of the Bynkershoek Institute at the Hague University; and Adjunct Professor of Law at the University of Missouri-Kansas City. His courses include Introduction to Public International Law, International Criminal Law, International Environmental Law, Sources of International Law, Subjects of International Law, Law of International Organizations, International Criminal Law Theory, and Alternatives to International Criminal Law. Previously, he has served at the International Criminal Tribunal for the former Yugoslavia and in private practice. He has studied in the US, the UK, the Netherlands, and the Czech Republic; and holds Juris Doctor and Master of Laws degrees, both concentrating on international law. He also has a Bachelor degree in Modern European History. Click here for all contributions and the contact details of this contributor

Article

International law is dominated by two competing theories of state recognition, with the “declaratory” view currently in prominence but possibly just beginning its decline in favor of the “constitutive” view. However, if indeed the constitutive view is gaining ground, then its slow and partial re-emergence is forcing us to rethink the nature of the state in international law.

The constitutive theory states that recognition of an entity as a state is not automatic. A state is only a state when it is recognized as such and other states have a considerable discretion to recognize or not. Moreover, only upon recognition by those other states does the new state exist, at least in a legal sense.

Some practice in contemporary situations may evidence the application of the constitutive theory rather than the declaratory. Numerous classical scholars have weighed in support of the constitutive theory, and many modern scholars are beginning to reexamine the constitutive theory, considering whether it provides a firmer foundation for the determination of statehood status.[1]

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. It is the opposite of the constitutive theory in that it holds that recognition is almost irrelevant because states have little to no discretion in determining whether an entity constitutes a state. The status of statehood is based on fact, not on individual state discretion. The majority of contemporary scholars and commentators favor this theory.[2]

There is considerable support for the argument that recognition is irrelevant for whether a state exists as such or not. The Montevideo Convention of 1933 states: “The political existence of the state is independent of recognition by the other states.”[3] The International Court of Justice has held in the Genocide Convention case that it adheres to the declaratory view, in the sense that the failure to maintain effective control over territory does not extinguish the legal entity in the eyes of the United Nations.[4]

It has also held in the South West Africa cases that the state as an entity with rights and obligations does not cease to exist. This opinion on the declaratory theory was also supported by the Arbitration Commission of the European Communities Conference on Yugoslavia, chaired by Robert Badinter, discussing the independence and status of states of the successor to the S.F.R. Yugoslavia.[5]

Furthermore, many national courts have recognized international rights in states that accrued before international recognition of the entity as a new state, suggesting a rejection of the notion that the state did not exist before recognition.[6] Many commentators have held that state practice clearly favors the declaratory model, that is, that the entity exists as a state before recognition.[7]

On the other hand, we have the alternate view which is that states only exist upon recognition and there is support for this perspective, although we may need to read between the lines to see it. Some authorities who claim to support the declaratory view appear to also endorse the constitutive theory in practice. The Badinter Commission initially adopted declaratory language but seems to have applied a constitutive approach to balance major tensions between the various European states.[8]

Milenko Kreća, the ad hoc Judge in the Genocide Convention case implied in his critical dissent that the Court was applying the constitutive theory.[9] 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,[10] 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.[11] Also the International Criminal Tribunal for the former Yugoslavia, the International Court of Justice’s neighbor 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.[12] 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.[13]

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.[14]

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.[15] 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.[16]

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.[17] 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 that recognition both constitutes and maintains the legal personality of other states whose reality would suggest that they no longer existed, or existed in a fictitious state.[18]

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.”[19] Recognition of statehood changes the range of actions available to an entity and also changes the expectations of the international community regarding the behavior of the new state.

It would appear that the support for the declaratory theory is partly legal and partly the more politically correct position. The constitutive theory does still attract some legitimacy, possibly partly due to the way it appears to be applied surreptitiously by tribunals. The difficulty with the either/or approach is that there is an interrelation of the two sides of the question. The declaratory theory concentrates on the internal factual situation and the constitutive theory concentrates on the external legal rights and duties. They both miss a portion of the analysis.

Furthermore, the two sides of the issue interact between themselves. By having rights a collective group may become more cohesive and may begin to have an internal political dialogue. Recognition alone does not create the internal factual situation of statehood, but may help to inspire such coalescence. Nationalism is not unknown in many apparently highly artificial states. However, recognition of the factual situation merely acknowledges facts and does not mean there are necessarily international rights, although it can lead to it.

Every act of recognition must necessarily contemplate both aspects, but generally one will be the predominant legitimizing force (though it could conceivably change retrospectively). When we choose between the recognition theories proposing the existence of the state prior to or only following recognition, we are choosing to concentrate our definition of the state on one of these two aspects of the state and, from that source, derive the other. It is to this conclusion that the re-emergence of the constitutive theory leads us.

Footnotes

[1] Lassa Oppenheim, International Law §§ 71, at 125 (Hersch Lauterpacht ed., 8th ed., 1955) (“A State is, and becomes an International Person through recognition only and exclusively.”); Hersch Lauterpacht, Recognition of States in International Law, 53 Yale L.J. 385, 419 (1944) (describing “The orthodox constitutive view which deduces the legal existence of new States from the will of those already established.”).

[2] James L. Brierly, The Law of Nations: An Introduction to the International Law of Peace (Humphrey Waldock ed., 6th ed. 1963); Ti-Chiang Chen, The International Law of Recognition: With Special Reference to Practice in the United States (L. C. Green ed., 1951); Ian Brownlie, Principles of Public International Law (1990); D. J. Harris, Cases and Materials on International Law (1983).

[3] Convention on Rights and Duties of States art. 3, art. 6, Dec. 26, 1933.

[4] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.) Prelim. Objs., 1996 I.C.J. Reps. 595 (July 11).

[5] Conference on Yugoslavia Arbitration Commission, Opinion Nos. 1, 8, 10 31 I.L.M. 1488, 1494, 1521-1523, 1525-1526 (1992) [hereinafter Badinter Commission] (“[T]he effects of recognition by other States are purely declaratory; Alain Pellet, The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples, 3 Eur. J. Int’l L. 178, 181 (1992) (wherein Pellet, who drafted most of the opinions of the Badinter Commission and championed them as a source of law for recognition, acknowledges that the Commission mixed politics into its legal analyses).

[6] See Robert D. Sloane, The Changing Face of Recognition in International Law: A Case Study of Tibet, 16 Emory Int’l L. Rev. 107, 117 (2002).

[7] Brierly, The Law of Nations, supra note 2.

[8] Cf. Badinter Commission Opinion No. 1 (“recognition is ‘purely declaratory’”) with Opinion No. 8 (although it does “confer certain rights and obligations under international law”).

[9] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.) Prelim. Objs., 1996 I.C.J. Reps. 595, 661 (July 11) (dissenting opinion Judge ad hoc Kreća).

[10] Light House (Fr. v. Greece), 1934 P.C.I.J. (ser. A/B) No. 62, at 4 (Mar. 17)

[11] Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), 1952 I.C.J. 175, 188 (Aug. 27)

[12] Prosecutor v. Delalić, Case No. IT-96-21-T, Judgment (Nov. 16, 1998)

[13] 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)

[14] See Socony Vacuum Oil Co. Claim, (U.S. Int’l Claims Comm’n, 1954) reprinted at 21Int’l L. Reps. 55, 58-62 (holding that “Croatia was … during its entire 4-year life … subject to the will of Germany or Italy or both” prior being absorbed into Yugoslavia); U.N.S.C. Res. 753 (May 18, 1992), U.N.G.A. Res. 46/238 (May 22, 1992) (admitting a ‘revived’ Croatia to the U.N. upon its independence from Yugoslavia); UNSC Res. 828 (May 26, 1993), UNGA Res. 47/230 (May 28, 1993) (admitting a ‘revived’ Eritrea, the former Italian colony administered by the U.K. and integrated into Ethiopia, to the U.N. upon its independence from Ethiopia); Act of the Congress of Vienna, June 9, 1815, arts. 1-5, 2 B.F.S.P. 7 (approving of the third, fatal partition of Poland, extinguishing the state); 1 Harold W.V. Temperley, ed. History of the Peace Conference at Paris 181-199 (1920) (describing Woodrow Wilson’s Fourteen Points, including the reestablishment of Poland as a state).

[15] See Matthew C.R. Craven, The European Community Arbitration Commission on Yugoslavia, 1995 Brit. Y.B. Int’l L. 333, 375; Recognition of States, 41 Int’l & Comp. L.Q. 473, 480 (A. V. Lowe & Colin Warbrick eds., 1992); Thomas D. Grant, An Institution Restored?, 39 Va. J. Int’l L. 191, 193-95 (1998) (reviewing M.J. Peterson, Recognition of Governments: Legal Doctrine and State Practice, 1815-1995 (1997).

[16] Jorri Duursma, Fragmentation and the International Relations of Micro-States: Self-Determination and Statehood 142 (1996) (arguing that the widespread recognition and recent admission into the U.N. of several European micro-states may have had some constitutive effect, compensating for the absence in some of those states of certain criteria traditionally viewed as prerequisite to statehood).

[17] See Crawford, Report on Unilateral Secession by Quebec, supra note, at paras. c, 8 available at http://www.tamilnation.org/selfdetermination/97crawford.htm (“Outside the colonial context, the United Nations is extremely reluctant to admit a seceding entity to membership against the wishes of the government of the state from which it has purported to secede. There is no case since 1945 where it has done so.”).

[18] Tax Legis. (Aus.) Case (Aus., Admin. Ct., 1949), reprinted in 16 Ann. Dig. 66; S.C. Res. 661, U.N. Doc. S/RES/661 (Aug. 6, 1990) (implementing measures to restore Kuwaiti government); Mohammed Bedjaoui, Law and the Algerian Revolution 18 (1961); Antonio Cassese, International Law in a Divided World 78-9 (1986) (“[T]he ‘survival’ of the international subjects rests on a legal fiction–politically motivated–and is warranted by the hope of recovering control over a particular territory. Once this prospect vanishes, the legal fiction is discarded by the other states.” The author also argues that the constitutive theory is “fallacious.”).

[19] Richard Caplan, Europe and the Recognition of New States in Yugoslavia 212 (2005) (citing Ronald L. Jepperson, Alexander Wendt & Peter J. Katzenstein, Norms, Identity, and Culture in National Security, in The Culture of National Security: Norms and Identity in World Politics 33, 35-6 (Peter J. Katzenstein, ed., 1996).