The Role and Function of the Declaratory and Constitutive Theories of State Recognition - Case Study Example

Critically evaluate the role and function of the declaratory and constitutive theories of recognition, taking into account their application inthe international community, and having regard to the distinction between recognition of states and recognition of governments. Introduction International law, like other branches of law is a system which requires its essential components to function smoothly and with some degree of precision. Customary international law is derived from state practices that are followed on a consistent basis.1 It is therefore obvious that the concept of state is at the heart of international law. States are the most important “components of the international legal system”.2 In this regard, the 1933 Montevideo Convention provides a legal framework in international law for the necessary conditions for the acquisition of statehood3. The practice of customary international law and relations however, demonstrate that the institution of state recognition has an important role to play in the formation and acceptance of new entities calling themselves states. State recognition is also closely tied to the acceptance or refusal to accept what is essentially an unconstitutional change of government. While this aspect of statehood is not as important as state recognition, it nonetheless produces a series of consequences under international law, particularly the establishment of diplomatic relations and international personality. Unfortunately, the institution of state recognition is not firmly settled in international law. As a result, theoreticians and practitioners have developed two competing theories directly applicable to the institution of state recognition and its legal effect on statehood. These theories are known as the constitutive and declaratory theories and neither are capable of practical application in their pure form. The manner and degree to which each of these theories can be applied largely depends of extralegal factors. The result is, the international legal regime with respect to the conditions necessary for obtaining statehood is uncertain, unclear and unpredictable. Inevitably the aims and objectives of international law, which are to create a reliable and consistent body of law, is compromised. It is important to point out however, that international law is a relatively young and inconsistent body of law in which customary norms are not historical, but rather the actual source of law-making and for this reason, the practice is of far greater significance than in domestic law. This paper will evaluate the declaratory and constitutive theories and assess their respective applications and influences in the international community with particular emphasis on state recognition. The primary aim is to demonstrate by reference to specific cases, that the constitutive and declaratory theories on state recognition result in ambiguity in the international legal framework and thereby contribute to an interpretive practice that renders statehood recognition more of a political issue rather than a legal issue. Discussion The constitutive theory has a creative function. It creates a new body of international law with the result that its role is important for introducing order in international law, allowing for determining with a measure of certainty the subjects that make up the system.4 The declaratory theory on the other hand plays an evidentiary role in international law in that it only confirms the existence of a state. According to the declaratory theory, states arise on their own as a result of the population’s will upon whom the right to self-determination is conferred. While other states may recognize or not recognize the new state, it is only relevant to the international personality of the new state. For example in the case of New York Chinese TV Programs v U.E. Enterprises 954 F. 2d (2d Cir. 1992) the US court ruled that the US’s “de-recognition of Taiwan did not change Taiwan’s status as a nation”.5 In Russian Reinsurance Co. v Stoddard 240 NY 149 703 (1925) the court held that recognition was not the issue. The issue was whether the state had a government.6 Both of these rulings validate the declaratory theory to the extent that they acknowledge that recognition is not a precondition of statehood, but rather a political choice, not founded on legal considerations. The declaratory theory and the approach taken by the US court in the New York Chinese case is consistent with with Oppenheim and Roxburgh’s contention that international law does not require that a state is recognized in order to achieve statehood, but merely that an unrecognized state lacks international personality7. However, Oppenhiem et al go on to note that state recognition does provide the new entity with international personality, making it possible for the state to interact with other members of the international community.8 The constitutive theory only effects statehood to the extent that recognition by other states can undermine the state’s ability to meet the criteria for Article 1(d) of the 1933 Convention. Lauterpacht attempted to reconcile the declaratory and constitutive theories by creating a medium between the two. He maintains that recognition is merely a “declaration of an existing fact.”9 To this end, once the conditions of statehood and “government capacity” have been met, “recognition is due as a matter of right”.10 Lauterpacht’s approach to the two theories can be seen as an attempt to organize customary international law so that divergent legal systems could be brought together to find some common ground. By recognizing that both the declaratory and constitutive theories are incapable of application in the strictest sense, Lauterpacht tried to extract some common ground and formulated a broader theory. However, upon a wider construction of Lauterpacht’s approach, it comes across as a declaratory theory, since once the conditions of statehood are satisfied, the new entity has an inherent right to recognition by other states and the right to interact in the international community. The fact is the constitutive theory can be used to serve political agendas and can be driven by political rather than legal incentives. In this regard, Lauterpacht et al validates the declaratory theory. The declaratory theory, regardless of how it can be used is of more persuasive value and is in fact validated in practice. For instance, a majority of the states in the Middle East do not recognize Israel’s sovereignty and statehood, yet no one will deny that Israel is a state and aptly meets the conditions of statehood.11 Despite the problems associated with the tension between the declaratory and constitutive theories, the international community with its growing appreciation for the right to self-determination has increasingly recognized the merits of the declaratory theory.12 The combining of the two theories in much the same way as Lauterpacht did therefore makes sense. The end result is that the constitutive theory is reduced to a simple confirmation of the existence of the new state. This combined theory is evidenced by the recognition of Bosnia and Herzegovina. Despite the Declaration on the Guidelines on the Recognition of new States in Eastern Europe and the Soviet Union, adopted by the European Community in 199113, the international community recognized the existence of that state some obvious non-compliance issues. The criteria itself does not mention governance but does emphasise the significance of adhering to non-aggression and respect for human rights and the right to self-determination.14 Since the independence was achieved pursuant to aggression, it can be argued that Bosnia did not meet the EC’s guidelines for state recognition. This was particularly so in the case of Bosnia’s population where refugees were constantly “on the move.”15 Conversely, the Poland had been party to a number of treaties and conventions, specifically the post World War 1 Treaty of Versailles 1919 which transferred territory to Poland from Germany.16 Even so, in the Deutsche Continental Gas-Gesellschaft v Polish State 5 ILR 11 it was held that Poland was not a de facto state.17 This In this regard, it would appear that state recognition in specific circumstances and pursuant to the constitutive theory may be the only means by which a new entity can achieve statehood. This is particularly so in cases where the new entity cannot claim to have a capable government, nor can it claim to have effective control of the occupied territory. This was clearly the case in Bosnia. Recognition could not confirm a de facto state, it merely confirmed a declaration of the state. The parallel between the declaratory theory and the constitutive theory as espoused by Lauterpacht is manifested in the Bosnia example. Bosnia represents an example of those cases where conflict results in the emergence of a new entity calls itself a state. Despite the fact that it does not satisfy the conditions for statehood, recognition can be a useful tool under the auspices of the constitutive theory to confer upon the new entity the status of statehood. In this regard, recognition is no more than a political strategy for rendering support for the creation of a new state. Where recognition is withheld, this too may be a political strategy for opposing the creation of the new state. In this regard, recognition is closely aligned to the constitutive theory.18 Likewise, in the event of secession, de facto, as evidenced by the Supreme Court of Canada: The ultimate success of such a secession would be dependent on recognition by the international community.19 It is important to note here however, that although the Supreme Court of Canada spoke to recognition it did not rule that state recognition was a precondition for obtaining statehood. It merely spoke to the success of the secession which can be interpreted to mean that statehood recognition would merely provide evidence of the success of the secession. By implication, recognition would not be conclusive, but merely indicative. State recognition is therefore a rebuttable presumption only and is evidence of the manner in which the declaratory and constitutive theories are combined to create a measure of legal certainty in customary international law with respect to the question of statehood. The presumptive nature of state recognition and its questionable validity can be gleaned from the case of Bangladesh where India’s recognition had the effect of transforming a “separatist movement” into a “full-fledged international actor.”20 Similarly, the overwhelming recognition of Guinea-Bissau resulted in a UN resolution admitting the Republic of Guinea- Bissau to the UN on 12 August 1974.21 Just as recognition can validate states, non-recognition can nullify the creation of a new state. For example when Katanga declared its independence, the international community for the most part did not recognize the new state. In fact the UN, in upholding its stance with respect to territorial sovereignty passed resolution 169 which essentially condemned Katanga’s secession from the Congo and deemed it contrary to the UN Charter.22 Southern Rhodesia was possessed of the requisite territorial conditions for statehood, but because it had pursued independent statehood in a manner inconsistent with international law, it became the subject to overwhelming non-recognition. The UN Security Council passed Resolution 277 calling upon contracting states to “refrain from recognizing this illegal regime”.23 The UN took a similar position with the attempted secession of Turkish Republic of Northern Cyprus by passing UN Resolution 541.24 The practice of applying a combined interpretation of the declaratory and constitutive theories is further evidenced by the decision of the Tinoco arbitration tribunal.25 What can be gleaned from this decision is the conclusion that should a government exercise control over a territory, recognition will have a declaratory effect. However, in situations where the position of the government is uncertain, state recognition will be entirely significant.26 Non-recognition of governments, which can be aligned with acceptance can also influence the state practices. However the denial of diplomatic space does not equate with state legitimacy. This is evidenced by the Taliban’s previous regime in Afghanistan.27 Similarly non-recognition of a state creates an inconvenience but does not define statehood in much the same way as non-recognition of a rogue regime does no nullify its existence. This position is clearly established in the Deutsche Continental case which clearly embraces the declaratory position by holding that recognition does not create the case.28 The application of either the constitutive theory and/or the declaratory theory is almost entirely dependent on the conduct that accompanies the declaration of statehood. This accounts for the shifting from one approach to another in comparable cases in the sense that the conditions for statehood are essentially the same. History dictates that if state identity is pursued in a manner contrary to the UN Charter recognition will not follow. The result is an obligatory non-recognition among the international community. For example the recognition of Kosovo followed a declaration of independence during the reign of a UN provisional government and was not inconsistent with the UN Charter. However the declaration of independence by South Ossetia and Abkhazia offended the UN Charter by challenging the territorial sovereignty of Georgia.29 Conclusion The constitutive theory necessarily follows from the necessity of state cooperation in the creation of customary international law. However, the emergence of new states, particularly since the break-up of the USSR and the end of the Cold war have given way to a greater acceptance of the right to self-determination and less significance to the principle of territorial sovereignty. The declaratory theory only confirms the existence of a de facto state, a necessary interpretation of conditions that followed the break-up of states in the post cold-war era and set precedents for secession of states. The result is, there is a greater tendency to subscribe to the declaratory theory in determining the validity of statehood. What has emerged is a creative mixing of the two theories as a means of giving customary international law a more cohesive and certain criteria for statehood. The combination of the two theories permits creativity in distinguishing illegally formed states from those that were formed legally. Bibliography Castellion,J. International Law and Self-determination. (Kluwer Law International 2000). Devine, D. ‘The Requirements of Statehood Re-Examined.’ (1971) 34(4) The Modern Law Review 410-417. Grant, T. ‘Current Development: Afghanistan Recognizes Chechnya’. (1999-2000) 15 Amer. U. Int’l. Rev. 869. Krueger, H. ‘Implications of Kosovo, Abkhazia and South Ossetia for International Law: The Conduct of the Community of States in Current Secession Conflicts’ . (2009) 3(2) Caucasian Review of International Affairs 121-142. Lauterpatch. H. and Lauterpacht, E. International Law: General Works (Cambridge University Press). McCorquodale, R. ‘Pushing Back the Limitations of Territorial Boundaries.’ (2001) 12 European Journal of International Law 867. Openheim, L. and Roxburgh, R. (2008) International Law: A Treatise, Vol. 1. The Lawbook Exchange, Ltd. Porterfield, M. ‘An International Common Law of Investor Rights?’ (2006) 27 U. Pa. J. Int’l Econ. L. 79-113. Ronen, Y. ‘Status and (Human Rights) Obligations of Non-Recognized De Facto Regimes in International Law: The Caswe of Soomaliland.’ (2005) 99 (4) The American Journal of International Law, 953-960. Shaw, M.N. International Law (6th edn CUP, Cambridge 2008). Talmon, S. ‘The constitutive versus the Declaratory Doctrine of Recognition: Tertium Non Datur?’ (2004) 75 British Year Book of International Law, 101-181. Thomas, R. ‘NATO, the UN, and the International Law’. (1999) 10(3) Mediterranean Quarterly 25-50. Table of Cases Deutsche Continental Gas-Gesellschaft v Polish State 5 ILR 11. New York Chinese TV Programs v U.E. Enterprises 954 F. 2d (2d Cir. 1992). re Secession of Quebec, 1998 SCJ No 61, para 155, 115 ILR 537. Russian Reinsurance Co. v Stoddard 240 NY 149 703 (1925). Tinoco Arbitration (GB v Costa Rica) (1923) 1 RIAA 369. Table of Statutes and Treaties/Conventions Convention on the Rights and Duties of States 1933. Declaration on the Guidelines on the Recognition of new States in Eastern Europe and the Soviet Union, EC, 1991. Treaty of Versailles 1919. UN Charter 1945. UN Co. A/Res/3205(XXIX) 17 Sept. 1974. UN Resolution 169. UN Resolution 277. UN Resolution 541. Read More