O theories of state reconition 2 PDF

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In international law a state is a people permanently occupying a fixed territory, bound together into one body politic by common subjection to some definite authority exercising, through the medium of an organised government, a control over all persons and things within its territory, capable of maintaining relations of peace and war, and free from political external control.1 Recognition is “the free act by which one or more States acknowledge the existence on a definite territory of a human society politically organized, independent of any other existing State, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it a member of the international Community.” 2 Two theories exist with regard to the effect of recognition on the legal status of the entity being recognized: the constitutive and the declaratory theory. The constitutive theory maintains that it is the act of recognition by other states that creates a new state and endows it with legal personality and not the process by which it actually obtains independence. Thus, new states are established in the international community as full-fledge subjects of international law by virtue of the will and consent of already existing states.3 For the constitutive theorists, the heart of the matter is that fundamentally an unrecognised ‘state’ can have no rights or obligations in international law. The second theory, the declaratory theory, adopts the opposite approach and is a little more in accord with practical realities.4 It maintains that recognition is merely an acceptance by states of an already existing situation. A new state will acquire capacity in international law not by virtue of the consent of others but by virtue of a particular factual situation. It will be legally constituted by its own efforts and circumstances and will not have to await the procedure of recognition by other states. This theory owes a lot to traditional positivist thought on the supremacy of the state and the concomitant weakness or non-existence of a central guidance in the international community.

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Osborn’s Concise Law Dictionary 8th edn Sweet & Maxwell Resolutions adopted at Brussels in 1936,Article 1,I(1936),Vol.30,Supplement,at p.185. 3 J. Crawford, The creation of States in International law,oxford,1979,pp17 et seq;. 4 J.L Brierly,The law of nations,6 th edn,oxford,1963,pp138. 2

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If a state recognises another state, it means that each accepts the other as entitled to exercise all the capacities of statehood in international law. Recognition is a pre-condition to full bilateral relations between states, like diplomatic representation and treaty agreements. Article 1 of the 1933 Montevideo Convention on Rights and Duties of States 1933 sets out the most widely accepted formulation of the criteria of statehood. These are: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states. As far as the requirement of a permanent population is concerned, there is no minimum number of inhabitants – a common example is Nauru with a population of 6,500 – it is considered a state. However, a nomadic population might not suffice, although in the Western Sahara case the ICJ was prepared to hold that nomadic peoples have certain rights with respect to the land they traverse. With regard to the requirement of a defined territory, there is no need for settled boundaries – what is necessary is a consistent area of territory, which is controlled by the government of the alleged state. Israel, for example, has been accepted as a state, although its boundaries are not settled. The general rule is confirmed in the North Sea Continental Shelf cases. Moreover, statehood requires the existence of a coherent political structure and society. The Western Sahara case concerned the decolonisation of the Western Sahara, which had been colonised by Spain in 1884. Also, in article 3 it is very clearly stated that statehood is independent of recognition by other states.(this is the declaratory theory of statehood). However, while the Montevideo is a regional American convention and has no legal effect outside the Americas, some have nonetheless seen it as an accurate statement of customary international law. On the other hand, article 3 of the convention, is attacked by the advocates of the constitutive theory of state recognition, where a state exists only insofar as it is recognised by other states.5 It has been argued that states are subject to a duty under international law to recognise a new state fulfilling the requirements of statehood or of governmental capacity.6 However, the existence of such a duty is not borne out by the weight of precedents and practice, particularly the 5

The case of Somalia in the early 1990s; Observations forwarded to the United Nations in 1948 on the Draft declaration on the rights and duties of states, the British Government stated that it favoured a development of international law under which recognition would be come a matter of legal duty for all states in respect to fulfilling the conditions of statehood, etc. 6

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divergences since 1949 in the recognition of the people’s Republic of China, although it could perhaps be said that in recognising certain newly emerged states (i.e., decolonised territories or emancipated trust territories) some States considered that they were bound to accord recognition. The constitutive theory developed in the 19th century and was closely allied to a positivist view of international law.7 Under the constitutive theory recognition of states is discretionary. To this extent international law is like membership of a ‘club’. When you are recognised you become part of it. If not, you are not a state. Because, the constitutive theory maintains that it is the act of recognition by other states that creates a new state, granting it an international legal personality, and not the process by which it actually obtains independence. Thus new states are established in the international community as subjects of international law by virtue of the will and consent of existing states. Thus, the acceptance of a new state by existing states was essential. This was partly due to the view of international law as existing between ‘civilised nations’. New States could not automatically become members of the international community; it was recognition, which created their membership. According to the constitutive theory, therefore, an unrecognised state may not be subject to the obligations imposed by international law, such as the prohibition on aggression. Similarly, this theory does not address the scenario and consequences for statehood of recognition by some but not all states. This had the further consequence that entities not recognised as States were not bound by international law and nor were the ‘civilised nations’ so bound by dealings with them. Recognition is, therefore, seen as a requirement of international personality as per Oppenheim8 thus: The formation of a new State is …a matter of fact and not law. It is through recognition, which is a matter of law, that such a new State becomes subject to international law. A major criticism of this theory is that it leads to confusion where a new state is recognized by some States but not others. Could one talk then of, for example, partial personality?9 Of course, recognition is highly political and is given in a number of cases for purely political reasons.10 The American representative on the Security Council emphasized this point of view during discussions on the 7

Tim Hillier Principles of Public International Law 2nd edn1999 Oppenheim International Law, vol 1, 8th ed,1955, Longman,p544. 9 Tim Hillier Principles of Public International Law 2nd edn1999 10 Malcolm N.Shaw International Law 4th edn, Cambridge 1997 p,298. 8

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Middle East in May 1948. He said that it would be highly improper for one to admit that any country on earth can question the sovereignty of the United States of America in the exercise of the highly political act of recognition of the de fecto status of a state. Indeed, he added that there was no authority that could determine the legality or validity of that act of the United States.11 The UK, and to a greater extent the US, have both refused to recognize new entities for political reasons even though they might satisfy the criteria for statehood. For example, North Korea, Taiwan, etc. Recognition is therefore, constitutive in a political sense, for it makes the new entity out as a state in the international community and is evidence of acceptance of its new political status by the society of nations. The opposite stance is adopted by the declaratory theory that emphasises the factual situation and minimises the power of states to confer legal personality. Under the declaratory view at least in its strongest version some authors argue that recognition is a legal duty placed upon other states. If you have satisfied the Montevideo test (permanent population, defined territory, government, capacity to enter into relations), then you must be recognised. This view is fairly extreme, with Oppenheim, for example, taking the middle ground, where the Montevideo criteria have to be satisfied but recognition is still left up to the discretion of each state. (modified constitutive) Some have questioned whether these criteria are sufficient, as they allow less-recognised entities like the Republic of China or even entirely non recognised entities like the Principality of Sealand to claim full status as a States. There have also been attempts to further broaden the convention’s definition, although they have gained less support. Founders of nonterritorial micronations commonly assert that the requirement in the Montevideo convention of a defined territory is in some way wrongheaded, for largely unspecified reasons. Some non-territorial entities, notably the Sovereign Order of Malta, are indeed considered subjects of international law, but these do not aspire to statehood. Of course if a new entity, while meeting the conditions of international law as to statehood, went totally unrecognised, this would undoubtedly hamper the exercise of rights and duties, especially in view of the absence 11

M. Whiteman, Digest of International Law, Washington, 1968, vol 11 p.10.

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of diplomatic relations, but it would not seem in law to amount to a decisive argument against statehood itself. For example, the Charter of the Organisation of American States adopted Bogotá in 1948 notes in its survey of the fundamental rights and duties of states that; The political existence of the state is independent of recognition by other states. Even before being recognised the state has the right to defend its integrity and independence12 A major issue is the difference between the two theories. According to the constitutive theory, a state exists only by recognition. The declarative theory, by contrast, holds that the existence of a state is independent of its recognition by other states. Which theory is a controversial issue in international law .An example in practice was the collapse of central government of Somalia in the early 1990s:the Montevideo convention would imply that the state of Somalia no longer existed, and subsequently declared republic of Somaliland (comprising part of the so-called ‘former” Somalia) may meet the criteria for statehood. However the selfdeclared republic has not achieved recognition by other states. For the adherents of the declaratory theory, the formation of anew state is a matter of fact not law. Recognition is apolitical act by which the recognising state indicates a willingness to initiate international relations with the recognised state and the question of international personality is independent of recognition. However, the act of recognition is not without legal significance, because it does indicate that the recognising state considers that the new entity fulfils all the required conditions for being an international subject.13 In conclusion, therefore, in a critical discussion of the theories of state recognition, it will suffice to say that, the declaratory theory of state recognition is more widely supported by writers on international law today and it accords more readily with state practice, as is illustrated by the fact that non-recognised ‘states’ are quite commonly the object of international claims by the very States which are refusing recognition; for example, Arab states have continued to maintain that Israel is bound by international law although few of them, until recently, have recognised Israel.14 Although recognition may have limited consequences in the international sphere, it remains important at the municipal level, when questions of whether or not an entity is entitled to the rights and privileges of a state 12

Article 9(12 of the Charter as amended in 1967.) Tim Hillier Principles of Public International Law 2nd edn1999 14 Tim Hillier Principles of Public International Law 2nd edn1999 13

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are to be decided. In this context, it is important to distinguish between the recognition of States and the recognition of governments. Many States, while continuing to accord official recognition to new states, have ceased to formally recognise governments.15

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