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Advantages and disadvantages of the declaratory and the constitutive ‘theories’ of recognition from the point of view of an aspirant statal entity

June 4, 2016

This article by Florian Bergamin considers the comparative advantages and disadvantages of the declaratory and constitutive 'theories' of recognition from the point of view of an aspirant statal entry in international law.

Introduction

Discussing statehood is dealing with access to international law by becoming a subject. If an entity is not considered as a state, the main players in international law, i.e. states and international organizations, hardly intend to create legal relations with such entities. The implications are extensive: exclusion from membership in most of international organizations, no certainty of the legally binding power of agreements, and access to courts might not be granted in case of aggressions from other states. In other words, non-statal entities are legally non-existent and therefore not protected under international law. But what has the outline of this motivation to become a state to do with the topic of the essay, which is the comparison between advantages and disadvantages of two main theories of recognition? It helps to specify the actual task and clarify what an aspirant statal entity would actually consider to be, respectively, advantageous and disadvantageous. An aspiring statal entity’s preponderant motivation is to come into possession of rights.

In the first part, the essay considers briefly the distinctive characteristics of both mentioned theories. Further, it will be assessed, how the practical application of the theories could be represented in international law and what this implies for an aspiring statal entity. The last paragraph ultimately concludes that none of the theories is – in its substance – more advantageous from the perspective of an aspirant state.

 

 

Characteristics of the declaratory and constitutive theory

There are two main theories, which predominantly arise when dealing with statehood: The declaratory theory and the constitutive theory. According to the constitutive theory, recognition by other states, understood as a political act, must be granted to an entity in order to become considered as a state.[1] Simply put, recognition is conditio sine qua non for being a state. The declaratory theory, by contrast, sees recognition as an acknowledgment of the status quo; recognition is an act that does not grant the status of an entity.[2] Statehood was already established by fulfilling certain criteria – no further act is required because legal personality preexisted.

Scholars and state practice have contributed a lot to specify, to merge and criticize these two main theories.[3] Subsequently, this essay does not elaborate on questions such as, which theory describes the state of law better.[4] The purpose is to attempt a more practical approach. Therefore, both theories should be washed – in a Holmesean sense –in ‘cynical acid’.[5]

 

Establishing criteria for statehood

This paragraph treats the Montevideo Convention[6] as a possible source of a definition of statehood. Article 1 of the Convention suggests a broadly accepted list of cumulative criteria, which comprise requirements for a community seeking statehood: Permanent population, defined territory, government, and capacity to enter into relations with other states. A political existence is possible without recognition (Article 3); thus the Convention (considered as prescribed state practice) is often seen as favouring the declaratory theory.[7] Still, recognition plays a crucial role, as it clearly indicates or even proofs a capacity to enter into relations with states.[8]

An advantage seems to be the objectivity of the criteria. They could be helpful as guidance to distinguish a non-statal entity from states. One can certainly criticize the choice of the mentioned requirements or contribute a more specific notion of a criterion but a practically more important question, namely for an aspiring statal entity, is who should be the examinant for the test for statehood? The declaratory theory requires an assessor for the matter of facts.[9] But the weakness of such ‘catalogues’ of rules[10] is, that they do not establish an enforceable rule of their application. The next paragraph will elaborate on secondary rules for recognition, i.e. consider possible remedial rights in the context of UN-membership.

 

Why secondary rules matter

A different approach is to look from the ‘other end’ of a right and evaluate if there is a duty of recognition.[11] This insight is useful for an aspiring state because it leads to the following equation (à la Hohfeld[12]): ‘No duty’ equates to ‘no right’.

Scholars discussed if there is such a ‘duty to recognize’.[13] Namely Lauterpacht was in favour of such a duty ‘to mitigate extreme cases of denial of reality’.[14] But Crawford remarks that the approach of installing a duty converges the constitutive to the declaratory theory.[15] In other words, there is no legal duty to recognize, whereas recognition is understood as a public act of state; recognition remains intentional.[16]

If we define statehood as a ‘gateway’[17] to a political community (and reconsider the motivation at the beginning of this essay), it much depends – as shown - on the acceptance by other existing members of this community. The problem is, that legally legitimate ways of fulfilling requirements do often not correspond with political and factual reality.[18]

Nevertheless, a closer look at the procedural requirements to become a UN-member might help. Although there is no consensus as to which authority is best-placed to act as gatekeeper, an obvious candidate is the UN; which, because of its universality, has been described as the ‘collective arbiter of statehood through the process of admission and non-recognition’.[19]

Speaking practically, it can be declared that granted admission to the UN (or most of other international organizations) seems to entail recognition.[20] In regard to the discussed theories, the constitutive theory seems to suit better than the declaratory theory because recognition is required as condition per definitionem.

Article 4 of the UN Charter describes the voting procedure.[21] It stipulates that, following the recommendation of the Security Council, the General Assembly shall consider whether the applicant is a peace-loving state and is able and willing to carry out the obligations. A 2/3 majority of General Assembly member must give their assent in order for recognition to be granted in the form of a resolution by the General Assembly.

This procedure seems to be an impartial way of granting member-status and recognition as a state. But practice shows the contrary. Indeed, any arbitrary motivation, often under the guise of ‘political reasons’, e.g. lack of ‘peace-love’[22], can deny membership – even if an entity legally fulfils the criteria of statehood.[23] Recognition remains within the discretion of the (non-) recognizing states.[24]

Although this way seems to be the most prospective option for aspirant statal entities, it shows that there is – as long as there is no adequate remedial rule - no guaranteed ‘path to statehood’ in international law. State practice has neither accepted a right of recognition nor a duty to recognize.[25] One can even go further and say that practice does not support the theories and they are both ‘internally illogical’. [26]

 

Conclusion

To end with Holmes: Law is prophecy.[27] Critically evaluated, neither the declaratory nor the constitutive theory of recognition offers a clear advantage. As long as there is no possibility to claim and actually ‘enforce’ recognition from other states (following the constitutive theory) or being effectively recognized as soon as having fulfilled the criteria of a so-called ‘objective’ test (following the declaratory theory), there is no right to be accepted as a state. The absence of a legal basis, that establishes an actual position of possessing secondary rights, denies an aspirant statal entity to be treated like a proper state.

Looking at the disadvantages it can be argued in the same way, that a declaratory approach is too idealistic. Even if there is no formal recognition required, a non-statal entity will not have rights and duties within the international community unless other states recognize the aspirant in any way, and due to the absence of remedies, this cannot be effectively achieved.

It becomes even more obvious in regard to the constitutive theory. Once again the same problem arises. There is no duty to recognize an aspiring statal entity, despite the fact that the entity fulfills[28] all possible criteria a state should. In the end, the required act of recognition depends on the other states’ will.

 

[1]   Cf. J.R. Crawford, Brownlie’s Principles of Public International Law, 8th edn. (Oxford, 2012), 145.

[2]   Crawford, Brownlie’s Principles of Public International Law, 145.

[3]   ‘Recognition’ seemed to have led even to ‘perverse doctrine’ as stated in Crawford, Brownlie’s Principles of Public International Law, 144.

[4]   See W. T. Worster, ‘Law, Politics, and the Conception of State in State Recognition Theory’ (2009) 27 Boston University International Law Journal, 118f. (henceforth, Worster, ‘State Recognition Theory’)

[5]   O.W. Holmes, ‘The Path of the Law’ (1897) 10 Harvard Law Review 462.

[6]   Montevideo Convention on the Rights and Duties of States from 26th December 1933.

[7]   Worster, ‘State Recognition Theory’, 124f.

[8]   J. Quigley, The Statehood of Palestine – International Law in the Middle East Conflict (Cambridge, 2010), 227.

[9]   In comparison to the constitutive theory, according to which recognition is a question of law; cf. J. Duursma, Fragmentation and the international relations of Micro-States – Self-determination and statehood (Cambridge, 1996), 111.

[10]  For other examples: ibid, 114ff.

[11] Referring to Hohfeld: K.N. Llewellyn, The Bramble Bush (New York, 1930), 84f.

[12] Cf. J.W. Singer, ‘The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld’ (1982) 1982 Wisconsin Law Review 986ff.

[13]  Crawford, Brownlie’s Principles of Public International Law, 148.

[14]  As Worster describes it in Worster, ‘State Recognition Theory’, 121.

[15]  Crawford, Brownlie’s Principles of Public International Law, 148: ‘A constitutive argument dependent on a duty to recognize…becomes the declaratory theory viewed from a different perspective.’

[16]  Crawford, Brownlie’s Principles of Public International Law, 148f.

[17]  Similar Worster, ‘State Recognition Theory’, 137.

[18]  Cf. Duursma, Fragmentation and the international relations of Micro-States – Self-determination and statehood, 112 for examples.

[19]   J. Dugard, Recognition and the United Nations (Cambridge, 1987) ,126.

[20]   Crawford, Brownlie’s Principles of Public International Law, 150.

[21]  A comparable example is the membership-procedure in the European Union: cf. Article 49 of the Treaty on European Union.

[22]  Quigley, The Statehood of Palestine – International Law in the Middle East Conflict, 228.

[23]  Cf. Duursma, Fragmentation and the international relations of Micro-States – Self-determination and statehood, 112 and 141.

[24]  Ibid, 115. Or Looking at the example of Southern Rhodesia, recognition can and has been withheld, although an entity is to be considered as a state under the Montevideo criteria (cf. Quigley, The Statehood of Palestine – International Law in the Middle East Conflict, 227).

[25]  Duursma, Fragmentation and the international relations of Micro-States – Self-determination and statehood, 115.

[26]  Worster, ‘State Recognition Theory’, 171.

[27]  See Holmes, ‘The Path of the Law’, 475.

[28]  And vice versa! States could recognize an entity, which does hardly believable meet the conditions of a state.

 

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