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State of Denial: Comments on the struggle for recognition in International Law

February 3, 2016

This article by Connor McBain considers the manner in which international lawyers discuss competing legal positions in disputes concerning sovereignty and statehood. It utilises legal realism and critical legal studies to highlight several contradictions that undermine existing means of discussing statehood. This is done to demonstrate two things: first, aspirant statal entries are excluded from access to legal remedies; and second, aspirant statal entries cannot defend their own claims to statehood through recourse to law.

Sovereignty, statehood and the recognition of their existence remains one of the more compelling disciplinary struggles in which international lawyers are always engaged. This essay intends to navigate aspects of that struggle through discussion of the advantages and disadvantages of the declaratory and constitutive theories of recognition. It draws upon legal realism and critical legal studies to highlight contradictions at the core of state recognition.  This aim is pursued for two reasons: first, to demonstrate why the absence of legal remedies under the doctrine of recognition disempowers aspirant statal entities; and second, to demonstrate why, even when remedies are available, aspirant entities are unlikely to succeed through recourse to law.

 

I. Methods of Argument in Claims to Statehood

The central perceived difference between the declaratory and constitutive theories of recognition is conception of the state vis-à-vis the broader collective of states. Applying the declaratory theory, the incidence of statehood is a factual question,[1] to be decided by the entity itself.[2] Schmitt averred ‘that the legal idea [of sovereignty] cannot translate itself independently is evident from the fact that it says nothing about who should apply it’.[3] Consequently, statehood arises externally, before assuming any legal significance.[4] Recognition in a declaratory sense then is merely ‘acknowledgement of an existing state of law and fact’.[5]

Conversely, to constitutive theorists, the incidence of statehood is not a question of fact, but of law. This is because states are only in possession of juridical personality, and thereby rights, due to the existence and duties of the collective system of states.[6] So instead, statehood is ascertained through ‘objective’ criteria,[7] which are to be applied by the appropriate authority.[8]

For an aspirant entity, neither the declaratory nor constitutive theory provides more or less advantage in the pursuit of recognition. This is because aspirant entities, in asserting a claim to statehood, encounter two recurring difficulties. First, aspirant entities have no remedial right to challenge those who would deny them statehood; and second, the recognition doctrine provides no determinate justification for entities to acquire statehood even if a contestation remedy was available.  Consequently, both dilemmas call into question how valuable recourse to law is in pursuit of recognition.

However, before articulating these difficulties, we must first clarify how one should visualise statehood. In Hohfeld’s conceptualisation of juridical personality, states may possess several incorporeal things, most importantly: rights, duties, privileges and non-rights.[9] A legal state will owe certain duties to other states, usually to respect their formal equality, independence and the like. Failure to observe these duties gives rise to a claim of action against the duty-bound state. This is because, as Holmes observed, a duty is nothing more than a prediction that the violator will be ‘…made to suffer in this way or that way’.[10] It because of this capacity to take action that another state is imbued with rights against the duty-bound state. The right is the capacity to call upon another to inflict suffering and it only exists because of the corresponding duty.

From this, we observe the strength of any right is directly dependent upon the strength of the action (i.e. remedy) against the duty-bound person;[11] that is, the extent to which the right-holder can make the duty-holder suffer.[12] Indeed, a right is not actually a right properly construed in the absence of coercion enforceable by the right-holder.[13] Liberties not guaranteed by the duties of others are in fact privileges; and, in contrast to an enforceable right, possession of a privilege is only exposure to damnum absque injuria.

This dichotomy is perhaps most obvious in the institution of property. Kennedy posited that ‘For Hohfeld…“property” is a combination of the duty-right pairs and privilege-no right pairs’.[14] Accordingly, the law of property is presented with a choice to impose a duty or not to do so.[15] Whether this question is answered in the affirmative or negative then determines if the interest is a privilege or a right.[16]

Similar observations are evident in sovereignty.[17] It is true Roman law maintained a distinction between imperium of the state and dominium of the man.[18] However, just as easily as it occurs in the laws of property, the laws of sovereignty deny rights when the interest is not preferred by the political system in question. This coalescence is perhaps best exemplified in the denial of imperium to non-European nations in the 19th Century.[19] Such states had the privilege of possession, but not title in sovereignty.[20] The point of significance here being that sovereignty, like property, operates on the premise of justifiable and unjustifiable exclusion.[21]

 

II. Exclusion and Contradiction in Claims to Statehood

It is through the aforenoted dichotomy of exclusion that several contradictions contained within in the declaratory and constitutive theories arise. In the declaratory view for example, it would first appear advantageous states do not have to obtain recognition to secure their rights. After all, as Anzilotti averred:

…il n'y a pas d'états légitimes et d'états illégitimes; la légitimation de l'état réside dans son existence même.[22]

Accordingly, the state has rights against the world by virtue of it asserting the existence of those rights. To consider otherwise would be to reject the sovereignty of that state.[23]

However, the first contradiction arises upon that assertion of sovereignty. Sovereignty, understood as a bundle of incorporeal things, depends upon the existence of duties owed by other juridical subjects (i.e. states).[24] This presents two difficulties for an aspirant entity. First, how is it to assert its alleged rights and who is to enforce them? Ultimately, the asserted ‘rights’ are not enforceable. This is because the remedial structure of international law only empowers states to take remedial action.[25] As the entity is not a state, it has no remedy.[26] Nor can it have a remedy until statehood is achieved.

The second difficulty arises even if the entity has remedial recourse. Under the declaratory theory, states cannot be burdened with a duty without giving consent because to be bound otherwise would deny the factual character of their sovereignty.[27] As consent becomes the significant issue, how rights are created, enforced and balanced against the rights of others becomes a question of politics, not law. This is because there is no way of adjudicating preference legally.[28] Consequently, there exists no means to ascertain statehood without descending into tautology.[29]

Scholars began to reference ‘external’ criteria to ascertain statehood to ameliorate this uncertainty,[30] and thereby ‘de-politicise’ the factual assertion of rights and duties. In this transition, we observe the abandonment of the declaratory thesis in favour of constitutive criteria of ascertainment.[31] From here, the state only has personality by virtue of its satisfying legal criteria anterior to its factual existence. Accordingly, rights, duties and privileges are only internal to the law and do not exist outside it.

However, the constitutive theory also cannot be advanced without contradiction. This is particularly the case when one examines the criteria to ascertain statehood. The problem is not just that the criteria’s content that is contestable, but also how such criteria is applied and by whom.[32]

On the remedial level it is uncertain how an aspirant entity may enforce its claim to statehood ‘within’ the law. Llewellyn argued the strength of a right is dependent on the accompanying remedy,[33] and in the international legal system, remedial power is diffused.[34] Remedial strength is therefore dependent on other states because the aspirant entity is yet to be conferred personality and subsequently remedies.

On the substantive level, the denial of personality under the constitutive theory goes further. International Law’s colonial history epitomises this contradiction and subsequent exclusion.[35] Westlake posited measurements of ‘civilisation’ as a criterion of statehood.[36] Similarly, Lorimer averred:

‘…[the international jurist] is not bound to apply the positive law of nations to savages’.[37]

From such arguments three conclusions are discernable. First, the constitutive theory is capable of immense subjectivity in application, effectively returning to the declaratory thesis. More importantly however, any attempt to remedy this subjectivity becomes divorced from the concrete actions of existing states, impinges on existing rights, and therefore unrealistic.[38]  The resulting effect is that not only is remedy denied; but even if available, the remedy is unlikely to be achieved through legal argument.

 

III. Coda

Neither the declaratory nor constitutive theory provides a secure and determinate means of achieving statehood. The remedial system of the law of nations is designed to prevent aspirant entities accessing remedies. Further, even if remedies were available, their value is legally uncertain. This is because, during argument, both theories ‘…come to rely on each other in a way that makes preferring either one impossible’.[39] Aspirant entities cannot advance a sufficiently determinate claim capable of withstanding criticism of existing states, and it is those states that ultimately can collectively validate or invalidate any claim to statehood. Consequently, even if remedies were available, their success under either theory appears unlikely in the absence of political will and choice.  

 

* B.IR, LL.B Candidate (Glasgow).

[1] Crawford, The Creation of States in International Law (OUP, 2nd ed, 2006), 22. 

[2] See Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (CUP, 2005) (‘FATU’), 272, note 170; for further support, see The Montevideo Convention on the Rights and Duties of States, art 3: ‘The political existence of the state is independent of recognition by the other states’.

[3] Schmitt, Political Theology (MIT Press, 1985, translated by G.Schwab), 31.

[4] Brierly, Law of Nations (Clarendon Press, 1928), 139.

[5] Crawford, Brownlie’s Principles of International Law (OUP, 2012, 8th ed), 4.

[6] Kelsen, Pure Theory of Law (University of California Press, 1967, 1st ed,), 323-328.

[7] The criteria contained in article 1 of the Montevideo Convention is one such example. 

[8] Lauterpacht, Recognition in International Law (CUP, 1947), 39.

[9] Hohfeld, ‘Some Fundamental Legal Conceptions as Applies in Judicial Reasoning’ 23 Yale Law Journal 16 (1913) reprinted in Kennedy and Fisher, The Canon of American Legal Thought (Princeton University Press, 2006), 55, 63-64.

[10] Holmes, ‘The Path of the Law’ 10 Harvard Law Review 457 (1897) reprinted in Kennedy and Fisher, The Canon of American Legal Thought (Princeton University Press, 2006), 29, 30.

[11] Llewellyn, The Bramble Bush, (1930), 82-3; Llewellyn, ‘Some Realism about Realism – Responding to Dean Pound’ 44 Harvard Law Review 1222 (1931) reprinted in Kennedy and Fisher, The Canon of American Legal Thought, 141, 155.

[12] Hale, ‘Coercion and Distribution in a Supposedly Noncoercive State’ 38 Political Science Quarterly 470 (1923) reprinted in Kennedy and Fisher, The Canon of American Legal Thought, 93, 95 onwards.

[13] Hohfeld, Fundamental Legal Conceptions, 65.

[14] Kennedy, ‘Wesley Hohfeld’ in Kennedy and Fisher, The Canon of American Legal Thought, 47, 49.

[15] Ibid, 50.

[16] Ibid.

[17] Koskenniemi, FATU, 247-248 – Note here, Koskenniemi discusses a Hohfeldian view of sovereignty that is analogous to Kennedy’s assessment of property above.

[18] Cohen, ‘Property and Sovereignty’ 13 Cornell Law Review 8 (1929), 8.

[19] See Koskenniemi, The Gentle Civiliser of Nations (CUP, 2005), 37.

[20] See Koskenniemi, The Gentle Civiliser of Nations (CUP, 2005), 37; for further evidence of the choice consult notes 36-37 below. 

[21] Cohen, ‘Property and Sovereignty’, 18-19, 26.

[22] Anzilotti, Cours de droit international (1929), 169, quoted in Koskenniemi, FATU, 232.

[23] Koskenniemi, FATU, 232.

[24] Hohfeld, Fundamental Legal Conceptions, 65.

[25] Kelsen, Théorie du Droit International Public, 84 Recueil des Cours 1 (1953) [translation by A.Rasulov], 13-32; see also, Kelsen, Pure Theory of Law, 323-328.

[26] For example, recourse to the UN Security Council or International Court of Justice is confined to states alone, see Charter of the United Nations, art 23; see also, Statute of the International Court of Justice, art 34(1); On subjects of international law, see Crawford, Principles, 116-216.

[27] Cf Schmitt, Political Theology, 31-34; Anzilotti, Cours, 169; Koskenniemi, FATU, 232.

[28] Koskenniemi, FATU, 275-279. 

[29] Lauterpacht, Recognition, 45.

[30] See Crawford, Creation of States, 13-14.

[31] See Koskenniemi, FATU, 253

[32] Ibid, 278-279; Lauterpacht, Recognition, 52-54.

[33] Llewellyn, The Bramble Bush, 82-3; Llewellyn, ‘Some Realism about Realism’, 155.

[34] Kelsen, Théorie du Droit International Public, 13-32; see also, Kelsen, Pure Theory of Law, 323-328.

[35] See, Koskenniemi, Gentle Civiliser, 37.

[36] See Westlake, Chapters of the Principles of International Law (CUP, 1894), 101-106; for discussion as to the absurdity of such a consideration, see Lauterpacht, Recognition, 31-32.

[37] Lorimer, The Institutes of the Law of Nations (1833), 102, quoted in Anghie, Imperialism, Sovereignty and the Making of International Law (CUP, 2005), 76, note 132; see also, Koskenniemi, Gentle Civiliser, 71, 73.

[38] Koskenniemi, FATU, 272.

[39] Koskenniemi, FATU, 272.

 

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