Declaratory and Constitutive Theories of State Recognition

Introduction

In international law, the two most common schools of thought for the creation of statehood are the constitutive and declaratory theories of state creation. The constitutive theory was the standard nineteenth-century model of statehood, and the declaratory theory was developed in the twentieth century to address shortcomings of the constitutive theory.

In the constitutive theory, a state exists exclusively via recognition by other states. The theory splits on whether this recognition requires “diplomatic recognition” or merely “recognition of existence”. No other state grants Sealand official recognition, but it has been argued by Bates that negotiations carried out by Germany constituted “recognition of existence”.

In the declaratory theory of statehood, an entity becomes a state as soon as it meets the minimal criteria for statehood. Therefore recognition by other states is purely “declaratory”. Neither theory of recognition satisfactorily explains modern practice. The declaratory theory assumes that territorial entities can readily, by virtue of their mere existence, be classified as having one particular legal status: it thus, in a way, confuses ‘fact’ with ‘law’.

For, even if effectiveness is the dominant principle, it must nonetheless be a legal principle. A State is not a fact in the sense that a chair is a fact; it is a fact in the sense in which it may be said a treaty is a fact: that is, a legal status attaching to a certain state of affairs by virtue of certain rules or practices. And the declaratory theorist’s equation of fact with law also obscures the possibility that the creation of States might be regulated by rules predicated on other fundamental principles - a possibility that, as we shall see, now exists as a matter of international law.

On the other hand, the constitutive theory, although it draws attention to the need for cognition, or identification, of the subjects of international law, and leaves open the possibility of taking into account relevant legal principles not based on ‘fact’, incorrectly identifies that cognition with diplomatic recognition, and fails to consider the possibility that identification of new subjects may be achieved in accordance with general rules or principles rather than on an ad hoc, discretionary basis.

Background

Recognition constitutes acceptance of a particular situation by the recognising state both in terms of the relevant factual criteria and in terms of the consequential legal repercussions, so that, for example, recognition of an entity as the government of a state implies not merely that this government is deemed to have satisfied the required considerations, but also that the recognising state will deal with the government as the governing authority of the state and accept the usual legal consequences of such status in terms of privileges and immunities within the domestic legal order. Under-Secretary of State for Foreign Affairs in 1970 held that the test employed was whether or not the new government enjoyed: ‘with a reasonable prospect of permanence, the obedience of the mass of the population … effective control of much of the greater part of the territory concerned’. There is ample authority for the proposition that there is no difference for the present purposes between a recognition of a State de facto as opposed to de jure. The non-belligerent State which recognizes two Governments, one de jure and one de facto, will not allow them to transfer their quarrels to the area of the jurisdiction of its municipal Courts. As in Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853 HL Lord Reid, while referring to the case of Luther v Sagor, held: ‘But the present case is essentially different.

The German Democratic Republic was set up by the USSR and it derived its authority and status from the Government of the USSR. So the only question could be whether or not it was set up as a sovereign state. … If the Democratic Republic did not become a sovereign state at its inception, there is no suggestion that it has at any subsequent time attempted to deprive the USSR of rights which were not granted to it at its inception. … we must regard the acts of the German Democratic Republic, its government organs and officers as acts done with the consent of the Government of the USSR as the government entitled to exercise governing authority. (Brownlie, Ian, 2003 85-101) It appears to me to be impossible for any de jure sovereign governing authority to disclaim responsibility for acts done by subordinate bodies which it has set up and which have not attempted to usurp its sovereignty. So, in my opinion, the courts of this country cannot treat as nullities acts done by or on behalf of the German Democratic Republic. … [were they to do so] the result would be far-reaching.’ Lord Wilberforce: ‘… In the United States some glimmerings can be found for the idea that non-recognition cannot be pressed to its ultimate logical limit, and that where private rights, or acts of everyday occurrence, or perfunctory acts of administration are concerned the courts may, in the interests of justice and common sense, where no consideration of public policy to the contrary has to prevail, give recognition to the actual facts or realities found to exist in the territory in question.’ Gur Corporation v Trust Bank of Africa Ltd [1987] QB 599 [Sir John Donaldson MR held: ‘We … know the constitutional history of the territory of the Ciskei, … and we can take judicial notice of the fact that the Republic of South Africa is a sovereign state, … and that it was entitled to exercise sovereignty over the territory of the Ciskei until the passing of the Status of Ciskei Act 1981. … the certified fact that “Her Majesty’s Government has made representation to the South African Government in relation to certain matters occurring in Ciskei and other of the Homelands to which South Africa has purported to grant independence” gives rise to a clear inference that Her Majesty’s Government regards the Republic of South Africa as continuing to be entitled to exercise sovereign authority over the territory.

The Government of the Republic of Ciskei has locus standi in the courts of this country as being a subordinate body set up by the Republic of South Africa to act on its behalf.’ Fundamentally the question is whether international law is itself, in one of its most important aspects, a coherent or complete system of According to predominant nineteenth-century doctrine there were no rules determining what were ‘States’ for the purposes of international law; the matter was within the discretion of existing recognized States.” Recognition (1) The early view of recognition Although the early writers occasionally dealt with problems of recognition, it had no separate place in the law of nations before the middle of the eighteenth century. The reason for this was clear: sovereignty; in its origin merely the location of supreme power within a particular territorial unit (suprema potestas), necessarily came from within and did not require the recognition of other States or princes. As Pufendorf stated: ‘just as a king owes his sovereignty and majesty to no one outside his realm, so he need not obtain the consent and approval of other kings or states, before he may carry himself like a king and be regarded as such… [lit would entail an injury for the sovereignty of such a king to be called in question by a foreigner.’ (Harris, D.J., 1998 144-189)

The doubtful point was whether recognition by the parent State of a new State formed by revolution from it was necessary, and that doubt related to the obligation of loyalty to a superior, which, it was thought, might require release: the problem bore no relation to constitutive theory in general. The position of recognition towards the end of the eighteenth century was as stated by Alexandrowicz: ‘In the absence of any precise and formulated theory, recognition had not found a separate place in the works of the classic writers whether of the naturalist or early positivist period. When recognition did begin to attract more detailed consideration, about the middle of the eighteenth century, it was in the context of recognition of monarchs, especially elective monarchs: that is, in the context of recognition of governments. leaders that they are, or should be, free to recognize or not to recognize on grounds of their own choosing.

If this is the case, the international status and rights of whole peoples and territories will seem to depend on arbitrary decisions and political contingencies. (1) Recognition: the great debate Before examining State practice on the matter, it is necessary to refer again to the underlying conflict over the nature of recognition. A further effect of nineteenth-century practice has been to focus attention more or less exclusively on the act of recognition itself, and its legal effects, rather than on the problem of the elaboration of rules determining the status, competence and so on of the various territorial governmental units. To some extent this was inevitable, as long as the constitutive position retained its influence, for a corollary of that position was that there could be no such rules. Examination of the constitutive theory is, therefore, first of all necessary. Legal and Political Dimensions of Recognition Policy: Constitutive, Declaratory, and Syncretistic Theories of State Creation Recognition is defined as, “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. In its first opinion, handed down on November 29th 1991, the EC Arbitration Commission (ECAC) clearly stipulated that its own approach to recognition was to be guided by the notion that the “existence or disappearance of a State is a question of fact; that the effects of recognition by other States is purely declaratory.” This “declaratory” interpretation of recognition must be examined more closely given the fact that the EC’s own recognition policy effectively went a long way towards creating such “facts” by redefining the terms of statehood.

The way in which narrow political, economic, and strategic interests served to structure the recognition process casts doubt on the legitimacy of the EC’s recognition process as a precedent guiding public international law in the future (especially in terms of its contravention of UN policy towards Yugoslavia at the time, which emphasized an arms embargo, the unity of the State, mediation, and the avoidance of any unilateral moves that may destabilize the situation by both internal and external actors involved in the crisis).

Constitutive Theories

According to Thomas Grant, this theory is in tune with the 19th century conception of international law as ius gentium voluntarium, which essentially posits that international law is nothing more than the voluntary and consensual behavior of states within the international system. Thus according to constitutive theory, recognition and by extension statehood are, both in theory and in practice, the sovereign prerogative of those states that are already recognized within the international system. If recognition is constitutive of statehood then, critics have asked, what exactly is the status of an entity that meets the objective criteria of statehood but that goes unrecognized by the international community (Do any laws regulate the relations between the state in question and those that do not recognize its legitimacy (consider Israel/Palestine)? Such serious conceptual and practical difficulties with constitutive theories of recognition have given rise to alternative interpretations of such acts. Traditionally two theories of recognition were developed: constitutive and declaratory. The constitutive theory perceives recognition as “a necessary act before the recognized entity can enjoy an international personality,” while the declaratory theory perceives it as “‘merely’ a political act recognizing a preexisting state of affairs.” In regard to the constitutive theory of recognition, the question of “whether or not an entity has become a state depends on the actions [i.e., recognitions] of existing states.

However, the situation in which one state may be recognized by some states, but not by others, is an evident problem and thus a great deficiency of the constitutive theory. In the absence of a central international authority for granting of recognition, this would mean that such an entity at the same time has and does not have an international personality. Most writers have adopted a view that recognition is declaratory. This means that a “state may exist without being recognized, and if it does exist, in fact, then whether or not it has been formally recognized by other states, it has a right to be treated by them as a state. According to this view, when recognition actually follows, other states merely recognize a preexisting situation. However, this answer is not entirely satisfactory, as it is not evident why the act of recognition is still important. Indeed: It is only by recognition that the new state acquires the status of a sovereign state under international law in its relations with the third states recognising it as such. If it were to acquire this legal status before and independently of recognition by the existing states … this legal consequence under international law would occur automatically and could no longer be prevented by withholding recognition of the entity as a state.

Declaratory Theories

Declaratory theory emerged as a reaction to the unprincipled implications and conceptual difficulties inherent in a strictly constitutive approach to recognition. Declaratory theory argues instead that statehood is independent of recognition; that the act of recognition by other states in the international system is purely declaratory. In terms of international public law, therefore, it argues that a state becomes a subject of international law the moment it meets the conditions of statehood notwithstanding its recognition by the international community. Such an evolution of recognition theory was inspired by attempts to ensure that international law would be universal in application to all entities that meet the objective criteria of statehood within the system by insulating the objective achievement of statehood, from the subjective criteria of recognition. In light of these motivations, it is natural that a key component of declaratory theory is the establishment of objective criteria for statehood. However, as skeptics like Grant have argued, this interpretation of recognition also runs into problems for two important reasons.

First of all, the Montevideo criteria of statehood are rather minimal in scope and even then substantial controversy surrounds their application and interpretation. Suggestions for raising the bar for statehood and infusing the concept with additional normative criteria along these lines have in recent years included a widening range of requirements. These include the suggestions — which have drawn varying degrees of support in terms of international law — that a new state be: self-determining; democratic; established through peaceful means, legally, and by a negotiated settlement; independent; an observer of minority rights; be willing and able to observe international law; and “effective” with respect to the governance of the populations it contains. Grant argues that current projects for the elaboration of “Montevideo Plus” criteria for statehood are — while legitimately attempting to infuse statehood with considerations that better reflect changing normative standards (such as the right to self-determination and independence for colonial peoples and those suffering alien occupation) — inherently suspect in that they again reinsert ambiguity into the processes of establishing and confirming the juridical personality of states within the current system.

Bibliography

Brownlie, Ian, Principles of Public International Law (6th edn., Oxford: Oxford University Press, 2003), 85-101.

Evans, Malcolm D. (ed.), International Law (Oxford: Oxford University Press, 2003), 205-267.

Jennings, Robert/Watts, Arhtur (eds.), Oppenheim’s International Law (9th edn., Harlow:Longman, 1992), 126-203.

Shaw, Malcolm N., International Law (Cambridge: Cambridge University Press, 2003), 367-408.

Harris, D.J., Cases and Materials on International Law (5th edn., London: Sweet & Maxwell, 1998), 144-189.