The Role And Function Of The Declaratory And Constitutive Theories International Law Essay

State recognition is one of the most contested topics in the international law. This problem appears to come back on the international agenda and reopens the great debate with the recent unilateral declaration of independence pronounced by Kosovo in 2008. Further attention was gained in August 2008, when Russia and Nicaragua recognized the statehood of breakaway regions of South Ossetia and Abkhazia. The issue of recognition is of immense importance as it usually confirms the state’s legal existence as well as allows the new entity full political interaction with existing entities. Legal personality indicates that the new entity is capable of possessing international rights and duties, and has the capacity to maintain its rights by bringing international claims. [1] Additionally, it acknowledges that a recognized state must obey standards and regulation posted by international law, which in turns secures stable and peaceful international order. State recognition is a subject of a disagreement between two schools; the one in favour of constitutive theory and the one in support of the declaratory theory of statehood.The latter does not require the recognition of other states as long as it has achieved the known required standards to be a person of international law. In contrast, the constitutive theory does require the recognition of a state as sovereign by other states to be a person of international law. [2] This essay will explain the role and function of the two theories and their applications in the international community, and attempt to access which one is more functional. Finally it will clarify the difference between the recognition of the state and the recognition of the government.

It is commonly understood, the state arises as a legal and political entity when it achieves certain requirements. Criteria for statehood are defined in 1993 Montevideo Convention on Rights and Duties of State (MC).An entity must posses: a permanent

population; a defined territory; a government; and a capacity to enter into relation with other countries [3] . Conflict already appears with the ‘effective government’ requirement. For example Shaw claims that this “is not a precondition for recognition as an independent state” [4] In opposition, Dixon argues that condition of effective government must be first satisfied, before an entity can claim to be a state. [5] on the subject of the last condition, Crawford for instance, sees capacity to enter into relations with other states as an attribute of an entity which has already reached statehood. [6] In addition to the MC, there is also a very great argument that that self-determination should be given more importance than state recognition; according to Raic : “Whether a new State is created as a result of devolution, integration, dissolution, or secession, it is submitted that, in principle, in all of these cases, self-determination forms the legitimizing principle for the creation of the new State”. [7] 

Overall, the presented legal condition for statehood, alongside with political action and certain facts are the basis for the state recognition in the declaratory understanding. It can be deducted that the declaratory theory, is ”little more in accord with practical realities” [8] , as is based on natural law with an objective system of law. [9] Additionally, the declaratory theory operates on notion of the sovereignty of the state and the associated weakness or non-existence of any central guiding in the international system. [10] 

Declaratory theory maintains that a new entity will obtain capacity in international law not by asset of the permission of other states but by acceptance of the realistic

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situation, which was result of their own effort and political actions. Moreover new state will not have to wait for the procedure of recognition by others. [11] Lall and Khemchand argue that ‘appearance of new state and becoming a new subject of international law are instantaneous processes. Becoming aware of that there is no reason for claiming that states become subjects of law only after they have been recognised’. [12] Similar reasoning is presented in Article 3 of the MC: ‘statehood is free of recognition by the existent states, and an entity can exist even if others don’t recognize it. [13] In addition, Brownlie claims that, ‘if an entity bears the marks of statehood, other states put themselves at risk legally, if they ignore the basics obligations of state relations’ [14] 

The Charter of the Organization of American States, speaking about the fundamental rights and duties of state also declares ‘the state is independent of recognition by other states. Pointing out that even before the recognition, state has the right to protect its integrity and independence. [15] 

Undoubtedly, if state meets the conditions for statehood but is not internationally recognized, it has much more difficult position for operating in international system. Nevertheless, ‘it would not seem in law to amount to a decisive argument against statehood itself’ [16] 

Another strong argument in favor of the declaratory theory is the fact that even though any state does not recognize a new entity, it cannot deny this country legal obligations and duties obligates by international law. Furthermore, it itself is obliged to pursue the rules of law when dealing with such a state. This is clear in relation to Israel- Arab

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relations. Moreover, the recognition from the declaratory point can avoid laps in time, when state is suspended in the legal, political space, and shun illogicality of considering an entity as a state and non-state at the same time. Even though the concept of obtaining the fully legal statehood through achievement of certain conditions seems very simple and logical, it is not as straight forward from situation where all circumstances are not satisfied.

Firstly, if the state is perceived as a “state hence fulfilment of statehood requirements, declaratory theory must clearly define in legal terms what ‘state’ is”. [17] particularly now, when the era of colonies is over, as well peaceful disintegration of massive powers , the existence of the new state is the result of violent breakouts, wars. Fulfilment of basic criteria to become a person of international law is just simple and many other elements need to be considered; elements that are not clearly and fully defined.

Secondly, a question arises if the statehood could be obtained when an emerging entity does not posse one of the conditions for statehood, for example territory? This was case of Greece, and Netherlands during II World War. Another instance is lack of effective government, as in the case of the Annexation of Czechoslovakia by Germany in 1939.The situation can be further complicated when there are two governments: operating externally and acknowledged by international community and government within the state. The declaratory theory does not provide answers for those situations.

Evidently then, state recognition is very important but is it enough to grant an emerging state a legal personality ?

In 1912 Oppenheim famously concluded that: “International Law does not say that a State is not in existence as long as it is not

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recognized, but it takes no notice of it before its recognition. Through recognition only and exclusively a State becomes an International Person and a subject of International Law”. [18] 

The constitutive theory maintains that it is the act of recognition that creates a new state and awards it with legal personality, not the process by which it actually gained independence. Lauterpacht claims that once the conditions prescribed by international law for statehood have been complied with, there is a duty on the part of existing states to grant recognition . [19] However, it must be emphasized that existing states have a full independence and discretion to either accept or reject a new state. This does not have to be supported with incident to conclude that is a very dangerous political tool. For example, the United States did not recognized the People’s Republic of China and North Korea because they did not want to have any relations with those states.

A further disadvantage of this approach, and possibly the most problematic, is the fact that unrecognized ‘states’ are sustained in legal limbo. From the constitutive reasoning it follows that an unrecognized state does not posses any rights or obligations. This puts other states in danger as states outside the legal regime can act as they wish, without any legal consequences or jeopardy of being punished. Moreover, an interesting question arises what happens when an entity is recognized by one states but its legal position is denied by others. This creates confusion; moreover put forward a question of ‘partial personality’? [20] 

Nevertheless, the constitutive theory has some valuable points. For example, in cases when the state becomes exist as a result of unlawful actions such as violence, occupation or more likely the government through unconstitutional procedures, non recognition of such a state significantly questions the legal position of such an entity

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and it is immensely harden to maintain a political existence. [21] Moreover, recognition of a new state by international community can increase the chances and, to some extent, cover defects in satisfying the criteria for statehood. Perhaps the safest and exact position when it comes to the constitutive theory has been expressed by Shaw who stated that “recognition is constitutive in a political sense, for it marks the new entity out as a state within the international community and is evidence of acceptance of its new political status by the society of nations . This does not imply that the act of recognition is legally constitutive, because rights and duties do not arise as a result of the recognition.”” [22] 

Moving to the application of those two theories, it is believed that states and international community tend to apply declaratory position.

German-Polish Mixed Arbitral Tribunal stated: “the recognition of a State is not constitutive but merely declaratory. (…) The state exists by itself and the recognition is nothing else than a declaration of this existence, recognized by the State from which it emanates” [23] The International Court of Justice in the Genocide Convention case clarify that the failure to maintain effective control over territory does not extinguish the legal entity in the eyes of the United Nations”. [24] Legal requirements for statehood and the declaratory position where further confirmed by Commission of Jurists on The Aaland Islands, appreciate the importance of the recognition of Finland by other states, but called for ‘conditions required for the formation of a sovereign state’ [25] 

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The case of Israel is disputed, but clearly, even if the Arab countries are rejecting to recognize it, Israel has legal personality and is bound by international law to follow and respect international system. Considering Israel through constitutive theory it would mean that Israel would not be protected and would not have the legal right to defend its territory. even though that the Arab community do not recognize Israel, still have to acknowledge Israel and their legal duties that flow from international treaties that all parties have signed. [26] 

Despite the fact that Constitutive theory has not been formalized in any treaty, it has some applications in the international cases. . The Permanent Court of International Justice, used the premises of the constitutive theory in the Lighthouses case ” where effectiveness was disregarded for the fiction of continued sovereignty of the Turkish Sultan” . [27] A second instance was the Morocco case “regarding the continued sovereignty of Morocco although under the French Protectorate. [28] .

Recognition without completion of statehood requirements of territory, population and effective government are present in some cases of former Yugoslavia. Bosnia was unanimously acknowledged by the General Assembly to the UN on 22 May 1992 [29] , despite that Bosnia was losing some of the basics of statehood conditions. .

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The different between the recognition of state and the recognition of government:

Government’s recognition is an acceptance by the recognizing state that the system in question is the effective authority and such demonstrate the will to cooperate. [30] Government and state are two inseparable factors; recognition of a state automatically grants recognition to the government. [31] It is generally accepted that the legal personality of a state does not affect the change of the government within the state. [32] 

Recognition of a government can be de jure (legally recognised), or de facto (regardless of whether or not it has been legally recognised). Israel ‘was recognized by the United States and the United Kingdom by the device of having its government recognized de facto. [33] 

There are many efforts can arise in time of war or revolution. Crawford argues that “belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State” [34] . Clearly then, recognition neither changes nor determines the legal personality of entity under the international law. This was confirmed in Tinoco case: ‘ non-recognition for any reason…cannot outweigh the evidence disclosed…as to the de facto character of Tinoco’s government, according to the standard set by international law’ [35] . When diplomatic relations with unrecognized government are suspended legal bindingness are still applicable. .

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In conclusion, it is important to acknowledge the valuable elements and weaknesses of both theories. In addition, both have found application in the international political and legal scenario. The declaratory theory focuses on the international factual situation while the constitutive concentrates on the external legal rights and duties. As Worster said : “Recognition alone does not create the internal factual situation of statehood, but may help to inspire such coalescence”. [36] . Obviously neither theory is perfect. Because of that the international community leans to adopt the middle position and resolve the happening problems on individual bases by applying the most related element from both theories. It is Clearly that they are not mutually exclusive and on many circumstances confirmed that if they applied together ,it would allow an averting of complex legal questions regarding a new state and they are avoid political disorder.

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