Declaratory Constitutive Theorists

INTRODUCTION

The debate on the relevance of recognition of an entity under international law lies between two diametrically opposed schools of thought; the Declaratory and Constitutive theorists. While the former advocates the limited role of recognition to the existence of a state and or government, the latter posits that the incidence of recognition is pivotal and indeed essential to the existence of a state or government.

This paper shall attempt an analysis of the role and function of these two schools under international law. Pertinently, we shall attempt; to define recognition as a concept under international law making the distinction between the recognition of a government and a state in the process, undertake an analysis of the two schools of thought and their application in the international realm, criticisms of the approaches by either side, with a conclusion that in practice, the role of recognition under international law is a position which lies between the divide.

Although definitions at law are a risky venture, more so in respect of a topic which is subject to the whims of perspective, it is safe to identify certain characteristics incidental to recognition. Thus it is safe to identify that recognition is a manifestation of the will of a state, whereby it considers that a given situation is legitimate. It indicates the willingness to deal with another state as a legal person on the international plane. It is the mechanism by which states acknowledge the existence of other states and governments. With recognition comes the attendant legal consequence for the recognising person; to wit rights, obligations and duties towards the recognised person.

The concept of recognition under international law is arguably one aspect where the interface between politics and law is most prevalent. This is because recognition is a political act that produces legal consequences . Recognition is itself a function of politics . O’Brien submits that recognition is normally an act of government and although it is subject to legal criteria, it will be influenced by political considerations such as disapproval of the regime in question or as a result of historical differences . Thus, Brownlie submits that the use of the term ‘recognition’ should not prevent a lawyer from inquiring into the intent of the government concerned and then placing this in the context of all relevant facts and rules of law.

There is however a proper distinction between the recognition of a state and a government. While the former indicates a willingness to recognise an area as a ‘state area’ within the international community, the latter entails recognition of a particular group or administration as representing the interests of a particular State within the International community. The essence of recognition of a government is to acknowledge that such government is entitled to act on behalf of a particular state concerned. Recognition of a State, relates to that ‘State’s’ entitlement as an actor under international law.

Perhaps it is more in the recognition of governments that the effect of recognition as a political tool is more felt. Thus even in cases where a new government is all too clearly in effective control of the territory, with a reasonable prospect of permanence and with the obedience of the mass of the population, recognition may be withheld as a sign of displeasure.

However, since international law is concerned more with realities, if the new regime was not at first recognised because of the way it came to power, yet is clearly in effective control and firmly established, in international law it will be regarded as the government. This was the position taken by the arbitrator in the Tinoco Claims Arbitration.

FUNCTIONS OF RECOGNITION

Recognition is of importance as it is concerned with status, that is the status of the entity in question (i) on the international scene and (ii) within the municipal legal system of the recognising state.

Typically, the act of recognition has two main functions. First, the determination of statehood, a question of law; such individual determination may have evidential effect before a tribunal.

Secondly, the act of recognition is a condition for the establishment of formal, optional, and bilateral relations, including diplomatic relations and the conclusions of treaties.

A recognised state or government under municipal law would be entitled to;

(a) enjoy locus standi in the local courts of a recognising state, and can accordingly raise an action therein ,

(b) enjoy immunity from suit in the courts of the recognising state and cannot be sued without its consent

(c) the legislative and administrative acts of the recognised state would be given effect within the territory of the recognising state

Retroactivity

Recognition when granted dates back to the establishment of the entity in question . The effect of the divergent schools of thought on recognition can be found in the principle of retroactivity. Here again a distinction can be made of this effect on the international plane and in municipal sphere or in the sphere of optional relations and voluntary obligations. On the international plane, when a state makes a late acceptance of the existence of another state then, in the field of the basic rights and duties of existence, this recognition cannot be said to be ‘retroactive’ because in a special sense it is superfluous.

In the sphere of optional relations and voluntary obligations it may or may not be, since the area is one of discretion.

There are basically two theories as to the nature of recognition.

THE DECLARATORY (OR EVIDENTIARY) THEORY

The proponents argue that the legal effects of recognition are limited, since recognition is merely a declaration or acknowledgement of an existing state of law and fact. To them, legal personality is a function of the operation of law. Communities are said to be subjects under international law from the moment they acquire the marks of a state. Thus as soon as the State of Israel acquired the marks of statehood i.e. a government, population, ‘defined territory’ , etc it was entitled to Statehood, notwithstanding the fact that it was not recognised by most of its Arab neighbours.

This doctrine owes a lot to the traditional positivist thought on the supremacy of the state and the concomitant weakness or non-existence of any central guidance in the international community.

The theory is in practice in the UK where recognition is extended once, it is satisfied that the authorities of the state in question have complied with the minimum requirements of international law, and have effective control which seems likely to continue over the country. Though relating to the question of recognition of a government, Taft who was acting as a sole Arbitrator in the Tinoco Arbitration , ruled that non recognition of the government of a state by another was immaterial once the former had met certain objective criteria. He further ruled that recognition was only evidence that the state or government had met and satisfied the conditions for statehood.

The theory finds support in most International treaties such as the Montevideo Convention on Rights and Duties of States which provides that;

“The political existence of a state is independent of recognition by other states.

Thus the fact that most Arab states at a time did not recognise Israel this did not prevent them from making international claims against her.

Criticisms have however been levelled against this school of thought, especially by Lauterpatcht who questions the doctrine of retroactivity which is often cited in support of the declaratory theory. He argues that “…if a state is a subject of international rights and duties as soon as it “exists, then there is no necessity for a special judicial doctrine sanctioning the validity of those rights and duties ab initio”.

Second, a state cannot be said to come into existence merely of its own volition; the contention is that legal personality even under municipal law is a creature of law, not of nature.

Another issue is the question of automatic test of existence relied on by the declaratory theorists; the argument is against the impracticability of this test and Lauterpecht contends that this is not self evident. Instances abound as to circumstances in which ‘existence’ alone is not sufficient to confer statehood. Entities such as the Vatican, Manchukuo, and Taiwan etc come to mind.

THE CONSTITUTIVE 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 obtained independence. The theory postulates that a new state is established under international law by virtue of the will and consent of already existing states.

This theory seeks to explain the binding nature of international law in consent and the act of recognition is seen as an expression of consent to observe the rules of international law in a relationship .

The Constitutive theory culminates in two major assertions ;

First, prior to recognition, the community in question possesses neither the rights nor the obligations which international law associates with full statehood;

Second, recognition is a matter of absolute political discretion as distinguished from a legal duty owed to the community concerned.

The basis of the argument of these theorists is that fundamentally, an unrecognised ‘state’ can have no rights or obligation in international law. According to Jellinck, legal relations between two entities who are not subject to a superior legal order can arise only as the result of mutual recognition of legal personality.

The role and function of recognition as envisaged by the constitutive theorist is most evident on the municipal plane. Thus where the government of a state recognises the government of another state or that state as such, the legal consequences of recognition follow within the territory of that State . It has been the position that in certain circumstances, courts take cognisance of the number of states which have recognised another state in order to give effect to the latter state’s legislations and acts. Thus the African Union recognised the entity known as the Arab Democratic Republic, giving it admittance and the privileges of statehood. In the very recent application of the theory, the State of Kosovo, recently attained statehood as a result of the constitutive effect of recognition accorded it by most of the States within the European Union and the United States. On the other side of the coin, the United States of America for close to a generation refused to recognise Communist China with the attendant legal consequences within the territory of the United States.

Under this theory recognition plays a vital role in the maintenance of public order within the international community. It is functions as an assessment on whether a particular legal situation is in accordance with fundamental rules or principles of international law. Thus the international community in assessing the situation in East Timor, Northern Cyprus, Transkei region of South Africa, Katanga region of the Congo, Rhodesia etc withheld recognition thus depriving those states and governments and essential requisite for existence. The constitutive theory is most emphatically evidenced by the failure of entities to establish themselves as effective states in the face of determined non recognition despite matching the Montevideo criteria. For instance, the refusal to recognise the secession of Katanga from the Congo, the ‘Unilateral Declaration of Independence’ by Rhodesia in the 1960’s, the occupation of Kuwait by Iraq in the 1990’s.

Under this theory, recognition functions as estoppels, i.e. it bars the recognising state from alleging or denying the fact and contesting the legal existence of the new state. In this regard, while it was ‘normal’ for Egypt and Jordan to make war against the state of Israel, prior to their recognition of that entity as a state, they were both stopped from acts of aggression against the territory of Israel after their recognition.

The constitutive theory as applied in the recognition of states is conceptually incompatible with ‘strong law’, also known as ius cogens. When a state is established on the basis of a peremptory norm, as in the case of lawful exercise of the right of self determination, it becomes imperatively opposable to all states, and the latter may not validly challenge it through withholding recognition. This is the case even in circumstances where statehood is claimed in violation of ius cogens.

The criticisms levelled against this school of thought is that it tends to postulate that an unrecognised ‘state’ may not be subject to the obligations imposed by international law and may accordingly be free from such restraints as, for instance, the prohibition on aggression. Second, if a state were recognised by some but not other states, then this may lead to challenges on the status of personality; questions may arise as to whether there is such thing as partial personality. Following from the above, questions may also arise; how many states need to recognise a state before it can attain statehood, is the recognition by some States e.g. World powers such as the United States, The European Union, Russia etc more important than recognition by others etc

Questions thus arise as to the theoretical and practical sustainability of this theory ;

Is it consistent with the operation of any system of law that legal personality under it should be determined on the subjective assessment of third parties?

Where this theory is accepted as a basis for creation of statehood or governments, what degree of recognition would be required in order to constitute a state?

We have undertaken an evaluation of the role and function of the two theories on recognition of state, the conclusion from the analysis is that there is no coherence in practice, neither is there unanimity. The better approach is a marriage of the two theories. Thus Lauterpatch has tried to bring the two approaches to recognition together in a way that would facilitate the operation of international relations and help secure the compliance with international law. Recognition he opined was ‘declaratory of facts and constitutive of rights’

Menon best sums up the position in practice when he stated thus; …‘’even in the absence of recognition, [a new state] has the rights and attributes of sovereignty; but only after it has been recognised …will [the new state] be able to exercise these rights via-a-vis other states.’’ .

Thus the question is one of perspective, to the international lawyer who believes that international law is the sum of rights and duties granted and owed between States, the role of recognition cannot be overemphasised. Recognition is relevant if the legality of a title or situation is doubted. If so, then as a validation device, recognition is constitutive rather than declaratory .To those who view International law as the assertion of rights, which entail corresponding duties by opposable sovereignties on the international plane, then the role and function of recognition can be no more than evidentiary of the fact of existence of a State.