D ECLARATORY THEORY

The declaratory theory adopts the opposite approach and is more in accord with practical reality. It maintains that recognition of a new State is a political act, ‘which is, in principle independent of the existence of the new State as a subject of international law.’⁵²⁴ Shaw explained that under this view, recognition is merely an acceptance by States of an already existing situation.⁵²⁵ This approach is laid down in the first sentence of Art 3 of the Montevideo Convention 1933, 'The political existence of the State is independent of recognition by other States'.⁵²⁶ Thus, in the declaratist’s view, the formation of a new State is a matter of fact. Kreijen argued that, ‘recognition serves as the formal act of acknowledgment of a factual situation and thus is of a declaratory nature only.’⁵²⁷

Under the declaratory theory, a State will be formed free from like prohibition on aggression, against the consents of the other States, just after meeting the international requirements.⁵²⁸ In this regard, Talmon argued that, ‘an entity becomes a State for the reason that it meets all the

520 Brownlie, Principle of Public International Law (n 359) 89.

521 M Shaw, International Law (4^th edn, CUP 1997) 298.

522 ibid.

523 Kreijen, State Failure, Sovereignty, and Effectiveness: Legal Lessons from the Decolonization of Sub-Saharan Africa (Developments in International Law) (n 428) 16.

524 Crawford, The Creation of States in International Law (n 3) 22.

525 Shaw, International Law (n 119) 446.

526 ‘The Montevideo Convention on Rights and Duties of States’ (n 342).

527 ‘The essential postulate of the declaratory school is that an entity ipso facto and, therefore, automatically becomes a State if it meets the basic requirements of statehood.’ See, Kreijen, State Failure, Sovereignty, and Effectiveness: Legal Lessons from the Decolonization of Sub-Saharan Africa (Developments in International Law) (n 428) 15-16.

528 Yamali, ‘What is meant by state recognition in international law’ (n 505).

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international legal criteria for statehood and the recognising State’ merely establishes, confirms or provides evidence of the objective legal situation, that is, the existence of a State’.⁵²⁹

Accordingly, a ‘State may exist without being recognised, and if it does exist, in fact, then whether or not it has been formally recognised by other States; it has a right to be treated by them as a State.⁵³⁰ Here, when recognition actually follows, other States merely recognise a pre-existing situation.⁵³¹ According to this view, a new State will acquire capacity in international law not by virtue of the consent of others but by virtue of a particular factual situation, as well as, it will be legally constituted by its own circumstances and efforts and will not have to await the procedure of recognition by other States.⁵³² Under this view, outside States can choose to recognise the new State, or not, but that decision does not influence the legal determination of statehood.⁵³³ Thus, ‘an entity that meets the criteria of statehood immediately enjoys all the rights and duties of a State regardless of the views of other States.’⁵³⁴

In its first Opinion on 29 November 1991, the Badinter Commission, which was charged with the task of studying questions relating to the recognition of new States and State succession, which resulted from the dismemberment of the Socialist Federal Republic of Yugoslavia (SFRY), expressed that:

[The principles of public international law serve to define the conditions on which an entity constitutes a State; that is in this respect, the existence of the State is a question of fact; that the effect of recognition by other States are purely declaratory]. ⁵³⁵

It is true that most writers support the declaratory theory under which the international personality of a State is determined by objective criteria of international law only.⁵³⁶ Thus,

529 Talmon, ‘The Constitutive versus the Declaratory Theory of Recognition: Tertium Non Datur?’ (n 489).

530 Vidmar, Democratic Statehood in International Law. The Emergence of New States in Post-Cold War Practice (n 365) 43.

531 ibid.

532 Shaw, International Law (n 119) 243.

533 J Dunoff, S R Ratner and D Wippman, International Law Norms Actors Process (2^nd edn, Aspen Publisher 2006) 138.

534 ibid.

535‘Opinion No I [Disintegration of the SFRY] (1991) 92 ILR 162, 164-165. Affirmed in Opinion No 8 [Extinction of the SFRY] (1992) ILR 199, 201.

536 Crawford stated that ‘[a]mong writers the declaratory doctrine, with differences in emphasis, is now predominant’, while ‘States do not in practice regard unrecognised States as exempt from international law’.

See, Crawford states, The Creation of States in International Law (n 3) 23. See also, Brownlie, Principle of Public International Law (n 269) 90. On the other hand it is argued that ‘Only by being granted recognition is a

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even if a State is not recognised, it will have international rights and duties opposable to the international community.⁵³⁷ Whether an entity is a State is then a matter of fact, not recognition.⁵³⁸ While on the other hand, for the constitutive theorist, an unrecognised State can have no rights or obligations in international law.⁵³⁹ Similarly, Crawford questioned, can States legitimately refuse to treat entities as States, which do in fact qualify?⁵⁴⁰ State practice has not accepted a right of recognition nor a duty to recognise. Recognition, being within the direction of every State, can therefore be withheld, for political or alleged legal reasons, from an entity, which qualifies as a State under general international law.⁵⁴¹ For example, in the case of Rhodesia, Kosovo, Katanga, and East Timor, States looked for a new State having to obey some fundamental standards of the international community in order to obtain statehood.⁵⁴² This is the consequences of the declaratory theory. As a result, Duursma pointed out, legitimate but non-recognised States will have more difficulties in being accepted as Member States of international organisations.⁵⁴³ As well as this, they cannot enter into diplomatic relations with the international community. These are practical, not legal effects.⁵⁴⁴

In fact, since the recognition has a political side, in practice many States prefer a middle way between these two doctrines, in addition to classic qualifications to seek some basic requirements of international law for recognition.⁵⁴⁵ Hillgruber argued that, ‘legal personality under international law, which non-recognition was intended to prevent, would already have been acquired, and recognition would then in a sense be futile, without this flaw of

new state fully admitted by an existing state into its circle of bilateral relations within the framework of international law; this is precisely what the existing state intends when granting recognition, and what it knows it is preventing when withholding recognition.’ See, Jennings and Watts (ed), Oppenheim, International Law (n 362) 129-30.

537 Duursma, Fragmentation and the International Relations of Microstates (n 373) 110-115.

538 ibid.

539 Shaw, International Law (n 119) 446.

540 Crawford, The Creation of States in International Law (n 3) 100.

541 Duursma, Fragmentation and the International Relations of Microstates (n 373) 115.

542 For example: ‘The EU foreign ministers, concerned with the existence and mal-treatment of minorities within the former Soviet Union and the SFRY, announced that one of the criteria of recognition of new states within the EU would be the respect of human rights, as well as the protection of minority rights. See, ‘Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, 31 ILM 1486 (1992)’ (n 463). (requiring ‘respect for the provisions of the Charter of the United Nations … especially with regard to the rule of law, democracy and human rights,’ and ‘guarantees for the rights of ethnic and national groups and minorities’ in order for a new state to be recognised).

543 Duursma, Fragmentation and the International Relations of Microstates (n 373)

544 ibid.

545 Yamali, ‘What is meant by state recognition in international law’ (n 505). See also Shaw, International Law (n 119) 446.

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recognition having any significant legal consequences under international law.’⁵⁴⁶ In this regard, despite the general perception of recognition as being declaratory, it is also possible to have constitutive elements, since international personality may depend on recognition.⁵⁴⁷ Lauterpacht asked for an ‘external independence and effective government within a reasonably well-defined territory.’⁵⁴⁸ If these objective criteria were complied with, he believed that the international community would be under a duty to recognise the new State.⁵⁴⁹ Such a solution would be both constitutive and declaratory, ‘since it acknowledges a factual situation, meeting of the statehood criteria, and creates a new legal situation, awards statehood to the entity in question.’⁵⁵⁰ This proposal has been challenged for its

‘contradictory nature, as well as for insufficient State practice proving that States accept such a duty to recognise entities fulfilling the statehood criteria.’⁵⁵¹

On the other hand, despite the considerable support for the declaratory theory in international law, the debate between the constitutive and declaratory theories continues, as international law does not have any mechanism for authoritatively determining whether an entity fulfils the factual criteria for statehood.⁵⁵² The proponents of the constitutive theory have used this point to argue for the importance attached to recognition by existing States. Kelsen for instance, argued that ‘international law provides existing States the freedom to determine in each case separately whether an entity meets the necessary criteria for statehood.⁵⁵³ He noted that,

‘recognition is a determination of facts: a determination of the existence of a sufficiently effective and independent authority (government) over a territory and a population’.⁵⁵⁴ Hence, it would not be possible to speak of the existence of a State under international law, without such an approval. According to this view, the existence of a States is relative: an

546 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. See, C Hillgruber, ‘The Admission of New States to the International Community’ (1998) 9 Eur J Int’l L 491.

547 Vidmar, Democratic Statehood in International Law. The Emergence of New States in Post-Cold War Practice (n 365) 43.

548 H Lauterpacht, Recognition in International Law (CUP, Cambridge 1948) 31.

549 ibid 6.

550 Vidmar, Democratic Statehood in International Law. The Emergence of New States in Post-Cold War Practice (n 365) 43.

551 Lauterpacht, Recognition in International Law (n 548) 12-24.

552 Horbach, Lefeber and Ribbelink, Handbook in Inteenational Law (n 332) 179.

553 ibid.

554 ibid.

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entity is considered a State by some States (those who have recognised it) and not a State by other States (those who have not recognised it).⁵⁵⁵

The question, which arises here, is what rights such a territorial entity is entitled to, and what is the status of such entity under international law? Is such entity entitled to any form of sovereignty?

In general, an entity claiming to be a State cannot conduct international relations with other States, unless those other States are willing to enter into such relations with that entity.⁵⁵⁶ In other words, the conduct of international relations is a two-way street, involving the new

‘State’ as well as outside actors that have to be willing to accept the new ‘State’ as their sovereign partner.⁵⁵⁷ In fact, no State can exist in a vacuum, a fact well established by international practice. For example, in 1965 when Southern Rhodesia (now Zimbabwe) decided to separate from Great Britain and form an independent State, most of the international community refused to recognise it as a State.⁵⁵⁸ Consequently, it remained isolated from the world and was unable to conduct international relations.⁵⁵⁹ The non-recognition of Southern Rhodesia by outside actors prevented it from fully exercising the attributes of legal statehood.⁵⁶⁰

Recognition thus, has a direct impact on the pragmatic determination of statehood, whether it is considered as a political or legal act, or whether an entity will be able to truly act as a State on the international scene. Cassese concluded that, ‘there have been cases in which it was doubtful that a new State had actually been created, or else a new entity had been set up but in grave breach of international rules.⁵⁶¹ Rather, other States did not consider it to be independent of the State that had been instrumental in its establishment with the consequence

555 Zadeh, ‘International Law and the Criteria for Statehood’ (n 410).

556 Arguing that ‘if states refuse to acknowledge that an entity meets these criteria… they might continue to treat the claimant as something less than a state’; thus, an unrecognised state may find that its passports are unacceptable to the immigration authorities of other states. See, Dunoff, Ranter, and Wippman, International Law Norms Actors Process (n 533).

557 Jennings and Watts (ed), Oppenheim’s International Law, (n 362) 133.

558 The UN Security Council condemned the Southern Rhodesia declaration of independence and declared that it had no legal validity. See, ‘UNSC Res 217 (20 November 1965) UN S/RES/217’.

559 Dunoff, Ratner, and Wippman, International Law Norms Actors Process (n 533) 138. (Noting that nearly all states refused to conclude treaties with Southern Rhodesia).

560 In 1978, following a peace accord, which led to a majority government in Zimbabwe the situation, was resolved. See, ibid.

561 He gave the examples of the case of Southern Rhodesia, from its UDI 1965, to when its internal political system accepted majority rule 1980. In addition, the case of Taiwan (Formosa) as it has all the hallmarks of a State. However, China’s claim that it is part of its territory and subject to its sovereignty prevents Taiwan from entertaining intercourse with all other states. See, A Cassese, International Law (2^nd edn, OUP 2005) 76.

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that they withheld recognition’.⁵⁶² Thus, the strong point of the supporter of the declaratory theory is that ‘the formation of a State, at least the acquisition of its basic rights and obligations, takes place independently of any legal act of recognition and justifies the conclusion that the birth of a State is a factual matter.’⁵⁶³

Overall, it seems that scholars have advanced a third intermediary view on declaratory and constitutive recognition. The emerging picture rather suggests that recognition is of a composite nature, that it possesses both declaratory and constitutive aspects.⁵⁶⁴ Depending on certain circumstances of the particular case, ‘the one or the other aspect will appear in front of the footlights. In other words, while recognition is declaratory in principle, it may thus be of great importance in a particular case. For instance, in certain cases of decolonisation’⁵⁶⁵,

‘recognition was granted despite the clear non-fulfilment of basic factual criteria, the criteria of effective government in particular, while as regards cases of State failure recognition continues without exception despite the loss of some of the essential hallmarks of statehood, for example, the capacity to enter into relations and effective government.’⁵⁶⁶

562 This last instance occurred with regard to the ‘Turkish Republic of Northern Cyprus’, proclaimed on 15 November 1983 and recognised by Turkey only. The UN SC, the Commonwealth Heads of Government, and the Committee of Ministers of the Council of Europe considered the Declaration of independence ‘legally invalid’, required its ‘withdrawal’, and called upon all States ‘not to recognise any Cypriot State other than the Republic of Cyprus’. See, ‘UNSC Rec 541 (18 November 1983).’

563 See for example the ‘Arab-Israeli conflict’ as cited by Brownlie, Principle of Public International Law (n 359) 90.

564 The writers supporting this theory ‘advance the argument that recognition is declaratory with regard to certain minimum rights of existence, but constitutive with regard to more specific rights.’ Proponents of this group include Guggenheim, Kunz, and Verdross. See, Kreijen, State Failure, Sovereignty, and Effectiveness:

Legal Lessons from the Decolonization of Sub-Saharan Africa (Developments in International Law) (n 428) 17.

565 See for example: Ruanda-Urundi and the Belgian Congo.

566 See for instance: the case of Somalia. See, Kreijen, State Failure, Sovereignty, and Effectiveness: Legal Lessons from the Decolonization of Sub-Saharan Africa (Developments in International Law) (n 428) 101.

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