The overarching concept to be borne in mind when considering the practical aspects of statehood is that it is a binary proposition, in that an entity either will or will not be instilled with international legal personality, from where it will take on all of the associated rights and respon- sibilities commensurate with the doctrine of sovereign equality of states. The problem with the declaratory theory is its relative imprecision vis-à-vis the constitutive theory, in that the legal act of recognition by other states is an innately more precise instrument than is the identification of
the particular moment whereby an emerging state becomes a state per se.53
Even within the declaratory theory framework, Kelsen’s identification of separate legal and political acts is worthwhile, as if statehood were a mere legality, and yet not sufficiently tan-
gible to manifest sovereign equality per se without specific legal recognition,54 the role played by
50Id. at 610.
51Cf. Menon, supra note 46, at 163.: “Adherents to the view include Baty, Brierly, Cobbett, Erich, Goebel, Halleck, Jaffe, Lorimer, Moore, Nys, Phillimore, Scelle, Vattel, Westlake and Williams.” See also Int’l Law, supra note 45, at 252, citing the following in further support of the declaratory theory: 2 Annuiare de l’Institut de Droit Int’l 300 (1936); Inter-American Convention on Rights and Duties of States, Art. 3 (1933); Charter of the Organization of American States, renumbered Art. 13 (1948, amended by Protocols of 1967-1993); and the ad hoc Arbitration Commission established by the EC Conference on Yugoslavia, Opinion No. 1, 31 ILM 1494 (1992). See also Québec decision, supra note 9, at para 142.
52 J.L. Brierly, The Law of Nations (6th ed., Waldock, 1963) 139, as cited in Menon, supra note 46, at 171. 53Cf. T.C. Chen, The International Law of Recognition 16 (1951) [hereinafter Chen]: “The most important part of departure between the constitutive and the declaratory theories lies in the question whether the le- gal personality of a State exists prior to recognition, that, is to say, whether the unrecognized State can be a subject of international law, having capacity for rights and duties. On this point, there is no doubt that these writers [Rivier, Fauchille, and De Louter—that is, those chiefly critiqued by Lauterpacht in his analysis] are in support of the declaratory theory.”
recognition under the declaratory theory is largely “an assurance given to a new State that it will be permitted to hold its place and rank, in the character of an independent political organism, in
the society of nations”.55 It furthermore serves “as an estoppel against any subsequent denial of
the existence of the State”.56 Thus under the declaratory theory, it is possible that an entity taking
the form of statehood, and therefore possessed with international legal personality, may go un- recognised, for it is dubious whether Lauterpacht’s assertion under the constitutive theory framework that states have a duty to recognise entities which satisfy the criteria of statehood is, in fact, valid under a declaratory system, and this would be largely a political act on the part of non- recognising states, in that the withholding of legal recognition of the new state has occurred.
Indeed what seems the most likely arbiter of the constitutive/declaratory dichotomy in the modern age is a state’s admission to an intergovernmental organisation, the United Nations
in particular.57 Although it could be argued that using membership in an intergovernmental or-
ganisation is little more than a repackaging of the constitutive theory, in that recognition is col- lectivised into the multilateral form of membership in an intergovernmental organisation, to do so is to overlook the point that, under the declaratory theory, it is possible that a state can exist, and thus have international legal personality, without achieving full recognition across the in-
ternational community of states.58 Thus the obvious reality of the deliberate non-recognition of
states is presented. What is most at issue here is not necessarily to further delineate between the two theories of recognition, but rather to observe the roles played by recognition in an era of a rapid increase in states concurrent with the decolonisation process, fuelled by the United Na- tions itself. However, such is the level of controversy associated with recognition that the Inter- national Law Commission—founded by the United Nations in 1947 to promote the progressive development of international law and its codification—has little to say on the topic. As James Crawford, a former ILC member himself, states:
The Commission has spent much of its time on international transactions and obligations (the law of treaties, State responsibility, liability for injurious consequences, the law of interna- tional watercourses, etc.) and very little time on questions of sovereignty. Of the 14 topics on its first work program, “recognition of States and Governments” is the only one which the Commission has never tackled and I doubt will ever tackle. The only work it has directly done on sovereignty issues was its work on state succession. That was an offshoot of the law of treaties: state succession is an area of intersection between the fields of sovereignty and obligation. In the end one might say that the implications so far as sovereignty were con- cerned proved overwhelming, and the work on succession is regarded as only moderately successful.59
55Id. at 77, citing Hyde, Moore and Rivier. 56Id.
57 Articles 3 and 4 of the UN Charter establish that membership is only open to States, and indeed UN membership has been instrumental in validating the independent statehood of postcolonial states in par- ticular. See generally J. Dugard, Recognition and the United Nations (1987) [hereinafter Dugard], but cf. D. Raič, Statehood and the Law of Self-Determination (2002), at 39-47 [hereinafter Raič].
58Cf. Chen, supra note 53, at 17: “There is another group of writers, described by Professor Cavaré as mi- constitutive, mi-declarative. These writers, in an effort to reconcile positive rules of law and social neces- sity, advance the argument that recognition is declaratory as regards certain minimum rights of existence, but constitutive as regards more specific rights. Such a view is in reality a rejection of the constitutive view, in so far as it regards States as capable, even in the absence of recognition, of enjoying rights, how- ever limited, under international law.”
59 J. Crawford, Responsibility to the International Community as a Whole, 4th Snyder Lecture, delivered 5 April 2000, available from lcil.law.cam.ac.uk (footnotes omitted), citing Report of the International Law Commission on the work of its 48th Session, 6 May-26 July 1996, UN Doc. A/51/10, at para. 162 & An- nex II. But cf. International Law Commission, Draft Articles on the Responsibility of States for Interna- tionally Wrongful Acts, at Articles 40 and 41, in Report of the International Law Commission, 53d