Monday 6 June 2011

Critical Analysis of Constitutive Theory of State Recognition


Alright. So here goes my first real blog on International Law. This analysis consists mainly of my swarming thoughts when I was reading these theories (which I noted down on the side margin of my book). Though I may be seen more as a ‘declar-ist theor –ist’ (if there is any phrase like that!), but that is certainly not the case. Its just that I could, as of present, think more criticisms of constitutive theory, that I could think of declaratory theory. Overall, I believe that the real practice should and does lie somewhere in between of these two theories. But, since I had designed this blog over a week ago, had shown it to some people (yes, its you Riya.. ) and some people asked about it today in the morning (that will be you Arjun), I was morally bound to update it. Pardon me if it sounds a little lousy, as I am writing almost after 6 months. However, it can be cured if the readers leave encouraging comments! :P

Constitutive Theory and Sovereignty

When Vattel defines a sovereign state, he basis it on the notion of equality of States, the effect of which is to make each State the sole judge of its rights and obligations under the law of nations. This definition of a sovereign state largely resembles the modern definition of a sovereign state. In the light of this definition (and also in modern definition), where the tenets of definition of a sovereign state are balanced on its capacity and totality of powers that it may have under international law, the constitutive theory seems to be standing on contrary grounds. Constitutive theory seems to be running in opposite direction (with a possibility of clash with the definition of sovereignty) as it shifts the determination of rights and obligations of a state in the law of nations to other states. This shifting of burden of recognition is exactly opposite to what Pufendorf stated emphatically, that ‘‘a king need not obtain the consent and approval of other kings or states.. it would entail and injury for the sovereignty of such a king to be called in question by a foreigner.’ Pufendorf’s above statement can be considered as an out and out subscription to the declaratory theory, and does sound to be in consonance with the idea of sovereignty.
But if we take into account a softer version of constitutive theory, wherein recognition is a mere ‘flagging off’ of the recognized state by the recognizing state to be ‘sole judge of its rights and obligation’, recognition beings to look like an act ancillary, rather than sine qua non, to the entry of a state in the community of nations. However, two questions need to be answered before the above statement could be held conclusively. First, is recognition under constitutive theory diplomatic or legal? The answer to this question will concurrently determine whether recognition under constitutive theory is ancillary or sine qua non to the entry of a nation in international community. Conspicuous absence of well settled principles to convert the mere ‘physical fact’ of existence of a state to a concrete ‘legal fact’, push the recognition based on constitutive theory to be on an ad hoc, discretionary and hence on diplomatic and political basis. Second question is more of a circular argument, if a state is a sole judge of its rights and obligations, why does it need ‘flagging off’ from other states? This is where Wheaton and Hegel come become relevant when they differentiate between the two species of sovereignty, internal and external; and explain beautifully that the internal sovereignty or power of the sovereign does not in any degree depend upon its recognition by other states, but the recognition by other states supplements and renders the sovereignty of that state perfect and complete. Such recognition becomes essentially necessary to the complete participation of the new State in all the advantages of the society of nations.

Positivism and 19th century – Constitutive Theory Bears an Aroma of Colonial Mindset?

When I was reading the influence of positivism on constitutive theory and the shape it took in 19th century, I couldn’t help noticing that it had acquired colour and chroma of reigning colonial mindset. According to positivist theory, the obligation to obey international law derived from the consent of individual State. Oppenheim’s International Law, on the theory of state recognition, positions itself as ‘Recognition , express or implied, made them members and bound them to obey international law. States not so accepted were not (at least in theory) bound by international law, nor were the ‘civilized nations’ bound in their behavior towards them, as was implied by their behavior with regard to Africa and China.’  This position of state recognition in 19the century is a glaring indicator of colonial mindset and underlying (and maybe subconscious) attempts of making community of nations an ‘all white – christian club’. Also, the evidence of shades of colonial mindset in formulating the theory of state recognition and it being washed away with subsequent decolonization, could be seen if the following statements  in Oppenheim’s International Law’s 8th edition and 9th edition are compared.
8th edn. (1955) – ‘ New States which came into existence and were through express or tacit recognition admitted into the Family of Nations...’
9th edn. (1992) – ‘Thus new states which come into existence and are admitted into international community…’
Analyzing the above statements, two things should be discerned. Firstly, it could be noticed that initially membership of community of nations, and thus claiming rights and obligations under international law depended on the ‘express or tacit recognition’ of other members. To me, it sounded like as if a certain moral high ground was assumed by the already-member States (which was actually, if you ask the third world international lawyers) to scrutinize each application for entry into this club. While in the subsequent edition, the language used is more encompassing and gives the impression that the idea of equality of every state had settled. Secondly, the absence of words ‘through express or tacit recognition’ in the later edition somewhere points out that international law had consciously shifted towards the declaratory approach of state recognition. 

Revolution and Recognition

In cases of revolution the question of recognition was that whether a revolutionary entity could be treated as an independent State before its recognition by the parent state. This is in fact a question which has no definite answer till now. Though I will be dealing with this topic at length in my subsequent blog, but as of now, I would just quote Oppenheim’s International Law, that how an entity became a state was a matter of no importance to international law, which concentrated on recognition as the agency of admission into ‘civilised society’ – a sort of juristic baptism, entailing the rights and duties of international law. According to me, can’t this baptism wait in cases of revolutions. Why rush to recognize the new entity? Let the new entity establish and conclude the ‘fact’ of existence of a state, and then the legal cover/cloak may be given to it. But again, statehood is mixed question of law and fact.  And as much practical my views may sound to myself, somewhere they have a shaky ground in the practice of real world, where other States tend to conduct relations in an international plane with the entity in revolt before its recognition by the parent State.

Finally…

 Phillimore states that ‘the question as to the origin of States belongs rather to the province of Political Philosophy than of International Jurisprudence’. I would like to conclude by throwing an open question on this statement, that given the lack of legal criteria and principles to recognize a state, and it being more of discretionary, diplomatic and political in nature, does recognition belong to International Jurisprudence? Or is it largely a political act having serious legal implications in international law?

7 comments:

  1. Nice insights! It was informative and is well said.

    ReplyDelete
  2. I didn't know that you are from legal background as well.. or are you from politics background?

    ReplyDelete
  3. Recognition under international law is a political act in magnitude. The unforgiving actuality regarding International Law is that, it dances to the jingle of superpowers, which to my utter regret is not more than "Uno" (only US). Biggest illustrations of such political and military audaciousness by our global big brother is firstly, the imposition of sanctions on Indian Space Research Organization, after the nuclear tests were conducted by India in 1998 and secondly the attack on Iraq by the global police (US armed forces) on false allegations of possession of weapons of mass destruction (the charges were proved false by UN chief weapon inspector Hans Martin Blix found none of these weapons.
    So concept of recognition under international law is yet another example of legal luxury to please the five permanent members of the UN Security Council. Every country is sovereign in its existence is a statement, by its very nature, contrary to the concept of recognition. You will be surprised to know that there are 213 countries in the world and UN has 192 members (East Timor being the youngest member), this shows that 21 countries are still not members to the UN.
    After 1971 Indo Pak war Bangladesh came into existence, however, it was not recognized by Pakistan. This non recognition hardly had any effect on Bangladesh. If US would have said that we do not recognize Bangladesh, then the political equation would have been very different, though legal equation would have remained unmoved.
    Another example of American bossism at the UN that Shashi Tharoor missed out the chair of UN Secretary General because his opponent Ban Ki Moon could manoeuvre US support at the right time, by the virtue of being a Harvard alumnus.
    To sum up I can steal a phrase from one of your earlier blogs “international law is a reluctant law” and recognition is no exception to this general footlessness of international law.
    So my conclusion would be “it is largely a political act which leads political and legal isolation in the international community if you are at the wrong side of it.”

    I am an intern at the International Civil Aviation Organization. A UN body dedicated to civil aviation.

    Full marks to your observations.

    ReplyDelete
  4. To add on to things u have mentioned, won't u acknowledge the fact that the origin of state, originally, when the power was consolidated by the warlords in the ancient times, a religious phenomenon.. States were created by the power of religion..

    ReplyDelete
  5. @Vedchetan Patel - This is certainly an aspect which never crossed my mind. It will be great if you could elaborate on its connection with state recognition. I am sure then we can initiate a great discussion on this.

    Cheers!

    ReplyDelete
  6. @Anonymous (who is an intern at ICAO, wow!) - for someone posting such a great insight, its a pity that I can't know you more. It will be great if we could keep on interacting as I am sure we can have some really great discussions. Also, I guess you have been following my blogs on Legally India. I was amused when you used my pet statement 'International Law is reluctant law of reluctant nations'. Seems I am making some impact!! :P Please keep reading, posting and interacting, as its always a great to have readers like you helping me to broaden my vision on the subject.

    Cheers!

    ReplyDelete
  7. most helpful article. thanks

    ReplyDelete