Capacity of Special Non- State Entities to Conclude Treaties under Vienna Convention on Law of Treaties

The Problem of Statehood of Special Non-State Entities and their Capacity to Conclude Treaties under VCLT

Okay, first, why two titles? Why not just the first title? After all, it coveys the issue to be dealt in this piece in lesser words and second one sounds a lot heavy and boring, one could be easily repulsed. My justification for using the second title is that even though it sounds heavy, yet it brings out an important issue with regard to the sovereignty of Special Entities and connects this issue with their treaty-making capacity. On the other hand, the reason I used the first title is simple, it came to my mind, and I didn’t want to waste it. And then not being able to decide between the two titles, I posted both of them! After all it’s my blog and I have sovereignty over it. (Yes, I am having a hangover from previous blog, but to spare the readers, I won’t get into the theories of recognition to establish my sovereignty). Before starting, by Special Entities, I mean the entities which are not fully sovereign, usually lack sovereign government and/or independence from another state.

So, the issue to be dealt in this piece is, ‘do the Special Entities actually enter into ‘treaties’ as defined in Art. 2(1) (a) of Vienna Convention on Law of Treaties, 1969?’.  This question arises as Art 2(1)(a) of the convention states that ‘treaty means an international agreement concluded between the states’ (emphasis added). Thus, if closely analysed, this question is made up of two other following questions. First, what is the status of Special Entities as to statehood? Second, though it is a clear fact that Special Entities are given powers (even if limited) to enter into treaties by their parent State, and it’s the parent State which bears the responsibility of fulfilling the treaty obligations. But the question arises here is that ‘are such entities considered to be a ‘state’ at the time of making and binding themselves in an international legal obligation, in consonance with Art. 1 and Art. 2(1) (a) of the Convention? 

The above questions propagate more questions. Does a Special Entity assume a cloak of statehood when entering into a Treaty? Or does a parent State hand over the baton of Statehood to these Special Entities for the purpose of treaty making? Does Vienna Convention allow and is flexible to the extent of accommodating the ‘treaties’ of Special Entities? Or does VCLT require the assumption or handing over of the baton of statehood to such entities?

Now honestly, all these complications are result of my over chaotic mind. Because as I read more and analysed them over and over, I found that these issues do not invite this amount of complexity at least in practice. But yeah, like any other academic discussion they can be stretched over time and space. Since I still have not completed with my lesson on Statehood and Sovereignty, I am unable to bring out the nuances of statehood, then analyse statehood of Special Entities, and then connect it with their capacity to conclude treaties under VCLT. But I surely have completed my lesson on Capacity to Enter into Treaty. So as of now, I have reached following conclusions, which, if required will be amended and updated in my future blog. Here they are –

So, starting with the issue of statehood of Special Entities, one stupid common sense thing – Special Entities are not States, that’s why they are called Special Entities. But it is important to know that Special Entities are neither a constituency of a State nor are they terra-nullius. They are the non-State entites, which International Law accepts and permits their existence. Of course it has to! One will think that a legal principle cannot ignore a fact but has to evolve according to a given fact. But here it will be interesting to know that when in early 20the century when States, solely and exclusively, were said to be the subjects of International Law, many such Special Entities were functioning at international level. And now, when the international legal theory are open to these ‘not-full- sovereign’ entities, such entities have enormously reduced. Under International Law these non-State entities can acquire a distinct international status or role.

In order to understand the exact status of Special Entities, legal set up of each of such entities has to be examined separately. This is so because every Special Entity has a unique legal personality, which largely evolves through the administrative arrangements made between it and its parent State. Its power and capacity to conclude a treaty is also determined by these arrangements. Also, the power and capacity to conclude a treaty vary according to the subject of the treaty. For example, if a Special Entity is not authorised by the parent State to enter into a treaty related to defence or foreign affairs, then any agreement made on the subject by the entity will be invalid for the lack of capacity. Also, some multilateral treaties allow these non-State entities to become a party or give them an observer status. In such cases, the question of sovereignty and non sovereignty is not required.

Therefore, it can be safely said that treaty making capacity of these non-sovereign, non-State entities totally depend on the exceptional arrangements made between them and their parent State, or other such arrangements made in a treaty itself. 

Now coming to the Vienna Convention, I believe VCLT or its non-customary provisions should not be a roadblock to the ability of the Special Entities to enter into a treaty per se. The mandate of the convention that treaty being an international agreement to be concluded between states, cannot and is not taken as a litmus test to determine whether an international agreement concluded between non states will have any legal effects or not. I believe that in practice, it is the legal or other consequences entailing an agreement which are given more importance than the form it is in. This can also be used to explain the use of MOUs and other instruments to conclude legally binding agreements between State parties instead of a Treaty. As far as my reading in this topic and my understanding goes, in the cases of Special Entities, the requirement that a treaty has to be concluded between the States only, is limited in its scope by two factors. First, the definition given in art 2(1)(a) is qualified by the fact that ‘it is for the scope of the present convention’. Second, a treaty does not cease to be a treaty just because it is not between ‘Sovereign States’. In cases, such as the one we are dealing now, to my understanding, this requirement becomes a mere technicality as the legal consequence desired from a treaty still follow. A state which draws an international legal agreement with a Special Entity cannot brush its obligations away by taking the excuse that a Special Entity is not a state. That would be stupid, impractical and ‘faaltu ki hawabaazi’. Because when states so painstakingly enter into an agreement, more often than not, they have more interest in performing it rather than finding excuses for non performance.

Finally…

As far as my understanding goes, the issue is inconsequential when it comes to practice. As a theory, as I said earlier, it can be discussed over and over. However, if any of the readers think otherwise, I would love to hear from him/her, and hope to have a very interesting discussion here. And for those who are cursing me for making a molehill, I just have three things to say. First, writing this piece helped me to sharpen my analytical skills, and I suppose that it helped you to look from other angles as well. Second, its not necessary that every hypothesis is proved. Unproved hypothesis are often stepping stones of any research. Third, please don’t stop reading my blog!! :P

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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 19^th 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 19^th 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 8^th edition and 9^th edition are compared.

8^th edn. (1955) – ‘ New States which came into existence and were through express or tacit recognition admitted into the Family of Nations...’

9^th 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?

The 'Udhghatan' of my blog :p

This year, to speak in the language of International Law, has to be the year of 'State Succession'. The year started with referendum for South Sudan, progressed to revolt in Yemen, got spread to Egypt, instilled unrest in Bahrain, and now we are witnessing blood bath in Libya and Syria. This continuing list of violence takes a u-turn and goes back to South Sudan, where UN has raised concerns over ethnic cleansing in Abeyi. So like every other international law enthusiast I bagged the opportunity to know better the international law concepts behind state succession, and especially in cases of revolt. I picked up few books and other material, and started on with my journey to be the next specialist on the subject. But boy! the authors would deal with the interesting topic of State succession through revolts later, and first rant about the theories of declaration, etc. etc. Since, I cannot anymore, ignore the basic concepts anymore and jump to the interesting part (even if the interesting part did not make much sense to me) like I did in past. But, then I was a few months younger and stupider. So, now that I am that many months older and only stupid without an '-er', here I begin my series on State Recognition and State Succession.