Recognition Of States & Governments Notes

Main Theories

1. Declaratory– state exists as subject of IL as soon as it possesses the marks of a state as defined by IL, so that recognition marks the commencement of state for practical purposes

• Brierly – granting of recognition to a new state isn’t a constitutive but a declaratory act. It doesn’t bring into legal existence as a state that which didn’t exist before. A state may exist w/out being recognised and, if it does, then whether or not it has been formally recognised by other states, it has a right to be treated by them as a state. Primary function of recognition is to acknowledge as a fact something that has hitherto been uncertain; i.e. independence of the body claiming to be a state; and to declare the recognising state’s readiness to accept the normal consequences of that fact (usual courtesies of IR)

• Brownlie– declaratory view has much to commend it as a general approach since it militates in favour of a legal & objective method of analysing situations. But the idea that an issue of statehood or of govt. (criterion of effectiveness) involves a mere acknowledgment of fact is too simple. Questions of fact are certainly foremost but legal criteria still has to be applied.

2. Constitutive– state’s legal existence depends on its recognition by other states

• Argues it’s meaningless to accept any state as independent until others are prepared to accept it as such

• The political act of recognition on the part of states is a precondition of the existence of legal rights

• The more extreme version – the very existence of state depends on practical decision of other states; whereas more mitigated version - allows that certain fundamental rights & duties arise prior to recognition.

• Brownlie– the core of constitutive theory is in any event unacceptable. States can’t, by withholding recognition, determine the content of their legal obligations towards other states. In practice, such conduct is hard to find. But there are certain elements of truth in the approach – facts which must be subjected to legal evaluation involve a process and court/foreign minister etc. has to make a more or less arbitrary appreciation of the question of statehood & effective govt. To this extent, recognition involves element of authoritative choice or “certification”. Also, it has some truth where entity concerned doesn’t fit within orthodox categories but is nonetheless accepted as having legal personality in IR (e.g. Andorra).

• Brownlie’s Alternative Approach

• W/rare exceptions, theories of recognition have not only failed to improve the quality of thought but have deflected lawyers from application of ordinary methods of legal analysis. Recognition isn’t a term of art – a statement that govt. of state A doesn’t recognise a govt. of state B (or an entity claiming itself to be its govt.) could have 2 radically different meanings:

1. In opinion of state A, state B doesn’t exist as such (i.e. doesn’t qualify in legal terms to be recognised b/c doesn’t satisfy criteria of statehood) – rare

2. A code for a policy of hostility, usually accompanied by a range of political & economic sanctions

• The correct approach involves nothing more than ordinary legal technique – what did the govt. intend on the given occasion; no theory is called to assist in the process. See approach of Sole Arbitrator in Tinoco Arbitration

1. Enquire what are the facts to be gathered from docs & evidence submitted as to de facto characteristics of Tinoco govt.

2. Look at the relevance of recognition policies of various states which had refused to recognise it & whether they were based on legal considerations or mere political policy aimed at a govt. which actually satisfies the criteria of IL (if on the latter than loses some evidential weight....)

• Crawford– neither is satisfactory to explain modern practice

1. Declaratory Th. – assumes territorial entities can readily, by virtue of mere existence, be classified as having one particular legal status confuses ‘fact’ w/ ‘law’ – even if effectiveness is the dominant principle, it still must be a legal one

2. Constitutive Th. – incorrectly identifies the need for cognition w/dipl. recognition, failing to consider the possibility that identification of new subjects may be achieved with gen. rules/principles, rather than on ad hoc, discretionary basis.

• Evans- respective positions turn on the analytical relationship b/w status & relations

1. Declaratory – maintains that creation of states is rule-governed + that conferral/withholding of recognition is a political/discretionary act = this postulates existence of a rule but denies any ground for it to be applied;

2. Constitutive – maintains that conferral/withholding of recognition is a legal act but than in absence of either duty to recognise or existence of agency competent to adjudicate on the matter, the question of status becomes entirely dependent on individual position of recognising states = a community is ‘more or less a state’

3. Further Problems

1. Not always possible to clearly separate the fact of recognition from the idea of political approval

2. Even where states take a firm position in seeking to avoid recognising a state, they’re frequently unable to live with consequences by way of practising simultaneous inclusion & exclusion

• E.g. unlikely that Arab states, in refusing to recognise Israel, also believed it was not bound by Geneva Conv. re its occupation of West Bank & Gaza, and that it was free to ignore IL

• Consider Brownlie’s modification of Lauterpacht& Guggenheim’s argument (legal duty to recognise)recognition isn’t a term of art but applies to a variety of types of conduct by states – there’s no legal duty and recognition, as a public act of approval by a state, is political & optional act. However, if the entity bears the marks of statehood, other states put themselves legally at risk if they ignore the basic obligations of state relations. Similar considerations apply to recognition of...

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