I. INTRODUCTION
Traditionally any discussion on recognition in international law considers two theories: constitutive and declaratory. The constitutive theory perceives recognition as ‘a necessary act before the recognized entity can enjoy an international personality’,Footnote 1 while the declaratory theory sees it as ‘merely a political act recognizing a pre-existing state of affairs’.Footnote 2 In the constitutive perception, the question of ‘whether or not an entity has become a state depends on the actions [ie recognitions] of existing states’.Footnote 3 However, the situation in which one State may be recognized by some States, but not by others, is an evident problem and thus a great deficiency of the constitutive theory. In the absence of a central international authority for granting recognition, this would mean that such an entity at the same time has and does not have an international personality.Footnote 4
Most contemporary writers have therefore adopted a view that recognition is declaratory.Footnote 5 This means that a ‘state may exist without being recognized, and if it does exist, in fact, then whether or not it has been formally recognized by other states, it has a right to be treated by them as a state’.Footnote 6 According to this view, when recognition is granted, other States merely recognize the pre-existing situation—that of the existence of a new State.
Recent practice of new State creations indeed demonstrates that, in some situations, international recognition merely acknowledges the emergence of a new State. Even if recognition is virtually universally withheld, sometimes there will be no doubt that the non-recognized entity is a State.Footnote 7 But this is not always the case. This article will demonstrate that international involvement, possibly also through the act of recognition, may sometimes produce rather than merely acknowledge the fact of an emergence of a new State. Does this mean that, under some circumstances, recognition can be constitutive?
In one explanation, ‘recognitions [in some instances] have been “constitutive”, not in the sense of creating a legal personality, but in the sense of contributing to political conditions which allowed the recognized political entity to consolidate its effectiveness’.Footnote 8 In other words, recognition may be part of an international involvement that helps the newly emerged State to meet the statehood criteria, but this is not to say that such States are created through recognition. It may well be that this has been one of the patterns in post-1990 State creations;Footnote 9 however, this might not tell the whole truth about the constitutive effects of the act of recognition in contemporary international law.
This article revisits the practice of non-colonial State creations in order to identify the legal circumstances in which recognition is clearly declaratory and those in which the declaratory nature of recognition is questionable. It draws a distinction between two kinds of situation: first, where the predecessor State either consents to secession or its international personality is extinguished; and, second, where an entity seeks secession unilaterally. The article demonstrates that the concept of unilateral secession in international law, at least in theory, presupposes that international recognition could create a State. As the recent example of Kosovo illustrates, however, ascribing constitutive effects to the act of recognition comes with caveats.
Further, the article shows that constitutive effects of recognition are implied by another concept in contemporary international law – the obligation of (collective) non-recognition – which is applicable where effective entities emerge illegally.Footnote 10 In one view, illegally created effective entities are non-States;Footnote 11 in another view they are ‘illegal States’.Footnote 12 Neither explanation is able to explain convincingly why universal recognition of an illegally created effective entity, or of an ‘illegal State’, would not have constitutive effects. In an alternative perception, the obligation to withhold recognition can only be logically explained if it is accepted that recognition is a constitutive act.Footnote 13 But this explanation is also problematic, in light of contemporary theory and practice in international law governing the creation and recognition of States.
This article does not try to make an argument that recognition should be seen as a constitutive act. It rather shows that, despite the general perception of recognition as being declaratory, there exist concepts in international law that imply or even presuppose that in some circumstances recognition could create a new State. Explaining these concepts from the premise that recognition is always declaratory leads to logical inconsistencies; however, this is not to say that a State cannot exist without being recognized.
II. DECLARATORY RECOGNITION AT WORK
In the UN Charter era, it is very unlikely that a new State would emerge without the consent of a parent State.Footnote 14 Indeed, outside colonialism the exercise of the right of self-determination is limited by the principle of territorial integrity of States.Footnote 15 A wave of non-colonial new State creations has been witnessed in the post-1990 era. This section revisits the practice of these State creations through the perspective of legal effects of recognition and explains the legal circumstances in which the existence of a new State is merely acknowledged by the international community. In other words, what are the international legal circumstances that make the declaratory theory work?
A. Consensual State Creations
At the end of the Cold War, three (former) socialist federations were dissolved—the Socialist Federal Republic of Yugoslavia (SFRY), the Soviet Union and Czechoslovakia. The dissolutions of the Soviet Union and Czechoslovakia were consensual. The Soviet Union was transformed into the Commonwealth of Independent States (CIS) by the adoption of the Minsk AgreementFootnote 16 and the Alma Ata Protocol.Footnote 17 The two instruments created a new legal fact that ‘the Union of Soviet Socialist Republics as a subject of international law and a geopolitical reality no longer exist[ed]’.Footnote 18 All newly emerged States in the territory of the former Soviet Union were rapidly admitted to the UN and no objection was raised with regard to their legal status.Footnote 19 Moreover, it was mutually accepted by members of the CIS that Russia continued the membership of the Soviet Union in international organizations.Footnote 20
The dissolution of Czechoslovakia was also a matter of negotiated settlementFootnote 21 and the international personality of the federation was (consensually) extinguished.Footnote 22 As a consequence, there was no doubt that the two constitutive republics of Czechoslovakia had become States. Czechoslovakia ceased to exist on 31 December 1992.Footnote 23 On 1 January 1993, the Czech Republic and Slovakia were proclaimed independent States.Footnote 24 International recognition followed promptly and the two new States were admitted to the UN on 19 January 1992.Footnote 25 In the absence of the predecessor State, acquiring statehood was not dependent on international recognition.
The situation of the SFRY was more complicated, owing to the non-consensual nature of its dissolution, and will be considered below. At this point the section turns to secession with consent of the parent State.
Prior to the dissolution of the Soviet Union, Estonia, Latvia and Lithuania (re)gained independence from that federation. It is debatable whether the three Baltic States were newly created States in 1991 or whether their statehood from the interwar period was revived. Whatever position one takes on the legal effects of the Ribbentrop–Molotov Pact,Footnote 26 it is notable that ‘[t]he Security Council did not consider the applications for recognition made by the Baltic States until 12 September 1991, six days after the Soviet Union had agreed to recognize them’.Footnote 27 Estonia, Latvia and Lithuania were ultimately admitted to the UN on 17 September 1991.Footnote 28 As Crawford notes, this suggests that ‘the position of the Soviet authorities was treated as highly significant even in a case of suppressed independence’.Footnote 29 Thus, even in the case of the Baltic States it was the consent of the parent State that was crucial for producing the new legal reality, that of the existence of new States. Subsequent international recognition merely acknowledged this fact.
The consent of the parent State was also of crucial importance in the case of Eritrea. The political circumstances may well have been complex, and the new government of Ethiopia, which ultimately consented to Eritrea's independence, came to power with the support of the Eritrean People's Liberation Front.Footnote 30 However, from the point of view of international law, Eritrea declared independence with the consent of the central government of Ethiopia. After an overwhelming majority gave its support to independence at a UN observed referendum,Footnote 31 and given Ethiopia's consent, there was no doubt that Eritrea was a new State. This was confirmed by its admission to the UN on 28 May 1993.Footnote 32
Montenegro's secession was rooted in the constitutional arrangement that was the outcome of internationalized negotiations between unionists and those favouring secession. In 2003, the Federal Republic of Yugoslavia (FRY) was, upon significant involvement of the European Union, transformed into the very loose State Union of Serbia and Montenegro (SUSM).Footnote 33 The Constitution of this transitional State provided for a clear mechanism for secession.Footnote 34 After independence was endorsed at the referendum, held on 21 May 2006, on 3 June the Montenegrin Parliament adopted the Declaration of Independence.Footnote 35 International recognition followed promptly; on 30 June 2006 Montenegro was admitted to the UN.Footnote 36
Montenegro is thus another example of a consensual emergence of a new State. Indeed, Article 60 of the Constitution of the SUSM not only provided for a mechanism for secession but even regulated the questions of state succession and international personality.Footnote 37 According to this provision, the international personality of the SUSM was continued by Serbia,Footnote 38 and Montenegro was considered to be a new State. It was Article 60 of the Constitution of the SUSM that made secession consensual. However, it is notable that the Constitution of the transitional State Union was adopted upon significant involvement of the EU.
International involvement was even more prominent in the situation of East Timor, where it was channelled through the actions of the UN. East Timor may be seen as a colonial situation in which the exercise of the right of self-determination was not limited by the principle of territorial integrity of States.Footnote 39 Yet the real question was independence from Indonesia, not independence from Portugal. For this reason, East Timor is not a classical situation of decolonization and needs to be considered in the context of the emergence of new States outside the colonial framework.
The history of foreign rule of East Timor has been thoroughly examined elsewhere.Footnote 40 For the purpose of this article it is important to recall that, in 1999, the new Indonesian leadership indicated that it would be willing to discuss the future legal status of East Timor.Footnote 41 On 30 August 1999, a referendum on that future legal status was held under UN auspices.Footnote 42 The people of East Timor rejected an autonomy arrangement within Indonesia and set the course toward independence. This decision led to an outbreak of violence, initiated by Indonesian forces.Footnote 43 As a response, on 15 September 1999 the Security Council, acting under Chapter VII of the UN Charter, adopted Resolution 1264, which, inter alia, authorized ‘the establishment of a multinational force under a unified command structure … to restore peace and security in East Timor’.Footnote 44 Subsequently, on 25 October 1999, the Security Council, acting under Chapter VII of the UN Charter, adopted Resolution 1272, with which it established the organs of international territorial administration in East Timor.Footnote 45
On 22 March 2002, the text of the new Constitution was signed by members of the East Timorese political elite, religious leaders and representatives of the civil society.Footnote 46 It was determined that the Constitution would enter into force on 20 May 2002, which was the day foreseen for the proclamation of independence.Footnote 47 East Timor's course to independence was otherwise affirmed in Security Council Resolution 1338, adopted on 31 January 2001.Footnote 48 After the declaration of independence on 20 May 2002,Footnote 49 international recognition promptly followed and East Timor was admitted to the UN on 27 September 2002.Footnote 50
East Timor ultimately emerged as a new State with Indonesia's consent. It was, however, the UN involvement in the situation that was crucial for producing this political consent, the legal significance of which was that secession was not unilateral. The emergence of a new State was only then acknowledged by international recognition and UN membership.
Most recently, South Sudan's path to independence followed from the legal regime established under the Comprehensive Peace Agreement, signed on 9 January 2005, between the central government of Sudan and the Sudan People's Liberation Movement/Sudan People's Liberation Army.Footnote 51 The Comprehensive Peace Agreement resulted from the efforts of the regional peace initiative to end the civil war.Footnote 52
The Agreement specified that the people of South Sudan have the right of self-determination and shall determine their future legal status at a referendum.Footnote 53 The Protocol further established a six-year interim period in which the internationally monitored referendum was to take place.Footnote 54 The parties later also agreed on the implementation modalities of the permanent ceasefire and security arrangement.Footnote 55 This Agreement not only made references to self-determination and an independence referendum but also invoked some specific solutions to be implemented in the event of South Sudan's decision for independence.Footnote 56
After the adoption of the Comprehensive Peace Agreement, Sudan promulgated a new interim constitution, which granted substantive autonomy to Southern Sudan.Footnote 57 The Constitution further specified that a referendum on the future status of Southern Sudan should be held six months before the end of the six-year interim period.Footnote 58
The interim Constitution of Sudan thus defined Southern Sudan as a self-determination unit and, in principle, created a ‘constitutional right to secession’. The right was then put into operation through the Southern Sudan Referendum Act, promulgated on 31 December 2009. Article 41 of the Act specified the referendum rules and made specific provisions for the required quorum (60 per cent of all eligible to vote) as well as the winning majority (50 per cent plus one vote of the total number of votes cast).Footnote 59 Article 66 of the Act specified that the decision taken at the referendum would be binding;Footnote 60 Article 67, inter alia, specified that in the event of Southern Sudan's vote for secession, the government should apply the constitutional provisions that foresaw Southern Sudan's withdrawal from the Sudanese institutional arrangement.Footnote 61
The option for secession was given overwhelming support of 98.83 per cent, at a turnout of 97.58 per cent, and the central government of Sudan announced that it would respect the referendum results.Footnote 62 South Sudan declared independence on 9 July 2011 and the central government of Sudan announced its formal recognition a day before the declaration of independence was issued.Footnote 63
South Sudan's path to independence was marked by a lengthy civil war, atrocities and a grave humanitarian situation.Footnote 64 However, these circumstances did not create a ‘right to independence’. In terms of international law, it is significant that South Sudan did not become an independent State before the central government formally agreed to hold a binding referendum on independence, at which secession was supported by an overwhelming majority. South Sudan is thus a State creation with the approval of the parent State. The mechanism for secession was rooted in the 2005 Peace Agreement and the constitutional arrangement that resulted from this agreement. International recognition of South Sudan followed promptly.Footnote 65 On 14 July 2011, South Sudan became a member of the UN.Footnote 66
This section has shown that, where the parent State either dissolves itself or consents to the secession of a part of its territory, the emergence of a new State is not objected to and is only declaratorily acknowledged by international recognition. In some situations the consent of the parent State is produced internationally and the international involvement may well be important for the emergence of a new State. But this is not to say that a new State is constituted through recognition. International involvement only creates political circumstances in which a parent State is willing to accept independence of a part of its territory. The legal effect of such acceptance is that this State waives its claim to territorial integrity; there is therefore no doubt that a part of its (former) territory has become a separate State.
B. Non-consensual Dissolution: The Case of the SFRY
In the dissolution of the SFRY, the involvement of the European Community (EC) played a crucial role. As part of its response to the crisis in Yugoslavia, the so-called ‘Badinter Commission’ was established.Footnote 67 The Badinter Commission expressly held that recognition is declaratory and that it did not perceive itself as a body that creates States. Such a perception is obvious from the reasoning in Opinion 11, in which the Commission identified the critical dates for the emergence of new States. These dates were not linked to recognition;Footnote 68 they were identified subsequently, for State succession purposes, and are not unproblematic.Footnote 69 Particularly interesting in the context of this article is the pronouncement that Slovenia and Croatia became States on 8 October 1991.
When the Badinter Commission delivered its Opinion 11, on 16 July 1993, Slovenia and Croatia had already been recognized as independent States and were members of the UN.Footnote 70 Moreover, at this point two relevant previous opinions of the Commission also existed: that the SFRY was in the process of dissolution (Opinion 1)Footnote 71 and that this process was completed (Opinion 8).Footnote 72 However, when Slovenia and Croatia were deemed to have become States, the authority holding that the process of dissolution was underway in the SFRY had not yet been given. Moreover, Opinion 11 was supported by the fact that four out of the SFRY's six constitutive republics had declared independence,Footnote 73 but on 8 October 1991 Bosnia-Herzegovina had not yet declared independenceFootnote 74 and Macedonia's declaration was fairly recent.Footnote 75 The prevailing view on that date was that Slovenia and Croatia sought unilateral secession.Footnote 76 In such a circumstance the acquisition of statehood is much more questionable and, arguably, may depend on recognition.Footnote 77
However, recognition on 8 October 1991 was not certain. In this regard Caplan notes: ‘As much as the Slovenes may have wished and hoped for EC recognition, it was really not until the EC Council of Ministers meeting of 16 December [1991] that they would be assured of it.’Footnote 78 As he continues, ‘if one reads history of this period backwards from its final denouement, the uncertainty is less apparent’.Footnote 79 This is what the Badinter Commission did when it subsequently held that Slovenia and Croatia became States on 8 October 1991 – it read history backwards. It was the opinion of the Commission, delivered only on 29 November 1991,Footnote 80 that established the universally accepted authority stating that the SFRY was in the process of dissolution. On 8 October of that year, however, the legal status of Slovenia and Croatia was at least ambiguous and it may well be that in the general perception they were actually not States.
The opinions of the Badinter Commission were formally not legally binding. Nevertheless, they were important in shaping the State practice of the entire international community; after their finding it was not disputed that the SFRY was a case of dissolution. This view was even adopted by the UN Security Council.Footnote 81 As a consequence, the universally accepted legal position was that the international personality of the SFRY was extinguished.Footnote 82 In the absence of a predecessor State, international recognition was ultimately a declaratory act.
C. Political Non-recognition and the Declaratory Theory: The Federal Republic of Yugoslavia and the Former Yugoslav Republic of Macedonia
Despite the universally accepted view that the SFRY's international legal personality was extinguished, the FRY continued to claim continuity with the international personality of the FRY, and therefore did not apply for membership of the UN before the end of the Milošević regime. For this reason the FRY was only admitted to the UN on 1 November 2000.Footnote 83 While non-admission to the UN can be ascribed simply to the absence of an application for membership, the question of non-recognition remains more controversial. Since the FRY did not seek recognition according to the procedure established under the EC Declaration on Yugoslavia,Footnote 84 it remained universally unrecognized.
This does not mean that the FRY was not treated as a State. Indeed, the FRY appeared before the International Court of Justice (ICJ) in the Bosnia Genocide case and the Court established that the case was admissible although the FRY was universally non-recognized at that time.Footnote 85 The position of the ICJ thus clearly shows that recognition is not necessary for an entity to be considered as a State.
The Badinter Commission held in its Opinion 11 that the FRY became a State on 27 April 1992, the day when it adopted its constitution.Footnote 86 This critical date was also accepted by the ICJ in the Bosnia Genocide case.Footnote 87 However, the United Kingdom, for example, recognized the FRY on 9 April 1996.Footnote 88 Its denial of recognition for this long has been described as ‘overtly political’.Footnote 89
The non-recognition of the FRY was somewhat unusual because the FRY denied that there was any new State creation in its case.Footnote 90 Further, other States did not deny that the FRY was a State; their legal position was rather that it did not continue the international personality of the SFRY. The FRY was, however, deemed to be a successor to rights and duties of the SFRY – albeit not the only one – and non-recognition did not influence this question.
Although the political circumstances in Macedonia were different, this was another example of political non-recognition. No doubt existed that Macedonia actually was a State. While the Badinter Commission recommended that EC Member States should grant recognition,Footnote 91 Greece was not willing to recognize Macedonia under this name.Footnote 92 Consequently, Macedonia remained unrecognized by the EC Member States until 16 December 1993, and even then it was recognized under the compromise name ‘The Former Yugoslav Republic of Macedonia’ (FYR Macedonia).Footnote 93 On 8 April 1993, prior to recognition by the EC, the FYR Macedonia had already become a member of the UN.Footnote 94
For more than a year, non-recognition of Macedonia (which had origins in the EC's internal policy) had been virtually universal, with only Bulgaria, Turkey and Lithuania having granted recognition, under the original name, before admission of the FYR Macedonia to the UN.Footnote 95 This situation clearly had a political character, as the duty to withhold recognition on legal grounds did not apply.Footnote 96 Moreover, as Macedonia's former parent State no longer existed,Footnote 97 this was not a case of unilateral secession.
The fact that Macedonia remained almost universally non-recognized for some time does not mean it was not a State in that period. Rather, this was an example of political non-recognition. This was true even for the EC, a good example being the Declaration on the Former Yugoslav Republic of Macedonia, which the EC and its Member States adopted on 1 and 2 May 1992. The Declaration expressed the willingness of the EC Member States ‘to recognise that State [Macedonia] as a sovereign and independent State, within its existing borders, and under a name that can be accepted by all parties concerned’.Footnote 98 The use of the term ‘State’ rather than, for example, ‘entity’ clearly implies that Macedonia's attributes of statehood were not in dispute; it was simply that the EC did not want to enter into relations with Macedonia under its constitutional name.Footnote 99 It should also be noted that, in its Opinion 11, the Badinter Commission held that Macedonia became a State on 17 November 1991, the day when it adopted a new constitution that proclaimed Macedonia a sovereign State.Footnote 100
The FRY and Macedonia are thus good examples of the declaratory theory at work. This section has shown that, where secession is either approved by the predecessor State or the latter no longer exists, the emergence of new States is not controversial and recognition merely declaratorily acknowledges the new international legal situation. The following sections will demonstrate, however, that the declaratory theory faces limitations in two kinds of situation: unilateral secession and where an entity tries to emerge as a State illegally and foreign States owe an obligation erga omnes to withhold recognition. Unlike the cases of the FRY and Macedonia, non-recognition in the latter circumstance is not political but required by law.
III. UNILATERAL SECESSION AND CONSTITUTIVE EFFECTS OF RECOGNITION
This section turns to the concept of unilateral secession: that is, the parent State continues to exist and does not consent to independence of a part of its territory. Arguably, if an entity tries to emerge as a State unilaterally, the only way of doing so is through international recognition. In turn, recognition may be constitutive. This conclusion needs to be accompanied by certain caveats, which are outlined in the examples of Bangladesh and Kosovo.
A. Unilateral Secession: Admitting the Constitutive Theory Through the Back Door
Unilateral secession describes a situation in which an entity emerges as a State without the consent of its parent State. In such circumstances, the claim to territorial integrity is not waived and it remains ambiguous whether or not a new State has emerged. Outside colonial situations, there is no right to independence;Footnote 101 and, despite some contrary views,Footnote 102 it seems to be generally accepted that international law is neutral on the question of unilateral secession.Footnote 103 This means that unilateral secession is not an entitlement under international law, yet there is no explicit prohibition of this mode of State creation. Such an interpretation evidently follows even from the elaboration of the principle of territorial integrity of States in the Declaration on Principles of International Law. In the context of limitations on the right of self-determination, the elaboration notably uses neutral language; independence is not ‘encouraged’ or ‘authorized’, but it is not explicitly prohibited.Footnote 104
The fact that unilateral secession is neither endorsed nor prohibited by international law was acknowledged by the Supreme Court of Canada in the Quebec case.Footnote 105 At this point the Court, notably, went on to discuss under what circumstances an attempt at unilateral secession could be successful. The Court argued:
The ultimate success of … a [unilateral] secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Québec and Canada, in determining whether to grant or withhold recognition.Footnote 106
This pronouncement of the Supreme Court of Canada can hardly be squared with the declaratory theory, which advocates the view that recognition merely acknowledges the fact of the existence of a new State.Footnote 107 Indeed, the Court made this clear: where an attempt at secession is unilateral, international recognition may produce rather than acknowledge the fact of the existence of a new State; in other words, recognition may constitute a new State.
The constitutive effects of recognition may also follow from the doctrine of remedial secession. This doctrine is based on an inverted reading of the principle of territorial integrity of States in the Declaration on Principles of International Law. According to this reading, a State that does not have ‘a government representing the whole people belonging to the territory without distinction as to race, creed or colour’Footnote 108 cannot invoke the principle of territorial integrity in order to limit the peoples' right of self-determination to the exercise of this right in its internal mode.Footnote 109 Some authors see remedial secession as a right of oppressed peoples.Footnote 110 Yet international law de lege lata does not suggest that independence would be an entitlement in any situation other than classical ‘salt-water’ colonialism.Footnote 111
In this context Shaw argues that:
such a major change in legal principle cannot be introduced by way of an ambiguous subordinate clause, especially when the principle of territorial integrity has always been accepted and proclaimed as a core principle of international law, and is indeed placed before the qualifying clause in the provision in question.Footnote 112
He then continues by reasoning that ‘recognition may be more forthcoming where the secession has occurred as a consequence of violations of human rights’.Footnote 113 This explanation comes close to the position of the Supreme Court of Canada in the Quebec case in relation to unilateral secessions.Footnote 114
In the end, remedial secession in contemporary international law is still (an attempt at) unilateral secession: neither prohibited nor an entitlement. However, when oppression is an issue, foreign States may find the claim to independence to be more legitimate and are more likely to grant recognition in such circumstances. Thus, in international law de lege lata the doctrine of remedial secession can only be given effect through recognition. This is then another instance where the constitutive effects of recognition are admitted through the back door.
As has been acknowledged even by writers who expressly endorse the declaratory theory, where recognition is collective it may be difficult to differentiate it from collective State creation. In this regard Crawford argues:
in many cases, and this is true of the nineteenth century as of the twentieth, international action has been determinative [for new State creations]: international organizations or groups of States—especially the so-called ‘Great Powers’—have exercised a collective authority to supervise, regulate and condition … new state creations. In some cases the action takes the form of the direct establishment of the new State: a constitution is provided, the State territory is delimited, a head of State is nominated. In others it is rather a form of collective recognition—although the distinction is not a rigid one.Footnote 115
Collective State creations are therefore not only a matter of direct multilateral state-making, as, for example, at the Congress of BerlinFootnote 116 or settlements after both world wars.Footnote 117 Nor are they are always a matter of institutionalized international action. Collective State creations can also be a consequence of informal agreement and/or ‘concerted practice’ among certain States. It is the act of recognition that can be used as a tool of the informal creation of a new State. But is this not to say that recognition can create a State?
In this context Weller notes that it may be that a State creation could
depend on a grant of legal authority … Such a grant might be made either by the predecessor states through their consent to secession or perhaps, exceptionally, by collective international action of the UN Security Council or widespread recognition triggered by the opposed, but effective, unilateral creation of statehood.Footnote 118
By holding that recognition could be seen as a grant of legal authority for State creation, this argument carefully implies that widespread recognition could be constitutive of a new State. However, the argument then tries to escape from the ‘constitutive trap’ and becomes circular. Indeed, if States can be created on the basis of a ‘grant of legal authority’ and if this authority can be granted by widespread recognition, this does not mean that recognition was ‘triggered by the opposed, but effective, unilateral creation of statehood’ but rather that widespread recognition led to the ‘unilateral creation of statehood’, even though this was opposed by the parent State.
To avoid such logical inconsistencies, it might be worthwhile acknowledging that, where a unilateral secession is at issue, universal recognition may constitute a new State. It is notable that Weller refers to ‘widespread recognition’, which implies that there could be a difference between the legal effects of recognition that is widespread and those of recognition that is not widespread. But the problem is that it is impossible to quantify when the threshold is met where recognition becomes widespread enough to be considered a grant of legal authority, which would result in a new State creation.
Indeed, when acknowledging some constitutive effects in the act of recognition, caveats accompanying the constitutive theory need to be considered.Footnote 119 In this context, Warbrick notes in respect of the international legal responses to the situation in the SFRY: ‘What was at stake in Yugoslavia was an attempt at constituting States by recognition, an experiment which first failed and which is still not conclusive. The activity in Yugoslavia and elsewhere … is an exercise in state-building.’Footnote 120 It was argued above that the dissolution of the SFRY was ultimately a situation where recognition was declaratory.Footnote 121 Nevertheless, Warbrick's observation illustrates well the problem of (attempts at) collective State creation through recognition. If collective recognition by certain States is considered as equivalent to a State creation, the inevitable question that follows is how many and whose recognitions are necessary for collective recognition to be seen as a State creation. This problem will be further discussed in the examples of Bangladesh and Kosovo.
B. The Old Problem of the Constitutive Theory: How Many and Whose Recognitions Are Necessary?
Bangladesh is sometimes invoked as the only clear example of a successful unilateral secession in the UN Charter era and could even be a case in support of remedial secession.Footnote 122 This conclusion needs to be qualified with references to legal effects of recognition.
East Pakistan (Bangladesh) declared independence on 17 April 1971.Footnote 123 Upon the emergence of an armed conflict between East Pakistani and Pakistani armed forces,Footnote 124 India intervened in support of East Pakistan. India then extended recognition of East Pakistan on 6 December 1971Footnote 125 and Pakistani armed forces surrendered on 17 December 1971.Footnote 126 With the help of Indian forces, East Pakistani authorities exercised substantial control over the territory that became known as Bangladesh. Within weeks, Bangladesh was explicitly recognized by 28 States.Footnote 127 Recognition was thus not universal.
More than two years later, on 22 February 1974, Bangladesh was recognized by Pakistan.Footnote 128 Only then did recognition become universal, and Bangladesh was admitted to the UN on 17 September 1974.Footnote 129 Thus, for about two years the legal status of Bangladesh was ambiguous and it is unclear whether recognition really undoubtedly created a new State. The ambiguity was overcome only after Pakistan consented to Bangladesh's independence.
In the case of Kosovo, an attempt was made to secure approval of its parent State and confirm Kosovo's path to independence with a UN Security Council resolution. After this attempt failed, a group of States decided to lead Kosovo to independence without Serbia's consent or a Security Council resolution.Footnote 130 Evidence exists to show that Kosovo declared independence with the prior approval of a number of States, which also promised recognition in advance.Footnote 131 In the absence of Serbia's consent, some of the recognizing States believed that informally practised collective recognition and prior approval of the declaration of independence could have state-creating effects.Footnote 132
Kosovo is thus one example where it is difficult to differentiate between recognition and an attempt at collective state creation.Footnote 133 However, recognition of Kosovo, though granted by a significant number of States, is far from universal. It is therefore questionable whether this attempt at State creation was successful. Furthermore, it may well be that recognition did not solve but actually created the ambiguity with regard to Kosovo's legal status. Before the number of recognitions was granted, it was clear that Kosovo was not a State. This is now unclear and remains unclear even after the Kosovo Advisory Opinion, where the ICJ avoided any reference in respect of Kosovo's legal status.Footnote 134
Is Kosovo a State? If so, would it be a State without the recognitions that have been granted? If recognition is always declaratory, why should Kosovo be considered a State now, if it was not after the declaration of independence in 1991?Footnote 135 The FRY's claim to territorial integrity existed then, and Serbia's claim to territorial integrity exists now. The government that declared independence in 1991 was not the effective government of Kosovo,Footnote 136 and the government that declared independence in 2008 was not an independent government of Kosovo.Footnote 137 Similar legal considerations regarding Kosovo's status as a State under international law therefore existed in 1991 as exist now. Notably, however, after the declaration of independence in 1991, recognition was only granted by Albania, while after the 2008 declaration of independence recognition has been granted by 88 States.Footnote 138
The most probable answer is that, in the case of Kosovo, an informally practised collective recognition aimed to have the effects of a collective State creation. The problem, however, is that the new State creation is not acknowledged by the entire international community. To put it differently, if recognition has constitutive effects, are 88 recognitions enough for a State creation? How many and whose recognitions are in such circumstances necessary for an entity to be considered a State? On the other hand, whose and how many withholdings of recognition are necessary that an entity is not considered a State? Is Kosovo a State because it has been recognized by 88 States or is it not a State because it has been recognized by only 88 States? This dilemma illustrates well the problem of the constitutive theory. Yet it also illustrates the shortcoming of the declaratory theory. It is precisely the high number of recognitions that led to the current situation, in which Kosovo's legal status is at least ambiguous.
It is possible to make an objection that Kosovo is a misuse of the act of recognition for the purpose of an attempt at State creation,Footnote 139 or even that recognition was granted on political and not legal grounds, but such arguments are not persuasive. Recognition is always a political act, but one that is also capable of having legal consequences.Footnote 140 Only an obligation to withhold recognition may be required by law,Footnote 141 while the decision on whether or not recognition would be granted is a matter of policy. It was shown above that international law does not prohibit unilateral secession and actually presupposes that the ultimate success of an attempt at unilateral secession ‘would be dependent on recognition by the international community’.Footnote 142 Moreover, the obligation to withhold recognition is not triggered by the unilateral character of a claim to independence.Footnote 143 It thus follows that, where an effective entity does not emerge illegally,Footnote 144 nothing precludes foreign States from granting recognition. Granting recognition to an attempt at unilateral secession is then neither illegal nor extra-legal under international law. If recognition of an attempt at unilateral secession is granted universally, the political act of recognition may well create a new legal fact – that of the emergence of a new State.
This section has shown that both theories of recognition are difficult to square with the practice of the emergence of new States. The declaratory theory may work in clear situations, where no competing claim to territorial integrity exists. Yet, if an entity tries to emerge as a State against the wishes of its parent State, it seems to be presupposed that recognition could have constitutive effects. However, success of a unilateral secession in the UN Charter era is very unlikely and practice of a widespread but not universal recognition is very rare.
Therefore, recognition is, in theory, capable of creating a new State. But this mode of State creation requires recognition to be virtually universal and may effectively be seen as a tool of collective State creation. If recognition of an attempt at collective State creation is not virtually universal, the legal status of the entity in question will remain ambiguous.
IV. THE OBLIGATION TO WITHHOLD RECOGNITION: IMPLICATIONS OF THE CONSTITUTIVE EFFECTS OF RECOGNITION
Although States are never under an obligation to grant recognition, under some circumstances international law requires that recognition must be withheld. This is when effective entities emerge illegally.Footnote 145 This section argues that the obligation to withhold recognition is another concept in international law that presupposes that universal recognition could create a State.
The illegality of a State creation is determined by a (potential) emergence of a State in violation of certain fundamental norms of international law. In this regard, the ICJ held in the Kosovo Advisory Opinion that a new State creation would be illegal where it results from ‘the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)’.Footnote 146
The obligation to withhold recognition in the circumstances of an (attempt at) illegal State creation has developed under customary international law and is reflected in the practice of States and UN organs.Footnote 147 It has also been adopted in the International Law Commission (ILC) Articles on State Responsibility.Footnote 148 Article 41(2) provides that ‘no State shall recognize as lawful a situation created by a serious breach [of jus cogens] nor render aid or assistance in maintaining that situation’.Footnote 149 It further specifies that States owe an obligation erga omnes to withhold formal or implied recognition of an effective territorial situation, created in breach of jus cogens.Footnote 150 According to the Commentary to the ILC Articles on State Responsibility, the prohibition of illegal use of force, the right of self-determination and the prohibition of racial discrimination are among the norms of jus cogens character.Footnote 151
In the perception of some writers, the requirements that a State may not be created as a result of illegal use of force, in breach of the right of self-determination and/or in pursuance of racist policies, have become additional statehood criteria, which supplement the set of the effectiveness-based traditional statehood criteria, originating in the Montevideo Convention.Footnote 152 However, this interpretation is not universally accepted and others may see the concept of the additional statehood criteria as problematic and rather reflective of recognition requirements.Footnote 153 In this perception, an illegally created effective entity is an illegal State.Footnote 154
For the purpose of this article the difference between these two interpretations will not be examined thoroughly. At this point it is important to stress simply that the proponents of both interpretations agree that, in situations of territorial illegality, States are under an obligation to withhold recognition.Footnote 155 This obligation may well imply that recognition could create a new State.
Advocates of the declaratory theory who adopt the concept of the additional set of legality-based statehood criteria argue that the purpose of collective withholding of recognition to illegally created entities is not because recognition could constitute statehood of such an entity but merely an affirmation of a legally non-existent situation. One such argument is well captured in the following paragraph:
the obligation of non-recognition has a declaratory character in the sense that States are considered to be under a legal obligation not to recognize a specific situation which is already legally non-existent. Thus, the obligation of withholding recognition is not the cause of the fact that an illegal act does not produce the intended results, that is, legal rights for the wrongdoer. Non-recognition merely declares or confirms that fact and the obligation not to grant recognition prevents the validation or ‘curing’ of the illegal act or the situation resulting from that act.Footnote 156
Such an argument is not entirely persuasive. As Talmon contends, the call for collective non-recognition of an illegally created effective entity implies only that such an entity could become a State through recognition, and proponents of the declaratory theory do not adequately prove that this is not so.Footnote 157 If the first premise is that an illegally created effective entity is not a State and the second premise is that the purpose of collective withholding of recognition is prevention of territorial integrity from being ‘cured’, it is indeed difficult logically to explain why recognition, if granted universally or almost universally, could not create a new State. A ‘cured illegality’ in this context can only mean that, despite its illegal creation, an effective entity could become a State via recognition.
To explain the purpose of the obligation to withhold recognition, Hillgruber thus simply adopts the constitutive view and argues that:
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 recognizing 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.Footnote 158
This explanation is problematic. It was shown above that, under some circumstances, there will be no doubt that universally non-recognized entities are actually States,Footnote 159 and recent practice does not support the view that ‘only by recognition … the new state acquires the status of a sovereign state under international law’. For this reason, Hillgruber's argument cannot be accepted.
In another explanation, however, recognition remains declaratory regardless of the circumstances. Instead of admitting the constitutive effects of recognition, this explanation removes the premise that an illegally created effective entity is not a State and argues that the ‘additional statehood criteria’ are not statehood criteria but rather recognition requirements.Footnote 160 In this view,
adherents of the declaratory theory were forced to develop additional criteria for statehood, which in the case of the collectively non-recognized States were obviously not met, in order to explain non-recognition as confirming the objective legal situation [that an illegally created effective entity is not a State].Footnote 161
Not acknowledging that illegally created effective entities are States is the ‘original sin’, which leads to two problems: (i) implying constitutive effects to the act of recognition; and (ii) treatment of some recognition requirements as statehood criteria. Talmon consequently argues that ‘[t]he collectively non-recognized States may be “illegal States” [but] they are nevertheless still “States”’Footnote 162 and that ‘the additional criteria of legality proposed are not criteria for statehood but merely conditions for recognition, viz reasons for not recognizing existing States’.Footnote 163 In this perception, only the rights stemming from statehood are withheld by collective non-recognition, not the status of a State itself:Footnote 164
The creation of a State cannot be undone by non-recognition alone, and so non-recognition cannot have status-destroying effect either. What can be done, however, is to withhold the rights inherent in statehood from a new State. To that extent, non-recognition has a negatory, ie a status-denying, effect.Footnote 165
Although the critique of the constitutive nature of recognition, implied by the concept of the additional statehood criteria and the doctrine of collective non-recognition, is well made, the alternative interpretation of the doctrine of collective non-recognition is also problematic. The argument introduces the concept of ‘illegal States’. Since this concept employs the word ‘States’, it accepts that collectively non-recognized illegal States are prima facie States and, since they are already States, no constitutive effects are ascribed to the act of recognition.
The problem is that such States are qualified with the adjective ‘illegal’, which instantly makes these States somewhat different from those States that are not illegal. Unlike ‘States’, ‘illegal States’ in this perception do not have the full attributes of statehood. By holding that non-recognition ‘only’ withholds ‘the rights inherent in statehood’,Footnote 166 it is actually implied that recognition could endow an ‘illegal State’ with full attributes of statehood. And this, in fact, means that constitutive effects of recognition are admitted through the back door and the problem merely pushed to another level: it is not a State itself that could be constituted by recognition; it is ‘only’ the attributes of statehood that could be constituted if recognition were not withheld.
Moreover, the concept of ‘illegal States’ accepts that an ‘illegal State’ does not have all the rights stemming from statehood: that is, it does not have all the attributes of statehood. It is difficult to accept that two types of State exist under international law—those with all and those with only some attributes of statehood. In order to accept this argument, one would also need to accept the notion of some States being more equal than others.Footnote 167 This seems to be unacceptable from the perspective of sovereign equality of States.Footnote 168 On the other hand, the concept of additional statehood criteria does not lead to the problem of having two types of States. By not having all attributes of statehood, illegally created effective entities (ie non-States) do not disturb the principle of sovereign equality of States.
The theory and practice in contemporary international law do not support the view that ‘only by recognition … the new state acquires the status of a sovereign state under international law’.Footnote 169 At the same time, recognition will not always merely acknowledge the fact of the existence of a new State. In some circumstances, recognition could create a new State. In this vein, the obligation to withhold recognition (on legal grounds) cannot be explained without generating logical inconsistencies if what was established above is not acknowledged: universal recognition may have the effects of a collective State creation.Footnote 170 And if the obligation to withhold recognition of an illegally created effective entity did not apply, a universal or near-universal recognition could create a new State and thus ‘cure’ the underlying territorial illegality.
Admitting that in some circumstances recognition could have constitutive effects is not the same as saying that a State cannot exist if it is not recognized. States clearly can exist without being recognized.Footnote 171 Yet the declaratory nature of recognition cannot be defended in all circumstances. The concepts of unilateral secession and the obligation to withhold recognition on legal grounds imply, and indeed presuppose, that universal recognition could create a State.
V. CONCLUSION
In contemporary international law, recognition is generally seen as a declaratory act.Footnote 172 This is indeed the only plausible explanation in situations where the emergence of a new State is not contested. This article has shown that this is (i) where the predecessor State either no longer exists or consents to secession; and (ii) where the emergence of a new State is not or would not be connected with a breach of certain norms that determine territorial illegality, in particular those of jus cogens character.Footnote 173
However, recognition and political non-recognition in these circumstances do not have the same legal effects as do recognition in the circumstances of unilateral secession and non-recognition on legal grounds. Where an entity tries to emerge as a State against the wishes of its parent State, this creates the legal circumstances of (an attempt at) unilateral secession. Unilateral secession is not prohibited under international law, but neither is it an entitlement.Footnote 174 The success of (an attempt at) unilateral secession will depend on the reaction of the international community, namely to the question of whether or not recognitions are granted.Footnote 175 This implies, however, only that recognition may create a State. At least, this is so in theory.
Practice reveals that, where an entity tries to emerge as a State against the wishes of its parent State, its legal status will remain ambiguous until the consent of the parent State is given.Footnote 176 In order for a State to be unambiguously created through recognition and against the wishes of its parent State, recognition would need to be virtually universal and would have the effects of a collective State creation.Footnote 177 This kind of practice is lacking and, with ‘only’ 88 recognitions to date, not even Kosovo is a strong example of a successful State creation through recognition and against the competing claim to territorial integrity by its parent State.
Constitutive effects of recognition are also implied by the doctrine of collective non-recognition. If an illegally created effective entity attracted virtually universal recognition, it would be difficult to claim that it was not a State. Not even the explanation that non-recognized illegally created effective entities are actually States, albeit illegal ones, resolves the problem. The concept of ‘illegal States’ provides for an explanation that non-recognition has to do with the adjective ‘illegal’ and does not interfere with the noun ‘State’. However, in so doing the explanation introduces the difference between those States that have and those States that do not have full attributes of statehood, whereby full attributes of statehood are withheld through non-recognition. This article has argued that such an explanation merely reintroduces the constitutive effects of recognition through the back door.
To avoid such logical inconsistencies, this article has suggested that the explanation of the legal effects of recognition and non-recognition should not rest on the premise that recognition is declaratory in all circumstances. Indeed, the understanding of the legal nature of recognition and political non-recognition of States that emerge in the absence of a competing claim to territorial integrity and in the absence of an erga omnes-applicable obligation to withhold recognition cannot be extended to all other situations in which the question of recognition and non-recognition arises. The legal nature of recognition and non-recognition is different where unilateral secession and collective withholding of recognition on legal grounds are at issue. The two concepts actually presuppose that recognition could create a State. Widespread recognition leads at least to ambiguity regarding the legal status of an entity, whereas such ambiguity would not exist in the absence of such recognition. Moreover, if recognition is universal, this may create rather than acknowledge the fact of the emergence of a new State.
Declaratory recognition should not be taken as a dogma. Saying that in some circumstances recognition can create a State is not the same as saying that non-recognized States cannot exist. These are two different concepts. For example, the legal effects of recognition of Kosovo in 2008 cannot be compared to the legal effects of non-recognition of Macedonia in 1992. This article has demonstrated that the effects of international recognition and non-recognition are determined by the underlying territorial situation and the mode of State creation.
