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Photo courtesy of the interviewee
William Worster (1972, Boston, USA) currently serves as a lecturer at the Hague University, in the Hague, Netherlands; Research Director International Law of the Bynkershoek Institute at the Hague University; and Adjunct Professor of Law at the University of Missouri-Kansas City.
His courses include Introduction to Public International Law, International Criminal Law, International Environmental Law, Sources of International Law, Subjects of International Law, Law of International Organizations, International Criminal Law Theory, and Alternatives to International Criminal Law.
Previously, he has served at the International Criminal Tribunal for the former Yugoslavia and in private practice. He has studied in the US, the UK, the Netherlands, and the Czech Republic; and holds Juris Doctor and Master of Laws degrees, both concentrating on international law. He also has a Bachelor degree in Modern European History.
International law is dominated by two competing theories of state recognition, with the "declaratory" view currently in prominence but possibly just beginning its decline in favor of the "constitutive" view. However, if indeed the constitutive view is gaining ground, then its slow and partial re-emergence is forcing us to rethink the nature of the state in international law.
The constitutive theory states that recognition of an entity as a state is not automatic. A state is only a state when it is recognized as such and other states have a considerable discretion to recognize or not. Moreover, only upon recognition by those other states does the new state exist, at least in a legal sense.
Some practice in contemporary situations may evidence the application of the constitutive theory rather than the declaratory. Numerous classical scholars have weighed in support of the constitutive theory, and many modern scholars are beginning to reexamine the constitutive theory, considering whether it provides a firmer foundation for the determination of statehood status.[1]
The declaratory theory looks to the purported state’s assertion of its sovereignty within the territory it exclusively controls to determine if it can access the international plane. It is the opposite of the constitutive theory in that it holds that recognition is almost irrelevant because states have little to no discretion in determining whether an entity constitutes a state. The status of statehood is based on fact, not on individual state discretion. The majority of contemporary scholars and commentators favor this theory.[2]
There is considerable support for the argument that recognition is irrelevant for whether a state exists as such or not. The Montevideo Convention of 1933 states: "The political existence of the state is independent of recognition by the other states."[3] The International Court of Justice has held in the Genocide Convention case that it adheres to the declaratory view, in the sense that the failure to maintain effective control over territory does not extinguish the legal entity in the eyes of the United Nations.[4]
It has also held in the South West Africa cases that the state as an entity with rights and obligations does not cease to exist. This opinion on the declaratory theory was also supported by the Arbitration Commission of the European Communities Conference on Yugoslavia, chaired by Robert Badinter, discussing the independence and status of states of the successor to the S.F.R. Yugoslavia.[5]
Furthermore, many national courts have recognized international rights in states that accrued before international recognition of the entity as a new state, suggesting a rejection of the notion that the state did not exist before recognition.[6] Many commentators have held that state practice clearly favors the declaratory model, that is, that the entity exists as a state before recognition.[7]
On the other hand, we have the alternate view which is that states only exist upon recognition and there is support for this perspective, although we may need to read between the lines to see it. Some authorities who claim to support the declaratory view appear to also endorse the constitutive theory in practice. The Badinter Commission initially adopted declaratory language but seems to have applied a constitutive approach to balance major tensions between the various European states.[8]
Milenko Kreća, the ad hoc Judge in the Genocide Convention case implied in his critical dissent that the Court was applying the constitutive theory.[9] The Permanent Court of International Justice, the predecessor to the International Court of Justice, appeared to endorse the constitutive theory in two opinions: the Lighthouses case, where effectiveness was disregarded for the fiction of continued sovereignty of the Turkish Sultan,[10] and the Rights of Nationals of the United States of America in Morocco case, regarding the continued sovereignty of Morocco although under the French Protectorate.[11] Also the International Criminal Tribunal for the former Yugoslavia, the International Court of Justice’s neighbor in The Hague is also supportive of the constitutive theory.
In the Čelebići case, the I.C.T.Y. held that the conflict within the former Yugoslavia was only of an international nature after international recognition of the independent statehood of Croatia and Bosnia and Herzegovina.[12] In the Tadić case also at the I.C.T.Y., Judge Li, in a separate opinion, criticized the majority for applying the constitutive theory. Judge Li argued that the conflict should have been seen as international from the moment of Slovenia’s and Croatia’s declarations of independence, not because of recognition by others.[13]
In addition to these decisions of international tribunals or commissions, the act of recognition seems to increasingly be attributed with constitutive effect within the international legal system. States such as Croatia, Eritrea, and Central and Eastern European states arising from Woodrow Wilson’s dismemberment of the Habsburg and Ottoman Empires, have survived extinction or been revived from extinction by the international community.[14]
Bosnia-Herzegovina and Croatia arguably did not fully satisfy the criteria for declaratory recognition, so the recognition of those entities as new states may have had constitutive effect despite the supposed intended application of the declaratory theory.[15] For some microstates, their relatively recent admission to the U.N., as well as recognition by other states, may have clarified their position in international law, crystallized their rights, and assisted in their constitution, regardless of the intended effect of their recognition.[16]
We can also see situations where the existence of emerging states was blocked by other, more powerful states, which would only be possible if statehood was in the control of existing states.[17] Also, we can see situations where states, that had lost all factual qualification as such, were maintained as essentially legal fictions by the international community. This suggests that recognition both constitutes and maintains the legal personality of other states whose reality would suggest that they no longer existed, or existed in a fictitious state.[18]
Although this finding is usually argued because of the illegality of the occupation of the state, if statehood was truly declaratory, then the ending of effective control and independence would necessarily mean the extinction of the state.
These cases are significant because they evidence that entities only receive international rights and obligations when they are recognized by other states as states. It is commonly observed that "only states sit on the United Nations Security Council, only states petition the Intern