Recognizing Kosovo: Theoretical and Practical Implications for Recognition Theory and the International Community. Master s Thesis

T i l b u r g U n i v e r s i t y T i l b u r g L a w S c h o o l LL.M. in International and European Public Law Recognizing Kosovo: Theoretical and Practical Implications for Recognition Theory and the International Community Master s Thesis Robin Taillefer Supervisor: S.F. van den Driest LLM MPhil Tilburg 2011

there is probably no other subject in the field of international relations in which law and politics appear to be more closely interwoven. 1 1 Hersch Lauterpacht on the recognition of states, cited in Christian Hillgruber, The Admission of New States to the International Community (1998) 9 E.J.I.L. 491 at 491. 1

Table of Contents Introduction... 3 1 Statehood... 7 1.1 Introduction...7 1.2 Criteria for Statehood...7 1.3 Criticisms... 11 1.3.1 The Montevideo Criteria... 11 1.3.2 Alternative Criteria... 14 1.4 Conclusion... 16 2 Recognition Theory...17 2.1 Introduction... 17 2.2 Constitutive Theory and its Criticisms... 18 2.3 Declaratory Theory and its Criticisms... 21 2.4 Reconciling the two: an intermediary theory?... 25 2.5 Collective recognition and collective non-recognition... 27 2.6 Conclusion... 32 3 Secession as a Means of External Self-Determination...33 3.1 Introduction... 33 3.2 Self-Determination and Secession Outside the Colonial Context... 33 3.3 A Remedial Right to Secession... 36 3.4 Conclusion... 38 4 Recognizing Secession in Practice The Example of Kosovo...40 4.1 Introduction... 40 4.2 Kosovo and Serbia: A Brief History... 40 4.3 Kosovo after Milosevic: Straight Path to Independence?... 41 4.4 A Case of Remedial Secession?... 42 4.5 Kosovo and Statehood... 45 4.5.1 Kosovo and the Montevideo Criteria... 45 4.5.2 Kosovo and Additional Criteria... 47 4.5.3 Consequences for Statehood and Recognition... 52 4.6 Kosovo and Recognition... 53 4.6.1 Declaratory or Constitutive?... 54 4.6.2 A Mixing of Theories?... 58 Conclusions: The Victory of Politics?...64 Bibliography...67 2

Introduction In the law and practice of state secession the role of recognition has long been central. Closely intertwined with the requirements of statehood, recognition has been the international community s primary mechanism for validating and conferring legitimacy on new claims to statehood. While historically states were rarely concerned with how a claim to statehood arose, since the end of the decolonization period the ongoing uncertainty regarding the status of a right to secession in international law has served to significantly alter the way states have exercised their discretion in recognizing new entities. 2 Specifically, the tension between the principles of self-determination and territorial integrity, which acts of secession inherently bring to the forefront, has been determinative in influencing the role recognition plays with respect to nascent states. Through an examination of Kosovo s unilateral secession, it is clear that the principle of recognition in international law constitutes a contested space between law and politics. While in theory the principle of recognition provides for a strict division between a legal, constitutive framework, and a political, declaratory framework, in practice this can be quite illusory. Instead, the act of recognition has arguably become a mechanism by which states can control and produce desired outcomes. 3 Consequentially, the legitimacy of secessionist claims can remain shrouded in controversy because the very act of recognition while resulting in legal consequences, is primarily based on political or other non-legal considerations. 4 From the perspective of a seceding state this is problematic. Since international law neither explicitly acknowledges nor prohibits acts of secession, the success of a struggle for external selfdetermination is highly dependent on the garnering of recognition from the international community. However, if the very act of recognition itself is increasingly viewed as merely a tool in the hands of the governments to accomplish certain geo-political goals, then any legal legitimacy such an act of recognition may normally confer on a nascent state may be 2 James Crawford, The Creation of States in International Law, 2d ed. (Oxford: Clarendon Press, 2006) at 27 [Crawford, Creation of States ]. 3 Jure Vidmar, International Legal Responses to Kosovo s Declaration of Independence (2009) 42 Vand. J. Transnat l L. 779 at 844-845. 4 Ibid. at 827. 3

undermined. 5 The current uncertain status of Kosovo appears to be a clear example of this dilemma. Regardless of whether Kosovo can be considered a legal expression of external, or remedial, self- determination, the aim of this paper is to examine the manner in which the international community has chosen to exercise its discretion in recognizing Kosovo as a new state in order to determine if the principle of recognition itself has been manipulated and, ultimately, detached from its normative moorings. Specifically, this paper will attempt to provide an answer to the following question: In light of the ongoing debate surrounding the current legal status of Kosovo following its unilateral secession, what are the legal and practical implications of the international community s response to this situation on the concept of recognition and its role as the primary legal instrument for validating new claims to statehood? As the question itself suggests, its elucidation is not only relevant for future secessionist states, but for the international community as a whole. While other papers have attempted to address the many legal and practical effects stemming from Kosovo s unilateral act, few have focused specifically on the issue of recognition and how it has been impacted by this ongoing situation. In order to properly assess this query, the first phase of the research shall predominately involve a comprehensive literature study in order to identify, define, and describe the relevant legal concepts, principles, and theories considered central to this question. In order to accomplish these goals, several types of literature will be canvassed including both primary and secondary sources. Specifically, a thorough analysis of different secondary source materials will be undertaken including scholarly texts, journal articles, as well as other print and online media. Particular attention will be paid to the works of leading academics in the field such as, James Crawford, Thomas D. Grant, and Jure Vidmar, while the writings of Hersch Lauterpacht, Antonio Cassese and others will also be referenced. In regards to primary sources, an examination of relevant international and national instruments, including major treaties in the field of Human Rights, as well as important legal acts of the European Community and European Union will be conducted. The jurisprudence of various international and national courts, as well as regional organizations, will also be referenced, particularly the Canadian Supreme Court s remarks in the Quebec Secession Reference. 5 William Thomas Worster, Law, Politics, and the Conception of the State in State Recognition Theory (2009) 27 B.U. Int l L.J. 115 at 158. 4

The second phase of the research will apply the analytical framework established in this first research phase to the case of Kosovo in order to demonstrate how the relevant principles and theories have been actually applied in practice. In so doing, additional primary sources will be consulted, especially the relevant declarations or statements in which individual states responded to Kosovo s unilateral act. In particular, this paper will scrutinize the recognition and nonrecognition texts of the majority of the current EU Member States, other European players, such as Switzerland and Serbia, and those of other international states such as the United States, Canada, Australia, Japan, and Russia. While the majority of these texts are available in some form, this paper limited its focus to those that were published in English, and to those that the author was able to readily translate. Moreover, particular attention was paid to the texts of the major international powers, such as the permanent members of the United Nations Security Council, and to those states that have their own secessionist concerns, such as Canada and Switzerland. Finally, several other official declarations will be analyzed, including those made by state representatives before the United Nations Security Council. In so doing, the central query of this thesis will be comprehensively addressed. The structure of this paper mirrors the logic of the research just outlined. Specifically, the first chapter will introduce and examine the concept of statehood in order to establish its legal relationship with the notion of recognition. The traditional indicia of statehood will be canvassed and the discourse surrounding the inclusion of alternative criteria will be introduced. The second chapter will be devoted to the discussion of the two classic competing theories and basic legal principles underlying the mechanism of recognition. Criticisms will be highlighted and the idea of whether an intermediary theory can reconcile the competing schools of thought will be addressed. Finally, the corollaries of collective recognition and collective non-recognition will also be outlined in order to construct a suitably broad analytical framework from which to consider the case of Kosovo. The third chapter will address whether there exists a remedial right to secession in international law, and under what condition(s) it can be exercised, if at all. While the breadth of this discussion will be limited due to the scope of this paper, the possible existence of such a right is crucial to the discussion of recognition. The fourth, and final, chapter will apply the framework synthesized in the preceding chapters to the ongoing debate surrounding Kosovo s status. The nexus between statehood and recognition will be analyzed and assessed in order to determine whether the disparate international response to Kosovo s 5

unilateral declaration of independence has influenced the legal and political understanding of recognition theory. 6

1 Statehood 1.1 Introduction To suggest that there exists a close connection between the indicia of statehood and the recognition of new states is perhaps self-evident. Regardless of the theoretical viewpoint assumed, these two concepts tend to go hand-in-hand. Stated rather simply, statehood, under traditional international legal theory, requires that an entity wishing to be recognized by the international community as a state has to first meet certain factual criteria, or indicia of statehood. Recognition, on the other hand, can be thought of as an assessment of whether the entity effectively fulfilled these factual criteria. 6 Thus, while it has been common international practice to place the emphasis in matters of statehood on the question of recognition it should not be forgotten that attention to the indicia of statehood independent of recognition is also required. 7 Yet, as will become evident below, the concept of statehood itself suffers from a lack of clarity and precision, leading many academics, such as William Worster, to comment,...the definition of a state alone is an almost impossible task. 8 With the above in mind, this chapter will first outline the nature of statehood within the current framework of international law, theory, and practice prior to taking up the issue of recognition. 1.2 Criteria for Statehood Despite the volumes of academic literature on the subject, there are actually very few authoritative sources that provide a workable, legal definition of statehood. 9 Considering that from the outset, the modern nation-state has been the very raison d etre of the international legal framework, one might wonder how the essence of the system s primary subject could still be lacking a definitive definition. 10 Nevertheless, commentators have identified several general legal characteristics, or traits, which can be attributed to statehood. First, as the principle subjects of international law, states possess plenary competence to act at the transnational level. In 6 John Dugard & David Raic, The Role of Recognition in the Law and Practice of Secession in Marcelo Kohen, ed., Secession: International Law Perspectives (New York: Cambridge University Press, 2006) at 96-97. 7 Crawford, Creation of States, supra note 2 at 37. 8 Worster, supra note 5 at 143. 9 Thomas D. Grant, Defining Statehood: The Montevideo Convention and its Discontents (1998-1999) at 413 [Grant, Defining Statehood ]. 10 John H. Currie, Public International Law, 2d ed. (Toronto: Irwin Law, 2008) at 23. James Crawford argues that this may be due to the fact that the question regarding what is statehood, usually only arises in borderline cases, where a nascent entity has emerged bearing some but not all characteristics of statehood. Crawford, Creation of States, supra note 2 at 40. 7

other words, they possess international legal personality, which entitles them to, amongst other things, enter into international legal relations (conclude treaties), bring claims (before international tribunals), and possess certain exclusive rights (and obligations). 11 Second, states are recognized as being exclusively competent in regards to their own internal affairs. 12 Third, states are not subject to international process, jurisdiction, or settlement without their consent. Finally, all states are to be regarded as equal under international law in both status and standing. 13 These principles can also be re-phrased and expressed as certain core rights and duties, which are vested in states simply as a consequence of being states. The International Law Commission (ILC) in its Draft Declaration on Rights and Duties of States has specifically enumerated these key rights and duties. 14 The most important right set out by the ILC is undoubtedly sovereignty. This imbues states with exclusive jurisdiction over its territory and population. In other words, every state has the right to independence and to assert control over its own domestic affairs. 15 Closely linked with this concept is the right of states to be viewed as equals under international law. This concept of sovereign equality ensures that all states are formally entitled to the same basic legal rights and duties. 16 Conversely, statehood also results in the imposition of certain duties as well. For instance, one of the first duties referred to by the ILC is the flip side of the right to independence: non-interference in the internal affairs of other states by force or other means. 17 A further duty placed upon states is the responsibility to respect international law and to fulfill, or to carry out its international obligations in good faith. This, amongst other things, includes the obligation to respect and protect international human rights. 18 Taken together, these legal principles, or rights and duties, represent the core of the concept of statehood. While the foregoing may not provide a particularly definite or concise definition of 11 Currie, supra note 10 at 38-40. 12 Crawford, Creation of States, supra note 2 at 41. This is not be interpreted in manner that suggests states are not subject to international legal constraints. 13 Ibid. Specifically, this refers to formal equality and not necessarily equality in practice. 14 International Law Commission, Draft Declaration on Rights and Duties of States, Articles 1-2, in Report of the International Law Commission on the Work of its First Session, [1949] II Yearbook of the International Law Commission 277 at 287 [ICL Draft Declaration]. Although never formally adopted, it nevertheless does reflect the core precepts of international law. 15 Currie, supra note 10 at 39. 16 Ibid. 17 ILC Draft Declaration, supra note 14. This duty is also reflected in the Friendly Relations & Cooperation Declaration (1970). See infra note 143. 18 Currie, supra note 10 at 40. 8

statehood, it is nevertheless clear that the conferral of such a designation carries with it a privileged position under international law. In order to determine which entities meet the legal conception of statehood outlined above, specific indicia have been developed and advanced. The source most widely cited as providing the basic criteria for statehood, and the standard most commonly referenced in state practice, is Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933. 19 Specifically, the Montevideo Convention enumerates four criteria the aspiring entity should possess: a permanent population, a defined territory, an effective government, and the capacity to enter into relations with other states. 20 These criteria will serve as this paper s working definition of statehood. While an in depth discussion of these criteria are beyond the scope of this paper, a brief examination is relevant here. First, the requirement of a permanent population speaks to the notion that states, at the very least, are regarded as aggregates of individuals. 21 This aggregate is needed to provide support and stability to the overarching structure of the state. While this criterion suggests the need for evidence of a viable community that has sufficiently withstood the rigors of time, in practice most commentators argue that this requirement amounts to very little. 22 For example, international law does not prescribe a minimum population threshold thus there exists several states with very small populations. 23 Second, states should be in possession of a defined territory. Specifically, in order to be a candidate for statehood international law requires that an entity be able to exhibit actual and effective possession or control over a defined piece of territory. 24 Similar to the population criterion, international law does not require a particular minimum area or a certain type of terrain. 25 The third requirement is an effective government. According to Crawford, it is arguably the most important criterion of statehood, since all the others are 19 Convention on the Rights and Duties of States, 26 December 1933, 49 Stat. 3097, 165 L.N.T.S. 19 at Article 1 [Montevideo Convention]. 20 Ibid. 21 Crawford, Creation of States, supra note 2 at 52. 22 Alexander H. Berlin, Recognition as Sanction: Using International Recognition of New States to Deter, Punish, and Contain Bad Actors, (2009) 31 U. Pa. J. Int l L. 531 at 549; Currie, supra note 10 at 24. 23 The smallest state is Vatican City with fewer than 1000 permanent residents. Tuvalu, an island nation in the South Pacific, has fewer than 11,000. 24 Currie, supra note 10 at 25. 25 For example, Vatican City covers less than one square kilometer, and Monaco covers less than two. 9

dependent upon it. 26 As with the other criteria, the content of this requirement is quite scant. Rather than requiring a certain type of government, such as a democracy or dictatorship for example, the focus has been on the idea of effectiveness. In short, as long as a government is able to exercise effective control over its territory, including the maintenance of law and order and the like, to the exclusion of all others, then this requirement will largely be viewed as satisfied. 27 The fourth, and final, criterion is the capacity to enter into relations with other states. In order to achieve statehood it is essential that the entity be able to fully engage with other actors as an equal at the international level. Thus, the emphasis here is on capacity. The entity desiring to become a state must demonstrate that it possesses all the attributes associated with sovereignty, and the institutional capacity to stand or exist on its own. 28 Taken together, the above criteria suggest that the legal standard facing would-be states is, in the words of Thomas D. Grant, predominately contingent upon the concepts of effectiveness and territoriality: the entity must have a government that effectively controls an actual territory. 29 The definition outlined in the Montevideo Convention is echoed in the comments of many governments, including the United States, which outlines its criteria for statehood in nearly identical terms noting that these requirements are drawn from the Convention and are generally accepted in international law. 30 Notwithstanding the fact that the Montevideo Convention has acquired the status of customary international law, many question whether these criteria provide a sufficiently satisfactory definition of statehood. 31 Criticisms range from concerns regarding the completeness of the definition, to whether the criteria are over-inclusive by enumerating elements not strictly essential to statehood. 32 This paper will now turn its attention to a brief examination of some of these criticisms. 26 Crawford, Creation of States, supra note 2 at 56. Crawford argues that a state can only have a permanent population, be in possession of a defined territory, or carry on the state s international relations if a government is effective enough to be able to exercise control over these matters. 27 Ibid. at 59; Currie, supra note 10 at 28. 28 Currie, supra note 10 at 29; Berlin, supra note 22 at 552. 29 Thomas D. Grant, The Recognition of States: Law and Practice in Debate and Evolution (Westport: Praeger Publishing, 1999) at 27 [Grant, Recognition of States ]. 30 Restatement (Third) of Foreign Relations Law of the United States 201 (1987). 31 Vidmar, supra note 3 at 819. 32 Grant, Defining Statehood, supra note 9 at 434; Vidmar, supra note 3 at 819. 10

1.3 Criticisms In spite of the numerous references made to it, the Montevideo criteria must be treated with caution. This is because many scholars have not only called into question whether these criteria are sufficiently detailed, or if they are altogether necessary indicia of statehood, but they have also cast doubt on its authoritative importance. 33 The crux of this uncertainty, as elucidated by John Currie, is that despite the objective nature of the Montevideo criteria there exists no centralized authority that can interpret and apply these criteria in practice. 34 While this is a common problem with international law generally, the result here is that there have been numerous situations where entities have been regarded as states by members of the international community without meeting these requirements, or conversely have been denied statehood status despite meeting all of them. 35 For example, in the first instance one can consider the acknowledgement of the Democratic Republic of Congo as a state in 1960 even though this status was conferred at a time when a significant part of Katanga was trying to secede. Similarly, the recognition of Bosnia-Herzegovina as a state occurred at a time when its very existence was very much reliant on the physical presence of the UN and NATO. In the second instance, one can look at the Turkish Republic of Northern Cyprus, which appears to fulfill all the Montevideo criteria and yet remains largely unacknowledged as a state. 1.3.1 The Montevideo Criteria Beginning with the existing criteria, many commentators have indicated that their application in practice has been problematic. As mentioned previously, the unrestrictive nature of both the permanent population and defined territory criteria mean that in reality they are often given very little consideration or are simply overlooked. For instance, the criterion of a defined territory does not require that the borders of a state be clearly demarcated, nor does it require the absence of disputes in regards to the precise extent of the territory under the state s control. 36 In other words, the mere existence of ambiguity regarding the territorial expanse of a supposed state does not necessarily defeat its claim to statehood. As concisely stated by Currie, the only essential condition is that some territory be unquestionably under the control of the putative state, even if 33 Grant, Defining Statehood, supra note 9 at 434; Vidmar, supra note 3 at 819. 34 Currie, supra note 10 at 24. 35 Ibid.; Berlin, supra note 22 at 549-550; Crawford, Creation of States, supra note 2 at 56-57. 36 Deutsche Continental Gas-Gesellshaft v. Polish State (1929), 5 I.L.R. 11 at 14-15 (German-Polish Mixed Arb. Trib.) [Deutsche Continental Gas Case]; confirmed in North Sea Continental Shelf Cases, [1969] I.C.J. Rep 3 at 32. 11

its precise extent is uncertain or varies over time. 37 Thus, in practice it would be a rare situation where this requirement alone would serve as a basis to exclude a supposed state from attaining the mantle of statehood. For Crawford, this matter of control over some territory speaks to the fact that the requirement of territory is merely a component of the effective government criterion rather than a distinct criterion of its own. 38 In regards to the requirement of an effective government, it is not surprising that Crawford regards it as a key criterion. However, the difficulty with this criterion, as Crawford rightly points out, is whether it can be objectively applied in borderline cases. For example, many entities have been recognized as states prior to the establishment of effective central governments. This was the case with the emergence of the Republic of the Congo in 1960. Despite the existence of various factions claiming to be the lawful government, the ongoing presence of UN forces, and the bankruptcy of the authorities, it was promptly and widely recognized as a state. 39 For Crawford, this suggests the possibility that the requirement of an effective government is less stringent in practice than on paper. 40 Similarly, the criterion is also flexibly applied to situations in which a state suffers a temporary breakdown in domestic governmental control. For instance, the disintegration of the central government in Somalia in the early 1990s did not extinguish its status as a state. 41 However, when a claim for statehood springs from an entity attempting to secede from an existing state the criterion of an effective government has traditionally been applied much more strictly. For example, the secessionist province of Katanga was not acknowledged as a state during the crisis surrounding the emergence of the Republic of the Congo, despite the fact that the Katangan so-called Government was much more stable than its counterpart in Kinshasa. 42 Thus, as the preceding 37 Currie, supra note 10 at 25. 38 Crawford, Creation of States, supra note 2 at 52. 39 Ibid. at 56-57. 40 Ibid. at 57. 41 Berlin, supra note 22 at 550. 42 Crawford, Creation of States, supra note 2 at 404 and 58-59. Other examples of attempted unilateral secession by groups within independent states include Biafra and the position of Finland vis-à-vis Russia in 1917-1918 (Aaland Islands Case). The former was similar to the Katangan example, while the Commission of Jurists in the latter also reflected on the importance of the requirement of an effective government in secessionary situations. 12

clearly suggests, whether a putative state actually has an effectively functioning government can be difficult to objectively assess in practice. 43 However, arguably the criterion that has come under the most scrutiny has been the capacity to enter into relations with other states. Although the notion of capacity is potentially useful, since it is an indicator of ability or competence, many academics argue that taken as a whole this criterion is not a necessary prerequisite for statehood. 44 Crawford argues representatively that capacity is not a condition for statehood, but instead a consequence of statehood, and one which is not constant but depends on the status and situation of particular states. 45 Instead, he asserts that capacity is the result of the conflation of two other important criteria, namely effective government and independence. Although the latter is not specifically mentioned by name in the Montevideo definition, Crawford argues that independence, both formal and actual, is a generally accepted criterion for statehood. 46 According to Crawford, the classic statement regarding independence was articulated in the Austro-German Customs Union Case. 47 In its decision, the Court outlined the two main elements of independence: the separate, sovereign existence of a state; and its not being subject to the authority of any other state or states. 48 Where as the first element is largely dependent on the ability of a supposed state to meet the other Montevideo criteria discussed above, Crawford argues that the second element suggests that something more is required the absence of foreign control. 49 In short, even if the other Montevideo criteria are met, this will mean little if the state is not free from undue foreign influence. In applying this criterion, one would have to distinguish between formal and actual independence. In other words, if independence is to be evaluated on a substantive basis rather than on outward appearances one needs to be able to differentiate 43 Ibid. at 56-59. While statehood is not simply a factual situation, the application of these criteria is often dependent on taking into account the political reality on the ground. The result is that this supposedly objective criterion, ends up being applied on a case-by-case basis. 44 Not all are in agreement however. Christian Hillgruber argues that, the reliability of the new entity as a partner [i.e. read capacity] in international relations is the decisive criterion of statehood. Hillgruber, supra note 1 at 499. 45 Crawford, Creation of States, supra note 2 at 61. 46 Deon Geldenhuys, Contested States in World Politics (UK: Palgrave Macmillan, 2009) at 13. 47 In this case the Court was asked to advise on whether the proposed customs union between Germany and Austria was consistent with the latter s obligations under various other international treaties. Specifically, the Court discussed the meaning of the term independence in the proposed customs union treaty and whether it guaranteed the continued and separate existence of Austria from Germany. 48 Customs Regime Between Germany and Austria, Advisory Opinion (1931), P.C.I.J. (Ser. A/B) No.41 [Austro- German Customs Case] at 45. 49 Crawford, Creation of States, supra note 2 at 66. 13

between situations of true foreign control versus mere international pressure, and to detect the difference between situations of subordination or dependence from consensual agreements where one state has agreed to place limits on its own freedom of action or has agreed to let another state exercise some of its functions on its behalf. 50 However, given the potential difficulty in making some of these evaluations in practice, it is not surprising that this criterion has engendered some division amongst scholars. In particular, those who argue against independence as an additional criterion do so because they believe that the difficulties associated with its application has lead to the reliance on hard to substantiate inferences as to the true status of a specific entity. 51 This debate surrounding independence aside, it has been asserted that as a criterion, or as a consequence, of statehood capacity it not very useful because it does not help to distinguish state actors from other international actors. 52 In essence, the capacity to enter into relations with other states at the international level is no longer, if it ever was, an exclusive state prerogative. 53 Although it remains true that states remain the predominant legal subjects in international law, the proliferation of capacity in other non-state actors, such as international organizations, non-governmental organizations or even peoples seeking self-determination, casts doubt on the ability of capacity to be viewed as a decisive criterion of statehood. 1.3.2 Alternative Criteria Stepping outside the Convention, there has been much debate concerning whether the Montevideo definition is missing elements essential to statehood. Much of the existing criticism stems from the fact that the traditional criteria for statehood are essentially based on the principle of effectiveness. 54 This line of criticism argues that in contemporary international law effectiveness is no longer the only principle regulating statehood. Instead it points to the increasing relevance of additional criteria, originally developed in other fields of international 50 Currie, supra note 10 at 30-31. See Crawford, Creation of States, supra note 2 at 67-88 for a detailed analysis of the distinction between formal and actual independence. 51 Stefan Talmon, The Constitutive Versus the Declaratory Theory of Recognition: Tertium Non Datur? (2005) 75 Brit. Y.B. Intl L. 101 at 112. This is largely a reflection of the fact that claims surrounding the issue of independence are highly contextual, meaning that different legal consequences may be attached to any given determination depending on the facts of the situation. 52 Grant, Defining Statehood, supra note 9 at 433. 53 Crawford, Creation of States, supra note 2 at 61. 54 Vidmar, supra note 3 at 821. 14

law, which go beyond the principle of effectiveness in determining statehood. 55 Of the many suggestions for additional criteria put forward a few of those most commonly reflected in scholarly debates and/or in state practice include: respect for the right to self-determination, the existence of a claim to statehood, respect for fundamental human rights, prohibition of the unlawful use of force, recognition, and democratic institutions. 56 With respect to selfdetermination there exists state practice to suggest that an effective entity cannot become a state if its creation was in violation of the right of self-determination. Thus statehood can be denied to an otherwise effective entity if its creation was in violation of this right. 57 For an example of some of these criteria in practice, one need not look further than the European Community s Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union. 58 Developed in response to the disintegration of the USSR and the dissolution of the former Yugoslavia, the EC Guidelines, while duly noting the normal standards of international practice, established additional criteria that had to be met by entities that were wishing to become states. These criteria included a demonstrated regard for the rule of law, democracy, and human rights as well as respect for the principle of self-determination and the protection of minority rights. 59 However, many scholars argue that these additional criteria, as set out in the EC Guidelines and elsewhere, are not so much requirements of statehood but instead are relevant to the process of recognition. 60 As will be discussed in subsequent chapters when the theories of recognition are introduced and specifically when their application to the case of Kosovo is considered, viewing these new criteria as conditions for recognition or as additional criteria for statehood is influenced by whether one sees recognition itself as constitutive (recognition as a requirement of statehood), or as declaratory (recognitions as the acknowledgment of a pre-existing state of affairs). In essence, the problem with these new criteria is that they tend to confuse largely political considerations with legal requirements. 55 Ibid. at 822. 56 Ibid.; Grant, Defining Statehood, supra note 9 at 439-444; Sean D. Murphy, Democratic Legitimacy and the Recognition of States and Governments (1999) 48 I.C.L.Q. 545 at 565. Those who argue it has a constitutive effect have frequently proposed recognition as a criterion for statehood. This will be discussed in much greater detail in Chapter 2 infra. 57 For more on this issue, see Crawford, Creation of States, supra note 2 at 181; or Vidmar, supra note 3 at 823-825. 58 Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, 16 December 1991, BYIL 62 (1991) 559, reprinted in (1992) 31 I.L.M 1486-1487 [EC Guidelines]. 59 Ibid. at 3. 60 Talmon, supra note 51 at 126; Murphy, supra note 56 at 558; Roland Rich, Recognition of States: The Collapse of Yugoslavia and the Soviet Union (1993) 4 E.J.I.L. 36 at 42. 15

1.4 Conclusion In light of the above two things are clear. First, the traditional criteria of statehood as stated in the Montevideo Convention are no longer held as sacrosanct. Rather, the influence of developments in other areas of international law has changed the way statehood is regarded in contemporary state practice. Second, the increasing application of these additional criteria has arguably further blurred the distinction between what is required to become a state, and what is required to convince other states to recognize an entity as such. Therefore, it is to the issue of recognition that this paper now turns. 16

2 Recognition Theory 2.1 Introduction Without question recognition is a vitally important step in the process of achieving full statehood within the international community. In fact, even if an entity is able to satisfy all the relevant criteria necessary for statehood, as discussed above, its status may still be in doubt if the international community is unwilling to recognize its existence as a state. Historically, recognition did not attract much attention due to the fact that sovereignty was predominately seen as something that emanated from within a state and therefore did not require the acknowledgment of other states. 61 However, by the end of the nineteenth century this situation was largely reversed, as positivist thought served to establish a close bond between the act of recognition and statehood that has persisted up to the present. 62 In the words of Grant, recognition has become, generally speaking, a procedure whereby the governments of existing states respond to certain changes in the world community [or] seek to effect changes in that community. Specifically, states, signal their willingness to treat with a new state or to accept that consequences, either factual or legal, flow from a new situation. 63 In so signaling, the recognizing state accepts that the putative state is indeed a state and extends to it the benefits and entitlements that stem from being treated as such by the international community. As is apparent, the role of the international community is key. In the absence of any central international authority charged with a general duty to pronounce upon the status of candidates for statehood, this crucial act of granting or withholding recognition has remained within the sovereign discretion of each and every individual state. 64 In other words, the process of recognition is essentially a bilateral process with individual state actors determining for themselves whether or not they recognize another entity as an equal on the international legal plane. Needless to say, the practical implications of this process for a putative state are potentially considerable, especially for a secessionist one. 65 61 Crawford, Creation of States, supra note 2 at 12. 62 Ibid. at 17. 63 Grant, Recognition of States, supra note 29 at xix. 64 Currie, supra note 10 at 34. 65 Crawford, Creation of States, supra note 2 at 376. Crawford writes that, historically, international recognition of statehood has been the major foreign policy goal of any secessionist movement. The concern for a secessionist state is the possibility that even if it satisfies all the criteria of statehood discussed above the international community may remain unwilling to enter into relations with it. This could be detrimental, if not fatal, to its claim to statehood. 17

However, the crucial question that remains is whether the act of recognition itself results in any normative consequences. In other words, does the act of recognition itself have any legal significance or is it merely a political exercise solely having implications for an entity s de facto ability to be treated as a state, as distinct from its de jure existence as one. 66 Two well known competing schools of thought have dominated the debate on this matter, namely the constitutive theory and the declaratory theory. While traditionally commentators have expressed their preference for one theory over the other, the following will endeavor to show that both theories are prone to criticism and hence potentially problematic in practice. 2.2 Constitutive Theory and its Criticisms According to the constitutive theory, recognition by other states is an essential prerequisite of statehood. 67 Only recognition makes a state a state: a state is, and becomes, an International Person through recognition only and exclusively. 68 From this standpoint, recognition is viewed as an additional requirement of statehood implying that the entity in question is not a state, at least in a legal sense, until others recognize it as such. In short, the act of recognition creates or constitutes the state. 69 Consequently, this theory presumes that the entity seeking recognition possesses neither the rights nor duties pertaining to statehood, regardless of whether they satisfy the criteria of statehood outlined above, until the international community recognizes its existence. 70 In the opinion of William Worster, the constitutive theory reflects a particular conception of statehood, namely that a state is a bundle of rights at the international level, and nothing more. 71 From this perspective, a state s existence is contingent upon the acquisition of those rights. Rights, in other words, are determinative of status. Since proponents of the constitutive theory hold that a supposed state s enjoyment of rights and privileges at the international level is dependent on their conferral by existing states, the act of recognition becomes key. In light of the fact that putative states acquire rights only as a result of the consent of existing states, the constitutive theory also reflects a particular conception of the role that state discretion plays in 66 Currie, supra note 10 at 34. 67 Worster, supra note 5 at 118. 68 Lassa Oppenheim, cited in Talmon, supra note 51 at 102. 69 Dugard & Raic, supra note 6 at 97. 70 Currie, supra note 10 at 35. 71 Worster supra note 5 at 139. 18

the granting of recognition. Generally speaking, the constitutive theory affords states considerable discretion in deciding whether a new state has emerged. 72 Thus, despite the fact that constitutive theory attributes significant legal consequences to the act of recognition, the decision to extend recognition is subject to the discretionary, political inclinations of each and every individual state. In sum, the constitutive theory stipulates that a state is only a state upon the political act of recognition by existing states, which is status-creating in its effect. In spite of arguments by its proponents that constitutive theory brings a measure of legal certainty to the process of recognition, the theory nevertheless suffers from several drawbacks. 73 First, a criticism that is often cited is that there exists little evidence in practice that states are treated as merely bundles of legal rights and obligations as the constitutive theory suggests. Worster argues that state practice does not indicate that states regard unrecognized states as terra nullius. 74 For instance, states have often chosen to not extend recognition to a nascent state, and yet treated that entity as a de facto state with many of the rights of a de jure state. 75 This implies that some form of international legal personality must exist in the entity in question, which predates statehood. Similarly, the constitutive theory has difficulty explaining the responsibility of non-recognized states under international law. In other words, if an entity has not been recognized as a state, meaning that it is not a subject of international law and is without rights and obligations, how can the international community ascribe violations of international law to such an entity? By way of illustration, Talmon points to the attribution of responsibility to Rhodesia, which had not been recognized as a state, for several acts that violated international law. Thus, Talmon concludes that, if a non-recognized state can violate international law, it must also (at least partially) be a subject of that law. 76 Second, and perhaps the main objection to the constitutive theory, is its relativism. In the words of Hans Kelsen, the legal existence of a state has a relative character. A state exists legally only in its relations to other states. 77 Crawford, amongst others, argues that in practice 72 Talmon, supra note 51 at 102; Worster, supra note 5 at 146. 73 Crawford, Creation of States, supra note 2 at 20. 74 Worster, supra note 5 at 120. 75 Ibid. at 137. Worster cites Macedonia as an example. It went unrecognized for several years due to political problems with Greece, but during this period it was still treated as a state by the majority of the international community. 76 Talmon, supra note 51 at 103. 77 Hans Kelsen, Recognition in International Law: Theoretical Observations (1941) 35 Am. J. Intl L. 605 at 609. 19

this aspect of constitutive theory makes little sense. 78 Since, the theory maintains that the existence of a state is dependent upon its recognition by other states, the potential exists for entities to be considered both states and non-states at the same time. This is due to the fact that what one state may consider to be a state, may not be shared by others. Thus, the subjective nature of this evaluation may lead to a situation where a given entity s legal status, including its corresponding rights and obligation at the international level, is only effective vis-à-vis those states which have recognized it. 79 This raises the question of whether an entity can be considered as having and not having an international legal personality at the same time. As a matter of law, can a state both exist and not-exist concurrently? Similarly, one might then wonder how many acts of recognition, or how much legal personality has to be conferred on an entity in order for it to be treated as a real state. Arguably, such uncertainty would be undesirable. A further criticism that is often cited is the considerable discretion that the constitutive theory affords existing states in determining whether a new state has indeed emerged. 80 One of the major concerns raised by placing such discretion in the hands of states is that the process of recognition would then be potentially subject to the influence of state politics and national interests. In essence, it reduces the state to a subject of another states politics. 81 This influence may prompt states to either recognize entities prematurely, before they have met the other criteria for statehood, or to refuse to grant it recognition regardless of the factual situation. 82 This in turn raises the related concern that the effect of this discretion may serve to undermine the principle of the sovereign equality of states. As discussed previously, the notion of the sovereign equality of states is one of the basic rights associated with statehood. Hence, the idea that one state can use its unlimited discretion to refuse to recognize the existence of another, thereby denying the extension of certain rights and privileges to it, seems to be inconsistent with the principle of sovereign equality. 83 Can a state sit in judgment of another state s existence? 78 Crawford, Creation of States, supra note 2 at 21; Worster, supra note 5 at 120; Talmon, supra note 51 at 102; Hersch Lauterpacht, as cited in Crawford, Creation of States, supra note 2 at 21-22. 79 Currie, supra note 10 at 35. Even Lauterpacht, who accepts the fact that relativity plays a role in the constitutive theory, acknowledges that this result is a glaring anomaly. As cited in Crawford, Creation of States, supra note 2 at 21. 80 Worster, supra note 5 at 146. 81 Ibid. at 148. 82 This may provide a vehicle for major states to exert their influence over a given territory or region. For example, Russia s quick, and arguably premature, recognition of the independence of Georgia s two breakaway regions of Abkazia and South Ossetia, suggests the influence of political interests. 83 Talmon, supra note 51 at 102; Worster, supra note 5 at 148; and Currie, supra note 10 at 35. 20

At its core, the above criticisms appear to largely stem from the notion that the constitutive theory is problematic in practice because it allows states to ignore the facts on the ground that is, the factual existence of a state. Worster posits that if states are free to completely refuse to acknowledge the reality of such a situation, then at some point this insistence on the non-existence of a given entity has the potential to become absurd. 84 In response to these criticisms, proponents of the constitutive theory have argued that states do have an obligation to recognize entities as states as soon as they have fulfilled the criteria of statehood. 85 Thus, it is suggested that there exist limits on the discretion of states to deny, or to confirm, the factual existence of any would-be state. However, there is little evidence of state practice to suggest that states accept or recognize such a general obligation. 86 Moreover, John Currie questions whether states can properly be said to owe obligations under international law to a state, which does not yet exist. 87 In fact, the mere suggestion of an obligation presupposes at the very least some measure of pre-existing legal personality, which the putative state is only supposed to acquire through the process of recognition. Prima facie, this seems to undermine the essence of the constitutive theory. On the other hand, even if one accepts that such an obligation exists and that there are limits on the discretion of states this begs the question as to what criteria or what standard(s) should be employed to limit that discretion. This in turn brings one back to the issue of statehood itself, and whether the Montevideo criteria, or any additional criteria need to be fulfilled before such an obligation to recognize arises. 2.3 Declaratory Theory and its Criticisms The declaratory theory, on the other hand, maintains that an act of recognition has no significant legal consequences. 88 Rather, an entity becomes a state as soon as it meets the factual criteria of statehood. In other words, the conditions of statehood, however defined, confer a legal status on the entity in question independent of recognition. 89 Therefore, recognition would actually play no part in constituting a state, but would merely be an acknowledgment of an already pre-existing 84 Worster, supra note 5 at 149. 85 Dugard & Raic, supra note 6 at 97; See generally, Hersch Lauterpact, Recognition in International Law (Michigan: University Press, 1947). 86 Crawford, Creation of States, supra note 2 at 22; Talmon, supra note 51 at 103. According to the Third Restatement of Foreign Relations Law of the United States, a state is not required to accord formal recognition to any other state (Section 202). 87 Currie, supra note 10 at 36. 88 Ibid. 89 Crawford, Creation of States, supra note 2 at 4. 21