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CIAO DATE: 2/99
The Construction of States in International Politics *
Graduate School of International Studies
University of Denver
International Studies Association
40th Annual Convention
Washington, D.C.
February 16–20, 1999
This is a work in progress.
Despite the increasing significance of non-state actors in international relations, states remain the key members of the international community. Of all actors within the international system, states possess the widest range of rights and duties. International organizations derive their capabilities from their member states, and individuals gain most of their rights from their nationality. Not only do states still possess the widest set of rights, duties, and capabilities under international law, but the state system remains the predominant method for organizing the world’s territory and people. 1
Clearly, states continue to be the principal actors and therefore the focus of our principal concern. Any doubt about that proposition may be put to rest by comparing the world community’s reaction to the invasion of Kuwait, and its reaction to Russia’s intervention in Chechnya or China’s occupation of Tibet. In the case of Iraq’s invasion of Kuwait, the international community responded with overwhelming force to repel the invader. By contrast, violence against a community within a State rarely meets with any international resistance whatsoever. Britain’s Foreign Affairs Committee recently summed up this distinction clearly and concisely, stating that “intervention in a civil war is a very different matter to intervention to stop aggression across an international boundary.” 2
With few exceptions, aggression against one of their own more directly concerns the community of states than does civil strife within a state, and interstate war is more likely to spur the international community to act than intrastate conflict. 3 War among states has been the subject of various legal prohibitions over the course of this century, while groups within states remain essentially free to fight among themselves. 4
This distinction explains why the stakes are high for entities seeking statehood, but it also underscores the importance of the issue for the entire international community. Because the status of a particular territory largely determines the rights and obligations of community members toward that territory, then the issue of statehood has a real impact on existing states in the international community, not only on the potential new state.
Because of the continuing predominance of the state in international relations, questions of statehood and state creation present very significant questions about international law and international relations, and challenges to the existing system of state creation represent challenges to the state-based system of international relations itself. This paper argues that the system of state creation has undergone a fundamental change in recent years, and that this change is likely to impact the state system and the character of international relations for many years to come. In the past, statehood was based on the empirical criteria of the community in question. Contemporary statehood hinges on normative values of the recognizing community, as opposed to the factual characteristics of the recognized community.
Recognition and State Creation in International Law
Early on in the international legal system, when natural law principles dominated the study of international law, questions of statehood and state creation held little importance for international lawyers. During the 17 th century, the law of nations was tantamount to the law of nature, which applied universally. 5 Because of the universal application of the law of nature, the political status of a territory made little difference; the leader of that territory would be bound by natural law whether it were a state or a dependent territory.
As legal positivism displaced natural law, the question of statehood gained more significance. Early legal positivist writers, including Vattel, introduced the concept of independence as essential to statehood. As Vattel described,
[e]very Nation which governs itself, under whatever form, and which does not depend on any other Nation, is a sovereign state . . . To give a nation the right to a definite position in this great society, it need only be truly sovereign and independent; it must govern itself by its own authority and its own laws. 6
This concept of independence would remain central to the factual criteria that later theories would put forward.
Over time, two theories on recognition and state creation emerged: the declaratory theory and the constitutive theory. 7 Both theories place great importance on the satisfaction of four factual criteria: a defined territory, a permanent population, an effective government, and the capacity to enter into international relations with other states. The declaratory theory, which represents the majority view among international lawyers and statesmen alike, holds that upon the satisfaction of these criteria, an entity becomes a state, regardless of any action or inaction by the international community. The constitutive theory also places importance on the satisfaction of these factual conditions, but it imposes the additional requirement that the entity be recognized by other states.
Declaratory Theory
According to the declaratory view of recognition, an entity becomes a state upon satisfying four criteria. These criteria find their classical statement in the Convention on the Rights and Duties of States:
The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states. 8
Those who advocate the declaratory view, as the majority of scholars do, hold that once an entity satisfies the above criteria, it becomes a state regardless of its recognition, or lack thereof, from other members of the international community. Because the factual criteria held dear by declaratory theory occupy such an important position, they merit further examination:
(a) A Permanent Population
The population of an entity seeking statehood must be both permanent and significant. This requirement relates closely to the territorial requirement, and implies the need for a stable community. 9
(b) A Defined Territory
Because States are territorial entities, an entity seeking statehood must possess a permanent territory. 10 No minimum amount of territory is required for statehood.
Two potential problems arise with regard to this requirement: claims to the entire territory of a prospective state, and claims that potentially affect the boundaries of the new state. 11 The general view holds that a claim to the entire territory of an entity does not weaken its claim to statehood. As James Crawford explained, “a State for the purpose of this rule means any entity established as a State in a given territory, whether or not that territory formerly belonged to or is claimed by any other State.” 12
If claims to the entire territory of a prospective State cannot defeat its case for statehood, then by implication, claims to part of its territory likewise do not generally defeat a case for statehood. 13 However, some scholars hold that in some cases where the disputes cast serious doubt upon the future frontiers of a State, statehood may be denied until those disputes have been settled. 14
(c) A Government
A State need not possess any particular type of government. Nevertheless, whatever government it does possess must be able to provide some degree of internal stability for the territory and should enjoy “the habitual obedience of the bulk of the population. 15 The government must be competent to function vis-à-vis its citizens and residents by carrying out administrative functions and providing remedies to citizens and aliens, as well as vis-à-vis its fellow states by possessing the capability to carry out its international duties. 16
In addition, the government must be “actually independent” of any other State, including the parent State. 17 The requirement of independence does not require a lack of interdependence as “a degree of interdependence is in the nature of things.” 18 That stated, there must nevertheless be an “essential core of independence,” so that the entity seeking recognition as a State does not merely represent a manifestation of some other State. 19
The requirement of effectiveness became somewhat relaxed in the context of de-colonization. 20 The right to self-determination required that colonial peoples be granted independence despite “[i]nadequacy of political, economic, social or educational preparedness.” 21 Colonialism could not and did not withstand this assault, and the former colonies became independent, regardless of whether or not they were prepared to govern themselves. 22 At least in situations of de-colonization, the requirement of an effective government became less significant.
(d) The Capacity to Enter into Relations with Other States
The capacity to enter into international relations consists of the constitutional competence to do so, as well as the actual capacity to exercise that competence. Formal independence, which implies that mechanisms for the conduct of foreign relations exist, cannot satisfy this requirement without actual independence. 23 An entity may possess the mechanisms for entering into international relations, but if those mechanisms are systematically and permanently controlled by another state, then this criterion cannot be considered satisfied. 24
On the other hand, an entity may voluntarily cede its foreign policy powers to another State without jeopardizing its own case for statehood. 25 As long as the agency exists in law as well as in fact, the protected state satisfies the criterion of independence. 26
These four criteria, for declaratory theory, are determinative of statehood. As stated by Ti-Chaing Chen, a leading advocate of the declaratory view, “a State, once having satisfied certain objective tests, ipso facto becomes a person in international law.” 27 The declaratory theory considers the question of statehood to be a purely factual question, not a legal one. Recognition possesses some significance, but it is a political act, not a legal act. Recognition signals the willingness of the recognizer to enter into diplomatic relations, but it has no effect whatsoever on the existence of the new state. 28
The view that an entity becomes a state once it satisfies the above-mentioned criteria represents the majority opinion in international law. Most scholars and practitioners in international law believe that recognition, though significant politically, is unnecessary for the creation of a state as a person of international law. One supporter describes the declaratory theory as “the most fashionable theory in the twentieth century.” 29
Constitutive Theory
Though it represents the dominant view, the declaratory theory is nonetheless subject to criticism from those who assign greater importance to recognition. Particularly relevant in this context is the objection that statehood cannot be a purely factual question. Proponents of constitutive theory contend that objective knowledge cannot exist without a subject to know it. In other words, the absence of a subject makes the knowledge of these objective facts impossible. Those who support the constitutive view further contend that treating statehood as a factual question is inappropriate because statehood is a legal, not a natural, phenomenon. By adding recognition to the factual requirements for statehood, constitutive theory attempts to remedy these defects in the declaratory view.
The constitutive view also places considerable significance on the satisfaction of the factual criteria for statehood, but it requires something additional: the recognition of the new state by existing states. Though not sufficient to create the state alone, the satisfaction of the factual criteria maintains an extremely important position within the constitutive theory. If recognition of an entity takes place prior to its possessing a permanent population, a defined territory, a government, and the capacity to enter into international relations with other states, then that recognition is premature. As Hans Kelsen, an adherent to the constitutive theory, argued, “a state violates international law and thus infringes upon the rights of other states if it recognizes as a state a community which does not fulfill the requirements of international law.” 30
The constitutive theory grows out of legal positivism (which is unrelated to epistemological positivism). Legal positivism emphasizes the consensual nature of international law, and places great importance on the consent of sovereign states to their legal obligations. The creation of a new state creates such new obligations for existing sovereign states. Therefore, their consent, expressed through their recognition of the new state, must be obtained.
Given the centrality of consent to legal positivism, it is not surprising that most scholars who adhere to the constitutive theory agree that no duty to recognize exists. 31 Lauterpacht, the exception among the constitutive theorists, does argue for such a duty. 32 Opponents of the constitutive view on recognition contend that the requirement of recognition, coupled with the lack of a duty to recognize, means that a community satisfying the criteria for statehood could be wrongfully denied its rights because of a capricious decision to deny recognition. 33 This decision could have further consequences for the unrecognized entity, because without international legal personality, the community would lack many of the important protections granted by international law. 34
Critics further allege that the constitutive theory preserves the society of European nations as a “closed club” to which selected other states are “admitted” through recognition. 35 Even worse, the lack of a duty to recognize entities that satisfy the factual tests means that an entity which possessed a defined territory, permanent population, government, and the capacity to engage in international relations may be denied its rightful existence as a state simply because existing states choose not to recognize it.
State Creation and Naturalism
Both declaratory and constitutive theories fall prey to naturalism by treating states like objects that exist in nature to be discovered, rather than as social objects that are created and altered by the interaction of other actors in the international system. Because of this limitation, both declaratory and constitutive views focus on the attributes of the entity seeking recognition and ignore the extent to which the recognizers construct the entity they recognize as a state.
This naturalist bias stems from the reliance of these theories of recognition on positivist epistemology. The unity of all science — natural and social — holds a central place in positivism. In its strongest form, this view implies that there is no significant difference between the natural and social worlds. 36 In its weaker forms, the differences that exist between the natural and social worlds do not render the natural world’s methodology unsuitable for the study of the social world or its contents. 37 The implication of naturalism is that social entities, like states, can be studied by means of the same empirical methodology used in the study of natural science. Moreover, their behavior would be regulated by laws, or law-like regularities, as is behavior in the natural world.
Because of their ties to naturalism, both theories are incapable of understanding the changes in the process of state creation that began to emerge in the post- War era and have become more pronounced with the end of the Cold War. Rather than following behavioral laws, as someone adhering to a naturalist view would expect, the process of recognition and state creation has altered in a fundamental and unexpected way. To the extent that the naturalist accounts ever described the process of state creation, they have subsequently ceased to do so. In order to understand the process of state creation, the focus is now more appropriately placed on the entities that recognize the new states, rather than on the new states themselves. In other words, the emphasis on the empirically observable attributes of the recognizing community have given way to a focus on the values of the recognizing communities.
Contemporary Practice and State Creation
In recent practice, the objective criteria for statehood have gradually been abandoned in favor of other principles. The objective criteria, held dear by both declaratory and constitutive theories, have given way to more normative considerations. The abandonment of the criteria began after World War II with the wave of de-colonization when the criteria were relaxed in favor of the principle of self-determination. More recently, the dissolution of Yugoslavia and the Soviet Union demonstrated a still looser adherence to the objective criteria, particularly a defined territory and an effective government. The willingness of existing states to recognize new states has become more important than any of the criteria that previously occupied a central position in the process of state creation. Consequently, recognition by the international community alone has become enough to create the state, as will be discussed below.
The decline of the objective criteria began with the wave of de-colonization that followed World War II. Robert Jackson argues that the majority of these new states, which he deems “quasi-states,” bore little resemblance to the states in being at the time they were created. 38 Despite their formal equality, states and quasi-states are markedly unequal in two significant ways. First, the quasi-states lack the economic capacity of other states. 39 While economic differences among states have always existed, the economic distinctions between states and quasi-states are so pronounced that the terms “Third World,” “less developed,” and “developing” have evolved to describe the gap. The quantitative economic differences are so great that they have resulted in a qualitative distinction. Second, quasi-states lack the capacity to protect the human rights of their citizens, creating vastly inferior civil conditions. 40
Despite their fragility, the quasi-states have survived because the rules of international politics have changed. Jackson distinguishes between positive and negative sovereignty games. Negative sovereignty, which entails freedom from outside interference, is a formal-legal condition. 41 This type of sovereignty “presupposes governments which are deemed capable and responsible,” whether or not they possess this capacity and responsibility. 42 By contrast, positive sovereignty directly addresses these qualities. While negative sovereignty describes a formal condition, positive sovereignty indicates the substantive capacity to enjoy this liberty. 43
Under the positive sovereignty game, international society distinguished between sovereign states and dependent territories based on their capacity. 44 If the rules of the positive sovereignty game had endured after de-colonization, the weakness of the quasi-states would have been an invitation to stronger neighboring states. Now, the rules of the negative sovereignty game played by the quasi-states not only preserve their territory, but promote their welfare.
The first and most important change has been the rise of the norm of non-intervention. The effect of non-intervention is that the quasi-states have been “exempted from the power contest.” 45 The territory of the quasi-states is safe from conquest by virtue of prohibition on intervention. The second important change is that the incapacity of the quasi-states has become a basis for assistance from other states. In the past, the rules of the positive sovereignty game would have allowed quasi-states to be assimilated by more powerful states, the quasi-states consider themselves entitled to assistance because of their own weakness. 46
The fragility of the quasi-states became all too clear with the end of the Cold War. While American-Soviet rivalry dominated international politics, many quasi-states effectively played East against West for their own benefit. Somalia, for example, effectively courted both the US and USSR, and at various points received aid from each country. 47 The decline of Cold War tensions saw a corresponding decline in aid to these countries. Without this aid, several quasi-states have utterly collapsed, with Somalia being the most visible example. 48
These collapsed or “failed” states might have served as a cautionary tale. However, the collapse of Yugoslavia and the Soviet Union saw a further deterioration in the threshold for state creation. Several of the new states that grew out of the remains of Yugoslavia and the USSR do not satisfy even the relaxed standards set by the de-colonization process. Not only can the effectiveness of several of the governments be questioned, but their satisfaction of the other criteria is also highly suspect. The fact that these entities have been recognized as states evidences a fundamental change in the process of state creation.
Statehood as a Structure
As noted above, the constitutive and declaratory theories err in treating states like natural objects rather than as social creations. Understanding a state as a socially constructed object more clearly illustrates the nature of the state and the ongoing changes in the process of state creation.
Social constructivist theory espouses as a central tenet that “people act toward objects, including other actors, on the basis of the meanings that the objects have for them.” 49 Collectively shared meanings form structures under which state actions are organized. 50 Furthermore, these shared meanings arise out of the social interactions of states. 51
Statehood is one such shared meaning which has guided, and continues to guide, the actions of states although the content of that meaning has evolved over time. As Alexander Wendt observed, the state “is an ongoing accomplishment of practice, not a once-and-for-all creation of norms that somehow exists apart from practice.” 52 Like other structures, statehood and sovereignty arise out of enduring and accepted practices of states; as those practices change, so do the structures they constitute.
One such change occurred after World War II, as discussed above. Prior to that point, a state consisted of a defined territory, permanent population, an effective government, and the capacity to enter into international relations. The decline of colonialism and the corresponding rise of self-determination fundamentally altered the conception of statehood by all but eliminating the requirement of an effective government in that context.
The states that created from the de-colonization process differed in fundamental respects from states as previously conceived. As a consequence, the process of de-colonization and the acceptance of these new states altered the very concept of statehood. With the collapse of Yugoslavia and the Soviet Union would further alter the concept of the state and the criteria for its creation.
The Dissolution of the Soviet Union and Yugoslavia
Some of the new states created from the collapse of Yugoslavia and the Soviet Union could not even have met the relaxed post de-colonization criteria. At the time of their recognition by the international community, some of these states were embroiled in civil war and chaos. Even setting aside the question of a stable government, they lacked a defined territory, and their capacity to enter into relations with other states and to fulfill their international legal obligations was sorely lacking. The willingness of the international community to accept these entities as states despite their shortcomings under the traditional definition of statehood indicates that the process of state creation has been fundamentally altered. This alteration was illustrated in the wave of new states created from the collapse of Yugoslavia and the Soviet Union, and most particularly in the cases of Georgia and Bosnia–Herzegovina.
The post Cold War wave of state creation encompassed former republics of Yugoslavia and the Soviet Union. On August 21, 1991, the Russian Federation recognized the independence of the Baltic Republics, Estonia, Latvia, and Lithuania. Many states, including the US, had never recognized the USSR’s annexation of these republics and regarded their independence not as the beginning of the end of the Soviet Union, but rather as a correction of an old injustice. On September 2, 1991, the US did not recognize the Baltics as new states, but rather re-established diplomatic relations with them.
Because of the special circumstances surrounded the Baltics and their defection from the Soviet Union, the loss of Estonia, Latvia, and Lithuania did not spell the destruction of the USSR. The loss of Ukraine was a different story. Ukraine and Russia had enjoyed over three hundred years of union, 53 and Ukraine’s secession struck the final, fatal blow to the future of the Soviet Union.
On August 24, 1991, following the Baltic states’ reassertion of their independence, Ukraine declared its own independence subject to the results of a referendum to be held on December 1. 54 When that referendum was held, eighty percent of the population voted, with over 90 percent of voters favoring Ukrainian independence. Russia, 55 Canada, Poland, and Hungary recognized Ukraine’s independence the following day.
Shortly after Ukraine’s independence vote, the US Ambassador to Moscow expressed some reluctance regarding the recognition of Ukraine, stating that the United States "will acknowledge the fact that millions of people have voted for freedom and independence, and we'll do something about it, (but) that doesn't mean . . . we will rush into anything precipitously." 56 The reason cited in favor of recognition, the vote for freedom and independence, has no place under the declaratory theory, which considers statehood to be purely a question of fact.
Ukraine’s independence spelled the end of the Soviet Union. After the referendum, one Russian legislator wondered aloud, “How can you speak about a Soviet Union without the Ukraine?” 57 Aside from its historical relationship with Russia, Ukraine possessed a significant share of the Soviet Union’s resources and population. 58 The loss of Ukraine struck both a symbolic and a material blow to the USSR.
After Ukraine’s secession, the only question remaining was the nature of the USSR’s successor organization. On December 8, 1991, Russia, Ukraine, and Belarus met to dissolve the Soviet Union and establish the Commonwealth of Independent States (CIS). The leaders of those countries declared that as the founders of the Soviet Union, they declared that the USSR “as a subject of international law and a geopolitical reality no longer exists.” 59 In its place stood independent states on the formerly Soviet territory, bound together by the loosely joined CIS. 60 A few days after the Slavic summit, the leaders of Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan met and affirmed their willingness to join the CIS. 61
In an effort to respond effectively to respond in a coherent manner to these rapidly unfolding events, the Foreign Ministers of the European Community (EC) issued their Declaration on the Guidelines on Recognition of New States in Eastern Europe and the Soviet Union, in addition to a separate statement on Yugoslavia. Their use of the term “New States” certainly foreshadowed their policy, and that of the rest of the world, toward this region. As indicated by the declaration’s title, new states were in fact formed out of the former Soviet Union and Yugoslavia.
The declarations issued by the EC provided an important statement of the principles that purported to guide the Community’s practice through the minefield of a dissolving superpower. The Declaration on the Guidelines on Recognition of New States in Eastern Europe and the Soviet Union set forth certain principles and affirmed their willingness to recognize, subject to the “normal standards of international practice,” new democracies that accepted certain international obligations. 62 These obligations included:
The US joined the EC in its support of these standards and their role in the recognition of new states. 63 In addition to these specific principles, the Declaration states that the EC would also consider the effects of recognition on the surrounding states. 64
The separate declaration on Yugoslavia expresses similar principles. The Declaration on Yugoslavia required any Yugoslav republics seeking recognition to notify the EC by December 23. 65 Republics seeking recognition were also the EC as to whether or not they accepted the commitments set forth in the Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union in addition to certain other provisions related to the rights of ethnic groups. 66 Furthermore, any republic seeking recognition was obliged to support efforts of the United Nations Security Council and the Secretary-General as well as the Conference on Yugoslavia. 67
While purporting to preserve the traditional practices relating to recognition, the other principles embodied in these documents would come to plan an apparently more important role than the more familiar elements of statehood, not only for the European Community and its Member States, but for the world community as a whole. 68 The supplanting of the traditional criteria with these new principles reflect the diminishing importance of empirical statehood, which the traditional criteria reflect, and the increasing significance of constructively defined normative principles.
As noted above, under the terms of the statement on Yugoslavia, any Yugoslav republic seeking recognition was to notify the EC by December 23, 1991, and agree to certain commitments before recognition would be extended. In addition to Slovenia and Croatia, which had unilaterally declared their independence from Yugoslavia in June of 1991, Bosnia and Macedonia also notified the EC that they were seeking recognition. Serbia and Montenegro did not make any such notification; they contended that because they had been recognized in 1878 at the Berlin Congress and maintained their international legal personality. At that time, Germany unilaterally recognized Slovenia and Croatia after unsuccessfully urging the EC collectively extend recognition to the new states. 69 In spite of harsh criticism of Germany’s decision from the US, the United Nations, and others, German Chancellor Helmut Kohl proceeded to establish diplomatic ties with the former Yugoslav republics. 70
In the meantime, on December 21, 1991, Armenia, Azerbaijan, and Moldova met with the three Slavic republics and the five Central Asian republics met at Alma Ata to formally establish the Commonwealth of Independent States and to proclaim the dissolution of the Soviet Union. 71 The republics’ leaders reiterated that "with the formation of the Commonwealth of Independent States, the Union of Soviet Socialist Republics ceases to exist." 72 With the exception of the Baltic states and Georgia, all Soviet republics had, at that point, joined the Commonwealth.
Shortly afterwards, President Bush extended recognition to the majority of the former Soviet republics. In his Christmas address to the nation, President Bush announced that he recognized and established diplomatic recognition to Russia, Ukraine, Belarus, Kazakhstan, Armenia, and Kyrgyzstan. 73 Furthermore, he announced that the US recognized Moldova, Turkmenistan, Azerbaijan, Tajikistan, Georgia, and Uzbekistan as independent states, but withheld the establishment of diplomatic relations pending their commitment to the principles earlier advocated, particularly security policies and democratic principles. 74
Significantly, most other states did not recognize Georgia’s statehood at that time because of its own internal turmoil, which prevented Georgia from joining the CIS with the other former Soviet republics. The EC did not recognize Georgia until March 23 of the following year when it attained a degree of internal stability through a coalition government. 75 The Community’s December 31, 1991, statement was silent on the question of Georgia’s recognition, although it recognized eight republics of the former Soviet Union. 76 The EC further pledged to recognize Kyrgyzstan and Tajikistan once they had assured the EC of their willingness to accept the principles embodied in its guidelines, and did so on January 16, 1992. 77
The new year saw another wave of new states. Despite widespread criticism of Germany’s recognition of Slovenia and Croatia as premature, the EC and its Member States followed Germany by recognizing Slovenia and Croatia on January 15, 1992. 78 Other nations soon followed the EC’s lead and recognized the former Yugoslav republics. Over the next few days, Canada, Australia, and Argentina also extended recognition to these new states. 79 Within a few months, Russia, Japan, the United States, China, and India also recognized Croatia and Slovenia as new states. 80
On March 10, 1992, the United States and the European Community issued a joint statement indicating their willingness to recognize the Yugoslav republic of Bosnia–Herzegovina as a state. 81 A referendum on that republic’s independence, held later that month, indicated overwhelming support among non-Serb residents of Bosnia for secession from Yugoslavia. The Serbian minority, which constitute approximately thirty-one percent of the population, boycotted the referendum. 82 Sixty-three percent of the Bosnian population participated in the referendum, with over ninety-nine percent of voters favoring Bosnia’s independence from the remainder of Yugoslavia. 83
On April 7, 1992, following the results of this referendum, the United States and the European Community recognized Bosnia–Herzegovina, and the US recognized Slovenia and Croatia. 84 Significantly, the U.S. statement noted that Croatia, Slovenia, and Bosnia–Herzegovina met the criteria for recognition, but failed to elaborate on the content of those criteria. 85
Statehood and Changing Criteria
Did the newly independent states of the former Soviet Union and Yugoslavia satisfy the factual criteria espoused by both the declaratory and constitutive theories of state creation? Did each possess a defined territory, a permanent population, an effective government, and the capacity to enter into international relations? Or have shared values replaced adherence to these more empirical standards?
Significant questions about the new states’ satisfaction of the empirical criteria exist. The most obvious of these concern the requirements of a defined territory and an effective government. Convincing evidence of the fragility of these new states is the fact that peacekeepers, of various persuasions, are currently deployed in such a large number of these newly created states. 86 Their lack of economic capacity and inability (or in some cases, unwillingness) to protect the human rights of their citizens also speak volumes about the weakness of the new states.
Georgia and Bosnia–Herzegovina present the most striking examples and the most persuasive challenges to the maintenance of the empirical criteria advocated by both the declaratory and constitutive theories of recognition. Other new states in the region also pose similar challenges to the traditional criteria for statehood, but these two seem to present the clearest cases that the criteria for state creation have changes and the fact that the international community followed, rather than criticized as premature, early recognition of these states underscores the altered views on statehood and its requirements.
At the time of its recognition by the United States, Georgia’s internal turmoil was so considerable that it was unable to join the Commonwealth of Independent States at the time of that organization’s formation. 87 In particular, the regions of Abkhazia and South Ossetia sought their independence from the newly formed Georgian state. Rebel forces finally ousted Georgian President Zviad Gamsakhurdia in early January, 1992, shortly after President Bush had recognized Georgia’s statehood. The installation of former Soviet Foreign Minister Eduard Shevardnadze as Georgia’s new President did little to quell the substantial unrest that plagued the newly recognized state, but the establishment of the coalition government did prompt additional states and the European Community to recognize Georgia’s statehood.
Although a community need not possess any particular type of government to be considered a state, that government must be effective. Setting aside the territorial questions raised by the secessionist movements, the Georgian government possessed an extremely limited capacity to rule even the remainder of that country. The question of a government toppled less than two weeks after recognition leaves itself open to significant questions about its capacity to rule its territory. The continuing strife under the Shevardnadze government indicates continuing difficulties for Georgia’s government that are closely related to questions about Georgia’s territory.
Similar questions persist about the former Yugoslav republics, especially Bosnia–Herzegovina. Recognized only a few months after Georgia, Bosnia–Herzegovina suffered from many of the same difficulties. Bosnia–Herzegovina’s chief obstacle stemmed from the separatist claims of its Serbian population. The Serbs who boycotted the referendum on Bosnia's independence lodged their own claims of statehood against the newly formed Bosnian entity.
The claims of the Bosnian Serbs to their own republic, Srpska, coupled with the state of war that persisted in Yugoslavia undermined the territorial integrity of Bosnia–Herzegovina even after its recognition as an independent state. In early 1993, for example, the Vance-Owen Plan proposed the division of Bosnia–Herzegovina into ten cantons based on the patterns of the ethnic minorities within its borders. 88 This proposed division of Bosnia underscores the ongoing disputes regarding Bosnia’s territory. The questionable existence of a defined territory also casts doubts on the effectiveness of Bosnia–Herzegovina’s government, a closely related requirement.
The difficulties outlined above really amount to a lack of independence. Independence, introduced by Vattel, remained the core of statehood through the rise of legal positivism and the development of the constitutive and declaratory theories. The newly created states that were formerly part of the Soviet Union or Yugoslavia lack the essential core of independence previously required for statehood. Rather than building that capacity from within prior to recognition, these states were created from without, based upon the norms and values possessed by the international community. Moreover, the creation of such states will have an impact on the quality of international relations. Though formally equal, the new states present a novel set of problems and challenges to be met.
Conclusion
At a time when the declaratory theory, which emphasizes a state’s factual existence, reigns supreme, the international community has recognized the existence of several states which seemingly lack the barest of empirical essentials for statehood. Rather than indicating that the empirical criteria for statehood have been met in the view of the recognizer, recognition seems to indicate, more than anything else, the willingness of the recognizer to accept the entity as a state. Recognition and statehood have become so intertwined that recognition has, for all practical purposes, taken the place of statehood and its more concrete attributes of a territory, population, government, and the capacity to enter into international relations.
If recognition has in fact taken the place of the empirical criteria of statehood, and recognition alone is sufficient to create the state, then perhaps the willingness of the world community to accept some entities as states and not others likely tells us more about the recognizing states and their values than the recognized states and their attributes. The empirical capabilities of new states have assumed a much less significant role than they have played in the past, and than international law says they should play in the present. If their attributes are not driving the process of state creation, then the traits of those states that have created them must assume more importance. In this respect, it is useful to again think of statehood as a structure, and to examine the principles under which its constructors operate.
One potential source of these principles might be the multiple declarations concerning the creation of new states that have been issued by the European Community and the United States. These statements emphasize several key tenets:
These criteria bear little resemblance to the more empirical criteria held dear by constitutive and declaratory theorists alike. Statehood is no longer a question of fact; it has become a question of norms.
Ironically, the new emphasis on these norms, which has apparently come at the expense of the traditional empirical criteria, may end up jeopardizing the norms promoted by the international community. These new states seem marked by a genuine lack of capacity. Whether they want to or not, they may well be unable to adhere to the normative commitments demanded by the international community in exchange for statehood.
Like quasi-states, the newly independent states are distinguished by poor social and economic conditions. As Robert Jackson noted in his discussion of sub-Saharan Africa, the creation of those states may have promoted the principle of self-determination, but the weak states created did little to protect the rights of their ordinary citizens. 89 These observations seem to apply to the new states created from the remains of Yugoslavia and the Soviet Union. The economic weakness of these states, coupled with their inability or unwillingness to protect the human rights of their citizens, strongly resembles the situation of the quasi-states as discussed by Jackson.
In the past, under the positive sovereignty game, states were built from within and recognized by the international community once they satisfied the requisite factual criteria. By contrast, these new states have been constructed from without through recognition by the international community. A reversion to the positive sovereignty game Because of the role the international community has played in creating these new states, and in constructing the norms which provided for their creation, that same international community must also bear a certain degree of responsibility for the conditions with these communities, and a concurrent duty to help build the states it has created.
Endnotes
*: Prepared for presentation at the annual meeting of the International Studies Association, Washington, D.C., February 16–20, 1999. Back.
Note 1: The few remaining exceptions to the state system of organization would be Antarctica and the few remaining non self-governing territories. Back.
Note 2: Foreign Affairs Committee First Report, Central and Eastern Europe: Problems of the Post-Communist Era, Para. 62, cited in Colin Warbrick, “Current Developments: Public International Law; Recognition of States Part 2,” International and Comparative Law Quarterly 42 (April 1993): 441. Back.
Note 3: Since the end of the Cold War, the international community and its members have demonstrated an increased willingness to intervene forcibly in domestic conflicts, as it did in Rwanda, Somalia, and within some of the former Yugoslav and Soviet republics. Nevertheless, these cases continue to represent the exceptional situations. Several of these interventions have taken place in states created since the end of the Cold War for reasons that will be taken up below. Back.
Note 4: The League of Nations Covenant restricted the right of its Member States to go to war. League of Nations Covenant, art. 12–15. The prohibition on interstate war continued with the Kellogg-Briand Pact, which prohibited war among its signatories. Treaty Providing for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, 46 Stat. 2343. The UN Charter embodies the most recent and broadest prohibition. Article 2, paragraph 4 prohibits the “threat or use of force against the territorial integrity or political independence of any state.” U.N. Charter, art. 2, para. 4. Although this provision prohibits war and other uses of force between or among states, it does not apply to groups within states. Back.
Note 5: James Crawford, The Creation of States in International Law (New York: Oxford University Press, 1979), 5. Back.
Note 6: Emerich De Vattel, Le Droit des Gens, § 4, quoted in ibid., 7. Back.
Note 7: The two dominant theories have been the declaratory and constitutive theories discussed below. However, there have also been attempts to reconcile these two views, as P.K. Menon points out. Some writers have attempted to reconcile the declaratory and constitutive theories by drawing a distinction between international personality, which they believe to exist even absent recognition, and the exercise of international rights, which requires recognition. Others draw a distinction based on the type of right asserted, arguing that recognition is declaratory with regard to certain minimum rights (such as the right to self-defense) but constitutive with respect to other types of rights. P.K. Menon, Recognition in International Law: Theoretical Observations (Washington, D.C.: World Peace Through Law Center, 1990), 4–5. Back.
Note 8: Convention on the Rights and Duties of States, art. 1, Dec. 26, 1933, 49 Stat. 3097. Back.
Note 9: Ian Brownlie, Principles of Public International Law 4 th ed. (Oxford: Oxford University Press, 1990), 73. Back.
Note 10: Crawford, Creation of States, 36. Back.
Note 11: James Crawford, “The Criteria for Statehood in International Law,” British Year Book of International Law (Oxford: Clarendon Press, 1976–77), 112. Back.
Note 14: Crawford, Creation of States, 39, citing Rosalyn Higgins. Higgins noted the specific example of Lithuania as a case in which recognition was withheld due to a territorial dispute. Crawford rejected this example, contending that the withholding of recognition from Lithuania resulted from political motivations rather than the belief that Lithuania was not a State. Crawford, “The Criteria for Statehood,” 113. See also Sir Hersch Lauterpacht, Recognition in International Law (Cambridge: Cambridge University Press, 1947), 30. Back.
Note 15: Lauterpacht, Recognition, 28. Back.
Note 16: Ibid., 29, citing Moore. Back.
Note 18: Rosalyn Higgins, Problems and Process: International Law and How We Use It (New York: Oxford University Press, 1994), 41. Back.
Note 20: Brownlie, Principles, 73 Back.
Note 21: Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514, 15 U.N. GAOR, Supp. (No. 16) 66, U.N. Doc. A/4684 (1961). Back.
Note 22: Robert Jackson, “Juridical Statehood in Sub-Saharan Africa,” Journal of International Affairs 46, no. 1 (Summer 1992) 2–5. Back.
Note 23: Brownlie, Principles, 74 Back.
Note 25: Restatement of the Law, Third: Foreign Relations Law of the United States, §201, cmt. E (Philadelphia: American Law Institute, 1987). Back.
Note 26: Brownlie, Principles, 75. Back.
Note 27: Ti-Chiang Chen, The International Law Of Recognition, with Special Reference to Practice in Great Britain and the United States, ed. Leslie C. Green (New York: Praeger, 1951), 4. Back.
Note 29: Menon, Recognition, 23 Back.
Note 30: Hans Kelsen, Principles of International Law (New York: Rinehart, 1952), 270. Back.
Note 32: Lauterpacht, Recognition, 6. Back.
Note 33: Menon, Recognition, 23. Back.
Note 36: Steve Smith, “Positivism and Beyond,” in International Theory: Positivism and Beyond, eds. Steve Smith, Ken Booth, and Marysia Zalewski (Cambridge: Cambridge University Press, 1996), 16. Back.
Note 38: Some “quasi-states” existed prior to the wave of de-colonization, such as Haiti, Ethiopia, and Liberia. Robert H. Jackson, Quasi-States: Sovereignty, International Relations, and the Third World, (Cambridge: Cambridge University Press, 1990), 67. Back.
Note 47: Somali dictator Mohamed Siad Barre first courted the Soviet Union by declaring his government to be a Marxist revolutionary regime. Siad S. Samatar, “Historical Setting,” in Somalia: A Country Study ed. Helen Chapin Metz (Washington, D.C.: Department of the Army, 1993), 3. In 1977, the Soviet Union signed a treaty with Somalia’s historical rival, Ethiopia. This new alliance between Somalia’s former patron and its historical enemy prompted Siad Barre to seek and receive military and economic assistance from the United States. Keith B. Richburg, “Orphan of the Cold War: Somalia Lost Its Key Role,” The Washington Post, 15 October, 1992, p. A24. The strategic position of Somalia’s Gulf of Aden assisted it in playing the superpowers against each other, but the decline of Cold War tensions so a coinciding decline in foreign aid. By the late 1980s, the United States and the European Community, with the exception of Italy, had all but abandoned Somalia both diplomatically and economically. Samuel M. Makinda, Seeking Peace from Chaos: Humanitarian Intervention in Somalia (Boulder, CO: Lynne Rienner, 1993), 18. Back.
Note 48: During the Cold War, Third World states like Somalia could successfully manipulate the dueling superpowers. With the end of the Cold War and the loss of superpower support, many of these states could no longer sustain themselves. States have collapsed throughout history, but the phenomenon of state collapse became more common with the end of the Cold War. I. William Zartman, Collapsed States: The Disintegration and Restoration of Legitimate Authority (Boulder, CO: Lynne Rienner, 1995); Gerald B. Helman and Steven B. Ratner, “Saving Failed States,” Foreign Policy, 89, no. 8 (1992). Back.
Note 49: Alexander Wendt, “Anarchy is What States Make of It: The Social Construction of Power Politics,” International Organization 46, no. 2 (Spring 1992): 396–7. Back.
Note 53: Orest Subtelny, Ukraine: A History (Toronto: University of Toronto Press,1988) 499. Back.
Note 54: All Soviet republics, with the exceptions of Russia and Kazakhstan, declared independence after the failed coup in August, 1991. Fred Hiatt, “Ukraine Seen Going Independent Referendum Support For Full Sovereignty,” The Washington Post, 2 December, 1991, p. A1. Back.
Note 55: Boris Yeltsin conditioned Russia’s recognition of Ukraine on Ukraine’s observation of international arms limitation and nonproliferation treaties and on Ukraine’s non-nuclear status. Fred Hiatt, “Ukraine Vote Leaves Union Shattered,” The Washington Post, 3 December, 1991, p. A1. Back.
Note 56: U.S. Ambassador Richard Strauss, quoted in Fred Hiatt, “Ukraine Seen Going Independent.” Back.
Note 57: Michael Dobbs, “The Soviet Union, as We Long Knew It, Is Dead. What's Next?” The Washington Post, 4 December, 1991, p. A27. Back.
Note 58: With a population of 52,000,000 Ukraine possessed the second largest population among the Soviet republics after Russia. Back.
Note 59: Agreement Establishing the Commonwealth of Independent States, Dec. 8, 1991, Belr.-Russ.-Ukr., preamble, International Legal Materials 31 (January, 1992): 143. Back.
Note 60: Ibid., art. 1, art. 6–7. Back.
Note 61: Protocol to the Agreement Establishing the Commonwealth of Independent States, Dec. 21, 1991, International Legal Materials 31 (January, 1992): 147. The Protocol extended membership in the Commonwealth to Azerbaijan, Armenia, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan, and Uzbekistan, who joined Russia, Belarus, and Ukraine as equal members. Back.
Note 62: Declaration on the Guidelines on Recognition of New States in Eastern Europe and the Soviet Union, Back.
Note 63: David Hoffman, “Quick Recognition Seen For Former Soviet States Baker, NATO Allies Discussing Issue in Brussels,” The Washington Post, 20 December, 1991, P. A35. The US also made more detailed demands with regard to nuclear weapons. Back.
Note 64: Declaration on the Guidelines on Recognition of New States in Eastern Europe and the Soviet Union, reprinted in European Journal of International Law 4 (1993): 72. Back.
Note 65: Declaration on Yugoslavia, reprinted in European Journal of International Law 4 (1993): 73. Back.
Note 68: Roland Rich, “Recognition of States: The Collapse of Yugoslavia and the Soviet Union,” European Journal of International Law 4 (1993): 43. Back.
Note 69: Germany’s decision to recognize Croatia and Slovenia was made contingent upon those republics’ agreeing to accept the principles expressed in the EC’s previously issued Guidelines on Recognition. Steve Vogel, “Germany Recognizing New States Slovenia, Croatia Must Accept Terms,” The Washington Post, 20 December, 1991, P. A39. Back.
Note 71: James Rupert, “Yeltsin to Control Most Nuclear Arms; 11 Former Soviet Republics Declare Formation of Commonwealth,” The Washington Post, 22 December, 1991, P. A1. Back.
Note 72: Agreement Establishing the Commonwealth of Independent States. Back.
Note 73: Don Oberdorfer, “Gorbachev Resignation Ends Soviet Era: U.S. Recognizes Russia, Other Republics; Bush Hails Change, Praises Ex-Leader,” The Washington Post, 26 December, 1991, P. A1. Back.
Note 75: EC Press Statement, cited in Rich, “Recognition of States.” Back.
Note 76: Rich, “Recognition of States,” 46. Back.
Note 82: Laura Silber, “Angry Serbs Barricade Bosnian City 4 Killed in Clashes After Referendum,” The Washington Post, 3 March, 1992, P. A13. Back.
Note 83: Laura Silber, “Bosnian Tense After Vote for Secession” The Washington Post, 4 March, 1992, P. A16. Back.
Note 84: Rich, “Recognition of States,” 50. Back.
Note 85: White House press release, cited in Ibid. Back.
Note 86: The stationing of peacekeeping forces in newly created states is not an entirely novel phenomenon, but the number of cases and the nature of the missions points to underlying factors in these cases. Specifically, the questionable capacity of these new states to meet the empirical threshold for statehood makes international support for the continued existence of these states a necessity.
The United Nations has made a massive commitment to the new states formed out of the former Yugoslavia in terms of both troops and resources. UN peacekeepers first became involved as part of the United Nations Protection Force (UNPROFOR). UNPROFOR included over 38,000 military personnel in addition to 800 civilian police and nearly 5,000 international and local staff. In terms of expenditures, the UN’s involvement in Yugoslavia cost over four and a half billion dollars during the duration of UNPROFOR from February, 1992, until March, 1995. Even this commitment of personnel and resources proved inadequate, and NATO forces assumed UNPROFOR’s functions after its withdrawal. The NATO Implementation Force, or IFOR, has been replaced by the Stabilization Force, SFOR.
Other UN peacekeeping operations in the former Yugoslavia included
The complexity and explosiveness of the Yugoslav situation has also inspired some creativity on the part of the United Nations in the form of its first preventive deployment. UNPREDEP, the United Nations Preventive Deployment Force, is stationed in the Former Yugoslav Republic of Macedonia, commonly referred to as FYROM, in an attempt to forestall widespread conflict in that area.
For an analysis of UN operations in Yugoslavia, see William J. Durch and James A Schear, “Faultlines: UN Operations in the Former Yugoslavia,” in UN Peacekeeping, American Policy, and the Uncivil Wars of the 1990s, ed. William J. Durch (New York: St. Martin’s Press, 1996).
The UN has not made such an extensive commitment to the former Soviet Union despite the frailty of those new states. The inadequacy of political institutions in many of these new states are no match for the ethnic and religious conflicts they inherited from the Soviet era. In a few of these new states where tensions have boiled over, Russia has stationed troops to manage the conflict. These Russian troops, in conjunction with troops from the host state or from other CIS Members, are currently stationed in Georgia, Tajikistan, Moldova, and Azerbaijan. In addition, armed conflict has flared up between the new states of Armenia and Azerbaijan. For an overview of these missions, see Kevin O’Prey, “Keeping Peace in the Borderlands of Russia,” in idem. Back.
Note 87: Georgia became a member of the Commonwealth of Independent States in October, 1993, nearly two years after its creation. Lee Hockstader, “Moscow Ties Return To Haunt Georgians: Wars Force Plea for Russia's Help,” The Washington Post, 24 October, 1993, P. A1. Back.
Note 88: Vance-Owen Plan UN Doc. S/25479, Anns. I–IV (1993). The division of Bosnia–Herzegovina, presumably a sovereign state, seems conflict with the principles of territorial integrity and non-recognition of territory gained through aggression. To reconcile this conflict, either those cherished legal principles must be abandoned, or the peculiar nature of Bosnia–Herzegovina’s “statehood” must be acknowledged. Back.
Note 89: Jackson, “Juridical Statehood,” 16. Back.
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