Somaliland: The Declaratory vs Constitutive Theory

Statehood and Recognition: When looking at the map of the world it appears as if almost the whole world is neatly divided into separate parts, with each part representing a defined territorial entity, known as a State. But under this neatly divided surface, a closer examination reveals that the concept of statehood is shrouded in many ambiguities. For example, what makes a State, a State?

World Map

For over a century, there has been a great debate between the “Declarative‟ and “Constitutive‟ schools of thought on statehood. According to the declaratory theory a: State should possess the following qualifications: defined territory; permanent population and, government,capacity to enter into relations with other States

These criteria are provided by article 1 of the Montevideo Convention on the Rights and Duties of States of 1933 (Montevideo Convention). Article 3 of the Montevideo Convention declares that statehood is independent of recognition by other states:

“The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.”

Article 6 then goes on to state:

“The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.”

The declaratory theory prescribes that recognition of a State by existing States is nothing more than expressing the willingness to enter into relations with that State: in other words, accepting the existing conditions of statehood.

The declaratory theory appears to be consistent with the current practice of recognition, which is primarily used as a political tool by States.

In contrast, according to the Constitutive theory, a State only becomes a State by virtue of recognition by the other States. Once the three factual criteria of the declaratory theory have been met, this factuality must then be confirmed by the existing States. This doctrine has proved untenable in practice, as there is no international body with the authority to acknowledge the existence of States on behalf of the entire community of States. Therefore, each State may individually decide whether a new State has come into being (and recognize it). If the constitutive theory would serve as the basis for statehood, it would lead to the strange consequence that an entity would be considered a State by some States (those that have recognized it) and not a State by other States (those that have not recognized it)

The term ‘Recognition’ can be used in at least two ways. First, a State may explicitly express its view with regard to the legal status of a certain political community. An example of such an explicit recognition is the recognition of Israel as a sovereign State by the United Kingdom. In April 1950 the government of the United Kingdom declared: “His Majesty’s Government have (…) decided to accord de jure recognition to the State of Israel.”

Secondly, a State may indicate that it considers a community to be a State under international law, by entering into certain relations with that community (for example, by concluding a treaty with the State, by entering into diplomatic relationships, or by beginning a dispute settlement proceeding before the International Court of Justice). Such a form of recognition, is also called an implicit or tacit recognition. Whether entering into such relations may be considered the recognition of a particular political entity as a State under international law, must be inferred from the specific circumstances

Based on the criteria for statehood, Somaliland may be regarded as a State: there is a territory, with a population and a government exercising effective control over its territory. Whether or not Somaliland is recognized by any other State is irrelevant: an entity’s statehood is independent of its recognition by other States, according to the declaratory theory of statehood.

At the same time however, it seems that a State cannot exercise its full legal rights under international law without recognition by other States. An example of this is membership of the UN. Article 4 of the United Nations Charter (UN Charter) prescribes:

Membership in the United Nations is open to all (...) States which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.
The admission of any such State to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.

May a political entity be considered a State under international law, even if it is not recognized as such by the existing States?

Over the course of the 20th century the declaratory theory on recognition became the predominant theory on statehood. It finds support in treaties, declarations of States and particularly jurisprudence.

This view is shared by the Institute de Droit International (The Institute of International Law), which declared in article 1 of its Brussels Resolution Concerning the Recognition of New States and New Governments that:

  • “Recognition has a declaratory effect:  The existence of a new State with all the juridical effects which are attached to that existence is not affected by the refusal of recognition by one or more States”.

The declaratory position on recognition also finds support in the opinions of the Arbitration Commission of the Hague Conference on Yugoslavia also known as the “Badinter Commission‟, which was set up with the backing of the European Political Co-operation (EPC) (currently superseded by the Common Foreign and Security Policy).

Breakup of Yugoslavia into new states

The Commission was charged with the task of studying questions relating to the recognition of new States and State succession, which resulted from the dismemberment of the Socialist Federal Republic of Yugoslavia (SFRY). In its first Opinion on 29 November 1991, it expressed that:

  • “The principles of public international law (…) serve to define the conditions on which an entity constitutes a State; that is in this respect, the existence (…) of the State is a question of fact; that the effect of recognition by other States are purely declaratory”.

The declaratory theory also finds support in contemporary State practice. The Deutsche Demokratische Republik (DDR) – German Democratic Republic or East Germany – was established on October 7, 1949, but it would take until the 1970s before it would be formally recognized by Western States. This does not mean however that the DDR lacked the properties of statehood before its recognition by the existing States.

Nonetheless, State practice demonstrates that an “Unrecognized State‟ is also bound by international law.  In 1949, a British fighter jet was shot down over Egypt by the Israeli armed forces. While the United Kingdom did not officially recognize Israel at that time (as it still adhered to the constitutive interpretation of recognition), it did hold Israel responsible for the incident and called for redress. Similarly, many Arab States do not formally recognize Israel as a State, but they frequently condemn Israel for not complying with its international obligations. Another example is the United States, which held North Korea liable for an attack on its ship the “Pueblo‟ in 1968, even though North-Korea was not recognized by the United States at the time.

Despite the considerable support for the declaratory theory in international law; there is at least one issue that continues to reopen the debate between the declaratory and constitutive theories – international law does not have any mechanisms for authoritatively determining whether an entity fulfills the factual criteria for statehood. The absence of such a body is one of the main arguments used by proponents of the constitutive theory to argue for the importance attached to recognition by existing States.

The Case of Somalia and Somaliland

Somalia is arguably the best-known example of a so-called “failed State‟. The notion of the failed State – sometimes also referred to as a ‘collapsed State’ or an “etat sans gouvernement‟ – has no legal standing in international law. Neither does a clear (non-) legal universal definition of a failed State exist. In general, it may be defined as a way to describe a sovereign State that has failed at some of its fundamental responsibilities. This fundamental responsibility will relate to the absence of an effective governmental authority, which is a necessary condition for statehood. In this regard, the case of Somalia and Somaliland is of particular interest, due to its combination of legal and factual circumstances.

Somalia
Somaliland

Since 1991,there has been no central government to control most of Somalia’s territory. Somalia’s official internationally recognized government, the Federal Government of Somalia, which is backed by the United Nations, the United States and the African Union, has yet to establish effective governance on the ground, as it controls only the capital, Mogadishu, and some territory in the center of Somalia. Somalia has not only been unable to discharge its basic and primary functions, but it has de facto ceased to exist.

In contrast to Somalia, which remains embroiled in destructive internal conflicts, Somaliland appears to function on the basis of an effective and working constitution (National Charter) In accordance with the National Charter, Somaliland’s government consists of a parliament, an executive branch, and a legislative branch Security in Somaliland has been continuously improving and is generally regarded as high. Political opposition to the government is displayed through peaceful methods. This is demonstrated, among other things, by the large amount of international NGOs operating in Somaliland, and the return of many Somali refugees after years in exile. Somaliland has also demobilized the different clan forces and formed a national armed force, as well as a regular police force. Revenues are collected by the Somaliland authority through exports taxes, fees for certain services and imports. In addition, Somaliland maintains foreign relations with several States and organization.

Based on the factual criteria for statehood, Somaliland may be regarded as a (sovereign) State: there exists a territory, a permanent population and an authority capable of exerting effective control over the territory. Somaliland’s (lack of) recognition by other States is according to the (predominant) declaratory theory irrelevant. An entity’s statehood is independent of its recognition by other States. A State, in this case Somaliland, must first exist, before other States may enter into relations with it.

Compiled by SII from different sources

Source one       source two      source three