v13_2002c - 2 CONSTRUCTING STATES THE ROLE OF THE...

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Unformatted text preview: 2 CONSTRUCTING STATES: THE ROLE OF THE INTERNATIONAL COMMUNITY IN THE CREATION OF NEW STATES Amy E. Eckert" Traditional models ofstate creation focus on the capability of the new state to govern its population and territory and to interact with existing states. The collapse of the Soviet Union and Yugoslavia, and the creation of new, smaller states from their constituent parts. indicate that the focus has shifted. The international community has indicated its willingness to rec— ognize states that merely make commitments to protect hu- man rights, govern themselves democratically, and promote international peace and security. However, by abandoning the old standards, these new states likely lack the capacity to fulfill those commitments. The international community that cre— ated these new states will find itself drawn into the state- building process ifit wants to see those commitments met. INTRODUCTION States remain the most significant members of the international commu— nity despite the rise of non—state actors. Of all the actors important to international relations, states possess the broadest range of rights, duties, and capabilities. Statehood is thus a crucial issue for nations, peoples, and other political communities —— and for the international community as a whole. Yet, until recently, legal scholars and analysts have paid surprisingly little attention to the legal and political processes through which new states emerge. ‘ Amy E. Eckert, PhD. Candidate, Graduate School of International Studies, University of Denver 20 Amy E. Eckcrt The high stakes of statehood, particularly in light of the disintegration of the Soviet Union and Yugoslavia, make developing an improved understanding of state creation crucial. The post-Cold War collapse of the Soviet Union and Yugoslavia points to an enhanced role for recognition by other states in the process of creating new states. While recognition has played a key role in state creation during the wave of decolonization that followed the Second World War, these developments indicate that it has assumed even greater importance. While some scholars have long acknowledged a role for recognition in the process of state creation, even this View fails to capture the significance of recognition in post—Cold War practice. Earlier theories focused on the empirical attributes of the recognized states, such as their territory, population, and effective government. Post-Cold War processes of state creation seem to place at least equal, if not greater, importance on the values of the recognizing states, including support for human rights and democracy. These values, so crucial to the contemporary period, have no place in earlier theories of state creation. I will begin my exploration of these changes by surveying two major theories of state creation that have developed along with our contempo— rary state system. Next, I will discuss the collapse of the Soviet Union and Yugoslavia in the context of these models. As insights from international relations theory will show, these legal theories no longer accurately describe how the international community constructs new states. Finally, I discuss the policy implications of the emerging model of state creation. RECOGNITION AND STATE CREATION IN INTERNATIONAL LAW Questions about statehood and the rights and duties that are attached to it now occupy a central position in international law and international relations. However, this was not always the case. Early on in the develop— ment of 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'h century, the law of nations was tantamount to the law of nature, which applied universally (Crawford 1979) . The political status of a territory made no difference with respect to legal obligations; the leader of that territory would be bound by natural law whether the territory happened to be a state or a dependent territory. At that point, international lawyers lacked a precise conception of statehood and used the terms “state” and “nation” interchangeably (\Wallace—Bruce 1994, 21-2). Constructin States: The Role 0 the International Communif 21 As legal positivism displaced natural law, the question of statehood gained greater significance. Early legal positivist writers, including Emmerich de 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 (Crawford 1979, 7, emphasis in original). 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.2 Both theories place great importance on the satisfaction of four factual criteria. Declaratory theory, the majority view among international lawyers and diplomats, holds that upon the satisfaction of these criteria, an entity becomes a state, regardless of any action or inaction by the international community. The constitu— tive theory, in contrast, imposes the additional requirement that the entity be recognized by other states. DECLARATORY THEORY According to the declaratoryview of recognition, an entity becomes a state upon satisfying four empirical criteria. These criteria find their classical statement in the 1933 Montevideo 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. (Convention on the Rights and Duties of States, art. 1). Those who advocate the declaratory view, as the majority of international legal 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 these four factual criteria occupy such an important position in both declaratory and constitutive theory, they merit further elaboration: (a) a permanent population The population of an entity seeking statehood must be both perma— 22 Amy E. Eckert nent and significant. This requirement relates closely to the territorial requirement, and implies the need for a stable community (Brownlie 1990). (b) a defined territory Because states are territorial entities, an entity seeking statehood must possess a permanent territory (Crawford 1979). However, no mini- mum amount of territory is required for statehood. While this requirement seems straightforward, two potential problems arise with regard to territory: claims to the entire territory of a prospective state, and claims that potentially affect the boundaries of the new state (Crawford 1976—77). The general view, as stated byJames Crawford, is that “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 (Crawford 1976-77, 1 13).” By implication, then, claims to part of its territory likewise do not generally defeat a case for statehood. However, some scholars hold that in cases where the disputes cast serious doubt upon the future frontiers of a state, statehood may be denied until those disputes have been settled (Crawford 1979). (c) a government A state need not possess any particular type of government, but its government must provide some degree of internal stability and should enjoy “the habitual obedience of the bulkof the population (Lauterpacht 1947, 28).” An effective government provides its citizens and resi— dents with remedies and carries out duties vis-a—z/is other states (Lauterpacht 1947). In addition, the government must be “actually independent” of any other state, including the parent state. A com— plete lack of interdependence is impossible, as “a degree of interdepen- dence is in the nature of things, ” but the prospective state must possess an “essential core of independence,” so that the entity seeking recognition as a state does not merely represent a manifestation of some other state (Higgins 1994, 41). The requirement of effectiveness became somewhat relaxed in the context of decolonization (Brownlie 1990), when the right to self—determination required that colonial peoples be granted independence despite the “ [i] nadequacy of politi- cal, economic, social or educational preparedness (Declaration on the Granting of Independence to Colonial Countries and Peoples 1961).”3 Colonialism did not withstand this assault, and the former colonies became independent regardless of whether or not they were prepared Constructing States: The Role of the International Community 23 to govern themselves (Jackson 1992). At least in situations of decolonization, the right to self-determination eroded the criterion of effective government. (d) t/ae capacity to enter into relations wit/J other state: The capacity to enter into international relations consists of the constitutional competence to do so, as well as the ability to exercise that competence. Formal independence, which implies that mecha- nisms for the conduct of foreign relations exist, cannot satisfy this requirement without actual independence, which implies that the community can in fact exercise its formal independence (Brownlie 1990). In other words, though an entity may possess the mechanisms for entering into international relations, if those mechanisms are systematically and permanently controlled by another state, then this criterion cannot be considered satisfied. While a community must possess the capacity to engage in international relations, an entity may voluntarily cede its foreign policy powers to another state without jeopardizing its own case for statehood (Restatement, Third, 1987 §201, cmt. e). As long as the agency exists in law as well as in fact, the protected state satisfies the criterion of independence (Brownlie 1990) These four criteria, for declaratory theorists, are determinative of statehood. As stated by Ti—Chaing Chen, a leading advocate of the declaratoryview, “a State, once having satisfied certain objective tests, ipso fizeto becomes a person in international law (Chen 1951, 4).” The declaratory theory considers statehood to be a purely factual question, rather than a legal one. Recognition signals the willingness of the recog- nizer to enter into diplomatic relations, but it has no effect whatsoever on the existence of the new state. Constitutive theory Despite the large degree of scholarly consensus it enjoys, the declaratory theory nonetheless receives 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 (Lauterpacht 1947). 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 (Crawford 1979). By adding recognition to the factual 24 Amy E. Eckert requirements for statehood, constitutive theory attempts to remedy this flaw 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 in the absence of recognition, 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 constitutive theorist Hans Kelsen has argued, a state violates international law if it extends recognition to a community that does not fulfill the requirements for statehood (Kelsen 1952) The constitutive theory grows out of legal positivism, which empha- sizes the consensual nature of international law, and places great impor- tance 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 sovereign consent to legal positivism, it is not surprising that most scholars who adhere to the constitutive theory agree that states are under no duty to recognize new states (Kelsen 1952). Lauterpacht, the exception among the constitutive theorists, does argue for such a duty (Lauterpacht 1947). 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 (Menon 1990). This decision could have further consequences for the unrecognized entity, because without international legal personality, that entity would lack many of the important protections granted to states by international law. Despite these shortcomings, the constitutive theory, by recognizing the role of the international community in accepting or rejecting claims to statehood, provides a more complete picture of state creation. With the movement away from empirical statehood, illustrated by state practice during the disintegration of Yugoslavia and the Soviet Union, the inter- national community’s acceptance or rejection of a statehood claim has become still more important. Contrary to the state of theory, statehood has become a question of value rather than a question of fact. Constructin States: The Role 0 the International Communit 25 THE DISSOLUTION OF THE SOVIET UNION AND YUGOSLAVIA At the time of their creation, some states formed from the disintegrating Soviet Union and Yugoslavia found themselves embroiled in civil war and chaos. The willingness of the international community to accept these entities as states despite shortcomings under the traditional definition of statehood indicates that the process of state creation has been fundamen— tally altered. The wave of state creation from the collapse onugoslavia and the Soviet Union illustrates the application of new criteria for statehood. The Collapse of the Soviet Union The post—Cold War wave of state creation that encompassed the former republics of Yugoslavia and the Soviet Union began on 21 August 1991, when the Russian Federation recognized the independence of the Baltic Republics of Estonia, Latvia, and Lithuania. Many states, including the United States, never recognized the Soviet Union’s annexation of these republics and regarded their independence as a correction of an old injustice.4 Because of these special circumstances surrounding the Baltics, their loss did not spell destruction for the Union of Soviet Socialist Republics. The secession of Ukraine struck a far more serious blow to Soviet Union, as Ukraine and Russia had enjoyed more than 300 years of union (Subtelny 1988). Aside from the historical relationship with Russia, Ukraine possessed a significant share of the Soviet Union’s resources and population. The loss of Ukraine thus struck both a symbolic and a material blow to the USSR. On 24 August 1991, Ukraine declared its own independence subject to the results of a referendum to be held on 1 December.5 In that referendum, 80 percent of the population voted, with over 90 percent of voters favoring Ukrainian independence. Russia,“ Canada, Poland, and Hungary recog— nized Ukraine’s independence the following day. The U.S. Ambassador to Moscow expressed reluctance to recognize 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 (Hiatt 1991a, AD.” The reason cited in favor of recogni— tion—the vote for freedom and independence—has no place under the declaratory theory, the leading model of state creation in contemporary international law. 26 Amy E. Eckert While the United States reacted cautiously, Ukraine’s independence caused alarm in Russia. After the referendum, one Russian legislator wondered, “How can you speak about a Soviet Union without the Ukraine (Dobbs 1991)?” On 8 December 1991, the leaders of Russia, Ukraine, and Belarus dissolved the Soviet Union and agreed to establish the Commonwealth of Independent States (CIS). As the founders of the Soviet Union, these countries declared that the Union of Soviet Socialist Republics “as a subject of international law and a geopolitical reality no longer exists (Agreement Establishing the Commonwealth of Independent States) .” A few days later, the leaders of Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan met and affirmed their willingness to join the CIS, which would be established on 21 December 1991 (Protocol to the Agreement Establishing the Commonwealth of Independent States). In an effort to respond effectively and coherently to these rapidly unfolding events, the Foreign Ministers of the European Community (EC) issued a Declaration on the Guidelines on Recognition ofNew State: in Eaxtern Europe and t/ae Soviet Union (1992) and a separate Declaration on Yugoslavia (1992). Their use of the term “New States” foreshadowed the Community’s policy toward this region. The declarations issued by the European Community 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 ofNew States in Eastern Europe andtlye Soviet Union affirmed the willingness of EC Member States to recognize, subject to the “normal standards of international practice,” new democracies that accepted certain international obligations (1992). These obligations included: 0 respect for the provisions of the United Nations Charter, the Helsinki Final Act, and the Charter of Paris, especially with regard to the rule of law, democracy, and human rights; 0 guarantees for minority, ethnic, and national rights; ° respect for the inviolability of frontiers; ° a commitment to disarmament, nuclear non—proliferation, and re— gional stability; and ' a commitment to settle peacefully any disputes regarding state succes- sion and regional disputes. The United States joined the European Community in its support of these standards and their role in the recognition of new states (Hoffman 1991). Constructin States: The Role 0 the International Communit 27 While purporting to preserve the traditional practices relating to recognition, the other principles in these documents came to play a more important role than the more familiar elements of statehood, such as territory, population, and effective government (Rich 1993). The replace- ment of the traditional criteria for statehood with these new principles~—— including human rights guarantees and a commitment to disarm—reflects the diminishing importance of empirical statehood and the increasing significance of constructively defined normative principles. On 21 December 1991, delegates from Armenia, Azerbaijan, and Moldova joined Russia, Ukraine, Belarus,...
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