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Article by Adhiraj Lath and Abhinav Jena,
No discourse on International Law can be concluded without duly honoring the noteworthy contributions of Judge Sir Hersch Lauterpacht. Widely regarded as one of the greatest international lawyers of all time, his works have been instrumental in molding the modern system of international law. Judge Lauterpacht, formerly a Whewell Professor of International Law at the University of Cambridge served as a member of the International Law Commission and subsequently as a Judge of the International Court of Justice. His seminal writings still resonate in the study of international law. He vociferously advocated for human rights, inter alia, well before it was a widely accredited discipline. His compelling writings and reflections have transfigured him into an international law behemoth, whose name is etched into the monumental annals of international law.
Among his plethora of contributions to the firmament of International Law, one notable contribution was an attempt to settle the debate of state recognition. Judge Lauterpacht propounded the ingenious Lauterpacht doctrine of state recognition which purports that once a particular community fulfills the conditions for statehood, there exists a concomitant obligation on the part of the existing states to confer recognition to the community espousing statehood since a central authority is lacking under international law. The theory extends to the rights and duties accorded to the state, can be posited as an adaptation of the constitutive theory, and marks a reconciliatory attempt in ascertaining state recognition.
However, detractors have vehemently opposed the Lauterpacht doctrine on the ground that it is devoid of the basic consideration that comprises the foundational premise of state recognition: the political pretext and functions of recognition. Unsurprisingly, state practices reveal that international law has not adopted the Lauterpacht doctrine. This blog attempts to explore the various theories of state recognition under international law, then deconstructs the Lauterpacht doctrine in order to discern why the international legal community has rejected the ingenious venture to strike a balance between popular theories of state recognition.
Exploring the Lauterpacht Doctrine vis-à-vis State Recognition
Recognition of states has always been a contentious topic in international law as it intricately revolves around politics, international law, and municipal law. When a new state comes into existence, other states are confronted with a problem of deciding whether or not to recognize a new state. Recognition entails the willingness of preexisting states to deal with a new state as a member of the international community. Political circumstances and legal consequences simultaneously drive this willingness. The question which arises often is, when does an entity which duly fulfills the prerequisites of being a state actually become a part of the international community with legal rights and obligations?
Two theories attempt to answer this question. The first is Dionisio Anzilotti and Hans Kelsen's constitutive theory, which posits that a state or government does not exist for the purposes of international law until it is recognized by other states. Thus, recognition has a constitutive effect.
The constitutive theory was diametrically opposed to the declaratory theory, which argues that recognition has no legal effect and the existence of a state is a mere question of fact. Accordingly, recognition by a state is just an acknowledgement of those facts. If an entity objectively fulfills the legal requirements of statehood under international law, then it is a state, and for all intents and purposes, is conferred with all the international rights and duties. Accordingly, other states have an obligation to treat states so defined as states.
Lauterpacht formulated an intermediate position, arguing that on the basis of the constitutive theory, once prospective states have complied with the conditions prescribed by international law for statehood, existing states have a duty to grant recognition. The reason behind such an approach was the absence of a central authority in international order to accord legal personality.
The Lauterpacht doctrine is both declaratory and constitutive. It is based upon certain facts but also relies on recognition of the state as an entity which possesses all the rights and obligations of statehood by other states in the international community. The doctrine is an ingenious bid to reconcile legal elements into a coherent theory. It accepts the realities of state and government creation by practical and occasionally extralegal means, and attempts to assimilate such means into the supremacy of international law.
Deconstructing the Doctrine and Emanating Criticisms
The Lauterpacht doctrine attempts to combine the two prevailing theories of state recognition. It commences on a constitutive footing and thereupon imposes a duty on the preexisting states to grant recognition to the prospective community seeking recognition. Once this constitutive recognition is accorded, if the prospective state also meets the objective criteria for statehood, it automatically exhibits the declaratory facet of recognition. A deluge of detractors have assailed this theory, claiming it to be devoid of any considerations of actual and ideal international law.
Lauterpacht’s theory, in essence, may try to harmonize a much debated topic of international law. Yet, it represents neither the current state of law nor existing state practice. First, it ignores the primary and foremost point of granting state recognition, namely, to confer political backing and the accompanying political functions and aspects. Second, whether a non-state entity possesses a right to demand recognition if other states are obdurate to recognize imposes limits on the obligation of states to recognize. If we answer the question affirmatively, then we are giving a non-state community with no rights or duties the ability to demand recognition, which is a logically absurd result. The complexity calls into question the efficacy of the Lauterpacht doctrine as a solution to state recognition discourse.
There are copious instances in which states have refused to grant recognition as a mark of political disapproval. For example, the United States did not recognize the effective Soviet government for a long period of time in resistance to communism. Great Britain and the United States did not recognize the effective governments of Bolivia and Argentina, established in 1943 and 1944 respectively, whereas the United States did recognise the revolutionary government of General Odria in Peru. In 1903, the United States recognized Panama only three days after it had revolted against Colombian sovereignty and at the same time took steps to prevent the re-establishment of Colombia’s sovereignty. Similarly we can point to the situation in 1948 when the United States recognized Israel within a few hours of its proclamation of independence.
In 1976, the United States Department of State noted that: “In the view of the United States, international law does not require a state to recognise another entity as a state; it is a matter for the judgment of each state whether an entity merits recognition as a state.” The State Department made clear that recognition is a discretionary act, resting in the hands of states. The July 1992 Opinion No. 10 of the Yugoslavia Arbitration Commission adopted a similar position, emphasizing that recognition was “a discretionary act that other states may perform when they choose and in a manner of their own choosing, subject only to compliance with the imperatives of general international law.”
Thus, the Lauterpacht doctrine fails to accept the reality that recognition has always been more of a political act rather than a legal act, and that states prefer reserving the power of recognition to vouch safe political approval or disapproval. Questions surrounding the doctrine are catalysts for academic discourse however, with state practice being an indicator that international law intelligibly displays an absence of a duty to recognize.
Concluding Thoughts
Judge Lauterpacht’s scintillating venture in morphing the state recognition discourse into something more palpable and objective is an untenable thesis. The Lauterpacht doctrine assumes that the obligation of other states to recognize states which have fulfilled the objective criteria of statehood is mandatory, even though most instances of state practice do not support this conclusion. Finally, the Lauterpacht doctrine is lucid in its application and is categorically situated in the realm of a priori postulation, a digression from state practice. However, Judge Sir Hersch Lauterpacht’s contribution cannot be undermined or dismissed in its weaving the warp and weft of modern international law, despite the untenable premise of this doctrine.
Authors
Adhiraj Lath and Abhinav Jena are third-year law students at Dharmashastra National Law University, Jabalpur with a keen interest in International Law and allied fields.