Критика конститутивной теории: признание государств как политический акт колониальной эпохи

Alright. So here goes my after-a-long-timel blog on International Law. This analysis consists mainly of my swarming thoughts when I was reading these theories (which I noted down on the side margin of my book). Though I may be seen more as a ‘declar-ist theor –ist’ (if there is any phrase like that!), but that is certainly not the case. Its just that I could, as of present, think more criticisms of constitutive theory, that I could think of declaratory theory. Constitutive Theory and Sovereignty When Vattel defines a sovereign state, he basis it on the notion of equality of States, the effect of which is to make each State the sole judge of its rights and obligations under the law of nations. This definition of a sovereign state largely resembles the modern definition of a sovereign state. In the light of this definition (and also in modern definition), where the tenets of definition of a sovereign state are balanced on its capacity and totality of powers that it may have under international law, the constitutive theory seems to be standing on contrary grounds. Constitutive theory seems to be running in opposite direction (with a possibility of clash with the definition of sovereignty) as it shifts the determination of rights and obligations of a state in the law of nations to other states. But if we take into account a softer version of constitutive theory, wherein recognition is a mere ‘flagging off’ of the recognized state by the recognizing state to be ‘sole judge of its rights and obligation’, recognition beings to look like an act ancillary, rather than sine qua non, to the entry of a state in the community of nations. However, two questions need to be answered before the above statement could be held conclusively. Positivism and 19 th century – Constitutive Theory Bears an Aroma of Colonial Mindset? When I was reading the influence of positivism on constitutive theory and the shape it took in 19 th century, I couldn’t help noticing that it had acquired colour and chroma of reigning colonial mindset. According to positivist theory, the obligation to obey international law derived from the consent of individual State. Oppenheim’s International Law, on the theory of state recognition, positions itself as ‘Recognition, express or implied, made them members and bound them to obey international law. States not so accepted were not (at least in theory) bound by international law, nor were the ‘civilized nations’ bound in their behavior towards them, as was implied by their behavior with regard to Africa and China.’ This position of state recognition in 19the century is a glaring indicator of colonial mindset and underlying (and maybe subconscious) attempts of making community of nations an ‘all white – christian club’. Also, the evidence of Revolution and Recognition In cases of revolution the question of recognition was that whether a revolutionary entity could be treated as an independent State before its recognition by the parent state. This is in fact a question which has no definite answer till now. Though I will be dealing with this topic at length in my subsequent blog, but as of now, I would just quote Oppenheim’s International Law, that how an entity became a state was a matter of no importance to international law, which concentrated on recognition as the agency of admission into ‘civilised society’ – a sort of juristic baptism, entailing the rights and duties of international law. According to me, can’t this baptism wait in cases of revolutions. Finally… Phillimore states that ‘the question as to the origin of States belongs rather to the province of Political Philosophy than of International Jurisprudence’. I would like to conclude by throwing an open question on this statement, that given the lack of legal criteria and principles to recognize a state, and it being more of discretionary, diplomatic and political in nature, does recognition belong to International Jurisprudence? Or is it largely a political act having serious legal implications in international law? For more interesting analysis, go to www.thetravauxpreparatoires.blogspot.com/2011/06/critical-analysis-of-constitutive.html