Leiden Law Blog

Politicised law – or legalised politics?

Posted on by Andrea Varga in Public Law
Politicised law – or legalised politics?

‘There are only very few branches of international law which are of greater, or more persistent, interest and significance for the law of nations than the question of Recognition of States […]. Yet there is probably no other subject in the field of international relations in which law and politics appear to be more closely interwoven.’ Hersch Lauterpacht wrote these words in 1946, and they are as true today as they were back then. So is it a problem that politics play such a big role in recognition? It is certainly something that tends to bother international legal scholars, but why?

Purely political grounds for (non-)recognition are regularly criticised as arbitrary and leading to instability. But in domestic law, this happens all the time: laws are drafted, adopted and enacted regularly as a result of a non-legal process of political bargaining, based on the preferences of those who represent the population in the parliament. What’s more, even in international law this is a perfectly normal occurrence: states negotiate treaties based on political preferences, which will then have legal consequences.

So what sets apart the issue of statehood?

One possible factor is that states are still the main subjects of international law, and the question of defining its subjects is a fundamental question in any legal system – not something that international legal scholars like Lauterpacht would be willing to ‘hand over’ to the non-legal sphere altogether.

Even more important, however, is that recognition is not about the creation of a rule. If states decided to convene a conference to draft a treaty on what constitutes statehood, that treaty would similarly be based on politics – and yet if there was a clear consensus outcome, probably nobody would really object. The problem here is that instead of establishing or following a general rule, states make individual political calculations on a case-by-case basis – hence the ‘arbitrariness’. In legal terms, this arbitrariness roughly translates to lack of legal certainty. But lack of legal certainty presumes that a legal rule either (a) exists but is not applied consistently or (b) at least should exist – which may not necessarily be the case with recognition.

Students who have had even the most basic course in public international law would, I’m sure, heartily protest right about now, arguing that there is such a rule and pointing to the so-called ‘Montevideo criteria’ of statehood: territory, population, effective government and capacity to enter into relations with other states. Sadly, though, it’s not all that simple once recognition enters the picture: according to the two main theories, recognition can be either declaratory (states exist regardless of recognition) or constitutive of statehood (states can only exist in a legal sense if recognised). Only the declaratory theory necessarily presupposes that there is indeed a rule on what makes statehood – the constitutive one essentially leaves it up to states’ discretion.

So, armed with this knowledge, what happens if we do assume the existence of a rule on what is a state (i.e. go with the declaratory theory)? It is an endlessly repeated axiom of international law that states are legislators, subjects and enforcers of the law, all in one. They are, however, rarely the ‘adjudicators’ of international law, and this is exactly what sets the issue of recognition apart. Under the declaratory theory, states are supposed to be impartial adjudicators of whether a given entity is a new state or not, based on a set of criteria. But if – by not adhering to these criteria – they create the law at the same time as they should be adjudicating based on it, this will indeed lead to a lack of legal certainty.

Ultimately, though, neither theory is able to sufficiently explain the practice of recognition, which seems to be declaratory in non-controversial cases and constitutive precisely in the controversial ones. So instead of trying to eliminate politics from the equation, we might just have to accept that whether declaratory or constitutive, recognition will always come with a healthy(?) dose of political calculations.

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