Barrington, Jonathan H S --- "Recognizing States International Society & the Establishment of New States Since 1776" [2011] UTasLawRw 17; (2011) 30(2) University of Tasmania Law Review 164
Book Reviews
Recognizing States International Society & the Establishment of New States Since 1776
Mikulas Fabry
United Kingdom: Oxford University Press, 2010, pp 256, ISBN 978 0 19 956444 6, $59.95
Recognizing States International Society & the Establishment of New States Since 1776 by Mikulus Fabry is a timely contribution to the subject of the recognition of statehood in international law. This book highlights that international law approaches to the recognition of states remain surprisingly dynamic and of ongoing relevance to contemporary international society. Recognizing States illustrates the underlying tension that exists between declaratory and constitutive approaches to state recognition. By gaining a deeper understanding of the two approaches the reader is better able to resolve the geopolitics of the recognition of new states.
Recognizing States is less concerned with theoretical discourses about statehood and the long-standing disputes over whether a declaratory or constitutive approach subsists. Fabry instead recognises the importance of the informal normative sources of the legal rules governing statehood derived from international geopolitical expediency. He notes that under the declaratory approach statehood exists, de facto, once four substantive criteria are satisfied: (1) a permanent population; (2) a defined territory; (3) government; and (4) capacity to enter into relations with other states,[1] while under the constitutive approach, international recognition is a precursor to the legitimacy of claims of statehood.
Recognizing States seeks to illustrate by real-world examples how in certain cases the declaratory criteria have formed the basis of statehood (such as has occurred in Latin America), how in other cases statehood was recognised in the absence of certain declaratory criteria (eg during the breakup of the Socialist Federal Republic of Yugoslavia), and how in still other cases arguably de facto states continue to lack international recognition (for example, Somaliland and Palestine). This analytical approach is the book’s clear strength.
Recognizing States’ analytical approach examines the recognition of statehood through several historical lenses. Following a general introduction, Chapter 1 examines the early practice of state recognition pre-1815 under the doctrine of dynastic rights. Particular emphasis is given to the achievement of independence by the United States of America and the fate of the numerous satellite or puppet states arising as a consequence of the French revolution. Chapters 2 and 3 consider and provide examples of development of de facto statehood. Here the emphasis is on the recognition of new states in Central and South America following the collapse of the Spanish Empire, the emergence jurisdictional doctrine of uti possidetis among the former colonies, and the application of declaratory principles to statehood in nineteenth century Europe. Chapters 4 and 5 consider and provide examples of self-determination of peoples as a basis for statehood. The former considers the period after World War I and United States President Woodrow Wilson’s vision of self-determination as part of the post-war order, while the latter looks at the period following World War II and the transformation of former dependences into a myriad of present-day states. Chapter 6 looks at the recognition of statehood following the end of the Cold War, particularly the disintegration of the Union of Soviet Socialist Republics and breakup of the Socialist Federal Republic of Yugoslavia.
In the conclusion to Recognizing States Fabry regards de facto statehood as the only viable standard in contentious situations for recognising statehood. He sees the principal virtue of this declarative approach as its demonstration internationally of a political community’s independent existence. He concedes that it would be erroneous to think that this approach is not without difficulties when applied to particular situations. However, he doubts that any system of legitimacy of statehood based on international recognition would prevent separatist movements within such states from seeking independence. He points to the aftermath of war that followed the recognition on 7 April 1992 by the United States of America and the European Community of the Republic of Bosnia and Herzegovina as an illustration of the potential adverse consequences of the constitutive approach.
Recognizing States is worthwhile reading for a range of readers. Fabry writes clearly and authoritatively about his subject matter. Although the book focuses on the development of statehood over time, it includes numerous examples of the emergence of statehood. Recognizing States will be particularly attractive to readers seeking an overview of the tensions between the theories of statehood and how these have been played out over time. As well, the reader will come away with a greater appreciation of the dynamism of statehood.
Jonathon HS Barrington[∗]
[1] Convention on Rights and Duties of States, opened for signature 26 December 1933, 165 LNTS 20 (entered into force 26 December 1934).
[∗] Final year LLB (Hons) student at the University of Tasmania, MBA, Grad Dip, BSc, and member of the University of Tasmania Law Review Editorial Board for 2011.