by Salubrius
The Montevideo Convention of 1933 states: “The political existence of the state is independent of recognition by other states.
The “constitutive theory” on recognition of states
seems to be raising its head as a complete substitute for the
"declaratory theory". Is this because the formation of a so called
"Palestinian State doesn't fit very well into the parameters of
statehood under the “declaratory “theory?
It
is not clear that the Palestinian Authority has unified control of a
defined territory. First, the unified status of control over both the
West Bank and Gaza changes from day to day.
Second, the permanent
population of the putative state as listed in the PLO Charter changed
from only those Arabs within the Green Line in 1964 to those within
Palestine but not including those in Jordan in 1968, to those in
Palestine not including both those in Jordan and those within the Green
Line now.
There are two theories under which
states are recognized. These are under the “constitutive” method, a
subjective method based on the discretion of existing states through
their recognition of other states. Then there is the declaratory
method that looks to the proposed state’s assertion of its
qualifications for sovereignty within the defined territory it
exclusively controls and its permanent population. Under the
declaratory theory recognition is almost irrelevant. Under that theory,
states have little or no discretion in determining whether an entity
constitutes a state. Its status is wholly dependent on fact, not on
individual state discretion. These standards were developed following
the Peace of Westphalia and contributed to a new world order. The are
restated in the 1933 Montevideo Convention.
Constitutive
discretion in the recognition of a state must be carefully examined to
determine whether it is a complete substitute for the declaratory
formulation or only additive to it and whether or not it has been
limited by a previous exercise of state discretion. Any previous
exercise can be enforced by the legal doctrine of estoppel. Under the
doctrine of "acquired rights", those who have approved recognition of a
state cannot arbitrarily withdraw it.
In the
case of Palestine, many states signed voluntarily onto the Palestine
Mandate in 1922. That was a Trust Agreement providing for Jewish
settlement in Palestine west of the Jordan commencing in 1922 and
placing in trust for the Jewish People, the collective political rights
to Palestine until such time as 1. they attained a population majority
in the area where they would rule, and 2. had the capability to exercise
sovereignty under the declaratory method. Once a state’s discretion in
selecting an entity it is willing to recognize as a state has been
exercised, under the legal doctrine of acquired rights, (now codified in
the Vienna Convention on Treaties, Article 70 (1) (b)), it cannot be
withdrawn except for cause. An action in estoppel is the approved way
of asserting one’s acquired rights.
In 1922,
fifty-two states asserted their approval of the Palestine Mandate which
placed in trust the national or collective political rights to all
Palestine west of the Jordan. The trust agreement they approved gave to
the Jewish People the immediate right of close settlement on the land
west of the Jordan River but delayed their statehood until such time as
they attained a population majority in the area they would rule and had
the necessary elements to qualify for sovereignty under the declaratory
method. In 1948 they met both standards within the Green Line and
that territory vested. Britain had abandoned its trusteeship in May and
no longer exercised legal dominion. In 1967 by obtaining unified
control over the remaining territories of Judea, Samaria and East
Jerusalem, the remainder of the territory that had been in trust vested
in the Jewish People and they received legal dominion over it too.
There
were 52 states that approved the trust agreement in 1922. I sincerely
doubt that those not signing the former treaty – likely those colonies
that have now received independence – would be sufficiently weighty to
establish Palestinian statehood by the constitutive method. One author
says that the majority of contemporary scholars and commentators favor
the declaratory theory and there is considerable support for the
argument that recognition is irrelevant for whether a state exists as
such or not. However he adds that while the “declaratory” view
currently is in prominence, it might possibly be just beginning its
decline in favor of the “constitutive” view. William Worster,
Universities of the Hague and Missouri-Kansas City (February 2010). The
Montevideo Convention of 1933 states: “The political existence of the
state is independent of recognition by other states.
Salubrius (Wallace Edgar Brand)
Source:
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