Variables Relacionadas con el Impacto en el Ámbito Educativo

The concept of state’s recognition is closely related to the Montevideo Convention, which is the most widely accepted formulation of the key criteria for statehood in international law. The Convention establishes the traditional criteria for recognition,¹⁰⁶ which are strongly connected to a constitution, its meaning, and its functions. The Montevideo requirements for recognition of a state include a permanent population, defined territory, government, and the capacity to enter into relations with other states. Despite their wide criticism,¹⁰⁷ the factual and broad character of these criteria helped to create consensus among different territorial entities on the general approach towards recognition. This, in turn, has contributed to the maintenance of the

105 Peterson, 1997, 183.

106 Article 1, Montevideo Convention on Rights and Duties of States, 1933.

107 Criticism mainly concerns the how the provisions are defined and who determines whether the criteria have been fulfilled. For example, the term “permanent population” excludes nomadic people. In addition, the lack of a special international authority to decide whether the conditions for the statehood were fulfilled leaves the definition of a

“State” a controversial and “politically loaded subject.” Jorri Duursma, Fragmentation and the International Relations of Micro-States: Self-Determination and Statehood, (Cambridge, New York: Cambridge University Press, 1996), 113-115.

international order¹⁰⁸ and the accommodation of the wide range of possibilities that exist in practice.¹⁰⁹ Although these requirements do not explicitly refer to a constitution, there are several points of intersection between the traditional criteria for recognition and constitutional provisions.¹¹⁰

First, a constitution usually defines a state’s territory and either reflects the entity’s existing borders or creates new ones. Thus, a constitution frequently satisfies the Montevideo Convention criteria on territory and population. The preambles of constitutions (and declarations of independence) are informative in this respect because they often assert the basis for a new state’s existence and sovereignty, which may include elements of its historical existence or show the continuity of nationhood by referring to its traditions, language, heroic history, cultural inheritance, and territory¹¹¹ As a part of state building, a constitution establishes a demarcated territory¹¹² and references the people living on this territory and the development of their statehood.¹¹³ As a foundational document, a constitution exercises its key external functions of legitimizing and asserting the existence, sovereignty, independence, and perspectives of the

108 In 1824, with respect to Spain’s newly independent Latin America, Britain’s representative emphasized that,

“[…I]f so large a portion of the globe should remain much longer without recognized political existence […], the consequences of such a state of things must be […] most injurious to the interests of all European nations. For this reason, […] the Recognition of such of the New States as have established, de facto, their separate independence, cannot be much longer delayed.” Cited in C.K. Webster, Britain and the Independence of Latin America, 1812-1830, vol. II (Oxford: Oxford University Press, 1938), 414.

109 Caplan, 2005, 53.

110 The interplay between recognition and a constitution represents one example of international constitutionalism.

Some others refer to analysis of national, regional, and functional constitutional regimes as a part of international community. See e.g., Erika De Wet, “The International Constitutional Order,” International and Comparative Law Quaterly 55 (2006).

111 Culic, 2003, 47.

112 Often constitutions establish a political unit within a clearly demarcated territory. However, there are also cases, in which a constitution or a fundamental law lacks provisions on specific territory. See generally, “Statement of US Representative Philip Jessup to the UN Security Council Regarding the Admission of Israel to the United Nations,”

December 2, 1948, 9-11.

113 For example, the Czech constitution talks of “the reconstitution of an independent Czech State, true to all the sound traditions of the ancient statehood of the Lands of the Crown of Bohemia as well as of Czechoslovak statehood,” Preamble, The Constitution of the Czech Republic. 1992.

state.¹¹⁴ It also helps abjure other’s claims to the new entity’s territory – an important feature for the international system’s functioning.¹¹⁵ Although the mere existence of a constitution is insufficient cause to consider a state independent and eligible for recognition, it nonetheless represents an instrument to signal an entity’s aspirations to assert its sovereignty and to participate in international relations:

A territorial entity must have a constitution which is independent of other constitutions to be termed, in the specified sense, sovereign, and hence able to look forward to membership in the collectivity of states.¹¹⁶

Second, the criteria on government and the capacity to enter into relations with other states imply the existence of a constitution (or other fundamental law) in a state as a contemporary mechanism to organize government and to establish sovereignty. The requirement of government, or other effective authority, presumes a certain degree of internal stability that is expressed through a functioning government, the loyalty of the majority of population,¹¹⁷ and legal order.¹¹⁸ The other criterion, the capacity to enter into relations with other states, depends on the power of a government to carry out its international obligations effectively.¹¹⁹ Although these claims can vary in how stringently they are interpreted with respect to assessing statehood,¹²⁰ the existence of a system of government in a specific territory is, in general, a

114 Culic, 2003, 48.

115 For example, the Declaration on Yugoslavia from 1991 specifically provided that, to be recognized, a Yugoslav republic must “adopt constitutional and political guarantees ensuring that it has no territorial claims towards a neighboring Community State.” These types of provisions ensure the continued existence of an international system based on the sovereignty of states as individual units.

116 Alan James, “System or Society?,” Review of International Studies 19, no. 3 (1993), 285, emphasis added.

117 Lauterpacht, 1947, 28.

118 Some suggest that legal order should be listed among the “other criteria” for statehood, which represent the most important pieces of evidence. See Crawford, 1979, 71-76.

119 Ibid., 51.

120 In some cases, factors other than the effective government favor the statehood of the entity, for example, in cases of Congo, Rwanda, and Burundi. In other cases, when the claim for secession is not supported by the principle of self-determination, the requirement of effectiveness is applied more strictly, for example, in the case of Biafra. Ibid., 46.

condition for statehood and the normal conduct of international relations,¹²¹ the lack of which may cause the denial of recognition. As a result, the criterion of government is partly realized through internal constitutional functions. The practice of recognition suggests that there must exist

some known and defined form of government, acknowledged by those subject thereto, in which the functions of government are administered by usual methods, competent to mete out justice to citizens and strangers, to afford remedies for public and for private wrongs, and able to assume the correlative international obligations and capable of performing the corresponding international duties resulting from its acquisition of the right of sovereignty.¹²²

Thus, a constitution becomes one of the tools used to define the form and the functions of a government and make them known to the subjects of a state. In addition, in the modern state,¹²³ legal order (or the existence of basic rules) allows the international community to determine the power exercised by a government.¹²⁴ A constitution or other fundamental domestic law reveals the scope of a government’s power and the legal conditions in which it operates within the modern state.

As a result, the constitution becomes a mechanism for establishing a defined form of government, its functions, and legal order. Along with government, to take root, to flourish, and to function as an instrument of a democratic political life, a constitution needs statehood – the political organization of the society. In this way, modern constitutionalism, an important tool of rationalizing state power,¹²⁵ is strongly connected to the development of the modern state and its diplomatic capabilities¹²⁶ and helps to meet the criteria for recognition.

121 Ibid., 47.

122 President Ulysses Grant explaining the denial of recognition to Cuba in 1875. Moore J.B., cited in Lauterpacht, 1947, 28-29.

123 The modern state is defined as the territorial basis for a centralized legal order. Hans Kelsen, The Pure Theory of Law, trans. Max Knight, 2d ed. (Berkeley: University of California Press, 1967), 284-7.

124 Ibid., 284-7.

125 Preuss, 2006-2007, 482, 485.

126 Ibid., 485.

To summarize, the provisions of the Montevideo Convention imply a constitution as an important mechanism in the modern liberal democratic order for establishing sovereignty and organizing government. In this way, a constitution serves the interests of the international system in fostering stable and peaceful relations among the members of the international community and in ensuring each country’s fulfillment of its international obligations.