Theories on State Recognition


Theories 

• “Declaratory” theory of state recognition
• Constitutive theory of state recognition

Constitutive Theory
• Requirement of recognition from others
• standard 19th century model of statehood
• Propounds that :
– Only (& exclusively) through recognition – state become a subject.
– Creation of new state depends on the acceptance of other states
– Alternatively, recognition by other states – creates new state and endows it with legal personality
– Advanced by Anzilotti and Kelsen
Constitutive Theory : Brownlie
• Political act of recognition is pre-condition of the existence of legal rights
– Implies that the very personality of state depends on the political decisions of other states
• Quotes Lauterpatch – who conceives states as gatekeepers
– Full legal personality of rising communities… cannot be automatic .. As its ascertainment requires the prior
determination of difficult circumstances of fact and law, there must be someone to perform the task
– In the absence of such ‘someone’ … must be fulfilled by states already existing
Criticism Constitutive Theory
– Difficulties in practical application
• How many states must recognize ?
• Can existence be relative only to those states which recognize ?
• Does non-recognition by a state entitle it to treat an entity as a non-state for purpose of international law ?
Example: intervening in its internal affairs
– Not supported by state practice
– Recognition should not be dependent on others will .. Rather must be based on fact
Declaratory Theory
• Or Evidentiary theory
• Simply, if factually the statehood is fulfilled, that is sufficient for recognition
• Statehood or the authority of a new government exists as such prior to and independently of recognition.
• The act of recognition is merely a formal acknowledgment of an established situation of fact.
Declaratory (contd)
• developed in the 20th century to address shortcomings of the constitutive
• Maintains that: recognition is merely an acceptance by states of an already existing factual situation does not require consent of other states
• ‘state may exist without being recognized, and of it does exist in fact, then whether or not it has been formally recognized by other states, it has a right to be treated by them as a state.
• claims that a state will be formed free from the consents of the other states, just after it meet the international requirements.

State practice to support Declaratory
Theory
• Article 3 of the Montevideo Convention (1993),
– The political existence of the state is independent of recognition by the other states.
– Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.
• Unrecognized states are quite commonly the object of international claims by very states refusing recognition
– Isreal, held accountable under international law by certain Arab states that persistently deny it recognition
Declaratory — Brownlie
• According to declaratory theory, legal effects of recognition are limited :
– Recognition is a declaration or acknowledgment of an existing state of law and fact
– Legal personality having been conferred previously by operation of law
ICJ supporting Declaratory
• At least tactically supports
• Genocide Case (Bosnia and Herzegovina v. Yugoslavia, ICJ, 1996)
– Argued by Yugoslavia that allegation of breach of Genocide Convention made by Bosnia Herzegovina were not admissible because the parties to the dispute had not recognized each other at the time of the events in question
– Dismissed the argument on the basis that, recognition had been given in a peace accord.
– Any defect was merely a procedural
• Criticism of Declaratory Theory
– Only birth is not recognition
– Collectivization of recognition
• Under which statehood matures through membership of UN
• Or atleast call by the UN that the new state be recognized
Examples of Recognition :
• Kosovo
– Declaration of Independence from Serbia in 17 Feb 2008
– Dispute over the UN regarding its recognition
– 2010 ICJ (Advisory Opinion)
• Independence of Kosovo did not violate any applicablerule under International Law
• 108 state has recognized it
• Nepal has not recognized yet (Wikileaks – as of regional sensitivity)
• Armenia
– Not recognized by Pakistan
• Isreal
– Not recognized by 32 states
• Palestine
– Recognized by 135 member states
– Nepal recognized in 1988 as member of UNESCO but does not have diplomatic relation
• Republic of South Ossetia
– Claimed by Georgia
– Recognized by 5 UN Member state (Russia, Nicaragua, Venezuela, Nauru)