The declaratory and constitutive theories of recognition PDF

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The declaratory and constitutive theories of recognition

The existence of a State seems to rest partly on material, factual criteria, but equally, on its capacity to engage in international relations with other States—a subjective and, to an extent, highly politicized factor. In this respect, it is immaterial whether or not a State meets all the factual criteria for statehood laid out in the Montevideo Convention, if other States refuse to recognize it as a State and enter into relations with it. For this reason, the notion of recognition of an entity as a State by other States is key.

The declaratory theory of recognition maintains that the legal effects of recognition are limited, and that the act of recognition only confirms the pre-existing legal capacity of the State. This maintains that, whether or not an entity is recognized by other States, it is still a State once it fulfils the criteria for statehood.

Conversely, the constitutive theory of recognition suggests that recognition by other States is a necessary condition for statehood, even if all the criteria for statehood are otherwise satisfied. In other words, the act of recognition ‘constitutes’ the State. Such a view derives from the concept of the community of States as a political community of sorts.

Although the declaratory theory suggests that politics do not themselves generate legal effects, in fact it is impossible for an entity aspiring towards statehood to fulfil its capacity to enter into relations with other States if no other State will do so.

Yet the constitutive theory also suffers from its own flaws: it ascribes legal weight to the refusal by other States to enter into legal relations with a State, and suggests that the essentially political act of recognition carries with it a legal component. Although most commentators agree that recognition is a discretionary act....