This article has been written by Mansi Tyagi, a student at Symbiosis Law School, Pune. The international community is an amalgamation of States and many other independent entities. This article details the theories of recognition for such independent entities into states. It discusses the two theories viz. Constitutive and Declaratory. However, it will be interesting to note that none of the two theories is perfect in their realm of recognition.
What is Recognition of State?
“A State – wherefrom the study of politics starts and where it ends.” – J.W. Garner
The world today is globally connected and weaved into one international community, with each sovereign state as it’s member. And thus, to enjoy the membership of such a global community it is crucial to be recognised as a state. So first and foremost, A state can be briefly defined as a conglomeration of a certain population, living in a territory, with a sovereign government ruling them. Thus as laid down by the Montevideo convention (1933), the elements required to be validly construed as a state can be narrowed down to population, territory, government and sovereignty. Now, what exactly is the meaning of recognition of a state? To get a status of a state, the recognition i.e. a unilateral acknowledgement is given by the other states. Even though States are not the exclusive international actors and nor are they the only ones to have an international legal standing and yet primarily are the result of international recognition. These recognitions are for getting a statehood, a status of the sovereign state, and a part of the community where the other states exist. One might ask what benefit does a state get after acquiring such statehood. Firstly, it incorporates such a state into the already existing international community; secondly, the recognition is a proof that all the requisites for a state have been complied with; and, thirdly the status of a state gives it the rights and obligations to enjoy and follow in the global community. But why is it important to even acquire one in the first place? Long term survival, or end to the territorial wars or have a stable status, there may be several reasons. State recognition is mainly based on two theories: Constructive and Declarative.
Constitutive Theory
Since the theory recognizes and constitutes an entity into a state, thus it derives its name as the constitutive theory. Its main proponents were Hegal, Anzilotti, Holland and Oppenheim. This theory majorly propagates that for an entity to come into being as a state, it needs the consent of the other existing states. Thus we can say that unless the states approve and acknowledge an entity as a State, the entity won’t be made one irrespective of the requisites it fulfils of being a State. Even though the soviet bloc considered it to be illegal, with the recognition from the western states, Lithuania became the first ‘state’ of the 15 soviet republics to declare its independence and statehood. Likewise, another example of this theory can be the recognition of Poland and Czechoslovakia through the treaty of Versailles.
However, the theory has faced a considerable amount of criticism throughout time. The very obvious of all is the criticism that despite possessing all the elements of a State, an entity’s dependence on the recognition by other states to acquire statehood is unnecessary. Also, there can be no mutual and single time when all the states recognize the statehood of another. Furthermore, no state can be obligated practically to recognize an entity as a state. Bangladesh being one example. Despite being recognized by India since its independence, it was recognized by Pakistan, China and the US much later. States recognized under this theory have a political character and lack a legal one. Also, it is very clear that even though a state recognises an entity much later, it recognizes such entity’s acts from the date of its inception. This thus indicates that recognition is a mere formality for acquiring statehood, and thus Constitutive theory is much criticized on the lines it works upon.
Declaratory Theory
Article-3 of the Montevideo Conference lays down the Declaratory theory. Also known as the Evidentiary Theory, in many ways, the declaratory theory is the better version of the constitutive theory, overcoming almost all the gaps that the former consists of. The major exponents of the theory are Professor Hall, Pitt Cobett, Wagner and Brierly. Unlike the constitutive theory which exclusively declares the recognition to be the basis of acquiring statehood, the declaratory theory is the opposite. It just requires the evidence or declaration of statehood and recognition becomes a mere formality. In fact, the value of recognition is diminished to the extent that a state under this theory can exist without the recognition as well. Thus as soon as an entity possesses all the elements of a State, it comes into existence. The declaratory theory is even practised in International Law and thus has a better standing in the global standing.
Despite the simplistic way of being constituted into a State, the theory fails to explain the consequent rights of such states. There are many states which are unrecognized and yet hold the status of statehood. However, since they are not recognized by the already existing states, their position in the international community stays unnoticed. Taiwan is one such example. And since such states go unrecognized, they cannot develop diplomatic relations or sign any treaties with the already existing states.
Contemporary Position
With the present trend and acceptance of the international community, the declaration of statehood overpowers the constitutive theory. And thus, any entity becomes a state as soon as it completes the criteria of statehood. Since the recognition of such states is upon the sweet will of the already existing states, this may not pose a threat to their statehood; however, recognition has several benefits which cannot be availed by states unrecognized. The right to sign treaties, make diplomatic relations, the right to sue in other states, right to demand disputed property between the jurisdictions of two states, and many more privileges and immunities as against the international community. However, with the Evidentiary theory in practice, there are many states which are still up for recognition from other states and are mostly the regions of conflict for the recognizing states. Somali land, Taiwan, Turkish Republic of Cyprus, and many more. In today’s scenario, however, to secure recognition, states lay down conditions which may not be in line with the conditions for statehood but are merely diplomatic ways to carry on in the international community.