State Recognition and Its Relevance in Present World

Theories for Recognition of States

Declaratory Theory

The declaratory theory holds that statehood or the legitimacy of a new government exists independently of recognition, even before it is formally recognized by other states. Recognition, in this view, is simply a formal acknowledgment of an already existing fact. This theory is supported by scholars like Brierly and Fisher.

Brierly argued that granting recognition to a new state is not a 'constitutive' act, but rather a 'declaratory' one. A state may exist even before it is recognized, and if it does exist in fact, it has the right to be treated as a state, regardless of whether it has been formally recognized by other states.

The classical application of the declaratory theory is reflected in the Montevideo Convention on the Rights and Duties of States. Although the Montevideo Convention is a regional treaty, it is regarded as a restatement of customary international law, as it codified the existing legal norms on statehood.

According to Article 1 of the Convention, four criteria are outlined for statehood:

• (a) A permanent population;
• (b) A defined territory;
• (c) A government; and
• (d) The capacity to enter into relations with other states.

Constitutive Theory

The Constitutive Theory holds that recognition is the sole method by which a state or a new government gains status or authority in the international sphere. Supporters of this theory, such as Anzilloti and Oppenheim, argue that it is only through recognition that a state comes into existence and becomes an international entity.

Oppenheim stated that a state only comes into existence and is recognized as an international person through the act of recognition.

In practice, if a territory is not recognized by other states, it lacks the capacity to engage in relations with them and essentially becomes a pseudo-state. Without external recognition, such regimes are more likely to fail because they have fewer resources, limited opportunities for trade and financial exchange, less influence in international organizations and weaker legal claims to their territories and populations compared to recognized states.

Types of Recognition

• De Facto Recognition: This occurs when an existing state acknowledges a new state, and by virtue of this recognition, the new state's existence is acknowledged. This type of recognition is often seen as provisional or temporary.
• De Jure Recognition: De jure recognition is granted when a state or government possesses all the essential attributes of statehood and is capable of representing itself as a member of the international community. This form of recognition is considered more formal and permanent. Phillips Marshall Brown stated that once de jure recognition is granted, it is final and cannot be withdrawn.

Relevance in Present Society

From the discussion, it is clear that the two theories—Declaratory and Constitutive—offer limited assistance in describing recognition or determining the status of non-recognized entities in practical terms. In practice, the distinction between these two theories is not significant. Under the Declaratory Theory, a state exists independently of recognition, and recognition merely acknowledges its pre-existing statehood. On the other hand, the Constitutive Theory imposes an obligation on existing states to treat an entity that meets the criteria of statehood as a state. In reality, states often follow a middle path between these two theories when deciding on recognition.

Recognition has legal implications both internationally and domestically. If an entity is recognized as a state, it gains rights and obligations that would not otherwise apply. It also enjoys privileges and immunities of a foreign state and can present itself before the national courts of other states, which is not possible for non-recognized entities.

In today's world, the existence of a state is not solely dependent on whether it has been recognized. The key factors in determining statehood are whether the elements of statehood—such as population, defined territory, and a functioning government—are present in a particular case.

However, for an entity to function effectively as a state, it must be recognized by a certain number of other states. In recent practice, recognition often depends on the fulfillment of specific conditions, such as adherence to the UN Charter, the rule of law, democracy and human rights. While these are not the sole criteria for recognition under international law, it is argued that states are obliged to grant recognition to a new state or government that fulfills the legal requirements of statehood or governmental capacity in relation to diplomatic relations.