Constitutive theory of statehood

The constitutive theory of statehood defines a state as a person of international law if, and only if, it is recognized as sovereign by other states. It is the opposing point of view to the declarative theory of statehood, which defines statehood in terms of several de facto characteristics of a region. The constitutive theory is merely a theoretical construct as it has neither been codified by treaty nor widely recognized in international law.

In 1912, L. F. L. Oppenheim had the following to say on Constitutive Theory:

...International Law does not say that a State is not in existence as long as it is not recognised, but it takes no notice of it before its recognition. Through recognition only and exclusively a State becomes an International Person and a subject of International Law. ^[1]

Most modern authorities reject the constitutive theory of statehood, citing among other reasons that it leads to subjectivity in the notion of the state. Another problem is that recognition, even majority recognition, is not binding on third states in international law.^{[citation needed]}. This situation is illustrative in the cases of the Irish Republic and the state of Biafra.^{[citation needed]} which did not command sufficient international support to establish the constitutive theory of statehood.

A state may be recognized as a state, but not all of the terroritoy it occupies may be considered to be a part of that state, such as the case when Transjordan (now Jordan) occupied what it termed the West Bank (acquired by military conquest), but only recognized by Pakistan and the UK.

In the absence of such a rule, under the constitutive theory, other states are not bound to treat an entity as a state if they have not recognized it. Moreover, the constitutive theory is open to political abuse, as examples such as South African "homeland states" or the instigated secession of Katanga from the Congo as the State of Katanga.^{[citation needed]}

Where the factual reality of the situation in the country does not quite match up to the requirements of Statehood listed in the Montevideo Convention recognition becomes important as proof that the claim to Statehood is good in law. While no single act of recognition will conclusively determine the legal status of an entity, acts of recognition may be evidence in support of its claim that it is a State.^{[citation needed]}

See also

• Sovereignty
• Declarative theory of statehood

Notes

References

1. James Crawford (2005). The Creation of States in International Law. Oxford University Press. ISBN 0-19-825402-4.  pp 15-24 (with references to other authorities)
2. D. Raič (2002). Statehood and the Law of Self-determination. Martinus Nijhoff Publishers. ISBN 9789041118905.  p 29 (with reference to Oppenheim in International Law Vol. 1 1905 p110)

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