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.

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. An example of this was the status of the "State of Palestine" throughout the 1990s which at the time was recognized as a state by over 100 states, yet did not at the time command sufficient support to establish the constitutive theory of statehood as a particular rule of international law. 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.

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.

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)

See also

• Sovereignty
• Declarative theory of statehood
• The Jacobs Elements of Sovereignty