According to a standard international law textbook by Malcolm Shaw, among the two theories (constitutive vs declaratory) about the relation between the existence of state and its foreign recognition, the declaratory theory [which says a state can exist regardless of lack of foreign recognition] is a little more in accord with practical realities. It maintains that a new state will acquire capacity in international law not by virtue of the consent of others but by virtue of a particular factual situation. It will be legally constituted by its own efforts and circumstances and will not have to await the procedure of recognition by other states.... [Even if actual practice tends to lead to a middle position,] Practice over the last century or so is not unambiguous but does point to the declaratory approach as the better of the two theories.... Of course, if an entity, while meeting the conditions of international law as to the statehood [a competent government with effective control over certain territory and population], went totally unrecognised, this would undoubtedly hamper the exercise of its rights and duties, especially in view of the absence of diplomatic relations, but it would not seem in law to amount to a decisive argument against statehood itself.
Posted on: Tue, 15 Oct 2013 17:27:54 +0000