State formation and recognition in international law

• Author: Anthony Murphy/Vlad Stancescu
• Pages: 6-14

STUDIES AND COMMENTS

State formation and recognition in international law

Student Anthony MURPHY1

Student Vlad STANCESCU2

Abstract

The following study intends to analyse the evolution of theories regarding th e

recognition of states in international law. Whereas the Montevideo Criteria contains the

legal requirements for statehood, recognition is largely dependent on the political will of

the other states. The question faced by the contemporary in ternational community is

whether a state is held to recognise another if it mee ts the said requirements. While the

Constitutive Theory insists that a state could only exist as an international legal person if it

is recognised by previously-established states, the Declarative Theory rejects such a

discretionary process. While the common practice among states was a rgued to be

somewhere in the middle of these two theories, the declarative conception is much closer to

the current model followed by the international community as it is also enshrined in the

rules contained in the Montevideo Convention and reiterated by the Badinter Commission.

Keywords: State recognition, Montevideo Convention, declarative theory,

constitutive theory, international law.

JEL Classification: K10, K33, K39.

1. Introduction

States play a primordial role in the structure of legal relationships that are

commenced, modified or extinguished at an international level. In the field of

international relations, the means by which states act and interact should be

governed by principles such as sovereignty and equality. In reality, some states

decide to act in a way dictated by geopolitical dynamics, that is, the power or

influence held and through which their interests could be enforced at regional or

global level. Thus, depending on each state’s interests, massive inconsistencies can

exist between the strategies that are carried out. One of the most elementary

instruments used in diplomacy is, for these reasons, the mechanism of recognition.

State recognition has an important place in international law, being a

unilateral act through which the very existence of a state and its status as a subject

of international law are acknowledged. Only the states, as primary subjects of

international law, are subject to this procedure, as international organizations are

1 Anthony Murphy - Ovidius University of Constanţa, Romania, anthonymurphy29@yahoo.co.uk.

2 Vlad Stancescu - Ovidius University of Constanţa, Romania, vlad_vladut93@yahoo.com.