State formation and recognition in international law

Author:Anthony Murphy - Vlad Stancescu
Position:Ovidius University of Constanta, Romania - Ovidius University of Constanta, Romania
Pages:6-14
SUMMARY

The following study intends to analyse the evolution of theories regarding the 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 international community is whether a state is held to recognise another if it... (see full summary)

 
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STUDIES AND COMMENTS
State formation and recognition in international law
Student Anthony MURPHY
1
Student Vlad STANCESCU
2
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.

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