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The criteria for Statehood in International Law (Examining the role of…
The criteria for Statehood in International Law
Examining the role of recognition in statehood creation as the constitutive theory has held sway in statehood creation.
Constitutive = recognition is most important
Early writers
Tended to say that a state is sovereign and need not be stated as such by a foreign entity to become a state
Following a tradition of natural law
Positivist:
If a new state, subject to international law came into existence, new legal obligations would be created for existing states
consent necessary if you believe that le droit des gens best un droit contractuel entre des états
19th century
Statehood creation outside the scope of Int. Law was the opinion back then
Law between civilized nations and those accepted by those nations
recognition a juristic baptism
Modern int. law
essentially that someone needs to be around to say that a state is a state, since there isn't an impartial international organ, it must be states that determine
note that this is incongruent with other provisions in int. law, namely the use of force. which cannot be viewed through a constitutive lens as it would allow for reservations
there can be illegal recognition, which means that there is some sort of test, which denies the central premise of the constitutive position
Declaratory theory:
recognition of states is a political act which is in principle independent of the existence of the new state
he tentative conclusion is that the international status of an entity 'subject to international law' is, in principle, independent of recognition, although the qualifications already made suggest that the differences between the declaratory and constitutive schools are less in practice than might have been expected.
Recognition still has many important functions, see crawford pg 106