A. CONSTITUTIVE THEORY
This theory declaring ‘Recognition’ as integral element of state highlights that; “A state or government does not exist for the purpose of international law until it is recognized.”
In the views of Openheim, “A state is and becomes an international person through recognition only and exclusively.” Anzilotti and Kelsen are the exponents of this theory.
- A few states recognize a newly born entity whereas others do not. So, if we evaluate this fact in terms of the constitutive theory then it goes evident that the entity becomes both a state for the recognizers whereas a non-state for non-recognizers. For instance, Israel is a state for America while for Pakistan it is a non-state entity founded by aggression. Thus, the questions whether it is a state or not; an international person or not; carries rights and duties or not, are not satisfied by this theory.
- The theory is objected when the historical cases like ‘Pueblo’ and ‘Tinoco Arbitration’ reveal that how the states brought claims against the unrecognized claims under international law. In the former case, American spy-ship, Pueblo was captured by North Korea and then released in by signing a document with US indicating that the vessel was spying. In the latter case, UK brought claim against the Costa Rica for fulfilling certain obligations promised by the previous Tinoco government which lasted from 1917nto 1919 and wasn’t recognized by it. The arbitrator held that, recognition would not make any difference regarding the claim of UK which is acceptable.
- Thirdly, the theory imitates that an unrecognized state will not have rights and duties towards the world order. It can invade any state and it can be invaded by any state. In this context, China had no rights and duties to America before it was accepted. So, such assumptions raise questions over the credibility of this theory.
B. DECLARATORY THEORY
Recognition is merely a formal acknowledgement of the established facts, and already existing situation. Hall, Fisher and Brierly are into main advocates. Brierly says: “A state may exist without being recognized, and if it does exist in fact, then, whether or not it has been formally recognized by other states, it has a right to be treated by them as a state.”
A state exists from the moment that it fulfills the conditions of being a state under the international law, independently of whether it has been recognized. According to these theorists, the recognition is required only for the reason that it enables the new entity to enter into official intercourse with other nations.
Refusal by a single state or a few insignificant states would not affect the situation iof the majority of nations have granted recognition. The state practice and judicial precedents that a non-recognized entity is bound by its international obligations further strengthen the declaratory theory. For the constitutive theorists, the heart of the matter is that fundamentally and ‘un-recognized state’ can have no rights or obligations in the international law. The declaratory approach, however, emphasizes the factual situation and minimizes the power of states to confer legal personality.
After the First World War, the courts of new states of Eastern and central Europe regarded their states as coming into being upon the actual declaration of independence and not simply as horizontal result of the Peace and Treaties. On the other hand, the constitutive theory has strengths too and un-recognized state or government cannot claim the rights available to a recognized state or government before the municipal courts.
C. LAUTERPSCHT DOCTRINE
This doctrine advocates the assumption that, any entity carrying the four fundamental requisites of statehood including ‘population, territory, government and sovereignty’ has the aboriginal right to receive recognition and all other states are legally bound to grant it so; otherwise, the newly emerged state won’t be able to have rights and duties under the international law.
As far as the application of this doctrine is concerned, UK pursues it since from the Cold War perhaps in order to fend off the criticism of the USA for having recognized communist governments of China. But inconsistency with the observance of this doctrine got unveiled when UK did not recognize the Tinoco government (1917-1919) of Costa Rica although it was effective in there.
US contradicts over this doctrine from UK and in 1976 it noted; “In the view of the US, international law does not require a state to recognize another entity as a state.” So, it reflected the fact that ‘states grant or withhold recognitions at their discretions.’