Constitutive theory of statehood
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The constitutive theory of statehood defines a state as a person of international law if, and only if, it is recognized as sovereign by other states. It is the opposing point of view to the declarative theory of statehood, which defines statehood in terms of several de facto characteristics of a region. The constitutive theory is merely a theoretical construct as it has neither been codified by treaty nor widely recognized in international law.
Most modern authorities reject the constitutive theory of statehood, citing among other reasons that it leads to subjectivity in the notion of the state. Another problem is that recognition, even majority recognition, is not binding on third states in international law. An example of this was the status of Palestine throughout the 1990's which at the time was recognized as a state by over 100 states, yet did not at the time command sufficient support to establish the constitutive theory of statehood as a particular rule of international law. In the absence of such a rule, under the constitutive theory other states are not bound to treat an entity as a state if they have not recognized it. Moreover, the constitutive theory is open to political abuse, as examples such as South African "homeland states" or the instigated secession of Katanga from the Congo show.
References
- pp 15-24 (with references to other authorities)
See also
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