Sovereign state, Constitutive theory

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Summary

A sovereign state is a nonphysical juridical entity of the international legal system that is represented by one centralized government that has supreme independent authority over a geographic area. International law defines sovereign states as having a permanent population, defined territory, one government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither dependent on nor subject to any other power or state. The existence or disappearance of a state is a question of fact. While according to the declarative theory of state recognition a sovereign state can exist without being recognised by other sovereign states, unrecognised state

Details

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. This theory of recognition was developed in the 19th century. Under it, a state was sovereign if another sovereign state recognized it as such. Because of this, new states could not immediately become part of the international community or be bound by international law, and recognized nations did not have to respect international law in their dealings with them. In 1815 at the Congress of Vienna the Final Act recognised only 39 sovereign states in the European diplomatic system, and as a result it was firmly established that in the future new states would have to be recognized by other states, and that meant in practice recognition by one or more of the great powers.

One of the major criticisms of this law is the confusion caused when some states recognize a new entity, but other states do not. Hersch Lauterpacht, one of the theory's main proponents, suggested that it is a state's duty to grant recognition as a possible solution. However, a state may use any criteria when judging if they should give recognition and they have no obligation to use such criteria. Many states may only recognize another state if it is to their advantage.

In 1912, L. F. L. Oppenheim had the following to say on constitutive theory:

...International Law does not say that a State is not in existence as long as it isn't recognised, but it takes no notice of it before its recognition. Through recognition only and exclusively a State becomes an International Person and a subject of International Law.

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External Links

  • WikipediaOpinions of the Badinter Arbitration CommitteeA Brief Primer on International LawWhat constitutes the sovereign state?

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