The main difference between constitutive and declarative theory is the recognition of statehood by other states. In constitutive theory, an entity must gain formal or implied recognition by other states to become a state, but in declarative theory, recognition by other states is not necessary.
Constitutive theory and declarative theory are two opposing theories of state recognition. According to constitutive theory, the existence of a state begins with recognition by at least one other state. According to declarative theory, a state becomes a person in international law if it has a defined territory, a government, a permanent population, and the capacity to enter into relations with other states.
Key Areas Covered
1. What is Constitutive Theory
– Definition, Characteristics
2. What is Declaratory Theory
– Definition, Characteristics
3. Difference Between Constitutive and Declaratory Theory
– Comparison of Key Differences
Key Terms
Constitutive Theory, Declaratory Theory, International Law
What is Constitutive Theory
The constitutive theory is a theory that states the existence of a state begins with formal or implied recognition by at least one other state. Therefore, recognition of an entity as a state is not an automatic process. According to this theory of recognition, only a positive act of recognition can create the new international legal personality, i.e., the new state, become a subject of international law. It’s important to understand that this does not mean that a state is not in existence as long as it is not recognized, but international law does not take notice of it before its recognition.
Under this theory, a state was sovereign only if another sovereign state recognized it as such. Due to this stipulation, new states could not immediately become part of the international community or come under the protection of international law. Moreover, recognized states did not have to follow international law when dealing with these new states.
At the Congress of Vienna in 1815, only 39 sovereign states were recognized in the European diplomatic system. It was agreed that new states would have to be recognized by other states in the future. However, the major drawback of this law is the situation when some states recognize a new entity while some others don’t.
What is Declaratory Theory
The declaratory theory is in direct contrast to constitutive theory as it holds that recognition is not necessary to determine whether an entity is a state. To be more specific, according to this theory, the statehood of an entity is independent of recognition by other states as long as sovereignty was not gained by military force.
In declarative theory, a state becomes a person in international law if it has a defined territory, a government, a permanent population, and the capacity to enter into relations with other states. In international law, a ‘territory’ entails land territory, territorial sea, internal waters, as well as the air space above the territory. Moreover, ‘permanent population’ refers to the community that inhabits the territory permanently, while ‘capacity to enter into relations with other states’ is an indication of the state’s degree of independence. In addition, the government in the state should be able to have effective control over the territory and population.
Difference Between Constitutive and Declaratory Theory
Definition
The constitutive theory is a theory that states the existence of a state begins with recognition by at least one other state. Declarative theory, on the other hand, states that a state becomes a person in international law if it has a defined territory, a government, a permanent population, and the capacity to enter into relations with other states.
Recognition by the Other States
In constitutive theory, an entity must gain formal or implied recognition by other states to become a state. However, in declarative theory, recognition by other states is not necessary.
History
The constitutive theory was the nineteenth-century model of statehood, but the declaratory theory was developed in the twentieth century.
Conclusion
Constitutive theory and declarative theory are two opposing theories of state recognition. According to constitutive theory, the existence of a state begins with recognition by at least one other state. But in declarative theory, recognition by other states is not necessary. Thus, this is the main difference between constitutive and declarative theory.
Reference:
1. “Sovereign State.” Wikipedia, Wikimedia Foundation, 27 Apr. 2021, Available here.
2. Hagos, Tecola W. “William Worster: Sovereignty – Two Competing Theories of State Recognition – William Worster.” Exploring Geopolitics, 9 Feb. 2019, Available here.
Image Courtesy:
1. “GDJ-World-Flags-Globe” By GDJ — (CC0) via Commons Wikimedia
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