International law is often described as one of the most paradoxical concepts of law, where one state agrees while another state contradicts. Nations rarely reach a common consensus on fundamentals related to international law. Whether it constitutes as true law or when a political entity should be recognised as state. This disagreement is mostly derived out of the desire for self-preservation and furthering one’s national interest, which in turn brings politics into the domain of law.

State recognition remains one of the most contested issues. In theory, it is simple as an entity must follow and fulfil the criteria laid down in the Montevideo Convention on the Rights and Duties of States (Montevideo Convention) to attain Statehood. However, it differs drastically in practice, because here, even if a state meets the set criteria, it is not treated as a legitimate State, unless it is accepted by other recognised states or International Organizations like the United Nations. Therefore, political acceptance irrefutably becomes a decisive factor for recognition.

For instance, Somaliland[i] is still not recognized as an independent state, despite its self-governance and stable, democratic institutions since its declaration of independence in 1991. Taiwan[ii] fulfils the criteria of the Montevideo Convention; however, its status of recognition is disputed because of China’s claim of sovereignty over it. Conversely, Kosovo[iii] which unilaterally declared itself independent in 2008 has been recognized by nearly half of UN member states, making it a semi-recognized state. 

This raises the question of whether the recognition of a State by another is a merely an acknowledgement of its existence or actual creation of a new State. This contradiction is seen in the core debate between Declaratory and Constitutive theories of recognition which goes on to show the existing conflict between law, which lays down the criteria for statehood, and politics, which decides the actual legal personality.

Statehood

The fundamental elements that grant an entity the status of statehood in international law are the four criteria in the Montevideo Convention of 1933. Article 1 clearly states that, “The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.”[iv]

These elements form the foundation of declaratory approach, which is an expansive theory maintaining on the point that of a state comes into existence as soon as it fulfils the requirements. As James Crawford[v] observes, “In a relatively objective forum such as an international tribunal, it would be entirely proper to accept the existence of a state although it is not recognized by the other party to the dispute or by third states.” The set criteria provide with predictable and robust framework for a new state to come into existence at the international level.

However, entities like Somaliland and Taiwan despite meeting the Montevideo criteria, are denied of their identity to full statehood because they lack external political acceptance. This highlights how even after possessing population, territories, government and capacity to enter international relations, certain entities are still excluded from being accepted in the circle of recognised state. Therefore, attaining the criteria set in law is not enough for a state to be recognised unless it is supplemented by external political acknowledgement, which exacerbates the already existing conflict between law and politics.

Declaratory Theory

The Declaratory theory, or evidentiary theory, maintains that a state exists irrespective of recognition. Proponents like Hall, Fisher and Brierly argue that the emergence of a new state is independent from the consent of existing states. It is supported by Article 3 of the Montevideo Convention which states that, “The political existence of the state is independent of recognition by the other states…”[vi]. Therefore, recognition is merely evidence or a formal acknowledgment that the new entity has met with all the essential obligations of statehood and thus, exists as a state in fact and in law.

As per Brierly, “A State may exist without being recognised by other States, and if it does exist in fact, then, whether or not it has been formally recognised by other States, it has right to be treated by them as a State.”[vii] Similarly, according to Crawford’s view on declaratory theory, the legal effects of recognition are limited because recognition does not create statehood, it is a declaration of an existing situation.

A newly formed state may have rights and duties even without external recognition, because under this theory, statehood precedes recognition. However, this also becomes a point of critique because in practice, the new state struggles to exercise its rights because of lack of recognition from other states of its existence, due to which it is unable to enter international activities with other states. Therefore, under this theory, emphasis is on that recognition is not equal to creation of statehood but acknowledgment, the limits are on law because of lack of political acceptance.

Constitutive Theory

Constitutive theory argues that only through the act of recognition, a State emerges as an international person. Proponents like Anzilotti and Holland argue that a new political community cannot ipso facto become a State[viii], rather it must be recognised by existing states to acquire status of an international person. As per Oppenheim, “a State is, and becomes, an international person through recognition only and exclusively.”[ix] Therefore, fulfilling the criteria of statehood is not adequate, rather an entity will only become a state with a legal personality when the act of recognition is carried out by existing sovereign states.

According to the theory, recognition is said to have a constitutive effect, which is necessary for the creation of statehood and its personality. For an entity to become a member of the family of nations, it must go through the process of recognition which leads to it acquiring the requisite personality. In other words, for a state to participate in the international legal order which attained by political groups, it must be recognized by the established state of those political groups.

This implies that the recognition of an entity is greatly up on the discretion the existing states, who purely act out of its own political, strategic or diplomatic interests. Without recognition, at international level, the entity does not have any rights or duties on its part as compared to other states because of lack of recognition from other states.

It has become a point of contention in this theory due to the role of political discretion which suppresses the objective of law in creation of statehood. It also advances inequality among entities which are trying to gain the status of statehood because of biasness in recognition and non-recognition from the external political groups.   

The Collision

The two theories are in such contradiction with each other that neither of them can adequately explain how a State comes into existence in contemporary times. While in principle, the law lays down the criteria of territory, population, government and capacity to enter relations to obtain the objective of statehood. However, this is as far as the law extents because in practice it is not only those entities that satisfy the legal conditions that are granted the status of statehood, but they must go one step further to gain the acceptance of external political communities to be considered as an independent international personality. This highlights the grey area where statehood has become both a legal as well as a political process, the law is set in stone while the politics is discretionary.

It was one of the opinions of the Badinter Arbitration Commission of 1991 which happened during the breakup of Yugoslavia that, the existence or disappearance of a state is a question of fact while the effects of recognition by other States are purely declaratory. Although this aligned with the declaratory theory, yet the recognition of the successor state (Yugoslavia) was carried out under political considerations.

This shows that the contemporary state practice functions by way of a Hybrid or Realist approach, where fulfilling criteria, showing stable governance and control is in accordance with the declaratory theory, while acceptance in diplomatic relations, international organizations membership and other international activities which require support from other states is in accordance with the constitutive theory which derives international legitimacy.

Conclusion

This shows how statehood in law is declaratory but translates to constitutive effects when in practice. As of now, statehood is neither created purely out of fulfilment of legal conditions nor out of political will, rather it is established somewhere between the interaction between the two where law provides the structure or backbone while politics brings out the new state after recognition. Therefore, as of now the determination of status of a new State is highly unstable and requires in-depth understanding of the constant interplay between law and politics to interpret the functioning of the present multipolar world to bring forth a common solution.

Endnotes

[i] Idaan GY, ‘A Legal and Diplomatic Analysis of Somaliland’s Quest for International Recognition’ Modern Diplomacy (27 May 2025) https://shorturl.at/yrJ59 accessed 25 November 2025.

[ii] Al Banna M, ‘Taiwan’s International Legal Standing: Navigating the Fragile Status Quo’ (2014) 10 Journal of Liberty and International Affairs 157.

[iii] Business Bliss Consultants FZE, ‘Is Kosovo Legally Recognised as a State?’ LawTeacher.net (November 2025) https://www.lawteacher.net/free-law-essays/international-law/is-kosovo-legally-recognised-as-a-state-international-law-essay.php?vref=1 accessed 25 November 2025.

[iv] Montevideo Convention on the Rights and Duties of States (1933) art 1.

[v] James Crawford, ‘Recognition of States and Governments’ in Brownlie’s Principles of Public International Law (9th edn, Oxford University Press 2019) 134.

[vi] Montevideo Convention on the Rights and Duties of States (1933) art 3.

[vii] J. L. Brierly, The Law of Nations, 6^th ed. (Clarendon Press, Oxford), 1963, p. 139.

[viii] S K Verma, An Introduction to Public International Law (4th edn, Satyam Law International), 2025, p. 114.

[ix] L. Oppenheim, International Law, Vol. I, 9^th ed.  (Lauterpacht (Ed.), Longmans, London), 1952, p. 125.