The role and function of the declaratory and constitutive theories of Essay

The role and function of the declaratory and constitutive theories of state recognition, in the international community, and having regard to the distinction be - Essay Example States are the most important â€Å"components of the international legal system†.2 In this regard, the 1933 Montevideo Convention provides a legal framework in international law for the necessary conditions for the acquisition of statehood3. The practice of customary international law and relations however, demonstrate that the institution of state recognition has an important role to play in the formation and acceptance of new entities calling themselves states. State recognition is also closely tied to the acceptance or refusal to accept what is essentially an unconstitutional change of government. While this aspect of statehood is not as important as state recognition, it nonetheless produces a series of consequences under international law, particularly the establishment of diplomatic relations and international personality. Unfortunately, the institution of state recognition is not firmly settled in international law. As a result, theoreticians and practitioners have developed two competing theories directly applicable to the institution of state recognition and its legal effect on statehood. These theories are known as the constitutive and declaratory theories and neither are capable of practical application in their pure form. The manner and degree to which each of these theories can be applied largely depends of extralegal factors. The result is, the international legal regime with respect to the conditions necessary for obtaining statehood is uncertain, unclear and unpredictable. Inevitably the aims and objectives of international law, which are to create a reliable and consistent body of law, is compromised. It is important to point out however, that international law is a relatively young and inconsistent body of law in which customary norms are not historical, but rather the actual source of law-making and for this reason, the practice is of far greater significance than in