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The Constitutive And Declaratory Theory

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Recognition: Recognition refers to the willingness of one state to deal with another state as a member of the international community (Arkenhurst 1982, 67). Therefore the decision to recognize or not primarily depends on the political incentive and interest of a state rather than legal rounds. There are two theories (the constitutive and declaratory theory) that deal with recognition and each is applicable to the context of Palestine. · Constitutive theory: The constitutive theory is rooted in Nineteenth Century positivism where consent is the basis of international law. Therefore, recognition is seen as the pre-condition for statehood, as states do not legally exist or cannot become a person within the international legal system unless they are recognized by other states (Oxford Journals 2012) According to this theory Palestine is recognised by 63% of the UN member states (Hotung 2011). · Declaratory Theory: The Declaratory Theory claims that a state will be formed only once it has meet the international criteria as stated in Article 3 of the Montevideo Convention (1933). Therefore, statehood is independent and separate from recognition by the international community, as recognition is merely an affirmation that the state exists (Sherman 2005). As a state may not have legal personality or even been admitted into the legal realm of the international law if it does not meet the factual, but it can still be held accountable for crimes such as Genocide or Human Rights Abuse

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