Does a country exist if nobody recognises it? International law has two answers
Under the constitutive theory, developed in the nineteenth century, a state becomes a person in international law only when at least one other state recognises it. The rival declarative theory says statehood depends on facts on the ground. Under the first, a new state waits outside the international community until someone vouches for it.
Lassa Oppenheim, writing in 1912, put the constitutive case plainly: international law does not deny that an unrecognised state exists, but it takes no notice of it until recognition arrives. The obvious weakness is confusion when some governments recognise a new entity and others refuse. Hersch Lauterpacht, a leading supporter, suggested states should be obliged to grant recognition when the conditions are met, but in practice each government applies whatever criteria it likes.
The declarative theory, reflected in Article 3 of the Montevideo Convention, lists four requirements: a defined territory, a permanent population, a government and the capacity to deal with other states, and it holds that statehood does not depend on recognition so long as it was not won by military force. Territory includes land, internal waters, territorial sea and airspace; borders need not be precisely drawn and there is no minimum size, but artificial installations and uninhabitable land do not qualify. A European Community arbitration committee, the Badinter Committee, later reached a similar definition. Even so, meeting the criteria does not settle every case, and recognition still weighs heavily in real diplomacy.
The idea of a world divided into bordered states is fairly recent. In medieval Europe a ruler's dominion was measured by the quality of land and possessions rather than by fixed boundaries, and large regions were unclaimed or home to nomadic peoples outside any state. Only since the late nineteenth century has almost the whole globe been parcelled out, and more than 200 sovereign states now exist, most of them in the United Nations.
Before 1900 sovereign states enjoyed absolute immunity from each other's courts, rooted in Jean Bodin's notion of supreme power within a territory. In The Schooner Exchange v. M'Faddon, US Chief Justice John Marshall explained that equal sovereigns each waive part of their exclusive jurisdiction. Several countries, among them Canada, Pakistan and the United States, now limit immunity by statute to public acts, leaving commercial dealings open to lawsuits.
Source: Sovereign state
