Answer 1- Statehood has been defined as the condition for being a country or part of a larger country

that has its own government1. There are four preconditions for statehood stated in the Montevideo
Convention on the Rights and Duties of States (1933):

 a permanent population
 a defined territory
 a government
 the capacity to enter into international relations

Montevideo Convention tried to move away the traditional practices of recognizing the states
normatively, by trying to establish the recognition by way of factual scenarios.

The question that pops out here is that why recognition of statehood is essential? Answer to this
Recognition is an affirmation of another entity’s embodiment. It might be depicted as a unilateral show
of a State by which it constitutes an international person, the state, or its government’ .
Recognition sees that a government is in appropriate control, capable of taking decisions and enforcing
upon the populace or that this entity has the four criteria for statehood and is a State. This recognition
can take place in many forms. It may be express or implied from a government's lead towards another
State. It can be expressed by way of writing or may approved orally. Recognition is a, so to speak,
political act. It has little to do with whether an entity meets the four criteria2.

There are mainly two theories for the recognition of statehood according to Montevideo Convention-

 Constitutive theory
 Declaratory theory

Constitutive theory – According to this theory a state is recognized by the endowment of the other
existing states and not by the process by which it gained independence. Once a state’s existence is
ratified by existing states of the international community, it’s legal presence and personality can be
established. Will and consent of the existing states is essential for an entity to be recognized as state. To
sum up this, a statehood of an entity would be recognized only when the existing states acknowledges
it.

On the face, this theory seems to be fallacious in various aspects. Firstly, the fact that if few states
consent to the acknowledgement of statehood and other’s dissent then what is the status of the entity.
Whether such a recognition leads to international legal personality and recognition of state. Moreover,
this theory discards any tangible evidence as to whether statehood exists or not. It is motivated rather
more by the political acts and interests of the states. Further, at times a state may recognize itself as a
state but it’s non recognition will lead to no legal obligations, no international responsibilities, no
accountability etc. This theory has been criticised mostly because of the fact that recognizing other
states has not been recognized as legal duty by the states.

1
statehood. (2019). [online] Available at: https://dictionary.cambridge.org/dictionary/english/statehood [Accessed
25 Mar. 2019].
2
Lauterpacht, H. “Recognition of States in International Law.” The Yale Law Journal, vol. 53, no. 3, 1944, pp. 385–
458. JSTOR, www.jstor.org/stable/792830.
Declaratory Theory – This theory says that recognition of state is established upon the preponderance of
the factual situation of the entity. It doesn’t depend upon the ratification by other states, rather it is
dependent upon the existence of certain facts and situations. It will be legally constituted by its own
efforts and circumstances and will not have to await the procedure of recognition by other states. It
minimizes the power of states to confer legal personality.

This theory has also been criticized for the fact that not always the existence of conditions implies the
existence of states rather sometimes statehood should be constitutive.

From the above discussion it is clear that both the theories have shortcomings respectively. To
overcome these shortcomings, middle ground in the form of synthesis between the two theories has
been often sought. One such attempt was made by Hersch Lauterpacht3. Lauterpacht aligns with the
constitutive theory but departs from the traditional theory in the sense that he adds an additional
aspect of legal duty to recognize states. According to Lauterpacht doctrine, it is a state’s legal duty to
recognize states which is dependent upon the existence of certain facts. But the practice of states have
shown to disregard this doctrine4. Many scholars and theorists have tried to find a middle ground by
building upon the flaws of their predecessors. One such theory was given by Michael Schoiswohl. His
theory was in respect to Somalia but it has been considered that it can apply more widely than this. The
theory proposed was ‘dissolving succession’ theory. This theory proposes that recognition is declaratory
when the new state’s status is not disputed, but that it is constitutive (or semi-constitutive) when the
state’s personality is disputed5.

From the above discussion it may be concluded that both the two theories of recognition are not
conclusive to reflect the clear understanding of recognition. In fact, there shall be intermediary way of
approach between the two theories to understand recognition. In my view, the concept of recognition
depends upon the facts of each case. Looking at facts would include the evaluation of mode, nature and
scope of the case. In other words, recognition may be sometimes constitutive and sometimes
declaratory.

Answer 2- Unilateral legal acts are those which emerge from the unilateral actions of a state. They do
not require the consent or the help of other states. Unilateral legal transactions or unilateral acts are
those legal transactions for which certain conducts of two (or more) States does not have to be depicted
so as to give rise to the connected legal effects in correspondence with international law. A unilateral
act denotes a unilateral legal transaction that creates international rights and obligations otherwise than
by agreement; in other words, all international legal transactions of a State other than treaties,
consultations and negotiations6. The State’s right to act (or not to act) unilaterally depends solely upon
the capacity of the state in question and does not includes the consent or ramifications of the other
states. The whole definition of unilateral act would be rogue if other states start to ratify the actions.

3
See generally HERSCH LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW (1947).
4
Patrick Capps, Lauterpacht’s Method, British Yearbook of International Law, Volume 82, Issue 1, 2012, Pages 248–
280, https://doi.org/10.1093/bybil/brs001
5
MICHAEL SCHOISWOHL, STATUS AND (HUMAN RIGHTS)
OBLIGATIONS OF NON-RECOGNIZED DE FACTO REGIMES IN INTERNATIONAL LAW:
THE CASE OF ‘SOMALILAND’ (2004)
6
<https://www.law.kuleuven.be/iir/nl/onderzoek/opinies/ecbiUDsfinal.pdf> accessed March 26, 2019
These aspects of unilateral actions lead to contemplation of many questions regarding these, as to
whether these transactions are binding? Are they obligatory? Do they create any rights and obligations?
To answer all these question International Law Commission laid down certain guidelines enumerating
from different case laws. They enlisted 10 guidelines regarding unilateral declarations or acts7. Following
upon these guidelines the effects of these legal acts is as follows-

 They may create legal obligations, if such is manifested from the intention of the concerned
state and on what the declarations were based upon. This position was reiterated in the cases of
Nuclear Tests8 and Frontier Dispute (Burkina Faso v. Republic of Mali)9.10
 No obligations may incur for the other states by unilateral declaration of a state. But, the same
shall not be true to the extent that the same was ratified and consented by the other state.11.
 A unilateral declaration that has created legal obligations for the State making the declaration
cannot be revoked arbitrarily. In assessing whether a revocation would be arbitrary,
consideration should be given to: (a) Any specific terms of the declaration relating to revocation;
(b) The extent to which those to whom the obligations are owed have relied on such obligations;
(c) The extent to which there has been a fundamental change in the circumstances12.

Unilateral declarations have been considered as a source of International Law. Though the general
theory of sources of International Law was conceived from Article 38 of ICJ which was based upon the
international customs, legal treaties, general principles of law as identified by the jurisprudence and
decisions of various national and lower courts. Both the unilateral acts and the other sources have
binding legal obligations. The parties that are bound may differ according to the type of agreement.
Unilateral declarations also relate to general sources of law in the sense that they have also emerged as
a renowned source of law by virtue of courts decisions and various legal theories. The main case that
helped in developing upon this was the 1945 Truman Proclamation. It was embodied in the form of
Article 2 of the Geneva Convention on Continental Shelf of 195813.

Unilateral declarations and acts stand on equal footing with the other sources of law. There is no
hierarchy as to the sources of law. They are equally valid sources of law. Though they are bound in
hierarchy by the jus cogens which are higher morals which all the treaties and declarations are obliged
to bound by. Unilateral declarations need to be in conformity with the morals and rules that have been
established by the international society over time and led to formation of standards that no legal
document should deviate from14.

7
ILC 2006 Report
8
Judgments dated 20 December 1974, I.C.J. Reports 1974
9
Judgment of 22 December 1986, I.C.J. Reports 1986
10
Supra Note 7
11
Supra Note 7
12
Supra Note 7
13
< http://legal.un.org/ilc/texts/instruments/english/commentaries/9_9_2006.pdf> Accessed March 26 2019
14

<https://www.law.muni.cz/sborniky/dny_prava_2009/files/prispevky/mezin_soud/STEFAN_MOTATAIANU__1341
_.pdf> Accessed March 26 2019
The following examples can be illustrated to enumerate the above discussion

 The case of Norway v. Denmark. In this case the Danish government and Norwegian government
were in negotiations over the sovereignty of Eastern Greenland. Norwegian minister passed a
declaration (Ihlen Declaration). Deciding as to legality and rights of the declaration PCIJ stated
that such a declaration is valid and binding upon the state to which the minister belongs15.
 Another example can be European Union v. USA. This case concerned a complaint initiated by
the European Union claiming that certain U.S. legislation was incompatible with GATT-W.T.O.
commitments. The U.S. Trade Representative had stated that official U.S. policy was to
implement the challenged legislation in a manner consistent with W.T.O. obligations, and had
reaffirmed that policy before the panel. Regarding this the panel said that the policy stated was
in alignment with the US policy and the same wasn’t said in any heat of the argument. Officials
were given enough time to retract upon the arguments. On the basis of these it can be said that
the US representative had authority to legally represent the US and thereby the US government
was bound by the declaration made by the official16.

At last it can be easily concluded that unilateral declarations or acts are sources of law which are binding
upon the parties consenting to it. They are placed upon the same with other sources of law. They are
legally valid and obligations and rights arise out of such acts.

15
<http://iilj.org/wp-content/uploads/2016/08/Excerpts-from-Eastern-Greenland-Case-PCIJ-1933.pdf> Accessed
March 26 2019

16
Supra Note 15