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This article has been written by Pankhuri Anand, a student of Banasthali Vidyapith, Rajasthan. This article discusses the recognition of a state under the International Law and modes, theories and forms of recognition of State.

The international community is the community of sovereign states at an international platform. For any state to enjoy the rights, duties and obligations of international law and to be a member of the international community, recognition of the entity as a state is very important. Only after recognition of the entity as a state, it becomes acknowledged by other states who are a member of the International Community. International law considers the act of recognition as an independent act of the existing statehood community.

Recognition of state

Recognition of state under the International Legal System can be defined as “the formal acknowledgement or acceptance of a new state as an international personality by the existing States of the International community”.It the acknowledgement by the existing state that a political entity has the characteristics of statehood.

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Essentials for recognition as a state:

Under the International Law, Article 1 of the Montevideo Conference, 1933 defines the state as a person and lays down following essentials that an entity should possess in order to acquire recognition as a state:

  1. It should have a permanent population.
  2. A definite territory should be controlled by it.
  3. There should be a government of that particular territory.
  4. That entity should have the capacity to enter into relations with other states.

Legal Effects of such recognition

When a state acquires recognition, it gains certain rights, obligations and immunities such as.

  1. It acquires the capacity to enter into diplomatic relations with other states.
  2. It acquires the capacity to enter into treaties with other states.
  3. The state is able to enjoy the rights and privileges of international statehood.
  4. The state can undergo state succession.
  5. With the recognition of state comes the right to sue and to be sued.
  6. The state can become a member of the United Nations organisation.

Theories of recognition

The recognition of a new entity as a sovereign state is based on two main theories:

  • Consecutive Theory
  • Declaratory Theory
  1. Consecutive Theory

The main exponents related to this theory are Oppenheim, Hegal and Anziloti.

According to this theory, for a State to be considered as an international person, its recognition by the existing states as a sovereign required. This theory is of the view that only after recognition a State gets the status of an International Person and becomes a subject to International Law. So, even if an entity possesses all the characteristics of a state, it does not get the status of an international person unless recognised by the existing States.

This theory does not mean that a State does not exist unless recognised, but according to this theory, a state only gets the exclusive rights and obligations and becomes a subject to International Law after its recognition by other existing States.

Criticism of the theory

This theory has been criticised by several jurists. Few of the criticisms of this theory are:

  • This theory is criticised because unless a state is recognised by other existing states, rights, duties and obligations of statehood community under International Law is not applicable to it.
  • This theory also leads to confusion when a new state is acknowledged and recognised by some of the existing states and not recognised by other states.

2. Declaratory Theory

The main exponents of the Declaratory Theory of Statehood are Wigner, Hall, Fisher and Brierly. According to this theory, any new state is independent of the consent by existing states. This theory has been laid down under Article 3 of the Montevideo Conference of 1933. This theory states that the existence of a new state does not depend on being recognised by the existing state. Even before recognition by other states, the new state has the right to defend its integrity and independence under International law.

The followers of theory consider the process of recognition as merely a formal acknowledgement of statehood by other states.

Criticism of the theory

The declaratory theory of statehood has also been criticised. This theory has been criticised on the ground that this theory alone cannot be applicable for recognition of a state. When a state having essential characteristics comes into existence as a state, it can exercise international rights and obligations and here comes the application of declaratory theory, but when  other states acknowledge its existence and the state gets the legal rights of recognition, the consecutive theory comes into play.,

Modes of Recognition

There are two modes of recognition of State:

  1. De facto Recognition
  2. De Jure Recognition

1. De facto Recognition

De facto recognition is a provisional recognition of statehood. It is a primary step to de jure recognition. It is a temporary and factual recognition as a state, and it can either be conditional or without any condition.

This mode recognition is granted when a new state holds a sufficient territory and control over a particular territory, but the other existing states consider that it does not have enough stability or any other unsetting issues. So, we can consider it as a test of control for newly formed states. De facto recognition is a process of acknowledging a new state by a non-committal act.

The state having de facto recognition are not eligible for being a member of the United Nations. e.g., Israel, Taiwan, Bangladesh.

2. De jure Recognition

De jure recognition is the recognition of a new state by the existing state when they consider that the new state fulfils all the essential characteristics of a state. The de jure recognition can be granted either with or without granting de facto recognition.  This mode of recognition is granted when the newly formed state acquires permanent stability and statehood The De jure mode of recognition grants the permanent status of a newborn state as a sovereign state.

In the case of Luther v. Sagar, it was held in this case that for the purpose of giving effect to the internal acts of the recognised authority there is no distinction between de facto and de jure

Example of de facto and de jure recognition:

  • One of the examples of de facto and de jure recognition is the recognition of the Soviet Union was established in 1917. It was de facto recognised by the government of UK in 1921 but it was not given de jure recognition until 1924.
  • Bangladesh was established in March 1971. India and Bhutan recognised it just after 9 months of establishment but the United States gave it legal recognition after nearly 1 year in April 1972.

The distinction between De Facto and De Jure Recognition

 

S.No.

De facto Recognition

De jure Recognition

1.

De facto recognition is a provisional and factual recognition.

De jure recognition is legal recognition.

2.

De facto recognition is granted when there is the fulfilment of the essential conditions of statehood.

De jure recognition is granted when the state fulfils all the essential condition of states along with sufficient control and permanency.

3.

De facto recognition is a primary step towards grant of de jure recognition.

De jure recognition can be granted either with or without grant of de facto recognition.

4.

De facto recognition can either be conditional or non-conditional.

De jure recognition is a final and non-conditional recognition

5.

De facto recognition is revocable in nature.

De jure recognition is non-revocable.

6.

The states recognised under this mode have only a few rights and obligations against other states.

The state recognised under this mode have the absolute right and obligations against other states.

7.

The state with de facto cannot undergo state succession.

The state with de jure recognition can under state succession.

8.

The state with de facto recognition cannot enjoy full diplomatic immunities.

The state with de jure recognition enjoys full diplomatic immunities.

 

Forms of Recognition

When a newly formed state is recognised, its declaration can be made in two forms:

  1. Expressed Recognition
  2. Implied Recognition

1. Expressed Recognition

When an existing state recognises a new state expressly through official declaration or notification, it is considered to be the expressed form of recognition. Express recognition can be made through any express or formal means such as sending or publishing declaration or statement to the opposite party. When a state is recognised by expressed ways, it is a de jure recognition unless provided otherwise by the recognising state in the declaration.

2. Implied Recognition

When the existing state recognises a newly formed state through any implied act, then it is considered as an implied recognition. Implied recognition can be granted through any implied means by which a current state treats the newly formed state as an international person. The implied credit not granted through any official notification or declaration. The recognition through implied means varies from case to case.

Conditional recognition

The recognition of state with which certain conditions are attached in order to obtain its status as a sovereign state is conditional recognition. The conditions attached varies from state to state such as religious freedom, the rule of law, democracy, human rights etc. The recognition of any state is already associated with the essential conditions to be fulfilled for the status of a sovereign state but when addition condition is attached it is conditional recognition.

Criticism

Many jurists criticise conditional recognition. The conditional recognition is criticised on the ground that recognition is a legal procedure, and no additional conditions should be attached with it other than the conditions recognised by law. Another reason for criticism is that the recognised state if it does not fulfil the condition attached for its recognition, recognition is not extinguished and it should still be valid.

Withdrawal of Recognition

1. Withdrawal of De facto recognition

Under international law when a state having de facto recognition fails to fulfil the essential conditions of statehood, its recognition can be withdrawn. The recognition can be withdrawn by the recognizing state through declaration or through communicating with the authorities of the recognized states. The withdrawal can also be done by issuing a public statement.

2. Withdrawal of De Jure recognition

Withdrawal of de jure recognition is a very debatable issue under the International Law. Withdrawal of a de jure recognition is a very exceptional event. If strictly interpreted, the de jure recognition can be withdrawn.

Even though the process of recognition is a political act, de jure recognition is of legal nature. Jurists who consider de jure recognition as a political act considers it revocable. Such revocation of de jure recognised states can be withdrawn only when a state loses the essential characteristics of statehood or any other exceptional circumstances. This type of revocation can be done expressly by the recognising state by issuing a public statement.

Recognition of government

For any statehood, the government is an important element. When a state is formed, its government changes from time to time. When the government changes as an ordinary course of political action, the recognition of government by the existing state is not required but when the government changes due to any revolution, then its recognition by the existing state is required.

For recognising the new government established out of revolution, the existing states need to consider that:

  1. The new government have sufficient control over the territory and its people or not.
  2. The new government is willing to fulfil the international duties and obligations or not.

When the existing states are satisfied that the new government resulting out of the revolution is capable of fulfilling the conditions as mentioned above, then the new government can be recognised by the existing states.

Conclusion

The recognition of the state is an essential procedure so that it can enjoy all the privileges of statehood community under international law. There is a controversy between Consecutive Theory and Declaratory theory of Recognition by different jurists, but we can conclude that the theory followed for recognition is in between the consecutive and declaratory theory.

The recognition being either de facto or de jure, it provides rights, privileges and obligations. When a state gets its de facto recognition, the rights, privileges and obligations are less but when it is recognised de jure, it gets absolute rights, liabilities and privileges. The recognition of the state is too much politically influences on the International platform.

There have been many instances where the powerful states create obstructions in recognition of a newly formed state. It can even be withdrawal when the recognising state feels that the new state is not fulfilling the prerequisites for being a sovereign state. The recognition can be done either by express form or implied form and its mode, i.e., de facto and de jure recognition varies from case to case basis.

Reference

  1. Verma S.K, Introduction to Public International Law, 2nd Edition,2014.
  2. Luther v. Sagor [(1921)3 KB 532,].

 

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