State Recognition in international law LLB Notes

State Recognition in international law

Introduction;-

Main addressors of the international law are the sovereign states. For an entity of being called a state and to enjoy rights, duties and obligations under international law, it is necessary that the existing state have given awareness of its capability of being a state. Such awareness by existing states is called recognition.

Definition of Recognition: -

 The term recognition as an international legal term may be defined as
under:
“The acknowledgement or acceptance by the members of international community, that a new state has acquired international personality, is said to be recognition.”

Essentials: -

 The main essentials of recognition may be given as under:

1. That the community ( of new state ) must be politically organized,

2. That it should have control over a definite territory,

3. That the control should tend towards permanency,

4. That such community must be independent.

In other words, the attributes of statehood are people, territory, Government, and sovereignty.

Theories of Recognition: - 

There are mainly two theories of recognition which may discuss as under:

1. Constitutive Theory.

2. Declarative Theory or Evidentiary Theory.

1. Constitutive Theory: -

Oppenheim, Hegal and Anziloti are the chief exponents of this theory. According to this theory the only certificate to issue international personality to a new born state is the consent of the already existing states. In other words a new entity shall only be called a state when the existing states acknowledges about its statehood. So, the independence of a new entity shall not amount it to be called a state unless it has not recognized by the existing states.

Criticism: -

 The theory has severely been criticized by a number of jurists. Because, at first instance that states do not seem to accept recognition as a legal duty. And at the second instance, it creates many difficulties when a community claims of being a new state and its non-recognition will, according to this theory, imply that it has no rights, duties and obligations under international law. The theory is not correct in any sense so shall be rejected.

2. Declaratory Theory: -

     The chief exponents of this theory are Hall, Wagner, Fisher and Brierly. According to this theory, the statehood or the authority of new Government is not dependent on the consent of the existing state but is based on some prior or existing fact. According the followers of this theory, the recognition by the existing states is merely a formal acknowledgement of the statehood and not the condition. In fact the statehood is dependent on the some prior conditions necessary for an entity to be called as a state.

Criticism: - 

This theory has also been criticized, because it is not correct that in all cases the existing fact shall imply the statehood, rather some time the statehood may be constitutive.

Conclusion: -

 From the above discussion it may be concluded that both the theories are insufficient to reflect the real explanation of recognition. In fact there shall be intermediate course of approach between the two theories to understand recognition. Briefly, speaking, the definition of recognition depends upon the mode, scope and nature of each case. In other words, recognition may be sometimes constitutive and sometimes declaratory.

Modes of Recognition: - 

There are two modes of recognition, which may be given;

1. De facto Recognition.

2. De jure Recognition.

1. De facto Recognition: -

 The provisionally grant; that is subject to fulfillment of all the attributes of statehood, of recognition to a new state which has acquired sufficient territory and control over the same, but the recognizing states considers it not stable more, is said to be De facto Recognition.

2. De jure Recognition: - 

The grant of recognition to a new born state by an existing state, when it considers that such new born state has attained all the attributes of statehood with stability and permanency, is called De jure Recognition.

Differences Between De facto and De jure Recognition;-

De facto and De jure recognition may differentiate on the basis of following points of distinction.

• De facto Recognition is provisional recognition subject to fulfillment all attributes of statehood.
• De jure recognition is absolute recognition granted to a state which have attained all the attributes of statehood, possesses sufficient control with permanency.

• De facto Recognition creates few essential rights and duties for recognized and recognizing states.
• De jure recognition creates absolute rights for the parties thereto.

• De facto Recognition does not create full diplomatic intercourse between the parties.
• De jure recognition creates full diplomatic intercourse between the parties.

• In De facto Recognition full diplomatic immunities are not granted .
• In De jure recognition full diplomatic relations are granted to the recognized state.

•  In De facto Recognition the recognized state  cannot claim for the property situate in the recognizing state’s territory
•  In De jure recognition this claim can be made.

Forms of Recognition: - 

There are following two forms for the declaration of recognition.

1. Express Recognition.

2. Implied Recognition.

1. Express Recognition: -

 The declaration or notification by an existing state which purports the intention to recognize a newly born state, the recognition is said to be express recognition. In other words, when a formal and express declaration or statement is made and published or sent to the opposite party, the recognition is said to be express recognition.

2. Implied Recognition: -

 When the existing state shows its intention of recognition of a newly born state by some acts, the recognition is said to be implied recognition. In other words, in case of implied recognition no formal statement or declaration is to be made, rather the intention of recognition is to be collected by the acts or transactions of the existing state. So, if such acts purport intention of recognition, it is said to be implied recognition.

3.Conditional Recognition: - 

The grant of recognition by an existing state to a newly born state stipulated on fulfillment some conditions in addition to the requirements of statehood is said to be conditional recognition. As for as, the recognition is concerned it is itself conditioned with the fulfillment of the essentials of statehood, that is to say, the new state must occupy some territory, has some population, government and sovereignty. If these requirements have been complied with by the new state, then that should be recognized by existing states. But as for as, the recognition is concerned it is usually based on some political considerations. So, in the pursuance of these considerations the existing states sometimes declare recognition but stipulated with certain other conditions for the recognized state to be fulfilled.

Criticism: - 

Many jurists have criticized conditional recognition. According to them recognition is a legal matter and it should not be accompanied with conditions other than required by law. It is due to this reason that when in case of conditional recognition the recognized state if didn’t fulfill the prescribed condition the recognition shall be valid and not extinguished. Rather it will effect the relations between the recognized and recognizing states.

Withdrawal of Recognition: - 

Withdrawal of recognition may be explained as under:

1. Withdrawal of de facto Recognition: - 

Withdrawal of de facto recognition is possible under international law only on the ground that if the recognized state has been failed to fulfill the pre requisite condition for statehood. In such a case the recognizing state may withdrawn from the recognition by communicating a declaration to the authorities of recognized stated or by a public statement.

2. Withdrawal of de jure Recognition: -

 There are different views about the withdrawal of de jure recognition. But according to the strict letters of international law and by the virtue of some conventions in this behalf, it is evident that the withdrawal of de jure recognition is not valid in any case. Though recognition is a political act but de
jure but it by nature and status it is a legal oriented. But some jurists think that de jure recognition may be withdrawn, because it is a political act. But in fact it is not so. Only those de jure recognitions may be withdrawn where a state subsequently loses any essential of statehood. In such a case the state withdrawing from recognition shall send his express intention to the concerned authority issue a public statement to that extent.