This article is authored by Kirti Bhushan, a student of Campus Law Centre, University of Delhi. The article seeks to explain the two modes of recognition and the difference between them. As recognition can be of a state or a government, the author has focussed on the recognition of a state only.
In International Law, “recognition” is the formal acknowledgement by one state that another state exists as a separate and independent government. As per Black’s Law Dictionary, recognition means: “Official action by a country acknowledging, expressly or by implication, de jure or de facto, the existence of a government or a country, or a situation such as a change of territorial sovereignty.” According to Phillip Jessup, recognition means that an existing state acknowledges the political entity of another state, by the overt or covert act. Article 1 of the Montevideo Convention, 1933 states: “The state as a person of international law should possess the following qualifications:
- a permanent population;
- a defined territory;
- government; and
- capacity to enter into relations with the other states.”
These four qualifications are often termed as essentials of recognition of a state.
Recognition of a state leads to the state being recognized to become a member of the international community and thus, it becomes vital for a state to be recognized as a member of the international community to enjoy various rights, duties and obligations of international law. It is the acknowledgement by the existing state or states that a political entity has the characteristics of statehood.
The question or need of recognition arises mainly when a State disintegrates into several States or when two or more states merge to form a new state or a former colonial territory acquired statehood.
Legal Effects of Such Recognition
The act of recognition is a political or discretionary act but it should be granted keeping in view various legal consequences that follow such recognition. Main legal effects are:
- The recognized state gets an entitlement to sue in the courts of the recognized state.
- The recognized state may enter into diplomatic and treaty relations with the recognizing state.
- The recognized state becomes entitled to its sovereign immunity as well as its property in the courts of recognizing state.
- The act of recognition also leads to the retroactivity of recognition i.e. the recognizing state can give effect to past legislative and executive acts of the recognized state.
De Jure and De Facto Recognition
These are the two modes of recognition of a state which are explained below:
De jure recognition: When the state who is giving recognition to the new state is of the view that the new state is capable of possessing and has all the essential attributes of the statehood along with stability and permanency, then such recognition is de jure recognition of that state. It results from an expressed declaration or a positive act which indicates the clear intent to grant the recognition. It is final and cannot be revoked or withdrawn once it is given. It can be granted immediately or directly when any nation comes into existence through a peaceful and constitutional mode and there is no need for prior de facto recognition.
De facto recognition: Such recognition is given when the new state has not acquired sufficient stability in the opinion of the existing state. Then, in such a scenario, the recognition is given provisionally and is called de facto recognition. This situation arises when the existing state is of the view that though the new state has a legitimate government., its effectiveness and continuance to govern is uncertain. Thus, de facto recognition means that the state which is recognized possesses all the essentials of statehood and is able to be a subject of international law but it is doubted whether such a country seeking recognition is willing or capable of fulfilling its obligations under international law.
Examples: The Soviet Union was established in 1917 and the UK government recognized it on the basis of de facto mode but it was only in 1924 that the UK government gave it a de jure recognition. In March 1971, Bangladesh was established and India and Bhutan gave the recognition to Bangladesh after nine months of its establishment whereas the US recognized it after almost a year in April, 1972.
Difference between the two modes of recognition
- The de facto recognition is a lesser degree kind of recognition as compared to the de jure recognition as de jure is recognition to its fullest extent.
- The de facto recognition is not final and it is dependent on conditions with which a new state has to comply and in case the new state fails to fulfil such conditions the recognition given can be withdrawn unless it is a de jure which is final and cannot be withdrawn.
- De facto recognition may be given when a state comes to power through revolt whereas de jure recognition may be given in case the new state came to power peacefully and constitutionally.
- The representatives of de jure recognized states have full immunities while the immunities given to de facto recognized states are not full.
- The de facto recognized state cannot claim property situated in the territory of the recognized state as it lacks such extra-territorial jurisdiction. Whereas the de jure recognized state can claim so.
- In the case of de facto recognition, full diplomatic relations cannot be established whereas it can be done so in case the recognition is done through de jure mode.
- The state with de facto recognition cannot undergo state succession while the state with de jure recognition can under state succession.
Thus, it is clear from the above discussion that the recognition of a state is vital for it to enjoy all the rights and privileges in the international domain and under international law. The two modes of recognition do hold a political outcome on the international stage as the degrees of both kinds of recognition have a significant impact on relations between various nations. It is often noticed that stronger or powerful nations try to impede in recognition of new states. Sometimes, recognizing state withdraws such recognition in case the conditions are not fulfilled.
Indian practice of recognition is in conformity with the international law as India accords recognition as soon as the prerequisites of the statehood are conformed to. Indian policy is certainly influenced by various political, economic, national interest, expediency and strategic considerations. As a matter of general policy, India has attached primacy to the de facto mode of recognition. And India has always maintained its strong commitment to the principle of self-determination and national liberation movements. Thus, India has always been hostile towards oppressive regimes and this certainly has affected India’s policy of recognition under the International Law as recognition is more of a matter of policy than law.
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