Recognition Under International Law

INTRODUCTION

The number of states in the international community is not exhaustive as it is a fluctuating affair with the disintegration of existing States resulting in the formation of new States or already existing States uniting to form one amalgamated State etc. Thus, arising the need for State recognition. Recognition of a State is a formal declaration of intent by one State to acknowledge the existence of another power as a State within the meaning of International law.

THEORIES OF RECOGNITION OF STATES

Constitutive Theory

The main exponents of this theory are Oppenhiem, Hegal and Anziloti. This theory states that it is the already-established-States that recognize the international status of newly formed States and give it the legal personality as a result of such recognition and not the process that actually gave it the independence. As a result, an “unrecognized State” will be devoid of any legal personality and hence would not have any rights or be subject to obligations under international law such as the prohibition on aggression, etc.

For example- Poland and Czechoslovakia were recognized by the Treaty of Versaille.

Declaratory Theory

Chief exponents of this theory are- Brierly, Fisher, etc. This theory is the total opposite of the constitutive theory and is more in harmony with the practical realities of today. It states that the recognition by other States has nothing to do with the existence of the State that establishes by its own legal efforts and circumstances. It describes recognition as a mere formality that does not affect the statehood that exists before and independent of recognition.

For example- Taiwan is a democratic country & is recognized by some but it has business dealings with almost everyone in the country.

CURRENT STATUS

In the current scenario from the past two decades, one can say that the practice has taken somewhat a middle stance of both theories. It may be right to say that recognition is highly political and is given in several cases for purely political reasons. Recognition is constitutive as it is evidence of acceptance of a new entity as a State with its political status by the community of States. But at the same time, it is declaratory as it does not imply that rights and duties arise out of such a recognition.

For example– the Arab world and Israel, the USA, and certain communist nations do not imply that the other party does not have any rights or are not subject to liabilities under International law, they just do not recognize them as State due to political reasons. The most important criteria for recognition is the fulfillment of elements of Statehood under international law that are listed below.

Article 1 of Montevideo Conference, 1933, lists down the following essentials that an entity shall have to be recognized as a State under international law.

Permanent population
Definite territory controlled by it
There should be a government
The entity should have the capacity to enter into relations with other States.

MODES OF RECOGNITION

DE FACTO RECOGNITION

When an existing State recognizes that the new State fulfills the essentials of Statehood under International Law but lacks stability and there are doubts as to its capability to fulfill obligations under International law, it is granted De Facto recognition. It is a temporary and provisional recognition that could be withdrawn in case of non-fulfillment of the requirements of the recognition. The States are vested with only limited power and obligations against other States and cannot enjoy full diplomatic immunities. De Facto recognition is a process of recognition by a non-committal act. De facto recognition can be considered a test of control for newly formed States and paves the way for De Jure recognition once it generates satisfactory results.

States that have De Facto recognition lack eligibility to be members of the United Nations.

DE JURE RECOGNITION

When a recognizing State feels that the recognized State fulfills all the essentials of Statehood and there are no doubts as to the long-term viability of the State, a De Jure recognition is granted. It is permanent and cannot be revoked. The such States have absolute rights and obligations against other States and enjoy full diplomatic immunities. This recognition is either expressly Stated by the recognizing State through a formal order or maybe impliedly communicated like commencing diplomatic relations.

A State doesn’t need to be given De Facto recognition first to be granted De Jure later, it can be directly granted.

An example of De Facto that was transformed to De Jure is- the United Kingdom recognized the Soviet Union (established in 1917) De Facto in 1921 and De Jure in 1924.

TYPES OF RECOGNITION

EXPRESS RECOGNITION

Under this type, a public Statement/declaration through a notification is made to announce recognition. For example- In 1963, a declaration was made by the French President to recognize the independence of Algeria.

IMPLIED RECOGNITION

Under this, a formal declaration is not made rather it is implied by some act that clearly communicates the intention.

PREMATURE RECOGNITION

Premature recognition is recognizing an entity that does not have elements of Statehood completely. For example- Palestine

COLLECTIVE RECOGNITION

It means recognition through an international treaty. For example- in 1975, 5 ASEAN countries recognized Cambodia.

CONDITIONAL RECOGNITION

In this, recognition is granted subject to conditions to be fulfilled.

LEGAL EFFECTS OF RECOGNITION

As mentioned before, on gaining recognition, a State is endowed with certain rights, immunities and is subject to certain obligations. Some of the legal outcomes of recognition are as follows:-

Gains the right to sue and be sued.
Acquires the capacity to enter diplomatic relations
After recognition, State succession is possible.
Can enter into treaties with other States.
Can be a part of UN

Kosovo declared its independence from Serbia in February 2008. This caused a ruckus amongst the States. At first, the United Kingdom, United States, and France recognized it as a State, and China and Russia didn’t. Later ICJ declared that the declaration of independence was not violative of the UN’s provisions of Statehood.

CONCLUSION

Recognition is the most important concept of International law as it determines what entities will be State or not. As mentioned before, current practice is somewhat a blend of constitutive and declaratory theory. Recognition is what endows rights and obligations on a State and consequences on both the international plane and within municipal laws. Hence an understanding of the subject is required. Recognition can most of the time be politically motivated and hence can be of any of the types mentioned above like- De Facto, De Jure, express, implied, etc.

The article is written by Munmun Kaur, a law student from Law Centre-I, Faculty of Law, Delhi University.

The article is edited by Shubham Yadav, Pursuing B.com LL.B. (4th Year) from Banasthali Vidyapith.

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