Recognition of State: Implication, Modes and Necessity

The main concern of international law is the sovereign states. For an entity to be called a state and to enjoy rights, duties and obligations under international law, the existing state must be aware of its capability of being a state. Such awareness by existing states is called recognition.

Recognition of State

I. Meaning

Recognition, in the context of international law, refers to:

“The acknowledgement or acceptance by members of the international community that a new state has acquired international personality.”

Recognition affirms the new state’s capacity to enter into international relations and bear rights and obligations under international law.

II. Essentials

The main essentials of recognition may be given as follows:

1. That the community (of the 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 a community must be independent. In other words, the attributes of statehood are people, territory, government, and sovereignty.

III. Theories of Recognition

There are mainly two theories of recognition which may be discussed:

1. Constitutive Theory.
2. Declarative Theory or Evidentiary Theory.

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 newborn state is the consent of the already existing states.

In other words, a new entity shall only be called a state when the existing state acknowledges its statehood. So, the independence of a new entity shall not amount it to be called a state unless it has not been recognized by the existing states.

Criticism

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

Declaratory Theory

The chief exponents of this theory are Hall, Wagner, Fisher and Brierly. According to this theory, the statehood or the authority of a new Government is not dependent on the consent of the existing state but is based on some prior or existing fact. According to the followers of this theory, the recognition by the existing states is merely a formal acknowledgement of the statehood and not the condition. Statehood is dependent on some prior conditions necessary for an entity to be called 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, sometimes, the statehood may be constitutive. Conclusion: – From the above discussion, it may be concluded that both theories are insufficient to reflect the real explanation of recognition.

There shall be an 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 sometimes be constitutive and sometimes declaratory.

IV. Modes of Recognition: –

There are two modes of recognition which may be given;

1. De facto Recognition.
2. De jure Recognition.

De facto Recognition

The provisional grant, which is subject to fulfilment 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 consider it not stable more, is said to be De facto Recognition.

De jure Recognition

The grant of recognition to a newborn state by an existing state, when it considers that such newborn 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 Recognition	De jure Recognition
De facto Recognition is provisional recognition subject to the fulfilment of all attributes of statehood.	De jure Recognition is absolute recognition granted to a state which has attained all the attributes of statehood and possesses sufficient control with permanency.
De facto Recognition creates few essential rights and duties for recognized and recognised 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.
The full diplomatic immunities are not granted in this De facto Recognition.	Herein, full diplomatic relations are granted to the recognized state.
In such a case, the official visits and dealings may be subjected to limitations.	In such a case,e limitations are not necessary.

V. Forms of Recognition

There are the following two forms for the declaration of recognition.

1. Express Recognition.
2. Implied Recognition.

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.

Implied Recognition: – When the existing state shows its intention to recognise a newly born state by some acts, the recognition is said to be implied recognition. In other words, in the 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 the intention of recognition, it is said to be implied recognition.

VI. Conditional Recognition

The grant of recognition by an existing state to a newly born state stipulated in the fulfilment of some conditions in addition to the requirements of statehood is said to be conditional recognition. As far as the recognition is concerned, it is itself conditioned with the fulfilment of the essentials of statehood, that is to say, the new state must occupy some territory and have 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 far 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 stipulate 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 by conditions other than those required by law. It is due to this reason that when, nin the case of conditional recognition, if the recognized state doesn’t fulfil the prescribed condition, the recognition shall be valid and not extinguished. Rather, it will affect the relations between the recognized and recognised states.

VII. Withdrawal of Recognition

Withdrawal of de facto Recognition

Withdrawal of de facto recognition is possible under international law only on the ground that the recognized state has failed to fulfil the prerequisite condition for statehood. In such a case, the recognizing state may withdraw from the recognition by communicating a declaration to the authorities of the recognized state or by a public statement.

Withdrawal of de jure Recognition

There are different views about the withdrawal of de jure recognition. However, according to the strict letters of international law and by some conventions on this behalf, it is evident that the withdrawal of de jure recognition is not valid in any case. Though recognition is a political act de jure by nature and status, it is legally oriented. However, some jurists think that de jure recognition may be withdrawn because it is a political act. 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 its express intention to the concerned authority to issue a public statement to that extent.

VIII. Recognition of Government

As we know, government is essential to statehood. By government, it is meant the administrative and controlling tool of a state. Once a state comes into being, its government may change from time to time. If the change of government takes place in ordinary political life, the existing states are not required to recognize the new government. But sometimes, the change of government takes place as a result of a revolution. In such a case, it becomes necessary to ascertain whether this new revolutionary government is;

1. capable of having sufficient control over the people of the territory or not, and
2. willing to maintain international responsibilities and duties or not. So, if the existing states consider that this new government is capable of fulfilling the above conditions, then the new government may be recognized.

The recognition of the new regime means that the existing states are satisfied that the new government can control and is willing to perform international duties and obligations. The recognition may be either de facto or de jure. The intention may be expressed either by sending a message to the authority of the new government or by declaring the same in a public statement.

The modern practice seems to reject the doctrine of recognition of new government. Now, some states, such as the USA and UK, and others have adopted a course to give assent to the above pre-conditions for a government merely by extending relation or cessation oflations with such government. Non-recognition of government doesn’t affect the recognition of a state.

A state remains recognized the only consequence of the non-recognition of the new revolutionary government is the suspension of the bilateral relations between the existing state and the new government. As soon as the said government is to be replaced by any other government if recognized, the relations shall be re-continued on the same pattern as were with the previous government of the revolutionary one. The consequences of the recognition of a new government mean keeping the relations in the same manner as were with the previous government.

Recognition of Belligerency

Belligerency is the treatment to consider a civil war like a real war between two rival powers by other existing states The recognition by the existing states of the rebels in case of civil war in a belligerent state is said to be recognition of belligerency.

In other words, when a state goes into a state of belligerency where the rebels have considerable control over a substantial territory of the nation, the rebels may be recognized by the existing state. Such recognition is said to be recognition of belligerency.

Conditions

There are the following conditions for the movement of rebels to be recognized by other states:

1. That the movement shall be general.
2. That rebels shall have in possession a substantial part of the national territory.
3. That they are giving respect and bind themselves for the warfare laws and other international duties.
4. That they have a proper force, if the above conditions have been fulfilled by rebels, then they may be recognized by other existing states and shall enjoy international rights.

Recognition of Insurgency

The recognition by existing states of the de facto authority over a large territory of the rebels is said to be an insurgency. In the case of insurgency, the rebels or the insurgents occupy a large part of the national territory,y which was formerly governed by the parent government. And if they are capable of controlling that occupied part, then the existing states may recognize it.

Conditions

Recognition of states remains a crucial aspect of international law, affecting diplomatic relations and state legitimacy. While the debate between constitutive and declaratory theories continues, in practice, recognition is influenced by both legal and political considerations. The modes and forms of recognition vary, with de jure recognition being the most stable and significant. Furthermore, recognition extends beyond states to governments, belligerents, and insurgents, shaping international relations and conflict resolution.

Recognition is ultimately a political act with legal consequences, making it one of the most complex and debated subjects in international law.

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