September 17, 2021

Recognition of States under International Law

International-Law

Introduction

A new state is born out from an existing State or an old State which disappeared and comes with a new name or by splitting an existing State into two States. If a new state enjoys certain rights, privileges and obligations then it must get recognition as a state, which is very essential. However, there are some minimum criteria required before a State is considered to be a State. A State must get the De Jure (when a state is legally recognized) recognition for considering a State as a sovereign State. Political thought plays an important role in this decision whether to grant recognition or not. For recognition as a State, it must enter into relations with the other existing States. The elements, theories, and processes are reflected in this article.

Meaning of Recognition

The term “Recognition” means ratification, confirmation, acknowledgment that something done by any other person in one name had one’s authority.

Recognition of State

“In recognizing a state as a member of international community, the existing states declare that in their opinion the new state fulfills the conditions off statehood as required by International law” (Oppenheim)

According to Kelsen

The country to be recognized as an international person must be:-

  1. Politically organized
  2. Have control over a definite territory.
  3. Which tends towards permanence.
  4. And must be independent.

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:

  • Population;
  • Territory;
  • Government;
  • Sovereignty;
  • Control should tend towards permanency.

If these conditions are fulfilled, then the State can be recognized.

Legal Effects of state 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 state 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 of a State

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

These are the two modes of recognition.

 De facto Recognition-  It is the process of acknowledging a new state by a non-committal act.

  • De facto recognition is a provisionally grant.
  • It is the first step to the next mode of recognition.
  • It is a temporary and factual recognition as a state
  • It can either be conditional or without any condition.
  • A test of control for newly formed states.

When the other existing countries have an opinion that the new state does not have enough capacity but the new state holds a sufficient territory and control over a particular territory.

Example: The Soviet Union was de facto recognized by the government of the UK in 1921.

De jure recognition

When the other existing countries have an opinion that the new state has all the eligible capacity then such state will be recognized by the de jure recognition. To grant recognition under the de jure method there is no need for the fulfillment of the first mode.

  • It is granted when the newly formed state acquires permanent stability and statehood.
  • It grants the permanent status of a newborn state as a sovereign state.

Example: The Soviet Union was given de jure recognition Soviet Union was in 1924.

In conclusion, there is no distinction between de facto and de jure as it is for the states to give effect to the internal acts of the recognized authority. This was held in the case Luther v. Sagar [3]. [(1921)3 KB 532]

The distinction between De Facto and De Jure Recognition

S.No.De facto RecognitionDe 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.

As soon as the de facto recognition is given, the Government acquires sovereign immunity from being sued in the courts of a foreign State which so recognizes it. It does not matter in such cases, whether de facto or de jure recognition is given, because a de facto recognition dates back in the same manner as a de jure recognition. This rule has been applied in a number of cases viz. Bank of Ethiopia v. National Bank of Egypt & Ligouri (1937) 3 All ER 8. The Arantzanu Mendi (1939) 1 All ER 719. So far as conflict of authority takes place between a displaced de jure government and a newly recognized de facto government, concerning matters in the territory ruled by the de facto government, the rights and status of de facto government will prevail.

Forms of State 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.

An example is Palestine Liberation Organization (P.L.O.), recognized by many States including India. In contrast to de facto government, governments-in-exile lack effective control over the territory of a State and have been accorded de jure recognition.

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.

References

  1. United Nations, https://www.un.org/en/sections/issues-depth/international-law-and-justice/index.html.
  2. Montevideo Convention on the Rights and Duties of States, https://www.ilsa.org/Jessup/Jessup15/Montevideo%20Convention.pdf.
  3. Luther v. Sagar, (1921)3 KB 532.
  4. Bank of Ethiopia v. National Bank of Egypt & Ligouri (1937) 3 All ER 8
  5. Verma S.K, Introduction to Public International Law, 2nd Edition,2014.
  6. Recognition of a State under International Law, https://blog.ipleaders.in/recognition-state-international-law/
  7. Recognition of State – its implication, modes, and necessity, Legal Bites, https://www.legalbites.in/recognition-state-implication-modes-necessity/
  8. Dr. Walid Abdulrahim Professor of Law, Recognition, https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/8-recognition.

Author Details: Ayushi Chaudhary (Amity Law School)

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