RECOGNITION OF STATE AND ITS

VARIOUS NUANCES.

SUBMITTED BY:
SUNIDHI SACHDEVA
ROLL NUMBER:58
B.A. LLB. (REGULAR)
4TH SEMESTER
PUBLIC INTERNATIONAL LAW
 INTRODUCTION
International society is not an unchanging entity, but is subject to the ebb and flow of
political life. New states are created and old units fall away. For example: Poland and
Czechoslovakia were formed by the instrumentality of the Treaty of Versailles.
Insurgencies occur and belligerent administrations are established in areas of territory
hitherto controlled by the legitimate government. Each of these events creates new
facts and the question that “Each state will have to decide whether or not to recognise
the particular eventuality and the kind of legal entity it should be accepted as.”

Each state conducts its relations with other states on the basis of particular
understanding of the legal status of those other states. In most of the cases, such
understandings are controversial and amount to a recognition of the status quo.
Recognition is the formal acknowledgement of the status of an independent state by
other already existing states. It must be noted that recognition is neither a contractual
arrangement nor a political concession. It is basically a declaration of the existence of
certain facts.

As to recognition of a state, the Montevideo Convention, 1933 has specified that the
State should possess four qualifications:

1. Permanent Population.

2. Definite Territory.

3. Government.

4. Capacity to enter into relations with other states.

When possession of these attributes mentioned above in a state is acknowledged by

other existing states, it is known as Recognition of a State. 1

1
Ashok K. Jain, Public International Law and Human Rights 88 (Ascent Publications, Delhi, 5th ed.,
2016)
THEORIES OF THE RECOGNITION OF STATES.

The legal significance of recognition is controversial. This has led to emerge different
theories. There are basically two theories as to the recognition of states. These
theories attempt to explain the nature, basis and the effect of the act of recognition.

CONSTITUTIVE THEORY:

EXPONENTS: Hegel, Anzilloti, Oppenheim, etc.

The Constitutive theory lay emphasis on the fact that it is the recognition by other
states that create a new state and endows it with legal personality and not the process
by which it actually gained independence. Thus, new states are established in the
international community as fully fledged subjects of international law by virtue of the
will and consent of the already existing states.2 This theory does not take into
consideration whether or not a State possesses essential attributes of Statehood.

The exponents of Constitutive theory want the institution of recognition to be made

under a system of law and that is why, Lauterpacht, posits a legal duty on the part of
the existing states to recognize any community that has, in fact, acquired the
characterstics of Statehood. He maintained that once the conditions prescribed by
international law for statehood have been complied with, there is a duty on the part of
the existing states to grant recognition. This is because, in the absence of a central
authority in international law to assess and accord legal personality, it is the states that
have to perform this function on behalf, as it were, of the international community and
international law.3

However, this theory is criticised on a number of grounds. Firstly, Recognition is the

political act of a state. If this theory is accepted, it would mean that the fate of a new
state would be determined by the other states.

Secondly, there is no legal duty on the part of the existing states to recognize any
community that has, in fact, acquired the attributes of Statehood.

2
J. Crawford, The creation of States in international law 17 (1979)
3
H. Lauterpacht, “Recognition of State in International Law” Vol. 53, No. 3, YLJC (1944)
Thirdly, Recognition of a State can be done by a few states while the others might
refuse. For example: Palestine is recognized as a country by 80 nations though it does
not have a definite territory, population and a government.

Fourthly, a state do have some rights and obligations under international law, even
without recognition.

DECLARATORY THEORY:

EXPONENTS: Hall, Wagner, Brierly, Fisher, etc.

This theory adopts an opposite approach and is little more in accord with practical
realties.4 It maintains that recognition is merely an acceptance by states of an already
existing situation. A new state will acquire capacity in international law not by virtue
of the consent of others but by virtue of a particular factual situation. It will be legally
constituted by its own efforts and circumstances and will not have to await for the
procedure of recognition by other states.

Brierly has stated “A State may exist without being recognized, and if it does exist in
fact, then, whether or not it has been formally recognized by other states, it has a right
to be treated by them as a State.”

In practice, most of the states accept the declaratory theory. The theory also finds
support in the fact that recognition has retrospective effect. The Tinnoco Concessions
case5 seems to support this theory.

This theory is criticised on the ground that it fails to explain legal rights and
consequences of a recognized state. For example: Taiwan is a democratic country and
has adjoining areas with Chinese territory. Only few countries recognize Taiwan yet,
it has business dealings with almost all countries of the world.

4
JL Brierly, The Law of Nations 138 (Oxford Publications, 6th ed., 1963)
5
1923 UN Rep1 p. 369
 LEGAL EFFECTS OF RECOGNITION

Following are the main Legal effects of recognition:

1. Recognised state becomes entitled to sue in the courts of the recognizing State.

2. Recognised state is entitled to sovereign immunity for itself as well as its

property in the courts of the recognizing state.

3. Recognised state is entitled to the succession and possession of property

situated in the territory of the recognizing state.

4. Recognised state may enter into diplomatic and treaty relationships with the
recognizing state.

CONSEQUENCES OF NON-RECOGNITION
 FORMS OF RECOGNITION

There are four forms in which a state can be recognized:

1. EXPRESS RECOGNITION:

When an existing state recognizes the new state by a notification or

declaration (public statement), announcing the intention of recognition, the
recognition is said to be express. For example: In 1991, three Baltic Republics
were expressly recognized by India when the Indian PM sent the messages to
this effect to the president of these states.

2. IMPLIED RECOGNITION:

The recognition results from any act which implies the intention of
recognizing the new state. The intention may be indicated by the States
unilaterally or collectively.

(a) Unilateral acts: When a state enters into a bilateral treaty with an
unrecognized state, it may be inferred that the former has granted
recognition to the latter. Similarly, intention may also be inferred by
sending representatives to attend ceremonial functions in an unrecognized
state.

(b) Collective acts: It occurs when an unrecognized state participates in a

multilateral conference or treaty, the other participants are regarded to
have recognized the new state if the intention has been indicated.

3. CONDITIONAL RECOGNITION:

This refers to the practice of making recognition subject to fulfilment of certain

conditions, for example, the good treatment of religious minorities, as occurred with
regard to the independence of some Balkan countries in the late-nineteenth century, or
the granting of the most favoured nation to the recognised state. Another great
example of this form of recognition can be seen in 1878 when Germany imposed a
condition that the states Bulgaria and Romania will be recognized only when the said
states shall not discriminates its people on the basis of religion.
However, the failure to fulfil the obligations does not annul the recognition, as once
given it cannot be withdrawn6. The recognized state will be guilty of a breach of
international law, and this will allow the recognizing State to severe diplomatic
relations as a form of sanction.

RECOGNITION OF GOVERNMENT

The recognition of a new government is quite different from the recognition of a new
state. Different conditions will apply where it is the government which changes.
Recognition will really only be relevant when the change in the government is
unconstitutional. Recognition of a government constitutes acceptance of a particular
situation by the recognising state both in terms of the relevant factual criteria and in
terms of the consequential legal repercussions, so that, for example, recognition of an
entity as the government of the state implies, not only that this government has
satisfied the required conditions, but also that the recognising state will deal with the
government as the governing authority of the state and accept the legal usual
consequences of such status in terms of privileges and immunities within the domestic
legal order.

MODES OF RECOGNITION

There are two modes of recognition: de facto recognition and de jure recognition.

1. DE FACTO RECOGNITION:

This recognition is granted to the State which is, though in effective control of
a territory, has not acquired sufficient stability. It means that the State
recognized possesses the essential elements of statehood and is fit to be a
subject of international law, but it is doubted that it may be able to fulfil its
obligations under international law. By granting de facto recognition, the
recognising community is liable to protect the interests of such a sate.
However, it has to be noted that such recognition is a provisional one and can
be withdrawn if the State fails to satisfy the obligations as requires.

6
MN. Shaw, International Law 387 (Cambridge University Press, 4th ed., 2016)
 2. DE JURE RECOGNITION:

This recognition, on the other hand, is permanent and legally binding. When an
existing state considers that the new state is capable of possessing all the essential
attributes of Statehood with stability and permanency, we cal, it de jure
recognition. As pointed out by HA Smith, the British practice shows that these
conditions precedent are required for the grant of de jure recognition:

(a.) A reasonable assurance of stability and permanence.

(b.) The government should command the general support of the population.

(c.) It should be able and willing to fulfil its international obligations.

Normally, according to the practice of the states, de facto recognition is granted to

start with and afterwards de jure recognition is extended.7 To take one instance,
The United Kingdom recognised the Soviet government de facto in 1921 and de
jure in 1924.8

The distinction between de facto recognition and de jure recognition are as

follows:

Firstly, the state recognised de jure can claim to receive property situated within
the recognising state, while the state recognised de facto cannot make such a
claim.

Secondly, de jure recognised state can represent the old state in matters of state
succession.

Thirdly, the representatives of de facto recognised entity are not entitled to full
diplomatic immunities.

Lastly, a de facto recognition can be withdrawn on several grounds other than

those normally justifying a withdrawal of de jure recognition.

7
, Principles of International Law 67 (5th ed.,
8
O’ Connell, International Law 161 (Stevens, 1965)