RECOGNITION OF STATE UNDER I.
L
The identity and number of states belonging to the international community are by no
means fixed and invariable. Old states disappear or unite with other states to form a
new state, or disintegrate and split into several new states, or former colonial or vassal
territories by process of emancipation to free themselves and to attain statehood. The
international community is the community of sovereign states at an international
platform. For any state to enjoy the rights, duties and obligations of international law
and to be a member of the international community, recognition of the entity as a state
is very important. Only after recognition of the entity as a state, it becomes
acknowledged by other states who are a member of the International Community.
International law considers the act of recognition as an independent act of the existing
statehood community.
Recognition of state under the International Legal System can be defined as “the
formal acknowledgement or acceptance of a new state as an international personality
by the existing States of the International community”. The recognition of a state under
international law is a declaration of intent by one state to acknowledge another power
as a "state" within the meaning of international law. Recognition constitutes a
unilateral declaration of intent. It is entirely at the discretion of any state to decide to
recognize another as a subject of international law.
ESSENTIALS-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:
1. It should have a permanent population.
2. A definite territory should be controlled by it.
3. There should be a government of that particular territory.
4. That entity should have the capacity to enter into relations with other states.
LEGAL EFFECTS-Although recognition is essentially a political act, it is one that
entails important legal consequences. Recognition involves legal effects both in the
international level and in the domestic level. If an entity is recognized as a State, it will
be entitled to rights and subjected to duties that would not be relevant otherwise, and it
will enjoy privileges and immunities of a foreign State before the national courts of
other States, which would not be allowed to other entities.
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.
7. The recognized state becomes entitled to its sovereign immunity as well as its
property in the courts of recognizing state.
8. 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.
The legal effect of the recognition or non-recognition of the government under
international law is lucidly discussed by Judge Taft in the Tinoco Arbitration Case.
As per the facts of this case, in 1919, the government of Tinoco in Costa Rica was
overthrown and the new government in place refused to abide by certain contractual
obligations entered into by the Tinoco Administration with some British nationals. At
the relevant time, number of States including the UK had not recognised the Tinoco
Government. The Court held that irrespective of the fact that the Tinoco Government
had not been recognised by many States, since the administration was in effective
control of the country it was a valid government and thus, the subsequent Government
was bound to respect the contractual obligations entered into by the earlier
Government. In other words, the learned Arbitrator held that recognition by other
States only had declaratory effect and such recognition could only be used as evidence
to ascertain is the {& government was in effective control of the State or not. If the
recognition was refused on the ground of illegitimacy of origin rather than lack of
effective control, as had been done in the case, such non-recognition would lose its
evidential value.
The recognition of a new entity as a sovereign state is based on two main theories:
Consecutive Theory- According to this theory, it is the act of recognition by the
existing states which “creates a new state and endows it with legal personality”. Thus,
even if an entity meets the criteria of statehood, it does not acquire an international
legal personality unless it is recognised as such by the already existing states.
Constitutive theory relies on subjective satisfaction of the existing state for creation of
new states.
Consecutive theory is essentially based on the positivist view of international law,
which postulates that international obligation for the state can only be created by their
consent. According to positivists since new States add to the obligation of already
existing states, consent of such state is necessary for creation of new states, or at least,
for application of international law to the new states in their relation with other states.
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.
Some of the major supporters of consecutive theory are Oppenheim, Hegal and
Anziloti.
Illustration-Suppose there are four States, viz., A, B, C and D in the world
community. Entity E, a former colony of State B, declares its independence. According
to constitutive theory, E will acquire international legal personality of State only upon
its recognition as such by existing States. If E receives recognition of all the existing
States, i.e., States A, B, C and D; its legal status as State will be well-established, and
E will become a full-fledged member of the international community. If E receives
recognition only from States C and D whereas States A and B refuse recognition, E
will come into existence as against States C and D only, whereas, as against States A
and B, E will have no international existence at all.)
Declaratory Theory: According to this theory, an entity ipso facto acquires legal
personality of state “from the moment and from the moment only, at which” it factually
meets the criteria of statehood. Thus, criteria of statehood is a matter of fact. And as
soon as a new state comes into existence, it becomes member of the international
community as a matter of right.
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. The main exponents of the Declaratory
Theory of Statehood are Wigner, Hall, Fisher and Brierly
Illustration-Suppose there are four States, viz., A, B, C and D in the world
community. Entity E, a former colony of State B, declares its independence. According
to declaratory theory, if E factually meets the criteria of statehood, it acquires
international status of State the moment it declares its independence irrespective
whether it is recognized as such by other the other States.
The recognition of the govts. primarily takes place in two forms, namely de
facto and de jure recognition.
1. De facto recognition means recognition in fact, whenever there is doubt regarding
the long-term viability of the government in question, other states might extend de
facto recognition to such government. De facto recognition is temporary in nature,
which is followed by de jure recognition if the government in questions subsequently
consolidate its control over the state. For example, the UK recognise the Soviet
government de facto in 1921 and de jure in 1924.
De facto recognition is a provisional recognition of statehood. It is a primary step to de
jure recognition. It is a temporary and factual recognition as a state, and it can either be
conditional or without any condition.
This mode recognition is granted when a new state holds a sufficient territory and
control over a particular territory, but the other existing states consider that it does not
have enough stability or any other unsettling issues. So, we can consider it as a test of
control for newly formed states. De facto recognition is a process of acknowledging a
new state by a non-committal act.
The state having de facto recognition are not eligible for being a member of the United
Nations. e.g., Israel, Taiwan, Bangladesh.
2. De jure recognition is recognition in law. It is the fullest form of recognition with
all the legal incidents accompanied by such recognition. When there is no dispute
regarding effective control exercised by the govt, and if there is no other reason for not
recognising such government, the government will be recognised as de jure govt.
De jure recognition is the recognition of a new state by the existing state when they
consider that the new state fulfils all the essential characteristics of a state. The de jure
recognition can be granted either with or without granting de facto recognition. This
mode of recognition is granted when the newly formed state acquires permanent
stability and statehood The De jure mode of recognition grants the permanent status of
a newborn state as a sovereign state.
In the case of Luther v. Sagar, it was held in this case that for the purpose of giving
effect to the internal acts of the recognised authority there is no distinction between de
facto and de jure.
{Premature Recognition- Recognition is premature when an entity is granted
recognition as state even before it has fulfilled the criteria of statehood. As we have
seen before granting recognition is considered a political act, and there is no hard and
fast rule as to the exact time at which the state might decide to grant recognition to the
state or the government. In practice, the states have, on few occasions granted
premature recognition to other state influenced by their own national interests. It is
also difficult to ascertain the precise movement at which the new state is created or the
new government has been established. This is especially true in cases of new states
arising from secession or revolution. If in such cases, the existing state grant
recognition to the new state prematurely, it might be taken an intervention in the
internal affair by the parent states. Thus, the state had to be very careful while granting
recognition to the new state, because premature recognition might amount to an
unlawful act.}
Distinction between De Facto and De Jure Recognition
S.No
De facto Recognition De jure Recognition
.
De facto recognition is a
1. provisional and factual De jure recognition is legal recognition.
recognition.
De jure recognition is granted when the
De facto recognition is granted
state fulfils all the essential condition of
2. when there is the fulfilment of the
states along with sufficient control and
essential conditions of statehood.
permanency.
De facto recognition is a primary De jure recognition can be granted either
3. step towards grant of de jure with or without grant of de facto
recognition. recognition.
De facto recognition can either be De jure recognition is a final and non-
4.
conditional or non-conditional. conditional recognition
De facto recognition is revocable
5. De jure recognition is non-revocable.
in nature.
The states recognised under this The state recognised under this mode
6. mode have only a few rights and have the absolute right and obligations
obligations against other states. against other states.
The state with de facto cannot The state with de jure recognition can
7.
undergo state succession. under state succession.
The state with de facto
The state with de jure recognition enjoys
8. recognition cannot enjoy full
full diplomatic immunities.
diplomatic immunities.
Illustration: Recognition of the Soviet Union was done in 1917. It was de facto
recognised by the government of the UK in 1921, but it was not given de jure
recognition until 1924. Bangladesh was established in March 1971. India and Bhutan
recognised it just after 9 months of establishment, but the United States gave it legal
recognition after nearly 1 year in April 1972.
Implied Recognition: Recognition can be either expressed or implied. Recognition is
express when it is open, unambiguous and granted in form of a formal communication.
However, recognition is not always express and it can also be implied in certain
conditions. The recognition might be implied from any act of a State which clearly
indicates its intention to recognise the new State. Circumstances in which recognition
may be implied are as under:
(1) Sending congratulatory message to the new State or government.
(2) Formal establishment of diplomatic relations
(3) Conclusion of bilateral treaties. However, such recognition is not to be implied
when the States participate in conclusion of the multilateral treaties. For instance,
Israel and Arab countries are members of the UN, but that does not mean that the Arab
States have impliedly recognized Israel.
(4) Voting in favour of UN membership: Article 4 of the UN charter provides that only
States can become member of the UN. Thus, the States which vote in favour of
membership of a new State can be implicitly to have recognised its Statehood.
In recent years implied recognition has assumed greater significance because many
States including the UK have adopted the policy of not granting express recognition to
new governments. This practice was adopted in order to avoid the situations where the
express recognition of new governments coming into power by unconstitutional means
was considered as approval of such unconstitutional regimes. Thus, many States
including the US, UK, Belgium, France, Australia, Canada, Netherlands, New Zealand
have adopted the policy of not granting formal recognition to the new governments. As
per this policy whenever a new government comes in power, the existing states decide
as to whether they wish to engage with the new government, and if the answer is yes,
the existing states proceed to engage the new government without extending the
formal recognition to such government. In other words, instead of express recognition,
the states grant implied recognition to the new Govt by means of officially engaging
with it. Although the focus has shifted from express recognition to implied recognition,
the criteria for recognition are still the same.
