Recognition of State: Implication, Modes and Necessity

This international law article deals with the Recognition of State and its Meaning, Implication, Modes and Necessity.

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

Recognition of State

I. Meaning

The term recognition as an international legal term may be defined as under: “The acknowledgement or acceptance by the members of the international community, that a new state has acquired international personality, is said to be recognition.”

II. Essentials

The main essentials of recognition may be given as under:

1. That the community (of 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 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 as under:

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

In fact, 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 maybe sometimes 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 considers 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 fulfilment of all attributes of statehood.	De jure Recognition is absolute recognition granted to a state which has attained all the attributes of statehood, possesses sufficient control with permanency.
De facto Recognition creates few essential rights and duties for recognized and recognizing 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 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 of recognition of 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 fulfilment of some conditions in addition to the requirements of statehood is said to be conditional recognition. As for 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, has 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 for 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 stipulated 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 required by law. It is due to this reason that when in case of conditional recognition the recognized state if didn’t fulfil the prescribed condition the recognition shall be valid and not extinguished. Rather it will affect the relations between the recognized and recognizing 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 if the recognized state has been 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 recognized stated or by a public statement.

Withdrawal of de jure Recognition

There are different views about the withdrawal of de jure recognition. But according to the strict letters of international law and by the virtue of 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 but de jure it by nature and status it is legally oriented. But some jurists think that de jure recognition may be withdrawn because it is a political act. In fact 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 his express intention to the concerned authority to issue a public statement to that extent.

VIII. Recognition of Government

As we know that 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 it the existing states are not required to recognize the new government. But sometimes the change of a government takes place as a result of a revolution. In such a case, it becomes necessary to ascertain that 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 has a capacity to control and is willing to perform international duties and obligations. The recognition may be either de facto or de jure. And the intention may be expressed either by sending a message to the authority of the new government or to declare the same in a public statement.

The modern practice is seemed to reject the doctrine of recognition of new government. Now, some states 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 of relations 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. And 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 in 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 by the movement of rebels to be recognized by other states:

1. That the movement shall be of a general character.
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 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 which was formerly governed by the parent government. And if they are capable to control that occupied part then the existing states may recognize it.

Conditions

Prior to recognizing the insurgency, it is necessary for the recognizing state to satisfy the following conditions;

1. Firstly, when insurgents occupy a considerable parent state’s territory,
2. Secondly, they have support from the majority of the citizens of the parent state,
3. Thirdly, they are acting under a proper command and,
4. Fourthly, they have good control over the occupied territory.

When the in case of an insurgency the above requirements have been complied with then it is at the discretion of the existing state whether to recognize or not. The recognition of an insurgency is the first step towards diplomatic relations with their government. But if the insurgency did not succeed in their attempt after recognition by any existing state, the recognition shall be deemed to have been extinguished.

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