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Recognition of a State According to International Law | By Aniket Tiwari

The International community consists of a community of sovereign states at an international platform. For any state to enjoy the duties, rights, and obligations of international law, recognition of the entity as a state internationally is very important. Also, only after the recognition of any entity as a state, it is acknowledged by other states, who are already a member of the International Community. This act of recognition is an independent act of the existing statehood community.
Recognition of State under International Law can be defined as “ formal acceptance of a new State as an international entity by the existing State of the International Community”. It is given to political entities that have characteristics of statehood.

Essentials of State

Essentials for recognition as a state are mentioned in Article 1 of the Montevideo (Uruguay) Conference, 1933. It defines the state as a person and mentions the following criteria that an entity should possess in order to acquire recognition as a state:
  • Having a definite territory and should be controlled by it.
  • It should have a permanent population.
  • There should be a Government governing the territory.
  • The entity should have the power to enter into relations with other states.    

Theories of Recognition of a State

There are two main theories based on which recognition of a new entity as a sovereign state takes place. These theories are as follow:
  • Consecutive Theory
  • Declaratory Theory

Consecutive Theory

The main exponents of this theory are Hegal, Oppenheim, and Anziloti. According to this theory, for any political entity (state) to be considered as an International Person, its recognition by the existing states as a sovereign entity is required. This theory puts emphasis on the view that only after recognition a State gets the status of an International Person and thus becomes a subject of International Law. So according to this theory even if any entity possesses all the characteristics of a state, it does not get the status of an international person until and unless recognized by the existing state. According to this theory, a state only gets the exclusive rights and obligations and becomes a subject to International Law after recognition by other states.

Criticism:

Few criticisms of this theory are as follows:
  • It is criticized because according to this theory unless a state is recognized by other existing states, rights, obligations, and duties of the statehood community, under the International Legal System, are not applicable to it.
  • It leads to confusion when a new state is acknowledged by some of the existing states and not recognized by other states.


Declarative Theory

The main exponents of this theory are Hall, Wigner, and Brierly. According to this theory, any new state is independent of the consent by existing states. This theory is based on Article 3 of the Montevideo Conference, 1933. This theory states that even before recognition by other states, the new state has the right to defend its independence and integrity under the International Legal System. The followers of this theory consider the process of recognition as merely a formal acknowledgment of statehood by other states.

Criticism:

Like the other theory, this theory has also some flaws for which it is criticized. Many states believe that this theory alone cannot be applicable to the recognition of a state. When any entity has essential characteristics that come into existence as a state, it can exercise international obligations and rights, and then comes the application of declaratory theory. But in case, if other states acknowledged its existence and the states get the legal right of recognition then Consecutive Theory comes into play.

Modes of Recognition of a State

Here we will discuss the modes of recognition of a state, that are as follows:
  • De facto Recognition
  • De Jure Recognition
1.De facto Recognition
De facto Recognition is a provisional recognition of a state. It is a primary step to De jure Recognition. It is temporary and gives factual recognition as a state. It can be either conditional or without any condition. We can consider it as a test of control for newly formed states. Thus, De facto Recognition can be defined as a process of acknowledging a newly formed state by a non-committal act. These states are not eligible for being a member of the United Nations (e.g., Taiwan). The state with de facto recognition cannot undergo state succession. Also, de facto recognition is revocable in nature.

2. De jure Recognition
De jure recognition is the recognition of a state by the existing state when they consider that the newly formed states fulfill all the characteristics of a state. It can be granted either with or without granting De facto Recognition. It is generally granted when the newly formed state acquires permanent statehood and stability. De jure recognition gives the permanent status of a newborn state as a sovereign state. Thus, it is the legal recognition of a newly formed state. The state with de jure recognition can undergo state succession. It is non- revocable in nature.

Example of de facto and de jure recognition:

  • The recognition of the Soviet Union which was established in 1917 can be taken as an example of de facto and de jure recognition. It was de facto recognized by Britain in 1921 but it received de jure recognition in 1924.
  • This concept of de facto and de jure recognition of states can be easily understood by taking the example of Bangladesh. It was established in 1971. While India and Bhutan recognized it just after nine months of establishment. But the USA gave it legal recognition only after one year in April 1972.           

Forms of recognition of State

When any new state is recognized, its declaration can be made in the following forms:
  • Expressed Recognition
  • Implied Recognition

Expressed Recognition

When any existing state recognizes a newly formed state expressly through official notification or declaration, it is known as expressed recognition. It can be made through any formal or express means such as publishing or sending the declaration or the statement to the opposite party. It is a de jure recognition unless provided otherwise by the recognizing state in the declaration.     

Implied Recognition

When the existing state recognizes a new state through any implied act, not in an expressed manner then it is known as implied recognition. It can be granted through an implied means by which the current state treats the new state as an international person. It cannot be granted through any official declaration or notification. It varies from case to case.

Withdrawal of Recognition of States


From Defacto Recognition

Under the International Legal System, when a state having de facto recognition fails to fulfill the essential conditions of being a state then the recognition of such states can be withdrawn. It can be done by recognizing state through declaration or through communicating with the authorities of the recognized state. It can also be done by issuing a public statement.

From De Jure Recognition

Withdrawal of de jure recognition is a debatable issue under the International Legal System. It is a very exceptional event. Even though the process of recognition is a political act, de jure jurisdiction is of legal nature. When someone considers that de jure recognition as a political event, considers it revocable. It is possible only when the recognized state loses the essential elements of statehood. It can be done expressly by issuing a public statement.

Conclusion  

The recognition of the state is an essential procedure so that any state can enjoy all the privileges of the statehood community under international law. We can conclude that as both the theories of recognition, Consecutive Theory as well as Declaratory Theory, have certain flaws in them. Therefore, they should follow the theory in between consecutive and declaratory theory for recognition of a new state. Also, recognition of the state has too much political influence on the international platform. There have been instances where powerful states create an obstruction in recognition of a new state. This recognition can be withdrawn when the recognizing state feels that the new state is not fulfilling the prerequisites for being a sovereign state.
References
  1. https://www.ilsa.org/Jessup/Jessup15/Montevideo%20Convention.pdf
  2. http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/UNIT_III_INTERNATIONAL_LAW.pdf

ANIKET TIWARI
B.A. LL.B. (HONS.)
Law School
BANARAS HINDU UNIVERSITY, VARANASI
EMAIL ID - anikettiwari1000@gamil.com          



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