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Concept of State Recognition Under International Law

Main addressors of the international law are 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 have given awareness of its capability of being a state. Such awareness by existing states is called recognition.

According to International Law, Recognition is the formal acknowledgment of the status of an independent State by other existing states.

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

Essentials:
The main essentials of recognition may be given as under:
  • That the community ( of new state ) must be politically organized
  • That it should have control over a definite territory,
  • That the control should tend towards permanency,
  • That such community must be independent. In other words, the attributes of statehood are people, territory, Government, and sovereignty.

Theories of Recognition:

Recognition of a State is more of a political concept than a legal concept because there are no specific rules for recognition of a State.
There are two popular theories laid down for the purpose of understanding the nature of recognition:
  1. Constitutive Theory
  2. Declarative or Evidentiary Theory

Constitutive Theory:

According to this theory, recognition is a necessary condition for statehood and personality. It is a process by which a political community acquires personality and becomes a member of the family of nations. A State comes into existence through recognition only and exclusively.

Examples:
  • Poland and Czechoslovakia were recognized by the instrumentality of the Treaty of Versailles.
  • Germany was divided into two parts after the World War II by a treaty
  • Korea was divided into two parts.

Disadvantages of the Theory:

  • Recognition is political and diplomatic but not legal. This theory imposes an obligation on all member states to recognize a State. Practically, no states wants to do something on obligation.
  • There is no law the obliges established states to recognize new States.
  • Recognition of a State can be done by few States and others might refuse. According to this theory, the recognition should be done by all the States.
  • Palestine is recognized as country by 80 nations thought it does not have a definite territory, population and a definite Government.
  • Israel is formed in 1947 by the United Nations Organizations. Within few hours, many countries too recognized it. However, India recognized it in 1992.

The theory fails to explain Legal rights and consequent of a recognized state.

Example:
Taiwan is a democratic country and is adjoining areas where Chinese territory. Only few countries recognize Taiwan yet it had business dealings with almost every country.

Declarative Theory or Evidentiary Theory:
This theory states that declaration is a mere formality and has no legal effect as the existence of a State is a mere question of fact.

Every new state becomes a member of the family of nations ipso facto by its coming into existence. Recognition only provides the evidence to this fact. This theory says recognition is not important.

Modes of Recognition:

There are two modes of recognition, which may be given;

De Facto Recognition:
This is a provision recognition and not a permanent one. i.e it can be withdrawn by other States at any time. It is the first step towards becoming a recognized country. Recognition is only by fact and not legal. State may have more than one Governments. No exchange of diplomatic representatives takes places. State succession might not happen. Mere de facto recognition is not sufficient to get UN membership.

Example:
Israel, Bangladesh, Taiwan, Sahawi Arab Republic etc.

De Jure Recognition:

This is a permanent recognition which one granted cannot be taken back or withdrawn by other States. It is regal and rightful. State will have only one Governments. Exchange of diplomatic representatives takes places. State succession happens smoothly. de jure recognition by majority states his essential for UN membership.

Related Case Laws:
Luther vs. Sagor (1921 (1) KB 456)


Forms of Recognition:

There are following two forms for the declaration of recognition:
  1. 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.
     
  2. 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 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 intention of recognition, it is said to be implied recognition.

Recognition of Government:

Government is an essential of 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 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 obligation. 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, the some states as 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 means to keep the relations in the same manner as were with the previous government.

Doctrines for State Recognition of Government:

  1. Tobar Doctrine

    (No Recognition for Unconstitutional Governments)
    1907 - Named after Carlos Tobar, Foreign Relations Minister of Ecuador, the doctrine states that; recognition of government should only be granted if its administration came to power by legitimate democratic means. It was primarily adopted by Central American States in 1907. Later recognition of the US to this doctrine turned it to be known as Wilsonian Policy. The US applied it in Tinoco government of Costa Rica. The doctrine never worked outside Americas.
     
  2. Estrada

    (Recognize Existence of Government not Legitimacy)
    1930 - Named after Mexican Secretary of Foreign Affairs, Genaro Estrada, the doctrine states that; Recognition of government should be based on its de facto existence rather than on its legitimacy. This policy based on the principles of non-intervention and self-determination of all nations does not allow the states to assess the legitimacy of governments of other each others.

Stimson Doctrine

1932 - Named after American Secretary of State, Stimson, this doctrin pledged, Not to recognize international territorial changes brought about by the aggression. The doctrine was application of a principle, 'ex injuria jus non oritur' means illegal act cannot create law. Later, in 1970, UN General Assembly declared that, 'no territorial acquisition resulting from the threat or use of force shall be recognized as legal.'

But in practice this theory has not been put into effect same as the others. For instance, UK, though late but gave de jure recognition to the Italian conquest of Ethiopian land in 1936 and also the Soviet conquest of Baltic Republics (Estonia, Latvia, and Lithuania) in 1940. Thus the doctrine could prevent recognition but mere delayed.

The theory also had one positive application in 1990 when UNSC adopted a resolution for not recognizing the Iraqi annexation of Kuwait.

Written By: Sunil Kumar, is a 4th Year, BBA LL. B (Hons.), Student at Raffles University, Neemrana, Rajasthan, India.
In this article, I give my own answer to this broad question, by answering several other, more specific questions.

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