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The Concept Of State Recognition With Respect To Public International Law

The 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. There are 198 countries in the World.193 member states of the United Nations. Two countries Palestine and the Vatican –Observatory Status. Three countries Kosovo, Taiwan ,Western Sahara recognized by most other Countries.

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 of Recognition:

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.

Theories Of Recognition:
There are mainly two theories of Recognition which may be discussed as under:
  1. Constitutive Theory
    Oppenheim, Hegel and Anziloti are the chief exponents of this theory. According to this theory, the only certificate to issue international personality to a new born state is the consent of the already existing states.
     A new entity shall only be called a State when the existing states acknowledges about its Statehood. So, the independence of a new entity shall not amount it to be called a State unless it has not recognized by the existing States.

    Criticism
    1. The theory has severely been criticized by a number of Jurists.
    2. The States do not seem to accept recognition as a legal duty.
    3. It creates many difficulties when a community claims of being a new state and its non-recognition will.
    4. It has no rights, duties and obligations under International law
    5. The theory is not correct in any sense so shall be rejected.
       
  2. Declarative Theory Or Evidentiary Theory
    The chief exponents of this theory are Hall, Wagner, Fisher and Brierly.
    According to this theory, the statehood or the authority of new Government is not dependent on the consent of the existing state but is based on some prior or existing fact.
    According 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, the statehood is dependent on the some prior conditions necessary for an entity to be called as a state.

    Criticism
    1. The theory has also been criticized , because it is not correct that in all cases, the existing fact shall imply the statehood, rather some time, the statehood may be Constitutive.
    2. In fact there shall be intermediate Course of approach between the two theories to understand recognition.
    3. The definition of Recognition depends upon the mode, scope and nature of each case.
    4. Recognition may be sometimes Constitutive and sometimes declaratory.

Modes Of Recognition

There are two modes of recognition , which may be given:
  1. De facto Recognition
  2. De jure Recognition

Defacto Recognition

Dejure Recognition

  1. The Provisionally grant, that is subject to fulfillment 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 Defacto Recognition
  2. The grant of recognition to a newborn state by an existing state, when its considers that such new born state has attained all the attributes of statehood with stability and permanency is called Dejure Recognition.
  3. It is Provisional recognition subject to fulfillment of all attributes of Statehood.
  4. It is absolute recognition granted to a state which have attained all the attributes of Statehood, Possess sufficient control with Permanency.
  5. It creates few essential rights and duties for recognized and recognizing States.
  6. It creates absolute rights for the parties thereto.
  7. It does not create full diplomatic intercourse between the parties.
  8. It creates full diplomatic intercourse between the Parties.
  9. The full diplomatic Immunities are not granted in this case.
  10. Here, full diplomatic relations are granted to the recognized State.
  11. In this case, the recognized state cannot claim for the property situate in the recognizing state’s territory.
  12. In this case, the claim can be made.
  13. In such a case, the Official visits & dealings may be subjected to limitations.
  14. In such a case, limitations are not necessary.

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. 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 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 states. So if such acts purport intention of recognition , it is said to be implied recognition.
     
  3. Conditional Recognition
    The grant of recognition by an existing state to a newly born state stipulated on fulfillment 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 fulfillment 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 with certain other conditions for the recognized State to be fulfilled.
     
  4. Premature Recognition
    There is often a difficult and unclear dividing line between the acceptable recognition of a new state, Particularly one that has emerged or is emerging as a result of secession, and intervention in the domestic affairs of another State by way of Premature or Precipitate Recognition.
     
  5. Collective Recognition
    The recognition by means of an international decision, whether by an international organization or not , Of course , Signify the importance of the international Community in its Collective assertion of Control over membership is called Collective Recognition.

    The idea has been discussed since the foundation of the League of Nations and again re-emphasized with the establishment of the United Nations, The membership of the United Nations Constitutes Powerful evidence of Statehood.
     

Doctrine Of Non-Recognition:

A factual situation will not be recognized because of strong reservations as to the morality or legality of the actions that have been adopted in order to bring about the factual situation. It is a doctrine that has also been reinforced by the principle that legal rights cannot derive from an illegal situation (ex injuria jus non oritur). This approach was particularly stimulated by the Japanese invasion of Manchuria in 1931.U.S Secretary of State declared in 1931, the illegal invasion would not be recognized , it was contrary to 1928 pact of Paris(the Kellogg-Briand Pact).

Withdrawal Of Recognition

Withdrawal of Recognition may be explained as under:
  1. Withdrawal of defacto Recognition
    Withdrawal of defacto recognition is possible under International law only on the ground that if the recognized State has been failed to fulfill the Pre-requisite condition for Statehood. In such a case, the recognizing state may withdrawn from the recognition by Communicating a declaration to the authorities of recognized stated or by a Public Statement.
     
  2. Withdrawal of dejure Recognition
    There are different views about the withdrawal of dejure recognition. But according to the strict letters of International law and by the virtue of some Conventions in this behalf, it is evident that the withdrawal of dejure recognition is not valid in any case.

    Though recognition is a political act but dejure by nature and Status it is a legal Oriented.

    But some Jurists think that dejure recognition may be withdrawn , because it is a Political act. But in fact it is not so. Only those dejure 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 issue a Public Statement to that extent.

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, 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.

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 Obligations. The Recognition may be either defacto or dejure. 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.

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. The Consequences of the recognition of a new government means to keep the relations in the same manner as were with the Previous government.

Recognition Of Insurgency

Belligerency is the treatment to Consider a civil war as 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.

 When a State goes in a State of belligerency where the rebels have a Considerable Control over a Substantial territory of nation, the rebels may be recognized by the existing State. Such recognition is said to be recognition of belligerency.

There are certain conditions that are to be followed 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 the other existing States, and shall enjoy the international rights.

Recognition Of Belligerency

The recognition by existing states, the defacto authority over a large territory of the rebels is said to be Insurgency. In 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 over that occupied part, then the existing states may recognize it.
Prior to recognize the insurgency, it is necessary for the recognizing state to Satisfy the following Conditions:
  1. Firstly, When insurgents Occupies a considerable Parent State’s territory.
  2. Secondly, They have a Support from the majority of the Citizens of the Parent State
  3. Thirdly , they are acting under a Proper Command.
  4. Fourthly, they have good control over the Occupied territory.
When in case of an insurgency , the above requirements have been complied with then , it is on the discretion of the existing State whether to recognize or not.
The recognition of an insurgency is the first step towards the diplomatic relations with their government. But if the insurgency did not Succeed in their attempt after recognition by the any existing State, the recognition shall be deemed to have been extinguished.

Conclusion
Although recognition may legitimately be regarded as a political tool, it is one that nevertheless entails important Consequences in the legal field. The legal effects that often flows as a result of recognition or non-recognition of an entity, both in the international sphere and within the municipal law of particular State. When a state acquires recognition, it gains certain rights, obligations and Immunities such as. It acquires the capacity to enter into diplomatic relations with other states. It acquires the capacity to enter into treaties with other States.

Bibliography:
  1. Malcolm N Shaw Q.C – International law 6th edition
  2. H O Agarwal – A concise book on International law and Human Rights 5th edition August 2018,Central law Publications.
  3. Dr. S.K. Kapoor – International law and Human Rights 2017 , Central law Agency
  4. Mayank Madhaw –Public International law and Human Rights (Law of Peace), 2018.

    Award Winning Article Is Written By: Ms.A.Jonah Elisa Shiny
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