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Recognition And Its Types In International Law

International societies are not unchangeable entities rather they depend upon the ebb and flow of political circumstances. Entities change day by day and time by time. Their agendas change, their political belief changes, their government changes etc. Some new entities or insurgents or belligerents come into existence, they seek their recognition against other .new facts and questions arise as to whom to give recognition, what are the basic needs or the rules to get an entity recognized, who can recognize others etc. Recognition involves consequences on both international and municipal platforms.

Recognition is a statement by a legal person as to the status in international law of another real or alleged legal person of the validity of a particular factual situation. Rights and duties come in handy with recognition. Any entity which gets recognized has some rights and duties in international law toward other legal persons and they have to follow some particular set of rules and regulations. Recognition can be extended to states, governments, insurgents belligerents.

Now talking about theories of recognition of states there are two theories related to it:
  1. Constitutive theory:
    This theory states that it is the act of recognition that gives the legal personality to the new state. They can not get legal rights and duties only by the virtue of their independence. To get into the legal arena of international law, they have to get recognition from other states. Their rights and duties under international law depend on the will of other states. Their acts do not make them a legal entity. Although this theory is not very ideal because it allows unrecognized states to not follow some basic international rules such as the use of force aggression etc.
     
  2. Declaratory theory:
    This theory is just the opposite of the abovementioned theory. It says that the recognition of a new state does not depend on the will of other existing states. Act of recognition is just a mere acceptance of already exiting states. Their rights and obligations in international law are not by the virtue of other states but based on some facts and situations. It says that rights and duties do not arise as a result of recognition. it says that a new state gets its legal identity based on its efforts and not because of others. This theory is comparatively practical.

So basically recognition requires these basic standards:
  1. There should be acceptance of different treaties and agreements signed among the states.
  2. There should be respect regarding the charter of united nations
  3. There should be a guarantee of the protection of legal rights of different communities under the state.
  4. Preference should be given to agreements, arbitrations and settlements over war and rage.

Recognition of government:
The concept of recognition of governments is different from recognition of states. Recognition of government as a category tend to minimize the fact that the precise capacity of recognition may be characterized in different ways. If a government is recognized by the other state this means that the recognized government has fulfilled some particular set of rules and the recognizing state is ready to have treaties and agreements with the recognized state. It has accepted the legal consequences in terms of immunities and privileges. Recognition constitutes acceptance by the recognizing state both in term of factual criteria as well as legal repercussions.

Although political considerations play a vital role in the recognition of government. Recognition of the government depends on the fact that how much control it has on the territory of the state. This is called the effective control test. It gives a guideline to the recognizing states.

For example:
In the Tinoco Arbitration Case, in 1917 the established government was ousted by Tinoco. Then they ruled for over 2 years and in 1919 they were ousted by a new government. This new government in turn refused certain obligations established concerning British nationals. In this case, justice Taft held that the Tinoco has ruled over the territory for over 2 years and it was effective in the control of government so it was a valid government even if it was not recognized by so many states including the united kingdom.

Forms of recognition
De facro and de jure:
De facto and de jure are different. De facto recognition is assisted by some doubts. It is not permanent. It is given temporarily. recognizing state is hesitant while confirming the recognition for a long period.it shows a question, ark on the long-run viability of the government while in de jure recognizing state has the firm believe regarding the viability of the government. it is permanent. It shows that recognizing state has a firm belief in effective control possessed by the recognized government and it is enrooted in depth.

For example:
United kingdom recognized the soviet union by the status of de facto in 1921 and after so many observations and instances, it finally granted the status of de jure in 1924.

Here is this notable point that only a government recognized de jure is authorized to claim to property located in the recognizing state. the de facto recognized state has no such power and also full diplomatic relations can not be established by de facto recognized state.

Premature recognition:
This kind of recognition is granted by a third state or government to emerging insurgents. It is given to those who have not even got the permanence of statehood. It is an unfriendly act towards the standing government it is an act of intervention rather than an act of recognition.

Implied recognition:
It is a kind of recognition where the act of recognition is implied rather than expressed. For example, if a state enters into a treaty with another unrecognized state or government it is concluded that the recognizing state has the intention to give it recognition. The intention may be unilateral or collective.

Conditional recognition:
it is a kind of recognition that is granted based on conditions. the recognized state has to fulfil some requirements to get the status of a recognized state or government. It is a practice subject to certain stipulations.

Collective recognition:
It is an act of recognition through the international decision. Membership in the united nations is one of the criteria for gaining recognition in a collective form. However, member states are free to use their own will and they are not bound by the decision of united nations. They can decide as to whom to give recognition.

Withdrawal of recognition:
Withdrawal of recognition is not that easy procedure especially in de jure recognition. According to the Montevideo convention 1933, also declared that recognition de jure is unconditional and irrevocable. De jure recognition is granted on the basis that the recognized government has permanence in nature. Even in situations where the relationship is not good between the states, it can take other steps and cur the diplomatic relation with the state. However in de jure recognition where there is the complete disappearance of one of the essential elements of statehood then the recognition can be revoked.

For example, the united kingdom de facto recognized the Italian conquest of Ethiopia and 2 years later as de jure. however, due to fights and dispatch of the military, the united kingdom revoked the recognition granted to Ethiopia.

Legal effects of recognition:
When a state recognizes it is assumed that it is accepted as a legal entity in the eyes of the world. However, if a state is not recognized that does not mean that it has no duties and obligations in international law. There are many states or governments which are not recognized but still if they enter into a treaty or an agreement then it is binding on them. they can not excuse themselves by the reason of unrecognized state. Even if they are not recognized they have to follow the rules of disarmament, nuclear weapons, peace agreements etc.

However internally, the act of recognition is under executive authorities. Judiciary can not recognize a state or a government. It just has to maintain the rules set by executives regarding recognition.

Recent case law regarding recognition
Recognition of Kosovo:
On 17 February 2008, Kosovo declared its independence from the state of Serbia. However, this decision brought a lot of concern and chaos amongst states. Many states expressed their concern over Kosovo's declaration as a separate state. Russia and China rejected the declaration calling it illegal however united states, the united kingdom and France have recognized the declaration of independence.

At last international court of justice held that the declaration of independence of Kosovo does not violate their rules laid down by international law. Hence it can be recognized as a fully independent state. To date, 116 states have recognized the state of Kosovo, of which 15 have since been withdrawn.

So we can say that Recognition of states and government is more or less a diplomatic matter. it is an essential process because it gives rights and privileges to states. Recognition be it de jure or de facto gives a representation to the state and endows with rights and obligation. It gives an identity of a legal entity in international law. A state or government once recognized can enter into treaties and agreements with other states. It provides a legal representation at an international stage.

Award Winning Article Is Written By: Ms.Akshata Singh
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Authentication No: MA34017218559-13-0521

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