Concept of State Recognition Under International Law | Law Optional Notes for UPSC PDF Download

Introduction

The emergence of a new state can result from various circumstances, such as the secession of a region from an existing state, the dissolution of an old state with a new name, or the division of an existing state into two separate entities. When a new state comes into existence, it may seek recognition as a sovereign state, which is a crucial step. However, certain minimum criteria must be met before a state is acknowledged as such. De Jure recognition, which is legal recognition, is essential for a state to be considered sovereign. The decision to grant recognition is influenced by political considerations. To achieve recognition as a state, the emerging entity must establish relations with existing states. This article explores the elements, theories, and processes related to state recognition. 

Recognition of a State

In accordance with International Law, the recognition of a State can be defined as:
The acknowledgment or acceptance of a state as an international entity by the existing states within the international community. This recognition is based on the declaration that the state in question fulfills the essential conditions of statehood as required by International Law.

Essential Conditions for State Recognition

• Population
• Territory
• Government
• Sovereignty
• Control with a tendency towards permanency

When these conditions are met, a state can be eligible for recognition.

Kelsen's Perspective on State Recognition

Kelsen emphasizes that for a state to be recognized, it must meet certain criteria:

• It must be politically organized.
• It should exercise control over a specific territory.
• Its existence should be permanent.
• It must be independent.

Recognition Process

• State is not only an institution with international legal standing but they are the primary subjects of International Law and possess the greatest range of rights and obligations.
• Mixture of fact and law and the establishment of particular factual conditions and compliance with relevant rules are the process of creating new States.
• States are not bound to recognise new claimants of Statehood and make it a positive duty to recognize a State.
• Recognition is mainly a matter of intention.

India-Israel-Palestine Dispute

India did not recognize Israel until 1999, similarly to its stance on South Africa until 1991 due to issues related to racism. Despite receiving military support from Israel, India did not establish formal diplomatic relations with Israel during this period, even though both countries met the criteria outlined in the Montevideo Convention for statehood. The recognition of Palestine, on the other hand, was influenced by the significant Jewish population in some countries.

China-Taiwan Dispute

In the case of the China-Taiwan dispute, only 15 countries worldwide officially recognize Taiwan as a sovereign state. Taiwan, officially known as the Republic of China, is recognized by 19 United Nations member states. While other countries engage in economic and business relations with Taiwan, they do not formally acknowledge it as an independent state. Taiwan maintains unofficial diplomatic relations with 57 other UN member states.

Political Recognition of States

• Political act in recognition is used to support or to reject a state or a government which is new in an international community. 
• Mixture of fact and law and the establishment of particular factual conditions and compliance with relevant rules are the process of creating new States.
• Criteria of Statehood is laid down in the Montevideo Convention, which provides that State must have a permanent population, a defined territory and a government and the capacity to conduct International relations.
• Recognition of State is a political act based on interest and assessment made by States individually, but legal arguments are important. 

Montevideo Convention

To consider a State as an international person, State should adhere to following qualifications-

• Permanent Population;
• Definite Territory;
• Government;

Capacity to enter into relations with other States.

Theories of Recognition

There are two main theories of recognition in international law:

Constructive Theory

• Coined by Hegel and Oppenheim.
• According to this theory, a state is considered an international entity. Recognition grants a state the status of an international person and subjects it to international law.
• This theory does not imply that a state does not exist until it is recognized, but rather that it acquires exclusive rights and obligations and becomes a subject of international law after being recognized by other existing states.
• Criticisms:
  • Critics argue that the rights, duties, and obligations of statehood under international law only apply to states recognized by other existing states.
  • It can lead to confusion when some existing states recognize a new state while others do not.
• Oppenheim's View on Recognition of State:
  • A state is an international person only if it is recognized as such by other states.
  • There is no obligation for countries to grant recognition to a state; rather, it is a matter of discretion.
  • Existing countries recognize a state as a member of the international community and believe that it meets the requirements of international law.

Declarative Theory

• Coined by Hall, Wagner, and Fisher, developed in the 20th century to address the limitations of the constitutive theory.
• According to this theory, before recognition by other states, a new state has the right to defend its integrity and independence under international law.
• This theory is outlined in Article 3 of the Montevideo Conference of 1933.
• Followers of this theory see recognition as a formal confirmation of statehood by other states.
• Criticisms:
  • Critics argue that this theory may not be applicable to the recognition of states.
  • They suggest that when a state fulfills the essential characteristics of statehood, it comes into existence. Declarative theory applies when international rights and obligations are exercised by the state, while constructive theory applies when the state gains legal recognition.

Modes of Recognition

Recognition of a New State

• Recognition signifies the willingness of an existing state to acknowledge and establish diplomatic relations with a new state.
• Under international law, recognition allows the recognized state to exercise the rights and duties of a state.
• Recognition of the government of the new state is usually automatically involved when recognizing the new state.

Recognition of a New Government

• Governments are the primary entities that engage in the benefits of international law.
• Recognizing a government is important for a state to participate in international legal affairs.
• Recognition of a government is often linked to recognizing the state itself.
• Objective Test for Recognition of a New Government:
  • Assess whether there is opposition to the new government.
  • Determine whether the new government has effective control over its territory.
• Subjective Test for Recognition of a New Government:
  • Evaluate whether the new government has fulfilled international obligations.

Recognition of Belligerency

• Belligerency exists when a portion of a state's territory and population is under the de facto control of a group fighting against the government to establish a separate state or overthrow the existing government.
• A civil war may escalate into a full-scale war if the rebels control a significant portion of territory.
• Recognition of belligerency was granted during many civil wars in the 19th and 20th centuries, including the American Civil War and wars during the struggle for independence.

Forms of Recognition

De Facto Recognition

• De Facto Recognition is typically granted to governments.
• It is a temporary form of recognition that can be either conditional or unconditional.
• This type of recognition is given when a new state holds sufficient control over a specific territory, but other existing states may have concerns about its stability or other unresolved issues.
• De Facto Recognition is often used as a test of control for newly formed states.
• For example, the United Kingdom initially recognized the Soviet Government as a de facto recognition in 1921 and later recognized it as a de jure recognition in 1924.

De Jure Recognition

• De Jure Recognition is granted to a new state when it fulfills all the essential characteristics of a state.
• It can be granted directly to a state, whether or not de facto recognition has been previously granted.
• De Jure Recognition confers permanent status as a sovereign state on the newly formed state.

Difference between De Facto and De Jure Recognition

Express Recognition

Express recognition occurs when an existing State officially and explicitly acknowledges a new State through declarations or notifications. This can involve formal methods like sending official statements to the new State or can be conveyed through personal messages from heads of state or foreign affairs ministers.

Implied Recognition

Implied recognition happens when an existing State implicitly acknowledges a new State through actions or behavior, without issuing formal declarations. The specific actions indicating recognition can vary depending on the circumstances, but they must clearly demonstrate the recognizing State's intention.

Conditional Recognition

Conditional recognition occurs when certain conditions are attached to the recognition of a new State in order for it to attain sovereign status. These conditions may vary from State to State and can involve requirements related to religious freedoms, the rule of law, democracy, human rights, and more. Some jurists criticize conditional recognition, arguing that recognition should be a purely legal procedure without additional conditions unless prescribed by law.

Withdrawal of Recognition

Withdrawal of De Facto Recognition

Under International Law, if a State previously granted De Facto recognition to another State but the recognized State fails to meet or maintain the essential conditions of Statehood, the recognizing State can withdraw its recognition. This withdrawal can be carried out through formal declarations, communication with the authorities of the recognized State, or public statements.

Withdrawal of De Jure Recognition

Withdrawal of De Jure recognition is a complex issue in International Law and is considered an exception. It may occur when a State no longer fulfills the essential elements required for recognition or due to changing circumstances.

Conclusion

Recognition of a State is a crucial process that enables a State to enjoy its rights, privileges, and obligations within the international community. Both De Facto and De Jure recognition offer varying degrees of rights and obligations.
De Facto recognition grants fewer rights, privileges, and obligations compared to De Jure recognition. The recognition of a State can have political implications on the international stage.
In some cases, powerful States may create obstacles to the recognition of a newly formed State. Recognition can be withdrawn if a State fails to fulfill the conditions necessary for sovereign status. De Jure and De Facto recognition can vary depending on the specific situation, and De Jure recognition can be granted directly without the need for prior De Facto recognition.