Recognition of State | Public International Law - CLAT PG PDF Download

Introduction

Recognition of a state within the International Legal System refers to the formal acceptance of a new entity as an international actor by existing states. It signifies the acknowledgment that the entity meets the criteria for statehood.

Essentials for Recognition as a State

According to Article 1 of the Montevideo Convention, 1933, a state is defined as a person under international law and must possess the following essentials for recognition:

• Permanant Population: A state must have a permanent population residing within its territory.
• Defined Territory: A state should have control over a definite territory.
• Government: There must be a functioning government in place to govern the territory.
• Capacity for International Relations: The entity should have the capacity to engage in relations with other states.

Legal Effects of Recognition

When a state is recognized, it gains certain rights, obligations, and immunities, including:

• Diplomatic Relations: The capacity to establish diplomatic relations with other states.
• Treaties: The ability to enter into treaties with other states.
• International Statehood Rights: The enjoyment of rights and privileges associated with international statehood.
• State Succession: The ability to undergo state succession.
• Right to Sue and Be Sued: The legal capacity to sue and be sued.
• UN Membership: The possibility of becoming a member of the United Nations.

Theories of Recognition

• Constitutive Theory: Proponents include Oppenheim, Hegel, and Anzilotti. This theory argues that a state becomes an international person only through recognition by existing states. Without recognition, a state does not gain the rights and obligations of international law, even if it meets all the criteria for statehood.
• Declaratory Theory: Advocates include Wigner, Hall, Fisher, and Brierly. This theory, as stated in Article 3 of the Montevideo Conference of 1933, posits that the existence of a new state is independent of recognition by existing states. Recognition is seen as a formal acknowledgment of statehood, and a new state has the right to defend its integrity and independence under international law even before recognition.

Constitutive Theory

• A state gains the status of an international person and becomes subject to international law only after being recognized by other states.
• Even if an entity possesses all the characteristics of a state, it does not attain the status of an international person without recognition.
• This theory does not imply that a state does not exist without recognition, but rather that it acquires exclusive rights, obligations, and subjectivity to international law upon recognition.

Criticism of the Constitutive Theory
The Constitutive Theory has faced criticism from various jurists. Some of the criticisms include:

• The theory is criticized for suggesting that until a state is recognized by other existing states, it is not subject to the rights, duties, and obligations of statehood under international law.
• It creates confusion when a new state is recognized by some existing states but not by others.

Declaratory Theory

• The recognition of a new state is independent of the consent of existing states.
• Article 3 of the Montevideo Conference of 1933 supports this theory.
• The existence of a new state does not rely on recognition by other states. Even before being recognized, the new state has the right to defend its integrity and independence under international law.
• Followers of this theory view the process of recognition as a formal acknowledgment of statehood by other states.

Criticism of the Declaratory Theory
The Declaratory Theory of statehood has also faced criticism. Some argue that it cannot be solely applied for the recognition of a state. When a state with essential characteristics comes into existence, it can exercise international rights and obligations, which aligns with the Declaratory Theory. However, when other states acknowledge its existence and it gains legal rights of recognition, the Constitutive Theory comes into play.

Modes of Recognition

• De facto Recognition
• De jure Recognition

De facto Recognition

• De facto Recognition is a provisional acknowledgment of statehood and serves as a preliminary step towards de jure recognition. It is a temporary and factual recognition of a state, which can be granted with or without conditions.
• This mode of recognition is applicable when a new state demonstrates sufficient control over a territory, but other existing states may have concerns about its stability or other issues. De facto recognition acts as a test of control for newly formed states.
• States with de facto recognition are not eligible for membership in the United Nations.

Examples of de facto recognition include Israel, Taiwan, and Bangladesh.

• De jure Recognition entails the acknowledgment of a new state by existing states when they determine that the new entity meets all the essential characteristics of a state. De jure recognition can be granted with or without prior de facto recognition.
• This mode of recognition is conferred when the newly established state demonstrates permanent stability and statehood. De jure recognition grants the new state a permanent status as a sovereign entity.
• In the case of Luther v. Sagar, it was established that there is no distinction between de facto and de jure recognition for the purpose of giving effect to the internal acts of the recognized authority.

Examples of de facto and de jure recognition include:

• The recognition of the Soviet Union, which was established in 1917. It received de facto recognition from the UK government in 1921 but was not granted de jure recognition until 1924.
• Bangladesh, which was established in March 1971. India and Bhutan recognized it shortly after its establishment, while the United States granted legal recognition almost a year later, in April 1972.

Forms of Recognition

• Expressed Recognition
• Implied Recognition

1. Expressed Recognition
Expressed Recognition occurs when an existing state formally recognizes a new state through an official declaration or notification. This form of recognition can be conveyed through various means, such as sending or publishing a declaration or statement to the recognized party. When a state is recognized through expressed means, it is considered de jure recognition unless the recognizing state specifies otherwise in the declaration.

2. Implied Recognition
Implied Recognition refers to the recognition of a newly formed state by an existing state through implied actions. It occurs when an existing state treats the new state as an international person without any official notification or declaration. Implied recognition can vary from case to case and is not granted through explicit means.

3. Conditional Recognition
Conditional Recognition involves recognizing a state with specific conditions attached to its status as a sovereign entity. The conditions may vary from state to state and can include factors such as religious freedom, the rule of law, democracy, human rights, etc. While some conditions are inherent to the recognition process, additional conditions can lead to conditional recognition.

Critics of conditional recognition argue that recognition should be a legal procedure without extra conditions beyond those recognized by law. They also contend that if a recognized state fails to meet the attached conditions, recognition should still remain valid.

Withdrawal of Recognition

Withdrawal of recognition can occur in two contexts: de facto recognition and de jure recognition.

• Withdrawal of De Facto Recognition: Under international law, when a state with de facto recognition fails to meet the essential conditions of statehood, its recognition can be withdrawn. This withdrawal can be carried out by the recognizing state through declarations, communications with the authorities of the recognized state, or public statements.
• Withdrawal of De Jure Recognition: The withdrawal of de jure recognition is a contentious issue in international law. While de jure recognition is typically considered a legal act, some jurists view it as a political one, making it revocable. De jure recognition can be withdrawn only under exceptional circumstances, such as when a state loses its essential characteristics of statehood.

Revocation of de jure recognition can be done publicly by the recognizing state, but it is an exceptional event. Jurists who see de jure recognition as a political act argue that it can be revoked, while those who consider it a legal act have stricter criteria for revocation.

Recognition of Government

For recognizing a new government that has come to power through a revolution, existing states need to consider the following:

1. Whether the new government has sufficient control over the territory and its population.
2. Whether the new government is willing and able to fulfill international duties and obligations.

When existing states are satisfied that the new government resulting from the revolution meets these criteria, they can recognize the new government.