Recognition of states under public international law

Author: Purnima Vashishtha, GLC, Mumbai

Manali Kumari, Bhartiya Vidyapeeth, New Delhi


Editor: Rahul Kumar Roy, Manipal University Jaipur

Introduction

At the International podium, the international community is the association of sovereign States. It is mandatory for every State who wants to enjoy the rights, duties, and obligations of international law or want to be a member of the International Community that the entity must be recognized as a state. It should be acknowledged by the other States who are already a member of this community that the political entity has the characteristics of Statehood.


A state needs to possess certain attributes or elements of statehood in order to be called as a state under the International Law. According to Article 1 of the Montevideo Convention, 1993, a State as a person should possess four essential attributes in order to acquire recognition as a state, namely-

1. Permanent population

2. Definite territory

3. Government

4. Capacity to enter into relations with other States


When an existing state, who is already a member of the international community, recognizes and acknowledges the above-mentioned attributes of the state and makes a formal acknowledgment in pursuance thereof, it is called as Recognition of State. It should be acknowledged by the other States who are already a member of this community that the political entity has the characteristics of Statehood.


Legal Effects of Recognition

Once a State is recognized under the public international law, it gains certain rights, obligations, privileges, and immunity upon its recognition. Few of the legal effects are as follows-

· The recognized State acquires the right to sue in courts of the recognizing State.

· The recognized State gets entitled to sovereign immunity for itself as well as its property in the courts of recognizing State.

· The recognized State gets entitled to the succession and possession of property situated in the territory of the recognizing State.

· The recognized State acquires the capacity to enter into diplomatic relationships and treaties with the recognizing State (de jure recognition).

· The recognizing State gives effect to past legislative and executive acts of recognized State upon due recognition.

Theories of Recognition

There are two main theories on which recognition of a new entity as a sovereign State is based :-

· Constitutive theory

· Declaratory theory


.Constitutive Theory

According to this theory a new entity cannot be considered as a State if it is not recognized by the existing State under the international community. If the new entity gets the rights, duties, and obligations of international law then also it does not acquire the status of the International person, until and unless recognized by the existing States. Thus the very act of recognition is of huge importance for the international personality of the new state.


This theory however faced numerous castigation and was condemned on several grounds, which includes:-

· Fist and foremost, the deprecation was based on getting recognition from other existing states. If the State possesses all the attributes of the International law and is not recognized by the existing State then they will not get the status of an International person.

· Secondly, the Recognition of a new state by the existing state doesn't make it any conclusive proof of its very existence because there are some states which do not recognize the international personality of states per se. The application of this theory thus suggests that a state exists for some states while it does not exist for the others

· The fact that the recognition of a new state depends on the existing state means that the act of recognition is a political act and giving discretionary rights to an existing state is fatal to the act of recognition.

· The recognition of a state is a mere acknowledgment that the state possesses all the attributes of statehood. This means that the state is in existence even before its recognition and the question of recognition does not arise thereof.

. Declaratory theory

This theory states that the new entity which gets all the attributes as an International person does not need to be recognized by any other existing State under the international community. This theory states that as soon as a state acquires all the attributes of statehood, it automatically comes into existence as a state on the international platform. It can, therefore, defend its integrity and independence under international law. The act of recognition by the existing state is a formal acknowledgment and evidence of the fact of its existence. In the absence of such recognition, the state cannot enter into a legal relationship with the other states on the basis of its mere existence, which is a major drawback of this theory.

Modes of Recognition

When it comes to the mode in which the recognition is made, it's of two types:-

Express Recognition ,and Implied Recognition.


When the existing State recognizes the new State by a formal declaration or notification, it is said to be express recognition. On the other hand, when an existing State indicates their intention to recognize the new State by their conduct or some act, it is called as implied recognition. In such cases, there is no formal declaration or contract or an agreement or treaty to recognize the State and the mere act implying the intention to recognize results into implied recognition.


Kinds of Recognition

1. De facto Recognition- When an existing State recognises the new State only on a provisional basis, it is known as 'de facto recognition'. This kind of recognition is only factual and is granted by the existing State when is of the opinion that the new State is not sufficiently stable and the effectiveness and chances of the continuing of the government is doubtful. It can be called as a preliminary step towards De jure recognition. However, such recognition can be withdrawn if the new State becomes incapable of administering its territory.


2. De jure Recognition- When an existing State is of the opinion that the new State possesses all the attributes of Statehood and possesses stability and permanency, it grants a legal recognition to the new State which is final and irrevocable in nature. De jure recognition can be given even without prior de facto recognition and hence can be granted directly to a new State.


3. Conditional Recognition- When recognition is granted by the existing State subject to the fulfillment of certain conditions by the recognized State, in addition to the possession of all attributes of Statehood, then such recognition is called conditional recognition. One well-known instance of this approach was the Litvinov Agreement of 1933 whereby the United States recognized the Soviet government upon the latter undertaking to avoid acts prejudicial to the internal security of the USA, and to come to a settlement of various financial claims.[1]


4.Premature Recognition- In general sense, recognition is granted to a new State when it possesses all attributes of Statehood, however, sometimes recognition is granted to a State despite the fact that it does not possess all the attributes of the Statehood. The recognizing State in such cases, considers carefully the factual situation and the degree to which the criteria of Statehood (or other relevant criteria with regard to other types of entity with regard to which recognition is sought) are fulfilled. It is therefore a process founded upon a perception of fact and is known as premature recognition.

Conclusion

Recognition is thus an inherently political act. It is important to realise that the consequences of recognition is of both political and legal importance. It not only guarantees state immunity but also makes a state entitled to various rights and privileges under the international law and further promotes international relationships with other states.

[1] See e.g. United States v. Pink 315 US 203, 229 (1942), Whiteman, Digest, vol. II, pp. 120 ff.; 10 AD, p. 48, and A. Kiss,R´epertoire de la Pratique Fran¸caise en Mati`ere de Droit International Public, Paris, 1962–72, vol. III, pp. 40 ff

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