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.
Recognition: – 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: – The main essentials of recognition may be given as under:
- That the community ( of new state ) must be politically organized,
- That it should have control over a definite territory,
- That the control should tend towards permanency,
- 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 discussed as under:
- Constitutive Theory.
- Declarative Theory or Evidentiary Theory.
- Constitutive Theory: -Oppenheim, Hegal 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. In other words 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: – The theory has severely been criticized by a number of jurists. Because, at first instance that states do not seem to accept recognition as a legal duty. And at the second instance, it creates many difficulties when a community claims of being a new state and its non-recognition will, according to this theory, imply that it has no rights, duties and obligations under international law. The theory is not correct in any sense so shall be rejected.
- Declaratory 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: – This 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. Conclusion: – From the above discussion it may be concluded that both the theories are insufficient to reflect the real explanation of recognition. In fact there shall be intermediate course of approach between the two theories to understand recognition. Briefly, speaking, the definition of recognition depends upon the mode, scope and nature of each case. In other words, recognition may be sometimes constitutive and sometimes declaratory.
Modes of Recognition: – There are two modes of recognition, which may be given;
- De facto Recognition.
- De jure Recognition.
- De facto Recognition: – 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 De facto Recognition.
- De jure Recognition: – The grant of recognition to a new born state by an existing state, when it considers that such new born state has attained all the attributes of statehood with stability and permanency, is called De jure Recognition.
Differences Between De facto and De jure Recognition. De facto and De jure recognition may differentiate on the basis of following points of distinction. De facto Recognition. De jure Recognition.
- De facto Recognition is provisional recognition subject to fulfillment all attributes of statehood. 1. it is absolute recognition granted to a state which have attained all the attributes of statehood, possesses sufficient control with permanency.
- De facto Recognition creates few essential rights and duties for recognized and recognizing states. 2. It creates absolute rights for the parties thereto.
- De facto Recognition does not create full diplomatic intercourse between the parties. 3. It creates full diplomatic intercourse between the parties.
- The full diplomatic immunities are not granted in this De facto Recognition. 4. Here in full diplomatic relations are granted to the recognized state.
- In this case the recognized state 5. In this case, the claim can be made and cannot claim for the property situate in the recognizing state’s territory
- In such a case the official visits and dealings may be subjected to limitations. 6. In such a case limitations are not necessary.
Forms of Recognition: – There are following two forms for the declaration of recognition.
- Express Recognition.
- Implied Recognition.
- 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. In other words, 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.
- 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 other words, 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 state. So, if such acts purport intention of recognition, it is said to be implied recognition.
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.
Criticism: – Many jurists have criticized conditional recognition. According to them recognition is a legal matter and it should not be accompanied with conditions other than required by law. It is due to this reason that when in case of conditional recognition the recognized state if didn’t fulfill the prescribed condition the recognition shall be valid and not extinguished. Rather it will affect the relations between the recognized and recognizing states.
Withdrawal of Recognition: – Withdrawal of recognition may be explained as under:
- Withdrawal of de facto Recognition: – Withdrawal of de facto 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 withdraw from the recognition by communicating a declaration to the authorities of recognized stated or by a public statement.
- Withdrawal of de jure Recognition: – There are different views about the withdrawal of de jure 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 de jure recognition is not valid in any case. Though recognition is a political act but de jure but it by nature and status it is a legal oriented. But some jurists think that de jure recognition may be withdrawn, because it is a political act. But in fact it is not so. Only those de jure 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:
As we know that 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 it 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;
- capable of having sufficient control over the people of the territory or not, and
- willing to maintain international responsibilities and duties or not. So, if the existing states consider that this new government is capable of fulfilling the above conditions then the new government may be recognized.
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 obligation. The recognition may be either de facto or de jure. And 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. The modern practice is seemed to reject the doctrine of recognition of new government. Now, the some states as USA and UK and others have adopted a course to give assent to the above pre conditions for a government merely by extending relation or cessation of relations with such government. 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. And as soon as the said government is to be replaced by any other government, if recognized the relations shall be re-continued on the same pattern as were with the previous government of the revolutionary one. 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 Belligerency: –
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. In other words 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.
Conditions: – There are following conditions by the movement of rebels to recognized by other states:
- That the movement shall be of a general character.
- That rebels shall have in possession a substantial part of the national territory.
- That they are giving respect and bind themselves for the warfare laws and other international duties.
- That they have a proper force. If the above conditions have been fulfilled by rebels then they may recognized by other existing states, and shall enjoy the international rights.
Recognition of Insurgency: –
The recognition by existing states the de facto 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. Conditions: Prior to recognize the insurgency it is necessary for the recognizing state to satisfy the following conditions; Firstly, when insurgents occupies a considerable parent state’s territory, Secondly, they have a support from the majority of the citizens of the parent state, Thirdly, they are acting under a proper command and, Fourthly, they have good control over the occupied territory. When the in case of an insurgency the above requirements have been complied with then it is on the discretion of the existing state weather 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.
Author: Mayank Shekhar
Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.