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Introduction

International community is a living entity in the sense that it is changeable.

The identity and number of States are by no means fixed and invariable.
History produces many changes. Old States disappear or unite with other States
to form a new State, or disintegrate and split into several new States. Former
colonies attain statehood. Even in the case of existing State, a revolution or
unconstitutional event may occur and the status of new government becomes a
matter of concern to other States, which formerly had relations with the
displaced government. These instances raise several problems for the
international community. The most important problem is the question of
recognition of the new State or the new government. Each State has to decide
whether to recognize the new State or the new government.

Recognition involves legal consequences both internally and internationally. If

an entity is recognized as a State, it will be entitled to rights and subjected to
duties that would not be relevant otherwise, and it will enjoy privileges and
immunities of a foreign State, before the national courts, which would not be
allowed to other entities.

According to International Law, Recognition is the formal acknowledgment of

the status of an independent State by other existing states.

 Every State has to have some essential features, called attributes of statehood, in
order for other States to recognize the State as independent.
 States are considered as the principal persons in International Law.
 The recognition of a state is often a political act of a state.
 Recognition is not a conclusive proof of the existence of the state.
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Definition and Nature of Recognition

Recognition is a discretionary unilateral act exercised by the government of a

State officially acknowledging the existence of another State or government or
belligerency.[2] It is one of the most difficult subjects of International Law. It
is a complicating mixture of politics and laws both national and international. It
is difficult mainly for the following three reasons.

(1) Recognition is, as the practice of States shows, much more a question of
politics than of law. The act of the recognizing State is conditioned principally
by the necessity of protecting its own national interests, which lie in
maintaining proper relations with the new State or the new government.
However, there is an irresistible tendency of the recognizing State to use legal
principles as a convenient camouflage for political decisions. For this reason,
recognition is considered to be a political act with legal consequences.

(2) In form and in substance, recognition remains primarily a unilateral

diplomatic act on the part of the recognizing State. No collective procedure for
granting recognition based on established legal principles has yet been evolved
by the international community.

(3) There are several distinct categories of recognition. There are the
recognition of a new State, a new government and belligerency. In addition
there are de jure, de facto, conditional, implied and express recognition.
Although the same principles may be applicable to some of these types, it is still
that each of them is subject to different legal principles and entails different
legal consequences.

Basically, there are two theories as to the nature, functions and effects of
recognition, the constitutive theory and the declaratory theory.[3] The
constitutive theory considers that the act of recognition by other States creates a
new State and grants it the international legal personality.[4] This implies that
the new State is established as an international person by virtue of the will and
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consent of already existing States. In case of a new government, it is the

recognition that grants it the status at the international level.

The Constitutive theory is opposed by the declaratory theory. According to the

declaratory theory, recognition has no legal effects; statehood or the status of a
new government exists as such prior to and independently of recognition.[5]
The existence of a State or a new government is a question of pure fact. The act
of recognition is merely a formal acknowledgement of established facts. When
an entity satisfies the requirements of a State objectively, it is a State with all
international rights and duties, and other States must treat it as such.

Historically, the constitutive theory has its merits.[6] During the Nineteenth
Century, International Law was regarded as applying mainly between States
with European civilization. Other countries were admitted as States to this
community only if they were recognized by those member States. Even today,
recognition can sometimes have a constitutive effect, although State practice is
not always consistent. When the establishment of a new State or government is
in violation of International Law, this State or government is often regarded as
having no legal existence until it is recognized.

However, the prevailing view today is that recognition is declaratory and does
not create a State.[7] This view was laid down in the Montevideo Convention
on the Rights and Duties of States of 1933. Article 3 of this Convention
provides that “The political existence of the state is independent of recognition
by the other states. Even before recognition the state has the right to defend its
integrity and independence”.

Actually, the two theories are of little assistance in explaining recognition or

determining the status of non-recognized entities in practice.[8] In addition, the
practical differences between these two theories are not significant. Under the
declaratory theory, the decision whether an entity satisfies the criteria of
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statehood is left to other States, and the granting formal recognition to another
State, which is a unilateral act, is left to the political discretion of States.

On the other hand, the significance of the constitutive theory has diminished
because of the obligation imposed on States to treat an entity that satisfies the
criteria of statehood as a state. Moreover, the States practice regarding
recognition shows that States follow a middle position between these two
theories

Essentials of State Recognition : –

The main essentials of recognition may be given as under:

1. That the community ( of new state ) must be politically organized,

2. That it should have control over a definite territory,

3. That the control should tend towards permanency,

4. 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:

1. Constitutive and declaratory theories

2. Declarative Theory or Evidentiary Theory.

Constitutive and declaratory theories :-

According to this theory, recognition is a necessary condition for statehood and

personality. It is a process by which a political community acquires personality and
becomes a member of the family of nations. A State comes into existence through
recognition only and exclusively.
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Examples:

 Poland and Czechoslovakia were recognized by the instrumentality of the

Treaty of Versailles.
 Germany was divided into two parts after the World War II by a treaty
 Korea was divided into two parts

Disadvantages of the theory

 Recognition is political and diplomatic but not legal. This theory imposes an
obligation on all member states to recognize a State. Practically, no states wants
to do something on obligation.
 There is no law the obliges established states to recognize new States.
 Recognition of a State can be done by few States and others might refuse.
According to this theory, the recognition should be done by all the States.
 Palestine is recognized as country by 80 nations thought it does not have a
definite territory, population and a definite Government.
 Isreal is formed in 1947 by the United Nations Organization. Within few hours,
many countries too recognized it. However, India recognized it in 1992..
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 or evidentiary theory:

According to this theory statehood of the authority of a new government exists
prior to and independently of recognition. A state can exist without recognition
but it gets international character only when it is recognized. Thus we see that
recognition is purely a political act and it proceeds from political considerations.
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Out of the above two theories regarding recognition the truth seems to lie
somewhere between the two extremes. Sometimes one theory is applicable and
sometimes another theory is acted upon. However, international practice is in
favor of the evidentiary or declaratory theory. Pitt cobbet also holds the
declaratory theory to be correct and in consonance with it he says that no formal
recognition by the state is needed. Critics find fault with the constitutive theory.

In their opinion this theory marks the origin of mutuality which is expected in
the process of recognition. This theory presents serious difficulty some times.

Disadvantages

The theory fails to explain legal rights and consequent of a recognized state.

Example: Taiwan is a democratic country and is adjoining areas where Chinese

territory. Only few countries recognize Taiwan yet it had business dealings with
almost every country

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.

Forms of Recognition

 An existing state recognizes another state by releasing a public statement by

way of notification or a declaration announcing the intention of recognition
 Grant is expressed in written words
 Implied Recognition
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 Does not release a formal state but recognizes the state by some acts which
imply that the state is being recognized.
 Unilateral Acts
 State entering into bilateral treaty establishes diplomatic relations with an
unrecognized state.
 Collective Acts
 A new state is recognized collectively by the existing states.
Modes of Recognition

There are two important modes of recognition

 De Facto Recognition
 De Jure Recognition

De Facto Recognition

It is extended where a govt. has not acquired sufficient stability. It is provisional

(temporary or conditional recognition. It is not legal recognition. However, it is
recognition in principle. Three conditions for giving de-facto recognition. (i)
permanence (ii) the govt. commands popular support (iii) the govt. fulfills
international obligations.

This is a provision recognition and not a permanent one. i.e it can be withdrawn
by other States at any time. It is the first step towards becoming a recognized
country. Recognition is only by fact and not legal. State may have more than
one Governments. No exchange of diplomatic representatives takes places.
State succession might not happen. Mere de facto recognition is not sufficient to
get UN membership.

Example: Israel, Bangladesh, Taiwan, Sahawi Arab Republic etc.

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De-JureRecognition.
It is legal recognition. It means that the govt. recognized formally fulfills the
requirement laid down by International law. De-jure recognition is complete
and full and normal relations can be maintained.
De-facto recognition of a state is a step towards de-jure recognition.
Normally the existing states extend de-facto recognition to the new states or
govts. It is after a long lapse of time when they find that there is stability in it
that they grant de-jure recognition. Such practice is common among the states.
The essential feaure of de-facto recognition is that it is provisional and liable to
be withdrawn.

This is a permanent recognition which one granted cannot be taken back or

withdrawn by other States. It is regal and rightful. State will have only one
Governments. Exchange of diplomatic representatives takes places. State
succession happens smoothly. de jure recognition by majority states his
essential for UN membership.

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.

1. 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.

2. De facto Recognition creates few essential rights and duties for recognized and
recognizing states. 2. It creates absolute rights for the parties thereto.

3. De facto Recognition does not create full diplomatic intercourse between the
parties. 3. It creates full diplomatic intercourse between the parties.
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4. The full diplomatic immunities are not granted in this De facto Recognition. 4.
Here in full diplomatic relations are granted to the recognized state.

5. 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

6. 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

1. Express Recognition.

2. Implied Recognition.

3. Conditional 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
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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:

1. 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.

2. 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
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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;

1. capable of having sufficient control over the people of the territory or not, and

2. 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.
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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:

1. That the movement shall be of a general character.

2. That rebels shall have in possession a substantial part of the national territory.

3. That they are giving respect and bind themselves for the warfare laws and other
international duties.

4. 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.
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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.

Legal Effects of Recognition

Although recognition is essentially a political act, it is one that entails

important legal consequences. Recognition involves legal effects both in the
international level and in the domestic level. If an entity is recognized as a
State, it will be entitled to rights and subjected to duties that would not be
relevant otherwise, and it will enjoy privileges and immunities of a foreign State
before the national courts of other States, which would not be allowed to other
entities.

What are the effects of recognition? Are there effects for non-recognition?
The Answers to these two questions are dealt with in the following sub-sections.
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(A) International effects of recognition

Apart of all the theoretical arguments involving the constitutive and

declaratory theories, it is accepted that recognition of a State or government is a
legal acknowledgement of factual situations. Recognition entails the recognized
State the enjoyment of rights and the subjecting to duties prescribed in
International Law for States (these rights and duties are discussed in the
previous chapter)

Recognition of a State by another State does not lead to any obligation to

establish diplomatic relations or any other specific links between them. Nor
does the termination of diplomatic relations automatically lead to withdrawal of
recognition. These remain a matter of political discretion.

It should not be assumed that non-recognition of a State or government would

deprive that entity rights and duties under International law.[36] It is well
established in International Law that the political existence of a State is
independent of recognition by other States, and thus an unrecognized State must
be deemed subject to the rules of International Law. Unrecognized State is
entitled to enjoy certain rights and be subject to many duties. It has the rights to
defend its integrity and independence, to provide for its conservation and
prosperity and consequently to organize itself as it sees fit. The exercise of
these rights by unrecognized State has no other limitation than the exercise of
the rights of other States according to International Law. Moreover,
unrecognized State is subject to most of the rules of International Law, such as
those related to the law of wars, and is bound by its agreements.

Non-recognition, with its consequent absence of diplomatic relations, may

affect the unrecognized State in asserting its rights against unrecognizing States,
or before their national courts. However, non-recognition will not affect the
existence of such rights, nor its duties, under International Law.
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(B) Internal Effects of Recognition

Recognition entails the recognized State the rights to enjoy privileges and
immunities of a foreign State before the national courts, which would not be
allowed to other entities. However, because recognition is essentially a political
act reserved to the executive branch of government, the judiciary branch must
accept the discretion of the executive branch and give effect to its decisions.
The national courts can only accept and enforce the legal consequences that
flow from the act of recognition. They can accept the rights of a foreign
government to sue, to be granted immunities or to claim other rights of a
governmental nature. They can give effect to the legislative and executive acts
of the recognized State. In the case of non-recognition, national courts will not
accept such rights. In this context, recognition is constitutive, because the act of
recognition itself creates the legal effects within the domestic jurisdiction of a
State.
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CONCLUSION
The recognition of state . It is a mechanism that will contribute to lasting peace
and security and basic postulates of international law and relations among
nations. The longer the postponement, the greater the risk of the Union become
a sponsor of lasting instability and frozen conflicts on its own soil. Therefore it
is not in the interest of the community to maintain a status-quo position but on
the contrary, it must become a stimulating tool to produce a more proactive
policy of bringing these new countries to its community, thus ending unresolved
disputes on the territory of geographical Europe.
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Bibliography

1. International Law and Human Rights –Dr. S.K. Kapoor

2. Public International Law -Dr. S.R. Myneni
3. Public International Law - V.K. Ahuja
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Webliography

1. www.legalbites.in
2. www.slideshare.net
3. www.britannica.com
4. sites.google.com/site/walidabdulrahim/home/my-studies-in-english/8-
recognition