LAW 207 SECTION: L2004

STATE RECOGNITION IN INTERNATIONAL LAW

Submitted To: Mr. Ajaymeet

Submitted By: Sagorika Basu

Registration No :12011119

ACKNOWLEDGEMENT
 At the outset, I would like to express my heartfelt gratitude and thank my Course Instructor,
MR. AJAYMEET, for instilling confidence in me. I am indeed privileged having been
taught in a prestigious institution like LOVELY PROFESSIONAL UNIVERSITY. I would
also like to express my gratitude to my other Course Instructors, Mentor, family, and friends
for their uncanny help and support.

-SAGORIKA BASU

Introduction
According to International Law, Recognition is the formal acknowledgment of the status of

an independent State by other existing states.

According to Prof. L. Oppenheim, “In recognizing a State as a member of the international

community, the existing States declare that in their opinion the new State fulfils the
conditions of statehood as required by international law."1

Fenwick also subscribes to the view that through recognition the members of the
international community formally acknowledge that the new State has acquired international
personality.

The Institute of International Law has defined the term 'recognition' in the following words
“The free act by which one or more States acknowledge the existence of a definite territory of
a human society, politically organized and independent of any other existing States and also
capable of observing obligations of international law by which they manifest through their
intention to consider it a member of international community.”2

According to Kelson, a community to be recognized as an international person must fulfill

the following conditions: (1) The community must be politically organized; (2) It should have
control over a definite territory; (3) This definite control should tend towards permanence;
and (4) The community thus constituted must be independent.

Thus, the conditions of a Statehood are (a) People; (b) a territory; (c) a government; and (d)
sovereignty. “Recognition of a State is an act by which another State acknowledges that the
political entity recognized possesses the attributes of statehood.”

“In short, we may say that through recognition, the recognizing State acknowledges that the
recognized State possesses the essential conditions of statehood. However, international law
does not provide as to how these essential conditions are to be determined. In fact,
international law leaves members of the international community free to determine by
themselves whether the recognized States contain the essential conditions of statehood. It is
because of this reason that very often recognition is said to be a political diplomatic function. 3
For any entity to be called a State and to enjoy rights, duties and obligations under
international law, it is necessary that the existing State has given awareness of its capability
1
L. Oppenheim, International Law, vol.1Eighth Edition, p.127. See also Oppenheim’s International
Law Ninth Edition, Longman Group UK Ltd. and Mrs. Tomoko Hudson,1992, pp.127,128 and p.132
2
Charles G. Fenwick International Law (1971), p.156
3
Philip c. Jessup, A Modern Law of Nations (1948), p.63.
of being a State and such awareness of existing States is called recognition.

● 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.

State Recognition

To recognize a community as a State is to declare that it fulfills the conditions of statehood as

required by international law. If these conditions are present, existing States are under the
duty to grant recognition. In the absence of an international organ competent to ascertain and
authoritatively to declare the presence of requirements of full international personality, States
already established fulfill that function in their capacity as organs of international law. In thus
acting they administer the law of nations. This rule of law signifies that in granting or
withholding recognition States do not claim and are not entitled to serve exclusively the
interests of their national policy and convenience regardless of the principles of international
law in the matter. Although recognition is thus declaratory of an existing fact, such
declaration, made in the impartial fulfillment of a legal duty, is constitutive, as between the
recognizing State and the new community, of international rights and duties associated with
full statehood. Prior to recognition such rights and obligations exist only to the extent to
which they have been expressly conceded or legitimately asserted by reference to compelling
rules of humanity and justice, either by the existing members of international society or by
the community claiming recognition., These principles are believed to have been accepted by
the preponderant practice of States. They are also considered to represent rules of conduct
most consistent with the fundamental requirements of international law conceived as a system
of law. However, while followed in practice with some regularity, they cannot be regarded as
having been uniformly acted upon or clearly perceived by governments. Neither have they
secured the assent of the majority of writers on the subject.4

4
H. Lauterbach, Recognition of State in International Law, 53Yale L.J.(1944)
After the break-up of the former Soviet Union and the former Socialist Federal Republic of
Yugoslavia in the early 1990s the topic of recognition in international law lay dormant for
several years until in February 2008 it was revived, perhaps not unexpectedly, with the
unilateral declaration of independence of Kosovo and the controversy about its recognition as
a sovereign and independent State by some 51 States (as of 15 October 2008). The topic
recently gained further prominence when in August 2008 the Russian Federation recognized
the statehood of Georgia’s breakaway regions of South Ossetia and Abkhazia; a move
followed so far only by Nicaragua.

These developments have again raised interest in the question of a possible recognition of the
“Nagorno-Karabakh Republic” and its government by foreign States. This article briefly sets
out some of the general principles of recognition of States and governments in international
law.

The term “recognition,” when used in the context of recognition of States and governments in
international law, may have several different meanings. It may indicate the recognizing
State’s willingness to enter into official relations with a new State or government, or manifest
its opinion on the legal status of a new entity or authority, or both. The subject has been
complicated by the introduction of several variants of the term. Distinctions between “de
facto recognition,” “diplomatic recognition” and “de jure recognition” may be traced back to
the secession of the Spanish provinces in South America in the early 19 th century. Like
“recognition,” these terms can be given meaning only by establishing the intention of the
authority using them within the factual and legal context of each case. Recognition is a
unilateral act performed by the recognizing State’s government. It may be express or implicit.
There is probably no other subject in the field of international law in which law and politics
are more closely interwoven. However, that does not mean that recognition, in the sense of
expressing an opinion on the legal status of an entity or authority, is a purely political act that
is within the discretion of the recognizing State. Recognition, if unfounded in law (such as
premature recognition) and backed by State activity, may constitute an internationally
wrongful act which gives rise to State responsibility. Recognition of States must be
distinguished from recognition of governments, each form having its own theories and
practices.

Essentials for State Recognition

Under the International Law, Article 1 of the Montevideo Conference, 1933 defines the state
as a person and lays down the following essentials that an entity should possess in order to
acquire recognition as a state. The different essentials to recognize a state are:
● Permanent population
● Definite territory
● Government
● Capacity to enter into relations with other states.
State is the primary subject in International Law. The requirements to be considered as a
subject of international law are the capacity to have rights and duties under international law.
Some writers also argue that a State must be fully independent and be recognized as a State
by other States. The international legal system is a horizontal system dominated by States
which are, in principle, considered sovereign and equal. International law is predominately
made and implemented by States. Only States can have sovereignty over territory. Only
States can become members of the United Nations and other international organizations.
Only States have access to the International Court of Justice. According to Montevideo
Convention the state as a subject of international law should possess the above-mentioned
essentials.
Permanent population: A permanent population is another necessary requirement for
statehood. There are no criteria relating to the size of the population: Andorra with its 68,000
inhabitants is as much a State as India, which currently has well over one billion inhabitants.
Neither does international law set any requirements about the nature of the population: the
population may largely consist of nomads (such as in Somalia), it may be ethnically
(relatively) homogeneous (such as in Iceland) or very diverse (such as in the former Soviet
Union), it may be very poor (such as in Sierra Leone, where in 2000 nearly 70 percent of the
population lived below the poverty line) or it may be very rich (as in many Western States). It
should also be noted that the requirement of a permanent population does not relate to the
nationality of a population: it merely requires that States have a permanent population.
According to Brownlie it connotes a stable community with a physical basis.
Definite territory: - The development of the State is closely linked to the ability to
exercise effective control over a defined territory. However, the existence of border disputes
is not an obstacle to attaining statehood in international law. There is no rule stating that the
boundaries of a State should be undisputed or unambiguously established. Israel for example,
was admitted to the United Nations on 11 May 1949, despite its ongoing territorial disputes
with the Arab States. According to O'Keefe there is no limit to size. Undefined boundaries
will not matter as long as the core territory is defined. With regard to the size of the territory
it can be stated that no specific requirements exist: the international community of State
consists of both micro-States, such as Liechtenstein and San Marino and very large States
such as Canada or Russia.
Government: -The third requirement for statehood, is the existence of a government
capable of exercising independent and effective authority over the population and the
territory. The importance that is attached to the criteria of independence and effectiveness is
understandable
considering the predominantly decentralized nature of international law. Since international
law lacks a central executive body, with the power to enforce compliance with international
obligations, compliance with international obligations must often be guaranteed by the States
themselves. A State must therefore be able to effectively and independently exercise its
authority within its borders. According to Brownlie the existence of effective government,
with centralized administrative and legislative organs, is the best evidence of a stable political
community.
Capacity to enter into relation with other states : - It can be said that the capacity
to enter into full range of international relations can be a valuable measure, but capacity or
competence in this sense depends in part on the power of the government, without which a
State cannot carry out its international obligations. The ability of the government to
independently carry out its obligations and accept responsibility for them in turn greatly
depends on the previously discussed requirements of effective government and independence.
Moreover, a State cannot enter into relations with other States if it is not recognized.
Consequently, it cannot be recognized as a State. According to Shaw the concern is the lack
of competence to enter into legal relations, and the essence of such a capacity is
independence.

THEORIES OF RECOGNITION
Recognition of a State is more of a political concept than a legal concept because there are no
specific rules for recognition of a State.
There are two popular theories laid down for the purpose of understanding the nature of
recognition:

● Constitutive Theory
● Declarative or Evidentiary Theory

Constitutive Theory

According to this theory, recognition clothes the recognized State with rights and duties
under International law. Recognition is a process through which a political community
acquires international personality by becoming a member of a family of nations. Hegel,
Anzilloti, Oppenheim, etc. are the chief exponents of constitutive theory. In the words of
Professor Oppenheim, “A State is, and becomes, an international person, though, recognition
only and exclusively." "According to the constitutive theory, statehood and participation in
the International legal order are attained by political groups only insofar as they are
recognized by an established State5. Holland also supports the Constitutive theory. In his
view, recognition confers maturity upon the State and until and unless a State is recognized, it
cannot acquire rights under International law. In the view of Judge Lauterbach, Constitutive
theory is the practices of the State and is based on sound legal principles. The practice of
most of the States, however, indicates the contrary. In practice most of the States accept the
declaratory theory. In this connection, Judge Lauterbach has remarked that the wide
acceptance of Declaratory theory is due to the reaction against the traditional conception of
recognition as a political act purely and simply. In his view, there is a legal duty on the part
of the State to recognize any community that has in fact acquired the characteristics of the
statehood.

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.

Examples:

● Poland and Czechoslovakia were recognized by the instrumentality of the Treaty of

Versailles.
● Germany was divided into two parts after World War II by a treaty.
● Korea was divided into two parts

Criticisms of the Theory

Jurists have criticized the Constitutive theory. The view of Judge Lauterbach that there is
legal duty on the part of the existing States to recognize any Immunity that has in fact
acquired the characteristics of statehood, does not seem to be correct. In practice, states do
not accept any such obligation. “The practice indicates, however, that although established
States normally recognize new States and new governments that in fact exist, they have not
consented to law norms that obligate them to do so.” Besides this, the Constitutive theory
presents several other serious difficulties. According to this theory, if a State is not
recognized it can have neither duty nor rights under international law. This is a very absurd
suggestion. If we accept this proposition, it will create difficulties in the case of a new State

5
P.E. Corbett, The Growth of World Law (1971), p.62
which is recognized by some States but not recognized by others. The examples of China and
Bangladesh can be cited in this connection. China was not recognized by America and other
Western countries for a number of years although China possessed all the essential attributes
of State. But to assert that China, therefore, did not have rights and duties under international
law would be an absurd proposition. Similarly, Bangladesh was not recognized for some time
by China, Pakistan, Albania, etc.

However, in support of the constitutive theory, it must be admitted that once a state is
recognized it acquires status and is recognized as such by the municipal courts of the
recognizing state.

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 state wants to do
something on obligation.
● There is no law that 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 a country by 80 nations though it does not have a definite
territory, population and a definite Government.
● Israel was formed in 1947 by the United Nations Organization. Within a few hours,
many countries too recognized it. However, India recognized it in 1992.

Declarative Theory or Evidentiary Theory

According to this theory, statehood or the authority of the new government exists as such
prior to and independently of recognition. It is merely a formal acknowledgment through
which established facts are accepted. The act of recognition is merely declaratory of an
existing fact that a particular State or government possesses the essential attributes as
required under international law. The chief exponents of this theory are Hall, Wagner,
Brierly, Pitt Corbett and Fisher. According to Prof. Hall, a State enters into the family of
nations as of right when it has acquired the essential attributes of statehood. Pitt Corbett has
expressed the view that existence of a State is a matter of fact. In his words, “So long as a
political community possesses in fact the requisites of a statehood, formal recognition would
not appear to be a condition precedent to acquisition of the ordinary rights and obligations
incident thereto.” Brierly has also remarked, “the granting of recognition to a new State is not
a 'Constitutive' but a 'Declaratory' act. A State may exist without being recognized and if it
exists in fact, then whether or not, it has been formally recognized by other States it has a
right to be treated by them as a State." The Soviet view and practice are also in favor of the
declaratory theory of recognition.

According to the Soviet view, birth of a State is the act of internal law rather than that of
international law. In modern times international personality does not depend upon
recognition.6

This theory states that declaration is a mere formality and has no legal effect as the existence
of a State is a mere question of fact. Every new state becomes a member of the family of
nations ipso facto by its coming into existence. Recognition only provides the evidence to
this fact. This theory says recognition is not important.

Criticisms of the Theory

This theory has also been subject to criticism. The view that recognition is only a declaratory
of an existing fact is not completely correct7. In fact, when a State is recognized, it is a
declaratory act. But the moment it is recognized, there ensue some legal effects of recognition
which may be said to be of constitutive nature.

Disadvantages of the Theory

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

Example: Taiwan is a democratic country and is adjoining areas were Chinese territory. Only
few countries recognize Taiwan yet it has business dealings with almost every country.

6
Ibid at p.70 M. Latch has also observed: “We face today the waning legal importance of recognition.
Non-recognition based on political considerations has lost most of its meaning. it no longer produces
all effects it was meant to in the past.” “Recognition and modern Methods of International
Cooperation. “BYBIL, Vol.XXXV, (1959), p.252 at p.259
7
See Oppenheim supra note 1 at p.128
 FORMS OF RECOGNITION

Express 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

● 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 a bilateral treaty established diplomatic relations with an
unrecognized state.
● Collective Acts
● A new state is recognized collectively by the existing states.

MODES OF RECOGNITION

Recognition may be of two kinds—De facto and de jure recognition. The practice of States
shows that in the first stage the State generally gives de facto recognition. Later on, when
they are satisfied that the recognized State is capable of fulfilling international obligations,
they confer de Jure recognition on it. That is why, it is sometimes said, de facto recognition
of State is a step towards de jure recognition.

De Facto Recognition

According to Prof. G. Schwarzenberger, “When a State wants to delay the de jure recognition
of any State, it may, in the first stage grant de facto recognition.” The reason for granting de
facto recognition is that it is doubted that the State recognized may be stable or it may be able
and willing to fulfill its obligations under international law. Besides this, it is also possible
that the State recognized may refuse to solve its main problems. De facto recognition means
that the State recognizes the essential elements of statehood and is fit to be a subject of
international law.

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 are: -

1. permanence
2. the govt. commands popular support
3. the govt. fulfills international obligations.

However, the effects of de jure recognition are more far-reaching. In the words of
Oppenheim, “The de facto recognition of a State or government takes place when, in the view
of the recognizing State the new authority although actually independent and wielding
effective power in the territory under its control, has not acquired sufficient stability or does
not yet offer prospects of complying other requirements of recognition such as, willingness or
ability to fulfill international obligations8. “In the view of Judge Lauterbach, de facto
recognition shows that the recognizing State wants to establish its relations with the
recognized State without establishing diplomatic relations. As remarked by Prof. Oppenheim,
De facto recognition is, in a sense, provisional and liable to be withdrawn if the absent
requirement of recognition fails to materialize. “In the view of Judge Philip C. Jessup, “De
facto recognition is a term which has been used without precision when properly used to
mean the recognition of the de facto character of a government, it is objectionable and indeed

could be identical with the practice suggested of extended recognition without resuming
diplomatic relations.9

De Jure Recognition

De jure recognition is granted when in the opinion of recognizing State, the recognized State
or its Government possesses all the essential requirements of statehood, and it is capable of
being a member of the international community. As pointed out by Prof. H.A. Smith, the
British practice shows that three conditions precedent are required for the grant of de jure
recognition of a new State or a new Government The three conditions are as (i) A reasonable
assurance of stability and permanence; (ii) The Government should command the general
8
see Oppenheim, see supra note 14, at pp.134-135
9
Philip C. Jessup. A Modern Law of Nations, p.57.
support of the population; and (iii) It should be able and willing to fulfill its international
obligations. Further, “Recognition de jure results from an expressed declaration or from a
positive act indicating clearly the intention to grant this recognition such as the establishment
of diplomatic relation10." De jure recognition is final, and once given cannot be withdrawn.
As pointed out earlier, for de jure recognition and the intention to establish diplomatic
relations are necessary.

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 Government. Exchange of
diplomatic representatives takes place. State succession happens smoothly. de jure
recognition by the majority states is essential for UN membership.

It is legal recognition. It means that the government. 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 feature of de-facto recognition is that it is
provisional and liable to be withdrawn.

Distinction between De facto and De jure Recognition

As observed by Prof. G. Schwarzenberger, "De jure recognition is by nature provisional and

may be made dependent on conditions with which the new entity has to comply. It differs
from de jure recognition in that there is not yet a formal exchange of diplomatic
representatives. De jure recognition is complete, implying full and normal diplomatic
relation. “In the words of Kelson de jure recognition is final, whereas de facto recognition is
only provisional and thus may be withdrawn11. “According to Prof. Oppenheim, so far as the
legislative and other internal acts of the State recognized are concerned, there is hardly any
difference between de facto and de jure recognition.

Following are the differences:

10
The Law of Nations, Vol.1 p.79
11
“Recognition in International Law”, AJIL, vol.35 (1941), p.605 at p.612.
 ➔ De-facto recognition is provisional while de-jure recognition is final,
➔ De-facto recognition may be made dependent on conditions with which new states
have to comply; de jure recognition does not leave scope for further conditions being
final and conclusive in itself.
➔ Diplomatic exercise and representations are usually not accorded to de-facto
governments. Dejure recognition implies full and normal diplomatic relations.

This rule has been applied in a number of cases. For example, The Arantzazu Mendi case 12

LEGAL CONSEQUENCES OF STATE RECOGNITION

The recognized state or Govt. acquires the capacity to enter into diplomatic relations and
treaties. She acquires the right to suing in the courts of the recognizing state. The state can
claim immunity from diplomatic representatives.

(i) Right to sue:

The recognized state becomes entitled to sue in the court of recognized state.

(ii) Establishment of diplomatic relation:

In case of de jure recognition diplomatic relations are established.

(iii) Application of the rules of international law:

The rule of international law applies to the recognized state.

(iv) Right of succession:

The recognized states become entitled to get property situated in the foreign state.

(v) Sovereign immunity:

The recognized state becomes entitled to sovereign immunity for itself its property in the
court of recognizing states.
12
(1939) A.C. 256
 Conclusion

To conclude it can be said that recognition is a process through which a political community
acquires international personality by becoming a member of the nations. De facto and de jure
are two important modes of acquiring recognition. De facto recognition is a step toward de
jure recognition.

It would appear that the support for the declaratory theory is partly legal and partly the more
politically correct position. The constitutive theory does still attract some legitimacy, possibly
partly due to the way it appears to be applied surreptitiously by tribunals. The difficulty with
the either/or approach is that there is an interrelation of the two sides of the question. The
declaratory theory concentrates on the internal factual situation and the constitutive theory
concentrates on the external legal rights and duties. They both miss a portion of the analysis.

Furthermore, the two sides of the issue interact between themselves. By having rights, a
collective group may become more cohesive and may begin to have an internal political
dialogue. Recognition alone does not create the internal factual situation of statehood, but
may help to inspire such coalescence. Nationalism is not unknown in many apparently highly
artificial states. However, recognition of the factual situation merely acknowledges facts and
does not mean there are necessarily international rights, although it can lead to it.

Every act of recognition must necessarily contemplate both aspects, but generally one will be
the predominant legitimizing force (though it could conceivably change retrospectively).
When we choose between the recognition theories proposing the existence of the state prior
to or only following recognition, we are choosing to concentrate our definition of the state on
one of these two aspects of the state and, from that source, derive the other. It is to this
conclusion that the re-emergence of the constitutive theory leads us.

Bibliography

BOOKS
 ● Dr.H.O. Agarwal, International law and Human Right, 19 th ed.2013 Central law
pub.

● MALCOLM N SHAW QC, International Law, 5th edition, Cambridge University

Press

WEBSITE

● http://www.lawnotes.in/Recognition_of_a_State
● http://karabakh.org/articles/recognition-of-states-and-governments-in-international-
law/
● http://internationallawu.blogspot.in/2012/11/recognition-de-facto-and-de-jure.html

● http:/wordpress.com