Write the importance of state recognition.

A new state is born out from an existing State or an old State which
disappeared and comes with a new name or by splitting an existing State
into two States. If a new state enjoys certain rights, privileges and
obligations then it must get recognition as a state, which is very essential.
However, there are some minimum criteria required before a State is
considered to be a State. A State must get the De Jure (when a state is
legally recognized) recognition for considering a State as a sovereign
State. Political thought plays an important role in this decision whether to
grant recognition or not. For recognition as a State, it must enter into
relations with the other existing States. The elements, theories, and
processes are reflected in this article.
Recognition of a State
Under International Law, recognition of a State can be defined as:

A state acknowledgment or acceptance as an international personality by

the existing State of the international community. The declaration to fulfill
certain essential conditions of Statehood as required by International Law.

Essentials of Recognition of a State

Population;
Territory;
Government;
Sovereignty;
Control should tend towards permanency.
If these conditions are fulfilled, then the State can be recognized.

Kelson’s view on the recognition of states

For a state to be recognized the following conditions must be fulfilled-

Must be politically organised.

Have control over definite territory.
Must be permanent.
Must be independent.
Process of Recognition
State is not only an institution with international legal standing but they are
the primary subjects of International Law and possess the greatest range of
rights and obligations.
Mixture of fact and law and the establishment of particular factual
conditions and compliance with relevant rules are the process of creating
new States.
States are not bound to recognise new claimants of Statehood and make it
a positive duty to recognize a State.
Recognition is mainly a matter of intention.
Israel-Palestine Dispute
In this dispute, India did not recognize Israel till 1999 and also South Africa
till 1991 due to racism. Even though India got military support from Israel,
still it didn’t recognise Israel. Where both the countries had all the
parameters under Montevideo Convention.

But Palestine got limited recognition by countries because they had large
number of Zewish population.

China-Taiwan Dispute
In this dispute, 15 countries recognised Taiwan as a state all over the
world. Taiwan was officially known as the Republic of China and is
recognised by 19 member states of the UN. Other countries have business
relations with Taiwan but they don’t recognise it as a state. Taiwan
unofficially maintains diplomatic relations with 57 other members of the UN.

Political Recognition of State

Political act in recognition is used to support or to reject a state or a
government which is new in an international community.
Mixture of fact and law and the establishment of particular factual
conditions and compliance with relevant rules are the process of creating
new States.
Criteria of Statehood is laid down in the Montevideo Convention, which
provides that State must have a permanent population, a defined territory
and a government and the capacity to conduct International relations.
Recognition of State is a political act based on interest and assessment
made by States individually, but legal arguments are important.
Montevideo Convention
To consider a State as an international person, State should adhere to
following qualifications-

Permanent Population;
Definite Territory;
Government;
Capacity to enter into relations with other States.
Theories of Recognition
There are two theories of recognition-

Constructive Theory,
Declarative Theory.
Constructive Theory of Recognition
This theory is coined by Hegel and Oppemheim.
According to this theory, the State is considered as an international person.
This theory views that after the recognition a State gets its status of an
International person and becomes a subject to International Law.
This doesn’t mean that State doesn’t exist unless recognised, but in this
theory State gets the exclusive rights and obligations and becomes a
subject to International Law after its recognition by other existing States.
Criticism
This theory is criticized by many of the jurists, few of them are-

That except the State which is recognised by other existing States, rights,
duties, and obligations of Statehood community under International Law is
not applicable to this theory.
It also comes into confusion when a new State is recognised by some of
the existing States and not recognised by other States.
Oppenheim’s View on Recognition of State
A State is and will only be an international person if recognised as
extraordinary. There is no agreement that countries have to give
recognition to a State, there is no obligation on the countries, obligation lies
under international law who will give recognition to a new State.
Existing countries recognised a country as a member of the international
community and believe that the State meets the requirements of
international law outside the country.
Declarative Theory of Recognition
Declarative Theory is coined by Hall Wagner and Fisher.
This was developed in the 20th Century to address shortcomings of
constitutive theory.
Before the recognition of the State, a new State has the right to defend its
integrity and independence under International Law.
This theory is laid down under Article 3 of Montevideo Conference of 1933
Followers of this theory consider this process of recognition as merely a
formal existence of Statehood by other States
Criticism
This theory has also been criticized. It is criticized on the grounds that this
theory cannot be applicable for recognition of the State.

When the essential characteristics are fulfilled by a State then it comes into
existence. If international rights and obligations are exercised by the State
then declarative theory applies. But when the State gets the legal rights of
recognition then constructive theory applies.

Modes of Recognition
Recognition of a new State
Recognition specifies the willingness of recognizing State. Existing State is
a member of the International Community who will deal with a new
State.Under International law it allows the recognized State to exercise the
rights and duties of the State. Recognition of the Government automatically
involved in recognition of a new State.

Recognition of a new government

Through the medium of the government a State participates in the benefits
of International Law largely. To recognise the government, recognising the
State is important.
Meaning of Recognition:
According to Phillip Jessup, recognition means that an existing State
acknowledges the political entity of another State, by overt or covert act. It
may be noted that recognition is neither a contractual arrangement nor a
political concession. It is a declaration of the existence of certain facts.
As to recognition of State, the Montevideo Convention, 1933 has said that
the State should possess qualifications:
Permanent population, definite territory Government, and capacity to enter
into relations with other States. When possession of these attributes (of
Statehood) in a State is acknowledged by other existing States, it is known
as recognition of a State. Recognition may, therefore, be defined as a
formal acknowledgement by the existing members of the international
community of the international personality of a new State. Problem of
recognition of a State arises when a State disintegrates into several States;
a former colonial territory gains Statehood, or when two or more States
merges to form a new State. Very often recognition is said to be a political
diplomatic function (Jessup).

Theories of Recognition
The legal significance of recognition is controversial. The theories attempt
to explain the nature, basis and effect of the act of recognition:
Constitutive Theory:
According to this theory, an entity does not become a State by possessing
essential attributes of Statehood; it becomes so, when other States
recognizes it. It implies at other States constitute the personality of a State
by granting recognition. This theory has been advocated by Hegel, Anzilloti,
Oppenheim, etc. The act of recognition is defined as, a clearly legal act,
with new States having the legal right to be recognized and established
States having the legal duty to recognize them.

The traditional constitutive theory is criticized on a number of grounds:

Firstly, if this theory were accepted, it would mean that other States would
determine the fate of new State. It may be noted that recognition by no
means produces subjects of international law. The acceptance of this
theory would mean that a State exists for some States (which have granted
recognition) and does not exist for others (which have not granted
recognition). This situation shows that recognition is not a conclusive proof
for the existence of a State.
Â
Secondly, there is no legal duty on the part of the existing States to
recognize any community that has in fact acquired the characteristics of
Statehood.
Â
Thirdly, a State exists prior to its recognition.
Â
Fourthly, a State does have some rights and obligations under international
law, even without recognition.

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 States. Sometimes, existence alone is
not sufficient to create an international personality. Thus, in the case of
Vatican City recognition alone is conclusive proof of its existence and not
its automatic existence as a State.

Declaratory/Evidentiary Theory:
According to this theory, Statehood or the authority of the new government
exists as such prior to and independently of recognition. Recognition is
merely a formal acknowledgement through which established facts are
accepted. The act of recognition is merely declaratory or evidence of an
existing fact that a particular State or government possesses the essential
attributes as required under international law. Recognition is necessary
only because it enables new State to enter into official intercourse with
other States. This theory has been advocated by Hall, Wagner, Brierly,
Fisher, etc. There is no legal duty to recognize States even after it has
attained statehood.

Thus, according to this theory, recognition depends upon the discretion or

sweet will of the recognizing States. In practice, most of the States accept
the declaratory theory. Recognition frequently been withheld for political
reasons. The theory also finds support in the fact that recognition has
retrospective effect.

The Tinocco Concessions Case seems to support this theory. However, the
view that recognition is only a declaratory act is not completely correct. 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.

Conclusions:
Recognition is declaratory as well as constitutive act. Oppenheim said:
Recognition is declaratory of an existing fact but constitutive in its nature at
least so far as concerns relations with the recognizing States. Further there
is no settled view whether recognition is the only means through which a
State becomes part of the international community.

According to Kelsen, Statehood may be distinguished into natural

statehood and juridical statehood. The former exists in a State from the
moment it comes into possession of the essential elements of statehood.
The latter can be acquired by a State only when other States recognizes it.

Thus, recognition although is declaratory of the existence of the natural

statehood, it is constitutive of juridical Statehood. The above view taken by
Kelsen may be termed as modified constitutive theory.

Act of Recognition: Legal or Political (State Practices)

According to facultative theory of recognition, recognition is a political or
discretionary act. It is determined by reason of expediency and high State
policy.
A.V. Levontin said:
Recognition constitutes the weakest link in international law.

In practice, India also considers recognition as a political and discretionary

act. The practice of States shows clearly that the act of recognition is
influenced by political, economic and strategic considerations. Starke lays
down that at the time of granting recognition, States generally make sure
that the State to be recognized at least possesses the requisite legal
qualifications.

To this degree, States do treat recognition as a legal act. In general, today,

admission into United Nations amounts to a certificate of Statehood
(collective recognition). However, as the act of recognition is the free will of
each State, even in the case of recognition by U.N., the States, which did
not vote in favour, are not deemed to have recognized a new State.

Necessity of Recognition: Legal Effects

Non-recognition does not mean that the entity does not qualify for
Statehood. Recognition should however be granted because it has
important legal consequences. The recognized State acquires certain
rights, privileges and immunities under international law as well as
municipal law. The typical act of recognition has two legal functions: firstly,
the determination of statehood, a question of law, secondly, the act of
recognition is a condition of the establishment of formal, optional and
bilateral relations, including diplomatic relations and the conclusion of
treaties.

Following are the main legal effects of recognition:

Recognized State becomes entitled to sue in the courts of the recognizing
State.
Recognized State is entitled to sovereign immunity for itself as well as its
property in the courts of recognizing State.
Recognized State is entitled succession and possession of property
situated in the territory of the recognizing State.
Recognized State may enter into diplomatic and treaty relationships with
the recognizing State (de jure recognition).
Recognizing State gives effect to past legislative and executive acts of
recognized State (retroactivity of recognition).
However, non-recognition of a State does not mean that the new entity will
be devoid of legal effects in relation to the non-recognizing States. General
international rules or treaties on the co-ordination of States such as the
norms on the high seas or respect for territorial or political sovereignty, etc.
do apply to the relationship between the new State and all other members
of the international community. Thus, a non-recognized State is immune
from the jurisdiction of the courts of the State which did not recognize it.

However, non-recognition has no effect before international courts or

tribunals (Tinocco Concessions Case). In Great Britain -Costa Rica
Arbitration (Tinocco Concessions Case) (1923 UN Rep (1)), evidence
clearly disclosed that Tinocco regime had in fact governed Costa Rica for
two years. Non recognition cannot outweigh the evidence as to de facto
character of Tinocco government. In reply to Costa Rica's contention that
Tinocco government could not be considered a de facto government since
it was not established in accord with the Constitution of Costa Rica, it was
said that recognition was to be determined by enquiry into a government's
de facto sovereignty and complete governmental control and not into its
illegitimacy or irregularity of its origin.

Held that:
Mere fact that a State is not recognized (Britain did not recognize the
Tinocco government), does not mean that the State does not exist. Such
(unrecognized) State continues to be bound by its rights and obligations
under international law. Hence successive government (Costa Rica) is
liable for the acts of its predecessors (unrecognized Tinocco government).
In international law, a successor government cannot repudiate those
contracts/acts of the predecessor which have international ramifications
(unless those contracts/acts were unconstitutional at the time of their
granting or making).

Stimson Doctrine (Non-recognition):

It was a statement of the United States national policy. The doctrine
imposed a duty of non-recognition of all territorial acquisitions brought
about in breach of international law. Thus, if a State grants recognition to
another State in violation of international treaty (Paris Pact, 1928), such
recognition would be invalid. Although this doctrine has much to
recommend itself, the States does not always follow it.

Distinction between Recognition of States and Government Recognition of

a State is entirely different from the recognition of a government.
Recognition of a government means that the recognizing State regards it
as the sole representative of the given State in international intercourse.
When the regime of a State is changed, it is required to be recognized by
other States. Change in the government of a State may take place either in
the normal course of political life or when it is affected through a revolt or
revolution, unconstitutional means.

In the latter case, a new government usually receives recognition only

when the other States are satisfied that it commands the support of the
majority of the people and may become stable. Willingness and capacity to
carry out its international obligations is also considered relevant. Since non-
recognition of a new government has nothing to do with the recognition of a
State, official intercourse and treaties are not terminated but only
suspended; they revive when the old government comes in the power
again or when the new regime is recognized.

Forms of Recognition:
Express recognition: When an existing State recognizes the new State by a
notification or declaration (public statement), announcing the intention of
recognition.
Â
Implied recognition: It results from any act which implies the intention of
recognizing the new State.

The intention may be indicated by the States unilaterally or collectively.

When a State enters into a bilateral treaty, or establishes diplomatic
relations with an unrecognized State, it may be inferred that the former has
granted recognition to the latter. The existing States may recognize a new
State collectively. It occurs when an unrecognized State participates in a
multilateral conference/treaty, the other participants or parties are regarded
to have recognized the new State if the intention has been indicated.

Does the admission of a new State to an international organization such as

the United Nations imply collective recognition?
Admission to the organization certainly means that all Members must treat
the new fellow Member as an equal partner in law in all matters relating to
the application of the Charter. To this extent, common membership means
that the newcomer is partially recognized. But apart from that, all States are
free to decide whether to proceed to full recognition or limit their relations to
the minimum.

A State which has become a member of U.N. is treated by other States as

if it has been recognized by other States in dealings inside the U.N. and not
elsewhere, it is sometimes called quasi-recognition. In its advisory opinion
on Condition of Admission of a State to the United Nations (ICJ, Rep.
1948), the ICJ opined that if a State is admitted as a member of the U.N., it
will amount to collective recognition by those States only who voted in the
favour of the admission of such a State.
Â
Conditional recognition: It implies that the recognition is granted subject to
the fulfilment of certain stipulation by the recognized State in addition to the
normal requirements of Statehood. The conditional recognition has
disappeared from contemporary practice.
Â
Pre-mature or Precipitate recognition: It is granted even when a State does
not possess all the attributes of Statehood. Generally, when the authorities
organize a separatist movement and establish a provisional government in
a State for the prospective new State, recognition of such a government is
granted by other States.

Modes of Recognition: De facto and De jure Recognition

Recognition may be of two kinds: de facto recognition and de jure
recognition. In both, recognition is an act intended or calculated to give rise
to legal rights and obligations.

However, there are differences between the two:

De facto recognition: It means that in the opinion of the recognizing State,
provisionally and temporarily and with all due reservations for the future,
the State or Government recognized, fulfils the requirements laid down in
international law for effective participation. While De jure recognition: It
means that according to the recognizing State, the State or Government
recognized formally (i.e. without reservation and on a definitive basis) fulfils
the requirements laid down in international law for effective participation.
Â
De facto recognition: It is a lesser degree of recognition, taking account on
a provisional basis of present realities. While De jure recognition: It is the
fullest kind of recognition.
Â
De facto recognition: It may be made dependent on conditions with which
the new State has to comply. If it fails to do so, the recognition may be
withdrawn. While De jure recognition: It is final, and once given cannot be
withdrawn.
Â
De facto recognition: When the new State is formed through revolt,
recognition may be granted after granting the de facto recognition. While
De jure recognition: When a new State comes into existence peacefully
and constitutionally, de jure recognition may be granted directly.
Â
De facto recognition: Full diplomatic relations cannot be established with a
de facto recognized State. While De jure recognition: It can be done so
when a State is recognized de jure.
De facto recognition: Full diplomatic immunities are not granted to the
representatives of the de facto recognized State. However, in USA, such
immunities are granted. While De jure recognition: The representatives of
the de jure recognized State are granted such immunities.
Â
De facto recognized State cannot make a claim to property situated in the
territory of recognizing State. It lacks extra-territorial jurisdiction. While De
jure recognized State can claim so. The Soviet Government could get
possession of Tsarist Archives and other property in England only when the
latter accorded de jure recognition to the former.
Â
De facto recognition: Official visits to an official dealings with the State in
relation to its additional territory which has been recognized de facto may
be kept to a minimum and avoided altogether. While De jure recognition:
This is not so in case of a State recognized de jure. It is to be noted that by
granting de facto recognition to a State, the recognizing State secures
certain advantages especially economic. It enables it to protect the
interests of its citizens in the de facto recognized State.

Obliteration of Distinction: Municipal Law Effects

There are substantial similarities in legal incidents of de facto and de jure
recognition. Thus, the recognizing State treats the legislative and executive
acts of a de facto or de jure recognized State as having full legal effect.
Further, both de facto and de jure recognized States have jurisdictional
immunities (sovereignty).

A number of cases support the contention that de facto and de jure

recognition is indistinguishable as far as legislative and other measures
(i.e. municipal law effects) are concerned: Luther v. Sagor (1921) 3 KB 532.

As soon as the de facto recognition is given, the Government acquires

sovereign immunity from being sued in the courts of a foreign State which
so recognizes it. It does not matter in such cases, whether de facto or de
jure recognition is given, because a de facto recognition dates back in the
same manner as a de jure recognition. This rule has been applied in a
number of cases viz. Bank of Ethiopia v. National Bank of Egypt & Ligouri
(1937) 3 All ER 8. The Arantzanu Mendi (1939) 1 All ER 719. So far as
conflict of authority takes place between a displaced de jure government
and a newly recognized de facto government, concerning matters in the
territory ruled by the de facto government, the rights and status of de facto
government will prevail.

Recognition of Insurgency, Belligerency and Government-in-Exile

As a general principle, States maintain a policy of non-interference in the
domestic affairs of another State. A stage may come when rebels are in
effective occupation of a large part of the territory and exercise authority in
that territory. In these circumstances, third States, without making a formal
pronouncement and without conceding to the rebellion forces belligerent
rights, refrain from treating them as law-breakers, and consider them as the
de facto authority in the territory under their occupation. Such attitude is
adopted by the third States to maintain with rebels relations deemed
necessary for the protection of their nationals, their commercial interests,
etc.
When that happens, the rebels possess against third States the status of
insurgents. As a result of recognition, insurgents are not treated as pirates
and international rules of war become applicable to them. A stage may
come when civil war between insurgent forces and parent government
assumes such dimensions that third States are compelled to treat the civil
war as a real war between rival powers. If such a situation occurs, third
States recognize insurgent forces as a ‘belligerent' power. As a result of
recognition of belligerency, the conflict is internationalized and the
belligerent get some rights under international law.

Government-in-exile: This situation may arise when the State is temporarily

occupied by invaders or usurpers and the government has had to flee, or
there is a rebel community which has not yet succeeded in establishing
itself in the territory of which it aspires to be the government.

An example is Palestine Liberation Organization (P.L.O.), recognized by

many States including India. In contrast to de facto government,
governments-in-exile lack effective control over the territory of a State and
have been accorded de jure recognition.

Illegal States
Is there a duty not to recognize illegal States?
The issue has been accorded treatment in the resolutions of General
Assembly and Security Council. In 1965 the Security Council passed a
resolution calling upon all States not to recognize illegal minority regime in
Southern Rhodesia which violated the principle of self-determination.

Estrada Doctrine (No Necessity of Recognition)

The Estrada doctrine is generally understood to mean that recognition of
government is unnecessary once the State has been recognized. Professor
Richard Baxter suggested recognition is an institution of law that causes
more problems than it solves it and therefore must be rejected.

A number of States indicated that they had abandoned traditional

recognition policies and substituted the Estrada doctrine or some
equivalent by which they accepted whatever government was in effective
control without raising the issue of recognition. However, the doctrine has
been criticized as it disregards the rules of international law and
encourages individual appraisal in this field.

Withdrawal of Recognition
Although the act of granting recognition is political, recognition de jure once
granted is, generally speaking, irrevocable. Art. 6 of the Montevideo
Convention, 1933, also declared that de jure recognition is ‘unconditional
and irrevocable'. If a State does not have cordial relations with another
State it may take other steps, including the rupture of diplomatic relations,
which does not result in withdrawal of recognition. Even recognition de
facto cannot be withdrawn so easily inspite of the fact that revocability is
inherent in its concept. However, recognition de jure ceases to have effect
in case of a definite disappearance of one of the essential elements of
Statehood or ineffectiveness of the government.

Retroactivity of Recognition
Recognition de facto as well as de jure has a ‘retroactive' effect in the
sense that all the acts of newly recognized State are treated valid dating
back on the commencement of the activities of the authority thus
recognized. For instance, if the communist China was recognized by the
U.S.A. in 1979, the latter would treat all the acts of the former from the date
when it in fact comes into existence.

Every act of recognition is not retroactive in its operation. It depends upon

the ‘intention' behind the individual act of recognition. In Luther v. Sapor,
held that de facto recognition dates back in the same manner as de jure
recognition. Another case, which furthers the ‘Intention test', is Civil Air
Transport Inc. v. Central Air Transport Corpn. (1952) 2 All ER 733. In this
case, the court held:
Retroactivity depends upon intention.
Where there is a clear date mentioned, recognition takes effect from that
date (mentioned) Thus, it is an exception to the general rule of retroactivity.
Acts of previous de jure government cannot be invalidated by subsequent
de jure recognition of new government.
Prima facie, recognition operates retrospectively not to invalidate the acts
of a former government, but to validate the acts of a de facto government,
which has become the new de jure government. It may be noted that where
a State is granted de facto recognition initially and de jure recognition later
on, the effect of recognition starts from the date of de facto recognition. It
may be regarded as a prima facie rule (Starke).

Indian Practice on Recognition

India's practice is in conformity with the norms and principles of
international law as well as general practice of States. In recognizing
States, India had accorded recognition as soon as the conditions of
Statehood had been fulfilled. As a matter of general policy, India has
attached primacy to de factoism and has generally recognized the
supremacy of de facto regimes. Another striking feature of India's
recognition policy is that it has adopted the broader version of Stimson
doctrine and, as a matter of policy, has denounced illegal territorial
acquisitions and unlawful governments.

By recognizing Israel in 1950, though not establishing diplomatic relation

with her (till 1992), the Government of India has clearly proved weighty
reasons for thinking that it distinguishes between recognition as a legal act
and the establishment of diplomatic relations as a purely political act. The
recognition of Palestine Liberation Organization (PLO) affirms India's strong
commitment to the principle of self-determination and its long-standing
support to national liberation movements.

Conclusions:
The difference between the two types of recognition is chiefly political
(degree of political approval and acceptance) rather than legal. In de jure
recognition formal diplomatic relations are established whereas in de facto
recognition diplomatic relations are not established. It may be pointed out
that the dejure and de facto recognition are out of fashion and the current
practices of States is to grant ‘full recognition or foil diplomatic
recognition and there is no half way between the two.