Recognition of States under International

Law
Introduction

state is born out from an existing State or an old State which

Anew into
new name or by splitting an existing State
disappeared and comes with a
States. If a new state enjoys certain rights, privileges and obligations then
two very essential. However, there are
recognition as a state, which is
It must get is considered to be a State. A
a State
some minimum criteria reguired before
the De Jure (when a state is legally recognized) recognition for
State must get
plays an important
considering aState as a sovereign State. Political thought recognition as a
or not. For
role in this decision whether to grant recognition elements,
other existing States. The
State, it must enter into relations with the
theories, and processes are reflected in this article.
InternationalLaw
Meaning of State Recognition in Public
confirmation, acknowledgment that
The term "Recognition" means ratification,
authority.
something done by any other person in one name had one's
Recognition of State
community, the existing
"In recognizing a state as a member of international conditions off
states declare that in their opinion the new state fulfills the
statehoodas required by International law" (Oppenheim)
According to Kelsen

The country to be recognized as an international person must be:

1. Politicaly organized
2. Have control over a definite territory.
3. Which tends towards permanence.
And must be independent.

Essentials for recognition as a state under Public

International Law
 Montevideo Conference,
International Law, Article 1 of
the
following essentials that an
Under the and lays down
a person
1933 defines the state as recognition as a state:
order to acquire
entity should possess in
Population;
Territory;
Government;
Sovereignty;
Control should tendtowards permanency.
then the State can be recognized.
Ifthese conditions are fulfilled,
recognition in Public International
Legal effects of state
Law
rights, obligations and
When a state acquires recognition, it gains certain
immunities such as.

relations with other states.

1. It acquires the capacity to enter intodiplomatic states.
other
2. It acquires the capacity toenter into treaties with
statehood.
3. The state is able to enjoy the rights and privileges of international
4. The state can undergo state succession.
5. With the recognition of state comes the right to sue and to be sued.
6. The state can becomeamember of the United Nations organisation.

Theories of recognition in international law

The recognition of anew entity as a sovereign state is based on two main
theories:

Consecutive Theory
Declaratory Theory
1. Consecutive theory of state recognition in International Law

The main exponents related to this theory are Oppenheim, Hegal and
Anziloti.

According to the consecutive theory of state recognition in International

Law, for aState to be considered an
international person, its recognition by
the existing states as a sovereign required.
recognition in International Law is of the view Consecutive theory of state
that only after recognition a
 to
International Person and becomes a subject
State gets the status of an possesses all the characteristics of a
International Law. So, even if an entity
status of an international person unless recognised
state, it does not get the
by the existing States.
mean
theory of state recognition in International Law does not
Consecutive according to this theory, a
exist unless recognised, but
that aState does not and obligations and becomes a subject to
exclusive rights
state only gets the existing States.
International Law after its recognition by other
International Law
of the consecutive theory of state recognition in
Criticism
several jurists. Few of the criticisms of this
criticised by
This theory has been
theory are:
unless a state is recognised by other existing
This theory is criticised because of statehood community under
and obligations
states, rights, duties
International Law is not applicable to it. a new state is acknowledged and
confusionwhen
This theory also leads to states and not recognised by other states.
recognised by some of the existing

theory of state recognition in International Law

2. Declaratory
Declaratory Theory of Statehood are Wigner, Hall,
The main exponents of the
to this theory, any new state is independent of
Fisher and Brierly. According theory has been laid down under Article 3
states. This
the consent by existing 1933. This theory states that the existence of
Conference of
of the Montevideo recognised by the existing state. Even
depend on being
a new state does not states, the new state has the right to defend its
before recognitionby other International law.
under
integrity and independence
consider the process of recognition as merely a formal
The followers of theory states.
acknowledgement of statehood by other
of state recognition in International Law
Criticism of the declaratory theory
statehood has also been criticised. This declaratory
The declaratory theory of International Law has been criticised on the
theory of state recognition in applicable for recognition of a state.
theory alone cannot be
ground that this characteristics comes into existence as a state, it
When astate having essential obligations and here comes the
international rights and
can exercise its
when other states acknowledge
application of declaratory theory, but
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 the consecutive
of recognition,
existence and the state gets the legal rights
theory comes into play.
International Law
Modesof Recognition ofState in
1. De facto Recognition.
2. De jure Recognition.
Ihese are the two modes of recognitionof State in International Law.
De facto Recognition of States under International Law
Itis the process of acknowledginganew state by a non-committal act.
De facto recognition is aprovisionally grant.
It is the first step to the next mode of recognition.
It is atemporary and factual recognition as a state
It can either be conditional or without any condition.
A test of control for newly formed states.
When the other existing countries have an opinion that the new state does not
have enough capacity but the new state holds a sufficient territory and control
over aparticular territory.
Example: The Soviet Union was de facto recognized by the government of the
UK in 1921.

De jure recognition of States under International Law

When the other existing countries have an opinion that the new state has all
the eligible capacity then such state will be recognized by the de jure
recognition. To grant recognition under the de jure method there is no need
for the fulfillment of the first mode.

It is granted when the newly formed state acquires

statehood.
permanent stability and
It grants the
permanent status of a newborn state as a sovereign state.
Example: The Soviet Union was given de jure recognition Soviet Union was in
1924.

In conclusion, there is no distinction between de facto and de jure as it is for the

states to give effect to the internal acts of the
held in the case Luther v. Sagar [3]. recognized authority. This was
[(1921)3 KB 532]
 De Facto andDe Jure Recognition
The distinction between
of State in International Law
Recognition of State
De jure
S.No. De facto Recognition of State recognition.
is legal
De facto recognition is a provisional and factual De jure recognition
1.
recognition. state 1
granted when thesuffici
recognition is
granted when there is the Dejure along with
states
De facto recognition is conditions of essential condition of
2 fulfilment of the essential permanency.
statehood. either with
can be granted
step towards De jure recognition
3
De facto recognition is a primary of de facto recognition.
grantof de jure recognition.
final and non-conditic
De facto recognition can
either be conditional or De jure recognition is a
4 non-conditional.
non-revocable.
nature. De jure recognition is
5. De facto recognition is revocable in
this mode have the
mode have only The state recognised under states.
The states recognised under this and obligations against other
6. against other states.
a few rights and obligations
under s
The state with de facto cannot undergo state The state with de jure recognition can
7. succession.

The state with de facto recognition cannot enjoy The state with de jure recognition enjoysfull
8. full diplomatic immunities. immunities.

International Law is given, the

As soon as the de facto recognition under
courts of a
Government acquires sovereign immunity from being sued in the
whether
foreign State which so recognizes it. It does not matter in such cases,
de facto or de jure recognition is given, because a de facto recognition dates
back in the same manner as ade 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 ArantzanuMendi
(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.
Formsof Recognition of State in InternationalLaw
When anewly formed state is recognised, its declaration can be made in two
forms:

5
1. Expressed Recognition
2. Implied Recognition
1. Expressed Recognition of State
ofticial
existing state recognises anew stateexpressly throughform of
when an expressed
declaration or notification, it is considered to be the
recognition. Express recognition can be made through any express or formal
such as sending or publishing declaration or statement tothe opposite
means de jure recognition
party. When astate is recognised by expressed ways, it is a
unless provided otherwise by the recognising state in the declaration.
2. Implied Recognition of State
When the existing state recognises a newly formed state through any implied
act, then it is considered as an implied recognition. Implied recognition can
be granted through any implied means by which a current state treats the
newly formed state as an international person. The implied credit not granted
through any official notification or declaration. The recognition through
implied means varies from case to case.

Conditionalrecognition of State in International Law

The recognition of state with which certain conditions are attached in order to
obtain its status as asovereign state is conditional recognition in International
Law. The conditions attached varies from state to state such as religious
freedom, the rule of law, democracy, human rights etc. The recognition of any
the
state is already associated with the essential conditions to be fulfilled for
attached it is
status of a sovereign state but when an addition condition is
conditional recognition in International Law.
Criticism

recognition is
Many jurists criticise conditional recognition. The conditional
and no
criticised on the ground that recognition is a legal procedure,conditions
additional conditions should be attached with it other than the
if it
recognised by law. Another reason for criticism is that the recognised state
does not fulfil the condition attached for its recognition, recognition is not
extinguished and it should still be valid.

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

States including India. In contrast to de facto government, governments-in
6
exile lack effective control over the territory of aState and have been accorded
de jure recognition.
Withdrawal of Recognition of State in International Law
1. Withdrawal of De facto recognition in International
Law
Under international law when a state having de facto recognition fails to fulfil
the essential conditions of statehood, its recognition can be withdrawn. The
recognition can be withdrawn in International Law by the recognizing state
through declaration or through communicating with the authorities of the
recognized states. The withdrawal can also be done by issuing a public
statement.

2. Withdrawal of De Jure recognition in International

Law
Withdrawal of de jure recognition is a very debatable issue under
the International Law. Withdrawal of a de jure recognition in International
Law is a very exceptional event. If strictly interpreted, the de jure recognition
can be withdrawn.

Even though the process of recognition is a political act, de jure recognition is

of legal nature. Jurists who consider de jure recognition as a political act
considers it revocable. Such revocation of de jure recognised states can be
withdrawn only when a state loses the essential characteristics of statehood or
any other exceptional circumstances. This type of revocation can be done
expressly by the recognising state by issuing apublic statement.
Recognitionof government
For any statehood, the government is an important element. When astate is
formed, its government changes from time to time. When the government
changes as an ordinary course of political action, the recognition of
government by the existing state is not required but when the government
changes due to any revolution, then its recognition by the existing state is
required.
 ror recognising the new government established out of revolution, the
existing states need to consider that:
he new government have sufficient control over the territory and its people
or not.

Z. The newgovernment is willing to fulfil the international duties and

obligations or not.
When the existing states are satisfied that the new government resulting Out
of the revolution is capable of fulfilling the conditions as mentioned above,
then the new government can be recognised by the existing states.

Conclusion
The recognition of the state is an essential procedure so that it can enjoy all
the privileges of statehood community under international law. There is a
controversy between Consecutive Theory and Declaratory theory of
Recognition by different jurists, but we can conclude that the theory folowed
for recognition is in between the consecutive and declaratory theory.
The recognition being either de facto or de jure, it provides rights, privileges
and obligations. When a state gets its de facto recognition, the rights,
privileges and obligations are less but when it is recognised de jure, it gets
absolute rights, liabilities and privileges. The recognition of the state is too
muchpolitically influences on the International platform.
There have been many instances where the powerful states create obstructions
in recognition of a newly formed state. It can even be withdrawal when the
recognising state feels that the new state is not fulfilling the prerequisites for
being a sovereign state. The recognition can be done either by express form
or implied form and its mode, i.e., de facto and de jure recognition varies from
case to case basis.