Recognition of state
Submitted by: M Awais Iqbal
Roll # 517341
Subject: International Law
Department: BS IR ( 5th Semester
Submitted to: Dr Ahsan
Government College University (GCU)
Faisalabad
Introduction
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
Popular Sovereignty
Definite Territory
Constitutional Government
Control should tend towards permanency.
Ability to diplomatic relations
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.
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.
Forms of recognition
1. De jure recognition
2. De facto recognition
De facto recognition
Governments are usually accorded De Facto Recognition. It refers to the temporary
acknowledgement of a state, which might be conditional or unconditional
. This manner of recognition is given when a new State has a sufficient territory or control
over a certain region, but the other existing States do not consider it because of lack of
stability or other unsettling factors. As a result, we may use it as a control test for freshly
generated states.
The United Kingdom first acknowledged the Soviet Government as de-facto recognition
in 1921, and then as de-jure recognition in 1924.
De Jure Recognition
. When a new state meets all the necessary qualities of a state, it is granted De Jure
Recognition.
De-facto or de-jure recognition can be provided directly to a state that has or has not received
de-facto recognition.
The de-jure form of recognition is used by new-born states to grant permanent status as a
sovereign state.
Conclusion
The recognition of the State is an essential procedure, so that the State can enjoy the rights
and privileges as an independent community under International law. The recognition be it
De Facto and De Jure, both provides rights, privileges and obligations.
When a state gets De Facto recognition, its right, privileges and obligations are less but
when De Jure is recognised by the State it gets absolute rights, liabilities and privileges.
The recognition of the State has some political influence on the International Platform.
There are many situations where powerful States create difficulties in recognition of a
newly formed State. This can be withdrawn when any State does not fulfill the conditions
for being a sovereign State. De Jure and De Facto recognition may vary from case to case.
De Jure recognition can be given directly to the State, there is no necessity of De Facto
recognition even if De Facto is considered as the primary step to achieve De Jure
recognition.
