Question No-5-What are the legal consequences of recognition of a government?

Whether a
non-recognised government has any status in International Law?

(Or), Recognition is a Political diplomatic function of a state “Comment and explain

International Law relating to Recognition of a State”.

Introduction

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.

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.

Theories of Recognition

 Constructive Theory,
 Declarative Theory.

Constructive Theory of Recognition

 This theory is coined by Hegel and Oppenheim.

 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
the 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.

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

 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. When a
state is recognized,
 there are two ways by which it can be declared which is:

Express Recognition

 When an existing State identifies a new State expressly by official declaration or notification, then it
is considered to be a expressed form of recognition.

Implied Recognition

 When an existing State identifies a new State through any implied act then it is considered as
implied recognition. There is no formal statement or declaration issued.

Conditional Recognition

 The recognition of any State which is already associated with the essential conditions are needed to
be fulfilled for the status of sovereign State, but when any additional condition is attached then it is
Conditional Recognition.

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 recognize the government, recognizing the State is important.

Objective Test

 Is there any opposition or not?

 Whether the new government has effective territory?

Subjective Test

 Whether fulfilled the International Obligations?

Recognition of belligerency

 Belligerency exists when a portion of the States territory and population is under the de facto
control of the people who are fighting against the government to establish a separate State or
to overthrow the existing government.
 Recognition of belligerency was granted during most of the civil wars of the 19th Century, such
as the American civil war and war during the Independence of the Twentieth Century.

Forms of Recognition

De Facto Recognition

 De Facto Recognition is mostly granted to governments.

 It is a temporary recognition of a State, this can be conditional or without any condition.
 This mode of recognition is granted when a new State holds a sufficient territory or control over a
particular territory.
 The UK first recognized Soviet Government as de-facto recognition in 1921 and later recognised as
de-jure in 1924.

De Jure Recognition

 De Jure Recognition is given to a new State when a new State fulfills all the essential characteristics
of a State.
 De Jure recognition can directly be granted to a State who has or has not granted de-facto
recognition.
 Newborn States grant the permanent status as a sovereign State through de-jure mode of
recognition.

Difference between De Facto and De Jure Recognition

De Facto Recognition De jure Recognition

De Facto recognition is temporary and

De Jure recognition is a permanent and legal recognition.
factual recognition.

De Facto recognition is granted to a State De Jure recognition is granted to a State when all the
when it fulfills the essential conditions of the essentials are fulfilled along with the permanent control
State. of that essentials.

De Facto recognition is the primary step to De Jure recognition can directly be granted without De
grant De Jure recognition. Facto recognition.

De Facto recognition can easily be revoked. De Jure recognition can never be revoked.

The States having De Facto recognition The States having De Jure recognition can enjoy
cannot enjoy diplomatic immunities. diplomatic immunities.

The States having De Facto recognition have

The States having De Jure recognition have absolute
only few rights and obligations against other
rights and obligations against other States.
States.

Withdrawal of Recognition

Withdrawal of De Facto Recognition

1. Under International Law, when a State has De Facto recognition but fails to obtain or fulfill the
essential conditions then the recognition can be withdrawn.

2. The recognition can be withdrawn through declaration or through communicating with the
authorities of the recognised State. It can also be withdrawn by issuing a public Statement.

Withdrawal of De Jure Recognition

1. Withdrawal of De Jure recognition is a debatable topic under International Law. Withdrawal of

this recognition comes under as an exception.

2. This recognition can be withdrawn when a State loses the essentials elements or other
circumstances.

Process of Recognition

 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.