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Shri. Jayantilal H. Patel Law College, Mumbai

Theories and Modes of Recognition of States

Human Rights and PIL

A project submitted in partial fulfilment

of the requirements for the 5th Semester of L.L.B course

By Janhavi Prakash Raut

Second Year L.L.B

Division-C

Roll no-04

Under the Supervision of

Prof. Pinny Pathak

Date of Submission- August,2024

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INDEX

SR.NO PARTICULARS PAGE NO

1. State Recognition

2. Definition

3. Essentials for Recognition as a State

4. Legal Effects of State Recognition

5. Theories of Recognition

6. Modes of Recognition of State

Examples illustrating various theories & modes of State
7. Recognition

8. Case Laws

9. Suggestion

10. Conclusion

11. Bibliography
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State recognition

An existing state, an old state that has vanished and reappears, or the division of
an existing state into two States are all ways that new states are created. It is
crucial to obtain recognition as a state if a new state possesses specific rights,
privileges, and obligations. But before a State is regarded as a State, there are a
few minimal requirements. For a State to be regarded as a sovereign State, it must
first obtain De Jure recognition (when a state is acknowledged legally). Whether
to award recognition or not depends in large part on political philosophy. It must
establish relations with the other States in existence in order to be recognized as
a State.

The word “Recognition” refers to the ratification, confirmation, or

acknowledgement that something done in one’s name by another person was
legitimate. Recognizing an entity does not only mean that it has met the necessary
criteria; it also means that the state doing the recognizing will interact with the
entity being recognized and grant it the privileges and immunities that are
typically associated with recognition under domestic law. Therefore, it is asserted
that political viewpoints rather than legal justifications typically determine
whether something is recognized or not. It is appropriate because it serves the
interests of the State to establish relations with a foreign State and grant her some
privileges. As a result, when States decide whether to recognize something, they
will undoubtedly assess its benefits and drawbacks.

Definition

“In recognizing a state as a member of international community, the existing

states declare that in their opinion the new state fulfills the conditions off
statehood as required by International law” (Oppenheim)
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Is there a duty to acknowledge? According to Lauterpacht and Guggenheim,

acknowledgment is not only required but also constitutive. This point of view has
drawn criticism for being inconsistent and having no connection to state practice.
In the words of Browlie, “recognition is an optional and political act and there is
no duty in this regard.”

Essentials for recognition as a state under Public International Law 1

Under the International Law, Article 1 of the Montevideo Conference,

1933 defines the state as a person and lays down following essentials that an
entity should possess in order to acquire recognition as a state:

 Population;
 Territory;
 Government;
 Sovereignty;
 Control should tend towards permanency.

If these conditions are fulfilled, then the State can be recognized

Legal effects of state recognition in Public International Law

When a state acquires recognition, it gains certain rights, obligations and

immunities such as.

1. It acquires the capacity to enter into diplomatic relations with other states.
2. It acquires the capacity to enter into treaties with other states.
3. The state is able to enjoy the rights and privileges of international
statehood.
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 become a member of the United Nations organisation.
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Theories of Recognition

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

Consecutive Theory

According to the sequential theory of state recognition in international law, a state

must be acknowledged as a sovereign by all other states in order for it to be
regarded as an international person. According to the subsequent conception of
state recognition in international law, a State only acquires the status of an
international person and becomes subject to international law after being
recognized. Therefore, unless an entity is recognized by the existing States, even
though it exhibits all the qualities of a state, it does not acquire the status of an
international person.

Criticism of the consecutive theory of state recognition in International Law

This theory has been criticised by several jurists. Few of the criticisms of this
theory are:

 This theory is criticised because unless a state is recognised by other

existing states, rights, duties and obligations of statehood community under
International Law is not applicable to it.
 This theory also leads to confusion when a new state is acknowledged and
recognised by some of the existing states and not recognised by other
states.

Declaratory Theory

In support of the Declaratory Theory of Statehood, Wigner, Hall, Fisher, and

Brierly are the leading figures. This theory holds that any new state can form
without the approval of any current states. According to Article 3 of the
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Montevideo Conference from 1933, this hypothesis has been established.

According to this theory, a new state’s existence is independent of whether or not
it is acknowledged by an older one. Under international law, a new state has the
right to preserve its integrity and independence even before being acknowledged
by other governments.

Criticism of the declaratory theory of state recognition in International Law

The declaratory theory of statehood has also been criticised. This declaratory
theory of state recognition in International Law has been criticised on the ground
that this theory alone cannot be applicable for recognition of a state. When a state
having essential characteristics comes into existence as a state, it can
exercise international rights and obligations and here comes the application of
declaratory theory, but when other states acknowledge its existence and the state
gets the legal rights of recognition, the consecutive theory comes into play.

Modes of Recognition of State in International Law

1. De facto Recognition.
2. De jure Recognition.

These are the two modes of recognition of State in International Law.

De facto Recognition of States under International Law

It is the process of acknowledging a new state by a non-committal act.

 De facto recognition is a provisionally grant.

 It is the first step to the next mode of recognition.
 It is a temporary and factual recognition as a state
 It can either be conditional or without any condition.
 A test of control for newly formed states.
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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 a particular 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 permanent stability and
statehood.
 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 recognized authority. This was held
in the case Luther v. Sagar . [(1921)3 KB 532]

As soon as the de facto recognition under International Law 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.
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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.

Premature recognition of States under International Law

This kind of recognition is granted by a third state or government to

emerging insurgents.

It is given to those who have not even got the permanence of statehood. It is
an unfriendly act towards the standing government it is an act of intervention
rather than an act of recognition.

Implied recognition of States under International Law

It is a kind of recognition where the act of recognition is implied rather than

expressed.

For example, if a state enters into a treaty with another unrecognized state or
government it is concluded that the recognizing state has the intention to
give it recognition. The intention may be unilateral or collective.

Conditional recognition of State under International Law

The recognition of state with which certain conditions are attached in order to
obtain its status as a sovereign 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 state is
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already associated with the essential conditions to be fulfilled for the status of a
sovereign state but when an addition condition is attached it is conditional
recognition in International Law.

Collective recognition of state under International Law

It is an act of recognition through the international decision. Membership in the

united nations is one of the criteria for gaining recognition in a collective form.
However, member states are free to use their own will and they are not bound
by the decision of united nations. They can decide as to whom to give
recognition.

Individual recognition of States under International law

It refers to the situation where one state recognizes the existence and sovereignty
of another state independently of the recognition by other states or international
organizations. This recognition is a unilateral act by a state and has significant
implications for the diplomatic relations between the recognizing state and the
recognized state.

Examples illustrating various theories and modes of state recognition

Constitutive Theory of Recognition:

South Sudan: The recognition of South Sudan as an independent state in 2011
illustrates the constitutive theory. South Sudan declared independence from
Sudan after a referendum. Its statehood was formalized through international
recognition by the United Nations and numerous countries. This recognition was
essential for South Sudan's status as a sovereign state, as the constitutive theory
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asserts that recognition by other states is crucial for an entity to be considered a

state.

Declaratory Theory of Recognition:

Taiwan (Republic of China): Taiwan's situation exemplifies the declaratory
theory. Despite its effective governance and fulfillment of the criteria for
statehood, Taiwan is not universally recognized as a sovereign state due to the
One-China Policy advocated by the People's Republic of China. Taiwan operates
as an independent entity with its own government, economy, and military, but its
statehood is recognized by only a few countries. This reflects the declaratory
theory, where a state’s existence is based on its fulfillment of statehood criteria
rather than formal recognition.

De Facto Recognition:
Taiwan (Republic of China): Taiwan operates as an independent state with its
own government, military, and economy, but it is not universally recognized as a
sovereign state due to the One-China Policy. While Taiwan is not a member of
the United Nations and lacks formal diplomatic relations with many countries, it
maintains de facto relationships with numerous states, including the United
States, through unofficial channels. This is a clear example of de facto
recognition, where Taiwan is treated as a state in practice, even if not officially
recognized by all.
Northern Cyprus: The Turkish Republic of Northern Cyprus (TRNC) declared
independence in 1983, but it is only recognized by Turkey. Despite this, the
TRNC functions with its own government, economy, and institutions, indicating
de facto control over the territory. However, its lack of broad international
recognition exemplifies the distinction between de facto and de jure recognition.

De Jure Recognition:
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South Sudan: South Sudan gained independence from Sudan in 2011 following
a referendum. It was quickly recognized by the United Nations and most of the
international community. This recognition was de jure, meaning it was legal and
formal, allowing South Sudan to participate fully in international relations as a
recognized sovereign state.
East Timor (Timor-Leste): East Timor declared independence from Indonesia
in 1999 after a UN-sponsored referendum. It was formally recognized by the
United Nations and most countries shortly after, and it became a UN member
state in 2002. This is an example of de jure recognition, where East Timor’s
statehood was legally acknowledged by the international community.

Conditional Recognition:
Palestine: Palestine has been recognized by over 130 UN member states and
holds the status of a non-member observer state at the United Nations. However,
its recognition is often conditional, tied to ongoing peace negotiations with Israel
and its adherence to international agreements. Some countries recognize Palestine
as a state only under certain conditions related to the broader Israeli-Palestinian
conflict.
Bosnia and Herzegovina: Following the breakup of Yugoslavia, Bosnia and
Herzegovina declared independence in 1992. Its recognition was conditional on
adherence to the Dayton Agreement, which brought peace to the region and
established the framework for its governance. The international community's
recognition was contingent on Bosnia and Herzegovina’s commitment to the
terms of this agreement.

Collective Recognition:
Kosovo: Kosovo declared independence from Serbia in 2008. Its recognition has
been uneven, with over 100 UN member states recognizing it, including the
United States and many European Union countries. However, Kosovo’s
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collective recognition is complicated by the fact that some significant countries,

such as Russia and China, do not recognize its independence, preventing it from
joining the United Nations. This case highlights the challenges of achieving
collective recognition.
Western Sahara: The Sahrawi Arab Democratic Republic (SADR), which
claims sovereignty over Western Sahara, is recognized by several countries and
the African Union. However, its statehood is not recognized by the United
Nations, and many countries consider Western Sahara a non-self-governing
territory under Moroccan control. This is an example of partial collective
recognition, where some countries and organizations recognize a state, but others
do not.

Individual Recognition:
United States Recognition of Israel (1948): The United States was one of the
first countries to recognize the State of Israel shortly after its declaration of
independence in 1948. This recognition was unilateral, and it paved the way for
diplomatic relations between the two countries, even though Israel’s recognition
was contested by many other states at the time.
Recognition of Kosovo: Following Kosovo's declaration of independence from
Serbia in 2008, various countries individually recognized Kosovo as a sovereign
state. For instance, the United States, the United Kingdom, and many European
Union member states individually recognized Kosovo, even though its
recognition is not universal and is opposed by countries like Serbia, Russia, and
China.
Recognition of Bangladesh (1971): India was the first country to recognize
Bangladesh as an independent state after it seceded from Pakistan following a
bloody liberation war. This individual recognition by India was crucial in gaining
wider international recognition for Bangladesh.
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Case Laws

Ukraine v. Russia (2022) - International Court of Justice (ICJ)

Background: Following Russia's invasion of Ukraine in February 2022, Ukraine
brought a case before the ICJ, arguing that Russia falsely claimed genocide as a
pretext for its invasion and that the Russian Federation's actions violated
international law, including Ukraine's sovereignty and territorial integrity.
Outcome: In March 2022, the ICJ issued a provisional order requiring Russia to
suspend its military operations in Ukraine immediately. While this case is
ongoing, the ICJ’s order underlines the international community's emphasis on
respecting recognized state borders and sovereignty.
Significance: This case emphasizes the importance of de jure recognition of state
sovereignty and territorial integrity. Despite Russia’s recognition of the self-
proclaimed Donetsk and Luhansk People's Republics in eastern Ukraine, the ICJ's
order reinforces Ukraine's recognized sovereignty and territorial integrity under
international law.

Armenia v. Azerbaijan (2021) - ICJ and European Court of Human Rights

(ECHR)
Background: This case stems from the conflict over the Nagorno-Karabakh
region, where Armenia and Azerbaijan have contested territorial claims.
Following the 2020 Nagorno-Karabakh war, both Armenia and Azerbaijan
brought cases before the ICJ and the ECHR alleging violations of human rights
and breaches of international law.
Outcome: The ICJ and ECHR have issued various interim orders, including
provisional measures aimed at protecting the rights of individuals in the conflict
zones and preventing further harm.
Significance: The recognition of states and disputed territories comes into play
as the international community navigates the competing claims of sovereignty
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over Nagorno-Karabakh. While the region is de facto controlled by different

entities over time, it remains de jure recognized as part of Azerbaijan by most of
the international community.

Suggestion

Declaratory theory should be used if your focus is on the legal criteria for
statehood (such as population, territory, government, and capacity to enter
relations), regardless of whether other states recognize the entity.
Constitutive theory should be used if your focus is on the importance of
international bodies is critical to the state’s functioning, legitimacy, or moral
standing in the global community.
If you are dealing with a situation where both the factual basis of statehood
and the need for international recognition are important, consider using both
theories in combination.
De Jure Recognition should be used for full legal acknowledgment and when
the state is stable, legitimate, and recognized under international law.
De Facto Recognition should be used when acknowledging a state’s control
or existence on a provisional or practical basis, often due to instability or
contested legitimacy.
Individual Recognition should be used when focusing on the diplomatic
relationship between specific states or when the recognition by a powerful
state can significantly influence the recognized entity’s international
standing.
Collective Recognition should be used when the goal is to achieve broad
international consensus and legitimacy, particularly through multilateral
institutions or in post-conflict scenarios where stability and global
acceptance are paramount.
Both individual and collective Recognition should be used in complex or
transitional cases where both individual state recognitions and collective
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international endorsement are important for the entity’s legitimacy and

integration into the international community.

Conclusion

A necessary step for a state to take use of all the rights associated with statehood
under international law is state recognition. Different jurists have argued for and
against the Consecutive Theory and Declaratory Theory of Recognition, but we
can infer that the theory used for recognition is somewhere between the two.

De jure or de facto, the recognition confers rights, privileges, and obligations. De

jure recognition confers absolute rights, liabilities, and privileges on a state; de
facto recognition confers only limited rights, privileges, and duties. There are too
many political influences coming from the state’s recognition on the global stage.

There are numerous examples of powerful states putting up barriers to a newly

constituted state being recognized. When the recognizing state believes the new
state does not meet the requirements to be a sovereign state, withdrawal may even
be an option. The modes of recognition, i.e., de facto and de jure recognition, vary
from situation to case and can be done in either an express form or an implicit
form.

Bibliography
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