Dr.
RAM MANOHAR LOHIA NATIONAL
LAW UNIVERSITY (2022-2023)
PUBLIC INTERNATIONAL LAW
PROJECT ON
RECOGNITION OF STATE: THEORIES AND MODES OF RECOGNITION
Submitted to Submitted by
Dr. Abdullah Nasir Vanshika Shukla
Assistant Professor 210101165
(Public International Law) 2nd Year, IV semester
RMLNLU Section A
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Contents
INTRODUCTION .................................................................................................................................. 3
Process of Recognition ........................................................................................................................ 3
THEORIES OF RECOGNITION OF STATE ....................................................................................... 4
Constitutive Theory ............................................................................................................................ 4
Declarative Theory.............................................................................................................................. 4
TYPES OF RECOGNITION OF STATE .............................................................................................. 5
De facto Recognition ........................................................................................................................... 5
De jure Recognition............................................................................................................................. 5
LEGAL EFFECTS OF RECOGNITION ............................................................................................... 6
WITHDRAWAL OF RECOGNITION OF STATE ............................................................................... 7
INDIAN PRACTICE ON RECOGNITION ........................................................................................... 7
CONCLUSION ....................................................................................................................................... 8
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RECOGNITION OF STATE: THEORIES AND ITS MODES OF RECOGNITION
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 anexisting sate into two states. If a new state enjoys certain
rights, privileges and obligation then it must get recognition as a state, which is very
essential.
Under International Law, recognition of a state can be defined as, A state acknowledge or
acceptance as an international community. The declaration to fulfill certain essential
conditions of statehood as required by International Law. However, there are some criteria
required before a state is considered to be a state. A state must get the recognition of De jure
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 other existing states.
Those essential of recognition of a state are: -
• 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 organized.
• 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 facts and law and the establishment of particular factual conditionsand compliance with
relevant rules are the process of creating new states
States are not bound to recognize new claimants of statehood and make it a positive duty to
recognize a state. Recognition is only a matter of intention.
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 facts and law and the establishment of particular
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factual conditions and compliance with relevant rules are the process of creating new states.
Criteria of statehood is laid down in Montevido Convention, which provides 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 OF STATE
There are mainly two theories of recognition of state which are: -
• Constitutive theory
• Declarative theory or Evidentiary theory
Constitutive Theory
Oppenheim, Hegal, Anziloti are the chief exponents of this theory. According to this theory
the only certificate to issue international personality to a new born state is the consent of the
already existing sates. In other words, a new entity shall only be called when the existing
states acknowledges about it to be called a state unless it has not recognized by the existing
states.
Oppenheim view on recognition of state: - According to Oppenheim, a state is and will
only be an international person if recognized 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 anew state. Existing countries
recognized a country as a member of the international community and believe that the state
meets the requirements of international law outside the country.
Criticism
This theory has severely been criticized by number of jurists. Because, at the first instance
that states do not seem to accept recognition as a legal duty. And at the second instance, it
creates many difficulties when a community claims of being a new state and its non-
recognition will, accordingly to this theory, imply that it has no rights, duties and obligations
under international law. The theory is not correct in any sense so shall be rejected.
Declarative Theory
The chief exponents of this theory are Hall, Wagner, Fisher, and Brierly. According to this
theory, the statehood or the authority of new Government is not dependent on the consent of
the existing state but is based on some prior or existing fact. According to the followers of
this theory, the recognition by existing states is merely a formal acknowledgement of the
statehood is dependent on the prior conditions necessary for an entity to be called as a
state.Thus, according to this theory, recognition depends upon the discretion or sweet will of
the recognizing states. In practice most of the states frequently been withheld for political
reasons. The theory also finds support in the fact that recognition has a retrospective effect
Criticism
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This theory has also been criticized, because it is not correct that in all cases the existing fact
shall imply the statehood, rather some time the statehood may be constitutive. It has been
criticized on the grounds that this theory cannot be applicable for recognition state. When the
essential characteristics are fulfilled by a state then it comes inti existence. If international
rights and obligations are exercised by the state thendeclarative theory applies. but when the
state gets the legal rights of recognition then constructive theory applies.
TYPES OF RECOGNITION OF STATE
Recognition is of two types, de facto and de jure recognition. The practice of state shows that
in first stage the State generally give de facto recognition. Later on when they are satisfied
that the recognized state is capable of fulfilling International Obligations, they confer de jure
recognition on it. That is why it is said de facto recognition of state is a step towards de jure
recognition.
There are two modes of recognition, which may be given: --
• De facto Recognition
• De jure 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, but the other
existing state consider that when they don’t have enough stability or any other unsettlement
issues. So, we can take it as a test of control for newly formed states. . According to Prof. G.
Schwarzenberger, “when a state wants to delay the de jure recognition of any state, it may,
in first stage grant de facto recognition.”
In the view of Judge Phillips C Jessup, “de facto is a term which has been used without
precision when properly used to mean the recognition of the de facto character of a
government, it is objectionable and indeed could be identical with the practice suggested of
extended recognition without resuming diplomatic relations.”
De jure Recognition
The grant of recognition to a new state by an existing state, when it considers that such new
born state has attained all the attributes of statehood with stability, is called de jure
recognition. The de jure recognition can be granted either with or without granting
recognition of de facto. The mode of recognition is granted when the newly formed state
acquires permanent status of a newborn state as a sovereign state.
Distinction between de jure and de facto
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1. De facto recognition is provisional recognition subject to fulfillment all attributes of
statehood whereas de jure recognition is absolute recognition granted to a state which
have attained all the attributes of statehood, possesses sufficient control with
permanency.
2. De facto recognition creates few essential rights and duties for recognized and
recognizing states whereas de jure creates absolute control with permanency.
3. De facto recognition does not create full diplomatic intercourse between the parties but
de jure creates full diplomatic intercourse between the parties.
4. In de facto recognition, the full diplomatic immunities are not granted but in de jure full
diplomatic immunities are granted to the recognized state.
5. In de facto recognition of state, the official visits and dealing may be subjected to
limitations but in de jure recognition limitations are not necessary.
6. The state having de facto recognition has only few rights and obligation against other
states whereas the states having de jure recognition have absolute rights and obligation
against other states.
7. De facto recognition can easily be revoked but de jure recognition can never be revoked.
LEGAL EFFECTS OF RECOGNITION
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 the 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,
including diplomatic relations and the conclusion of treaties.
Main legal effects of recognition of state
1. Recognized state becomes entitled to sue in the courts of the recognizing state.
2. Recognized state is entitled to sovereign immunity for itself as well as its property in the
courts of recognizing state.
3. Recognized state is entitled to succession and possession of property situated in the
territory of the recognizing state.
4. Recognized state may enter into diplomatic and treaty relationships with the recognizing
state (de jure recognition)
5. Recognizing state gives effect to past legislative and executive acts recognized state
(retroactivity of recognition).
However, non- recognition of state does not mean that the entity will be devoid of legal
effects in relation to the non-recognition 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 states and all other
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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.
WITHDRAWAL OF RECOGNITION OF STATE
Recognition once given may in certain circumstances be withdrawn. This is more easily
achieved with respect to de facto recognition.
Withdrawal of de facto recognition: -
Withdrawal of de facto recognition is possible under international law only on the ground
that if the recognized state has been failed to fulfill the pre-requisite conditions for
statehood. In such case the recognizing state may withdraw from the recognition by
communicating a declaration to authorities of recognized stated or by a public statement.
Withdrawal of De jure Recognition: -
There are different views about the withdrawal of de jure recognition. But according to the
strict letters of international law and by the virtue of some conventions in the behalf, it is
evident that the withdrawal of de jure recognition is not valid in any case. Though
recognition is recognition is a political act but de jure but it by nature and status it is legal
oriented. But some jurists think that de jure recognition may be withdrawn, because it is
political act. But in fact it is not so. Only those de jure recognitions may be withdrawn
where a state subsequently loses any essential of statehood. In such case the state
withdrawing from recognition shall send his express intention to the concerned authority
issue a public statement to that extent.
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 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 the
government of india has clearly proved weighty reasons for thinking that it distinguish
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.
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CONCLUSION
The difference between the two types of recognition is chiefly political 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 de jure and
de facto recognition are out of fashion and the current practice of the states is to grant a full
recognition or foil diplomatic recognition and there is no half way between the two.
REFRENCES
• Evans, M. D., International Law, (Oxford University Press, fifth Ed., 2018).
• http://www.legalservice.com/legal/article-2203-recognition-of-states-and-
governments-an-analysis.html
• https://link.springer.com/chapter/10.1057%2F9780230375895_6
