This article is written by Anushka Bagri of 7th Semester of Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith University
Abstract
Recognition of state being an important topic in the field of international law. This Article deals with the basic knowledge about recognition of states and withdrawal of recognition. Firstly, this Article deals with the meaning of recognition of state, then its essentials, theories of recognition, modes of recognition, forms of recognition and legal effect of recognition and finally with withdrawal of recognition and retroactive effect of recognition. This brings the basic understanding about the topic
Key Words
Recognition of state, International Law, De facto recognition, De jure recognition, Types of Recognition
Meaning of Recognition of State
Recognition of a state is an act by which another state acknowledges that the political entity recognized possesses the attributes of statehood.[1]
The process by which particular facts are acknowledged and bestowed with a legal status, such as statehood, sovereignty over newly acquired territory, or the international ramifications of the award of nationality, is known as recognition.
According to Professor G. Schwarzenberger, “The growth of international law is best understood as an expanding process from a nucleus of entities which have accepted each other’s negative sovereignty and on the basis of consent, are prepared to maintain and possibly expand the scope of their legal relations. Like most clubs, the society of sovereign States is based on the principle of co-option. In exercising this prerogative, the existing subjects of international law employ the device of recognition”[2]
- Essentials of Recognition of State
According to Kelsen, a community to be recognised as an international person must fulfill the following conditions
- The community must be politically organised
- It should have control over a definite territory
- The definite control should be permanent in nature
- The community constituted must be an independent[3]
- Theories of Recognition
There are two theories on the recognition of a state
- Constitutive Theory
- Declarative Theory
- Constitutive Theory
This theory is coined by Hegel and Oppenheim, and it states that “the state is considered as an international person. This theory has an opinion that after the recognition a state gets its status of an international person and becomes a subject to International Law. It does not mean that state does not exist unless recognised, but in this theory, state gets the exclusive rights and obligations and become a subject to International Law after its recognition by other existing states.
Criticism of Constitutive theory
According to this theory, if a state is not recognized it can have neither duty nor rights under international law. This is an absurd view.
It states that there is legal duty on the part of the existing states to recognize any community that has in fact acquired the characteristics of statehood. But in practice, this doesn’t exist. State do not accept any such obligation.
- Declarative Theory
This theory is coined by Hall Wagner and Fisher. It was developed in the 20th Century to address shortcomings of Constitutive Theory. Also, this theory is laid down under Article 3 of Montevideo Conference of 1933.
According to this theory, statehood or the authority of the new government exists as such prior to and independently of recognition. Recognition is merely a formal acknowledgment through which established facts are accepted.
Criticism of Declarative Theory
This theory has also been criticized. It has been criticized on the point that when the essential characteristics are fulfilled by a State then it comes into existence. If international rights and duties are exercised by the state then declarative theory applies. But when the state gets the legal rights of recognition then constitutive theory works.
- Recognition of a New State
When a state come in existence, other state faces a problem of deciding whether to recognize the new state or not. Recognition means a willingness to deal with the new state as a member of international community.
For example: The first example in history was the recognition in 1648 by Spain of United Netherlands, which had declared their independence in 1581.[4]
- Recognition of a Government
International law allows states to exercise great discretion when granting or withholding recognition, especially when a new government comes into power in an existing state by violent means. Through government a state participates in the benefits of International Law. To recognize government recognition of state is important.
- Recognition of Belligerency
When a segment of a state’s territory and population are effectively under the de facto authority of those battling the government to either create a new State or topple the current one, that state is said to be engaged in belligerency. Most of the 19th century’s civil conflicts, including the American civil war and the battle for independence in the 20th century, recognised belligerency.
- Modes of Recognition
There are two modes of Recognition
- 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 condition.
According to Prof. G. Schwarzenberger, “When a state wants to delay the de jure recognition of any state, it may in first state grant de facto recognition”.
This mode of recognition is granted when existing state doubt the stability of a new state in holding a sufficient territory or control over a particular territory.
For Example – The U.K. first recognised soviet Government as de-facto recognition in 1921 and later recognised as de-jure in 1924.
- De Jure Recognition
De Jure Recognition means that according to existing state or recognizing state, the recognized state formally fulfils the requirements laid down by international law for effective participation in the international community.
De Jure Recognition is given to a new state when a new state fulfils all the necessary conditions of a state and it can directly be granted to a state who has or has not granted de-facto recognition.
This recognition is permanent in nature. As once it is granted to any state it cannot be withdrawn.[5]
7.3 Difference Between De Jure and De Facto Recognition
| DE JURE RECOGNITION | DE FACTO RECOGNITION |
| In its diplomatic relations are formally established. | In its diplomatic relations are not formally established. |
| In case of succession only the state, which has been granted de jure recognition will be deemed to be the successor state. | It will not grant the position of successor state. |
| It is permanent in nature | It is temporary in nature |
| De Jure Recognition cannot be easily revoked | De Facto Recognition can easily be revoked |
| States having De Jure Recognition have absolute rights and obligations against other states. | The states having De Facto Recognition have only few rights and obligations against other states. |
| De Jure Recognition can directly be granted without De Facto Recognition | De Facto Recognition is Primary step to grant De Jure Recognition |
| If the sovereign state, de jure recognized, grants independence to dependency, the new state is to be recognized de jure and not otherwise. | De Facto States cannot grant independence to a dependency. |
- Forms of Recognition
There are different forms of recognition some of them are
- Express Recognition
- Implied Recognition
- Conditional Recognition
- Collective Recognition
- Express Recognition
When a formal and express declaration or statement is made and published or sent to the opposite party, the recognition is said to be express recognition. In other words when the declaration or notification by an existing state which purports the intention to recognize a newly born state, the recognition is said to be express recognition.
- Implied Recognition
When the existing state by some acts shows its intention of recognition of a newly born state by some acts, the recognition is said to be implied recognition. Also, in implied recognition there is no formal statement or declaration made, rather the intention is to be gathered from the acts or transactions of the existing state.
- Conditional Recognition
For the State to be recognised as a sovereign State, several requirements must be met. Conditions such as freedom of religion, respect for the law, democracy, and human rights, among others, may differ from one State to another. When extra requirements are added to the recognition of a state that already has the prerequisites for being recognised as a sovereign state, it is referred to as conditional recognition.
- Collective Recognition
The advantage of recognition taking place by some collective international act, or through the medium of an international institution cannot be denied. It means that when two or more states are collectively recognised then it is known as collective recognition.
For Example – The recognition of Bulgaria, Montenegro, Serbia and Rumania by the Berlin Congress of 1878 and of Estonia and Albania by the Allied Powers in 1921.
- Legal Effects of Recognition
- When a state is recognized, it is entitled to sue in the courts of the recognized state
- When a state gets De Jure Recognition, then it is entitled to privileges and immunities and diplomatic relations are established.
- After recognition of state, it is entitled to the succession and possession of the property situated in the territory of the recognising state
- A recognised state is entitled to sovereign immunity for itself as well as its property in the courts of recognising state.
- Consequence of Non-Recognition
- An unrecognised state does not have power to sue in the courts of non-recognising State.
- A state which has not been recognised, is not entitled to enter into diplomatic relations with the non-recognising states.
- The diplomatic representatives of a state which has not recognised do not possess immunities from legal processes in foreign states.
- Such states are not entitled to get their properties situated in foreign states.
- Withdrawal of Recognition
11.1 Withdrawal of de facto Recognition
The de facto recognition of a state may be revoked under international law if it does not meet the requirements for statehood. According to international law, the state that is recognising the other states has the option of withdrawing their recognition by making a statement or by contacting their government representatives. Additionally, a public declaration may be made in order to withdraw.
11.2 Withdrawal of de jure Recognition
Under international law, the issue of the withdrawal of De Jure recognition is a debatable one. There are different opinions regarding the withdrawal of de jure recognition. But according to the strict letters of international law and by virtue of some conventions in this behalf, it is evident that the withdrawal of de jure recognition in any case. Though recognition is a political act but de jure it by nature and status is legal oriented. But some Jurists think that de jure recognition may be withdrawn, because it is a political act. But in fact, it is not so. Only those de jure recognitions may be withdrawn When a State loses the crucial components or under other conditions. In such a case the withdrawing state shall send his express intention of withdrawal to the concerned authority.
- Retroactive Effect of Recognition
While discussing it firstly it is important to know the literal meaning of retroactive effect.
According to Merriam-Webster Dictionary “Retroactive Effect” means extending in scope or effect to a prior time or to conditions that existed or originated in the past made effective as of a date prior to enactment, promulgation, or imposition. Or in simple words if a law or decision, etc. is retroactive, it has effect from a date before it was approved.
So, applying this meaning to recognition concept then what does it means?
It is considered by various jurists that de jure recognition has retroactive effect. In other words, after a state is recognized, its acts done prior to recognition are also recognized.
According to J.M. Jones, “this rule is based on policy of the States, rather than on any juristic logic.”
In simple words, Retroactive effect of recognition means when a state recognizes another state it often recognizes the past acts of such a state with view to establish friendly relations with such a state.
Also, it is important to note that the retroactive effect of recognition and its extent depend on the intention of recognizing state.
Case: – Civil Air Transport Incorporated Co. v/s Central Air Transport Corporation, 1953 A.C. 70
This is leading case law on the concept of Retroactive Effect of Recognition.
Facts: – the appellants in this case were a registered corporation in Delaware State of the United States of America and the respondent corporation was an institution under the national government of China.
After the revolution in China Chiang Kai Shel fled away to Formosa. Also, the chairman of the respondent corporation also fled away from Hongkong to Peking and declared his loyalty towards the Peking Government. The Peking government declared respondent corporation was its property. After fleeing away from China, the government of Chiang-Kai-Shek established its headquarters in Formosa and sold the property of the respondent corporation to an American firm. This property included 40 air-crafts which were lying at an airfield in Hongkong. The court had to decide whether the Chiang-Kai-Shek government was entitled to sell it property.
Question: – Whether past act of de jure government can be valid only if such a government is the same which had been granted de facto recognition previously.
Held: – Court in this case held that
- Intention determines retroactivity.
- Where a specific date is specified, recognition begins on that day. As a result, it is an exception to the usual norm of retroactivity.
- Acts of prior de jure governments cannot be rendered null and void by later de jure recognition of new governments.
- Primarily, recognition purports to legitimate the actions of a de facto government, which has now taken the place of the previous de jure government, rather than to invalidate the actions of the prior administration. The impact of recognition begins on the day of de facto recognition, even in cases when a State receives de jure recognition later and de facto recognition at first. It might be seen as a rule by appearances.
Conclusion
Recognition of a state is an important concept in the field of international law, when a state is recognised, it enjoys various rights and privileges as an independent community in the international law. As from above points it can be concluded that like all other fields it also has defects or controversies like in theories or in modes of recognition. Everyone has their own opinion in this regard you may prefer to follow one theory while the next person to you another theory. So, it’s totally one’s opinion. But if it is asked about the world at large mostly people at present follow the declarative theory but as already states it too has criticism. Further, the main distinction between the two forms of acknowledgment is political (level of political support and approval) rather than legal. Diplomatic ties are formed formally upon de jure recognition, but not upon de facto recognition. It should be noted that de jure and de facto recognition are out of date, and that States either provide “full recognition” or oppose diplomatic recognition with no between ground.
References
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- Akshata, Recognition and its types in International Law, https://www.legalserviceindia.com/legal/article-5302-recognition-and-its-types-in-international-law.html, last seen on 08/06/2023.
- Recognition of state under International Law, LawBhoomi, https://lawbhoomi.com/recognition-of-states-under-international-law/, last seen on 09/06/2023.
- Understanding Recognition in International Law: States, Governments, and Types, De Facto IAS, https://www.defactolaw.in/post/understanding-recognition-in-international-law-states-governments-and-types, last seen on 10/06/2023.
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[1] Recognition, Britannica, https://www.britannica.com/topic/recognition-international-law, last seen on 06/06/2023
[2] Dr. S.K. Kapoor, International Law & Human Rights, 158(22nd ed., 2021)
[3] Dr. S.K. Kapoor, International Law & Human Rights, 159(22nd ed., 2021)
[4] Arijit Mishra, State Recognition under international law, ipleaders blog, https://blog.ipleaders.in/state-recognition/, last seen on 08/06/2023.
[5] Mehak Kaushik, State Recognition under International Law, theedulaw, https://portal.theedulaw.com/SingleNotes?title=state-recognition-under-international-law, last seen on 08/06/2023.
