Assignment Module 05 LC 0703 Public International Law : Recognition of state under international law

 Assignment Module 05 LC 0703 Public International Law : Recognition of state under international law

Table of Contents

1. Introduction
2. Recognition of a State
1. Essentials of Recognition of a State
2. Kelson’s view on the recognition of states
3. Process of Recognition
4. Israel-Palestine Dispute
5. China-Taiwan Dispute
3. Political Recognition of State
1. Montevideo Convention
4. Theories of Recognition
1. Constructive Theory of Recognition
1. Criticism
1. Oppenheim’s View on Recognition of State
2. Declarative Theory of Recognition
1. Criticism
5. Modes of Recognition
1. Recognition of a new State
2. Recognition of a new government
1. Objective Test
2. Subjective Test
3. Recognition of belligerency
6. Forms of Recognition
1. De Facto Recognition
2. De Jure Recognition
3. Difference between De Facto and De Jure Recognition
4. Express Recognition
5. Implied Recognition
6. Conditional Recognition
7. Withdrawal of Recognition
1. Withdrawal of De Facto Recognition
2. Withdrawal of De Jure Recognition
8. Conclusion
9. References

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

• 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.

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. 

Montevideo Convention

To consider a State as an international person, State should adhere to following qualifications-

• Permanent Population;
• Definite Territory;
• Government;
• Capacity to enter into relations with other States.

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.

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 recognise the government, recognising 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.

A civil war may turn into a real war if the rebels are in possession of a substantial part of territory.

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, 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.
• 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 factual recognition.	De Jure recognition is a permanent and legal recognition.
De Facto recognition is granted to a State when it fulfills the essential conditions of State.	De Jure recognition is granted to a State when all the essentials are fulfilled along with the permanent control of that essentials.
De Facto recognition is the primary step to grant De Jure recognition.	De Jure recognition can directly be granted without De Facto recognition.
De Facto recognition can easily be revoked.	De Jure recognition can never be revoked.
The States having De Facto recognition cannot enjoy diplomatic immunities.	The States having De Jure recognition can enjoy diplomatic immunities.
The States having De Facto recognition have only few rights and obligations against other States.	The States having De Jure recognition have absolute rights and obligations against other States.

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.
• Express recognition can be expressed through formal means such as sending or publishing declaration or statement to the opposite party. 
• It can also be expressed through personal messages from the head of State or from the minister of foreign affairs.

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. 
• The recognition through implied means may vary from case to case. The actions required for implied recognition must be ambiguous and there shouldn’t be any doubt in the intention of the State who recognises a new State. 

Conditional Recognition

Some conditions are attached to the recognition of the State to obtain status as a sovereign State. The conditions attached may vary from State to State such as religious freedoms, the rule of law, democracy, human rights etc.

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.

Jurists criticise conditional recognition. It was criticized on the ground that recognition is a legal procedure and nothing additional condition can be attached unless the conditions are recognised by law.

Withdrawal of Recognition

Withdrawal of De Facto Recognition

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

• Withdrawal of De Jure recognition is a debatable topic under International Law. Withdrawal of this recognition comes under as an exception.
• This recognition can be withdrawn when a State loses the essentials elements or other circumstances.

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. 

Reference

Verma S.K, Introduction to Public International Law, 2nd Edition,2014.

Luther v. Sagor [(1921)3 KB 532,].

This article is written by Arijit Mishra, from KIIT School of Law, Odisha. This article talks about the State Recognition. A new State can enjoy its rights, privileges, and obligations when it will be recognized as a state.