LESSON-2: STATE RECOGNITION

Objectives of the Lesson:

• To enable the student community to understand the concept of State Recognition

• To make the students understand the various aspects of State Recognition

• To make the students understand how recognition is used by the existing states for
various political reasons

Glossary:

 Recognition: The process through which the existing states in the world acknowledge
the existence of a political entity which possesses the essential conditions of statehood,
such as Population, Territory, Government, Sovereignty and Capacity to fulfill
international obligations.
 De-facto Recognition: It is temporary and therefore, subject to revocation by the state
granting recognition. It is said to be a stepping stone towards permanent recognition.
 De-jure Recognition: This recognition is granted to a new state, when it has fulfilled
all its obligations under International Law. It is said to be a permanent recognition, and
is irrevocable.
 Conditional Recognition: The states may impose conditions upon the new state to be
fulfilled before granting recognition.
 Implied Recognition: The act of recognition which is not in writing, yet, the two states
establish diplomatic relations, and the intention and the gestures of the two states
exhibits that recognition has been granted.
 Express Recognition: This recognition is based on an instrument in written form.

Description:

State Recognition is defined as “The free act by which one or more states
acknowledge the existence of a definite territory of a human society politically
organized, independent of any other existing states and capable of observing
 obligations of international law by which they manifest through their intention
toconsider it a member of the International Community.”

 Celebrated jurist, Hans Kelsen has stated that a community to be recognized as an

international person must fulfill the following conditions:
 Firstly the community must be politically organized;
 Secondly it should have control over a definite territory; and
 Thirdly this definite control should extend towards permanence and lastly the
community which is constituted must be independent.
For a state to be recognized as a full-fledged member of the international community,
it must fulfill the conditions of statehood such as (a) People, (b) Territory, (c)
Government, and (d) Sovereignty.and (e) capacity to inter into a mutual relations.
In other words, the existing states in the world through the process of ‘Recognition’
acknowledge the existence of a political entity which possesses the essential conditions
of statehood.
International Law gives the discretion to the states to determine whether a new state
possesses all the conditions of statehood. This is one reason why the instrument of
recognition is used as a diplomatic tool by the states to gain political mileage.
 Essentials for recognition as a state: 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:

1. It should have a permanent population.

2. A definite territory should be controlled by it.

3. There should be a government of that particular territory.

4. That entity should have the capacity to enter into relations with other states.

 Theories of Recognition

There are basically two theories of Recognition, Firstly the Constitutive

Theory, and Secondly the Declaratory Theory.

• Constitutive Theory
 According to the Constitutive Theory, “Recognition” clothes a state with
Statehood.According to this view, recognition confers international personality on a
state.

Exponents: Oppenhem, Holland , Anzillotti and Lauterpacht.

A state only when recognized by other existing established states, acquires rights
and obligations under International Law. It is only through recognition that a state
becomes a member of the family of nations, and also acquires international
personality.

According to this theory, statehood and participation in the international legal order are
attained by political groups only in so far as they are recognised by established states.

 In the words of Professor Oppenheim, “A state is and becomes an international

person, through, recognition only and exclusively.”
 Holland also supports the Constitutive theory. In his view, recognition confers maturity
upon a state and unless a state is recognised, it cannot acquire rights and obligations
under International Law.
 In the view of Judge Lauterpacht, Constitutive Theory is in accordance with the
practice of the states and is based on sound legal principles. The practice of states,
however, indicates the contrary.
This theory suggests that a new entity having the attributes of a state, by that very
fact does not become a state, it has to be recognized by other states, to become an
international person.
Recognition is based on political considerations and is retroactive. If the constitutive
theory is accepted, there would be no objective factors and a theory is accepted, there
would be no objective factors and a theory without objectivity is hardly sustainable.
Again, if a state becomes an international person from the date of recognition, the
actual practice giving retroactive to recognize belies the constitutive theory. This
theory has now virtually been discarded by states.
In reality most of the states accept the declaratory theory.

The critics of the Constitutive Theory:

 have pointed out that, there is a legal duty on the part of the established states to
recognize any new state that possesses the essentials of statehood. They further point
out that, there is no need for a state to be recognized and it is wrong to say that a state
acquires rights and duties under international law only on being recognized. If a state
acquires all the essentials of statehood then it is deemed to be a member of the
international community.

• Declaratory Theory:

This theory states that recognition is a formal acknowledgement of an existing fact.

Exponents: Hall, Wagner, pitt Cobbett and Brierly.

This theory suggests that, statehood or the authority of a new Government exists much
before the act of “Recognition”, as the act of recognition is merely a declaration of the
existing fact that a particular state or government possesses the essential requisites of
statehood, as required by International Law.

• Brierly has pointed out that “the granting of recognition to a new state is not
constitutive, but a declaratory act.” According to this Theory, a state may not be
recognized by other states, but still, since it exists, it must be treated as a state. The
Soviet view suggests that, the birth of a state is the act of internal law, rather than, that
of International Law, because, in modern times international personality does not
depend on recognition.
• Critics:
The declaratory theory has also been criticized on two counts:
1. a state, even after fulfilling all conditions of statehood, does not get legal relations
with other states without recognition;
2. It is the act of recognition which gives a state and government legal status in
municipal law. In this respect, recognition is constitutive in nature.
From the practice of the states, it is evident that, the states prefer the Declaratory
Theory rather than the Constitutive Theory when granting recognition to new states
which have emerged in the international community.

On the basis of the above discussion, it may be concluded that recognition is

declaratory as well as a constitutive act. Prof. Oppenheim who is placed among the
 exponents of constitutive theory, has admitted that “Recognition is declaratory of an

Existing fact, but constitutive in nature.” It has been pointed out that there is no settled
view whether recognition is the only means through which a new state becomes part
of the international community.

On the one hand, there is the view that a new state comes into existence as a matter of
fact and becomes a member of the international community irrespective of the fact that
it has been recognised or not. On the other hand, the view is that recognition
constitutes the new state as a member of the international community; no state has a
duty to recognise a new state; and that no new state has a right to be recognised

by other states.

• Facultative Theory

A State to be recognised should possess the essential elements of statehood. But

international law does not provide as to how the above mentioned essential elements
are to be ascertained. In fact the granting of recognition depends upon the discretion of
a recognizing state. In other words, International law leaves the states free to determine
as to whether a particular state possesses the essential elements of statehood.

 In the view of Judge Lauterpacht, International Law imposes a duty on the existing
states to recognize any community which possesses the essential elements of
statehood. This view does not seem to be correct because neither it is supported by the
practice of states nor does international law impose any such duty upon the states. The
granting of recognition depends much upon the discretion of the state. The practice of
the states shows that recognition is a political function. Further, sometimes recognition
is accorded prematurely to sympathetic regimes and is protectedly withheld from
unsympathetic ones.
 Kinds of Recognition

Recognition is basically of two kinds: 1) De-facto Recognition and 2) De-jure

Recognition.

• De-facto Recognition
States generally employ De-facto Recognition while recognizing a new state. De-facto

Recognition is temporary and therefore, subject to revocation by the state granting

recognition. It is said to be a stepping stone towards permanent recognition. The

purpose of granting De-facto Recognition is to observe the performance of a new state
i.e. whether the state is capable of fulfilling its obligations under international law. If
the new state performs its obligations regularly and efficiently, then, permanent
recognition may be granted to it.

• De-jure Recognition

This recognition is granted to a new state, when it has fulfilled all its obligations and

International Law. It is said to be a permanent recognition, and is irrevocable.

However, a state before being granted De-jure recognition must fulfil certain
conditions such as, a reasonable assurance of stability and permanence, government
should command the general support of the population, and it should be able and
willing to fulfill its international obligations.

The distinction between De Facto and De Jure Recognition

S.No. De facto Recognition De jure Recognition

De facto recognition is a
1. provisional and factual De jure recognition is legal recognition.
recognition.

De facto recognition is granted De jure recognition is granted when the

when there is the fulfilment of state fulfils all the essential condition of
2.
the essential conditions of states along with sufficient control and
statehood. permanency.

3. De facto recognition is a primary De jure recognition can be granted either

 step towards grant of de jure with or without grant of de facto
recognition. recognition.

De facto recognition can either

De jure recognition is a final and non-
4. be conditional or non-
conditional recognition
conditional.

De facto recognition is revocable

5. De jure recognition is non-revocable.
in nature.

The states recognised under this The state recognised under this mode
6. mode have only a few rights and have the absolute right and obligations
obligations against other states. against other states.

The state with de facto cannot The state with de jure recognition can
7.
undergo state succession. under state succession.

The state with de facto

The state with de jure recognition enjoys
8. recognition cannot enjoy full
full diplomatic immunities.
diplomatic immunities.

Forms of Recognition

When a newly formed state is recognised, its declaration can be made in two forms:

1. Expressed Recognition

2. Implied Recognition

1. Expressed Recognition

When an existing state recognises a new state expressly through official declaration or
notification, it is considered to be the expressed form of recognition. Express
 recognition can be made through any express or formal means such as sending or
publishing declaration or statement to the opposite party. When a state is recognised by
expressed ways, it is a de jure recognition unless provided otherwise by the
recognising state in the declaration.

2. Implied Recognition

When the existing state recognises a newly formed state through any implied act, then
it is considered as an implied recognition. Implied recognition can be granted through
any implied means by which a current state treats the newly formed state as an
international person. The implied credit not granted through any official notification or
declaration. The recognition through implied means varies from case to case..

 Withdrawal of Recognition

1. Withdrawal of De facto recognition

Under international law when a state having de facto recognition fails to fulfil the
essential conditions of statehood, its recognition can be withdrawn. The recognition
can be withdrawn by the recognizing state through declaration or through
communicating with the authorities of the recognized states. The withdrawal can also
be done by issuing a public statement.

2. Withdrawal of De Jure recognition:

Withdrawal of de jure recognition is a very debatable issue under the

International Law. Withdrawal of a de jure recognition is a very exceptional
event. If strictly interpreted, the de jure recognition can be withdrawn.

Even though the process of recognition is a political act, de jure recognition is of legal
nature. Jurists who consider de jure recognition as a political act considers it revocable.
Such revocation of de jure recognised states can be withdrawn only when a state loses
the essential characteristics of statehood or any other exceptional circumstances. This
type of revocation can be done expressly by the recognising state by issuing a public
statement.

In simple we can say De jure recognition is final and once given, it cannot be
withdrawn. However, if a state is recognised de facto, and later found by the
 recognizing state that the recognized state is incapable of fulfilling its international
obligations or lacks stability, de jure recognition shall not be granted. Therefore, a de
facto recognition may be withdrawn in certain circumstances. But, de jure recognition
once given can never be withdrawn and withdrawal of recognition by a state would not
necessarily mean that the state recognized has ceased to be a state.

Recognition of government

For any statehood, the government is an important element. When a state is formed, its
government changes from time to time. When the government changes as an ordinary
course of political action, the recognition of government by the existing state is not
required but when the government changes due to any revolution, then its recognition
by the existing state is required.

For recognising the new government established out of revolution, the existing states
need to consider that:

1. The new government have sufficient control over the territory and its people or
not.

2. The new government is willing to fulfil the international duties and obligations
or not.

When the existing states are satisfied that the new government resulting out of the
revolution is capable of fulfilling the conditions as mentioned above, then the new
government can be recognised by the existing states.

• Duty to Recognize

States are generally recognized when they possess the essential requisites of statehood,
and International Law imposes a duty upon the states to grant recognition to such
states. However, they do not accept any such obligation. Since, the act of recognition is
considered as a diplomatic tool, the function of recognizing states is said to be a
politico- diplomatic function. The granting of recognition depends purely on the
discretion of the state. Sometimes, states grant recognition to the new state to establish
diplomatic relations with it. This may lead to a premature act, if the new state has not
fulfilled the conditions of statehood. However, International Law does not consider
such an act of premature recognition to be its violation, since it depends upon the
discretion of the states.

• Conditional recognition

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

Criticism

Many jurists criticise conditional recognition. The conditional recognition is criticised

on the ground that recognition is a legal procedure, and no additional conditions should
be attached with it other than the conditions recognised by law. Another reason for
criticism is that the recognised state if it does not fulfil the condition attached for its
recognition, recognition is not extinguished and it should still be valid.

Since recognition depends upon the discretion of the states, the states may impose

conditions upon the new state to be fulfilled before granting recognition. Such
recognition is said to be Conditional Recognition.

For example, in the year 1878 the State of Germany while recognizing Bulgaria
and Romania imposed a condition upon the two states that, they shall not discriminate
their subjects on the basis of religion.

• Collective Recognition

Collective Recognition means, granting of recognition by a group of states

collectively. In the United Nations General Assembly, when a State is to be admitted

as a new member, a voting procedure is held, under which, 2/3 rd majority of the
 members present and voting decide whether the new State can become a member of
the United Nations Organization.

The States that have voted in favour of the new State are deemed to have granted
recognition collectively to the new State. However, this practice of voting in favour of
a new State is no more considered as collective recognition.

Recognition is a politico diplomatic function and depends upon the discretion of the
recognizing state. But once recognition is accorded, there follows certain legal effects.
The recognized states acquire certain rights and privileges and immunities under
international law as well as municipal law.

In the words of Starke, “Recognition produces legal consequences affecting the

rights, powers and privileges of the recognised States or government both at
International Law and under the municipal law of States which granted recognition.”
The typical act of recognition has two legal functions.

• Firstly, the determination of statehood and

• Secondly, the act of recognition is a condition of the establishment of formal, optional
and bilateral relations, including diplomatic relations and conclusion of treaties.
Further Kelsen has rightly written that by the grant of recognition, legal relations are
established between the recognising and the recognised states and their

relations are governed by the rules of international law.

Consequences of Recognition:/Legal effects of recognition

• The recognized state acquires the capacity to enter into diplomatic relations with
other states and to sign treaties with them.

• The recognized state becomes entitled to sue in the courts of the recognizing state.

• The courts of the recognizing state give effect to the past as well as present
legislation and executive acts of the recognized state.

• It acquires rights and duties and the rules of international law relating to privileges
and immunities apply.
 • A recognised state is entitled to sovereign immunity for itself as well as its property
in the Courts of the recognising State.

• The recognised State is also entitled to the succession and possession of the property,

Situated in the territory of the recognising State.

• Increase stability at home and prestige abroad, provide access to foreign aid, loans
and trade.

 Consequences of Non-Recognition

Although recognition is essentially a political act, there are certain political as well as
the legal consequences of non-recognition of a state. They are;

• An unrecognised state cannot sue in the courts for 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 been recognised do not
possess immunities from legal processes in foreign states.

• Such states are also not entitled to claim their property situated in foreign state.

 Doctrines Relating to Recognition

• The Estrada Doctrine

This doctrine was propounded by Mr.Estrada, the Foreign Minister of Mexico. The

doctrine declares that regarding the establishment of diplomatic relations with other

states, the Mexican Government considers itself free to determine in accordance with
the facts and circumstances of each case. If the Mexican Government considers that
after the change of government in any state throug revolution and the government
commands the support of the people, it may establish diplomatic relations with it.
 This doctrine has been subjected to severe criticism because it disregards rules of
International Law. The Estradadoctrine properly assumes that diplomatic
representatives should be considered as accredited to the state and not to the
Government. This doctrine therefore does not seem to be correct.

• The Stimson Doctrine

This doctrine was propounded by Mr.Stimson, Secretary of State of USA. This

doctrine is also often called the doctrine of non-recognition. According to this doctrine
if a state grants recognition to another state in violation of an international treaty, such
recognition would not be valid. By international treaty, the Stimson doctrine mainly
meant the Pact of Paris, 1928, or the Kellog Briand Pact; through which the state
parties renounced war as an instrument of their national policy. The Secretary of State
of USA propounded this doctrine after Japan attacked Manchuria in 1931. The
Secretary of State declared that any contract or treaty which was contrary to the Paris
Pact of 1928 would not be acceptable. It may be noted here that China, Japan and
America were all parties to the Paris Pact. Although this doctrine has much to
recommend itself, it is not always followed by the states so far as the grant of
recognition to new state is concerned. States refuse to accept any such obligation and
treat recognition as a politico diplomatic function.

 Hallestein Doctrine

This doctrine was propounded in the context of the division of Germany into two i.e.

East and West Germany. According to it, no state should have diplomatic relations
with both the Germanise. This doctrine has become redundant in recent times as both
the states have merged.

 The Tobar Doctrine

This doctrine is associated with the name of the Minister of Foreign Affairs of
Equador,Tobar, who in 1908, declared that indirect intervention by the American states
in the affairs of any other American state in the form of refusal to recognise a
government which came to power as a result of civil war or revolution was both
permissible and legal. Under the garb of this doctrine, the United States, keeping in
 view political expediency, used recognition as a means of interfering in the domestic
affairs of the Latin American countries. The doctrine did, however, not prevent the
United States recognizing governments which had come to power through U.S.
organised coups. The doctrine, besides being unsustainable on legal grounds, runs
counter to the Estrada doctrine.

 The Lauterpacht doctrine

According to Sir Hersch Lauterpacht, the states are under a duty to recognise entities

which fulfil the actual requirements of a state or government, the only exception being

where the state or government had come into being as a result of breach of
international law. In 1970, the Security Council ordered member states not to
recognise the Smith regime in Rhodesia.

The development of International Law is seen as a process that expands from a 

central point of entities that have accepted each other’s sovereignty and through
consent  have agreed to maintain and enhance the limits of their legal relations.
Similar to the clubs,  associations and other institutions, the relations of the
sovereign States in the international  community is based upon the principle of
cooperation. The existing states of International Law use the mechanism of
Recognition for improving their relations and other vested interests. This is
precisely the reason why recognition is often stated to be a politico-  diplomatic
function. Recognition whether of a state or a government by other states results in
rights being conferred and obligations imposed on that state. A state without
recognition will confront a lot of problems in the international community. 

Conclusion

The recognition of the state is an essential procedure so that it can enjoy all the
privileges of statehood community under international law. There is a controversy
between Consecutive Theory and Declaratory theory of Recognition by different
jurists, but we can conclude that the theory followed for recognition is in between the
consecutive and declaratory theory.
The recognition being either de facto or de jure, it provides rights, privileges and
obligations. When a state gets its de facto recognition, the rights, privileges and
obligations are less but when it is recognised de jure, it gets absolute rights, liabilities
and privileges. The recognition of the state is too much politically influences on the
International platform.

There have been many instances where the powerful states create obstructions in
recognition of a newly formed state. It can even be withdrawal when the recognising
state feels that the new state is not fulfilling the prerequisites for being a sovereign
state. The recognition can be done either by express form or implied form and its
mode, i.e., de facto and de jure recognition varies from case to case basis.

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