Jamia Millia Islamia

(A Central University)

Name-Mohd.Aqib

Faculty- LAW
(BA.LLB) Semester-IV
Subject- Public International Law
Project Name- Recognition Of States And Its Nuances

Outline:
1. Introduction

2. Meaning of recognition

3. Theories of Recognition

4. Modes of recognition

5. Forms of recognition

6. Conclusion
 Recognition Of States And Its Nuances

Introduction:

The recognition of a state under international law is a declaration of intent by one state to
acknowledge another power as a "state" within the meaning of international law. Recognition
constitutes a unilateral declaration of intent. It is entirely at the discretion of any state to
decide to recognize another as a subject of international law

Recognition can play a role in the international legality of the object of recognition:
sometimes, a state is or is not a state legally because, amongst other things, other states have
decided to treat it as such. The recognition itself is regulated by international law, in that
states are sometimes constrained in their choices when comes to recognition. These two
aspects are related, and can come into tension insofar as states seek through recognition to
create a new sovereignty arrangement which challenges the legal status quo and thereby is
potentially at odds with their obligations to another state or group of states whose
entitlements are being altered by this change.

The international law framework is bound up in the rules that define what is and is not a state.
In understanding the international law concerning statehood, and their significance for
recognition, a distinction between two particular usages of the term ‘sovereignty’ is
instructive. As Eli Lauterpacht remarked:

“It is necessary to distinguish between the two principal meanings attributed to the word
“sovereignty”. It is used, in one sense, to describe the right of ownership which a State may
have in any particular portion of territory. This may be called ‘the legal sovereignty”1

The starting point for understanding the legalities of any regime of recognition or non-
recognition, then, is to consider what the object of that recognition or non-recognition itself
claims to be. In the words of D.P. O’Connell, “a government is only recognized for what it
claims to be” . One cannot determine fully what the legal significance of recognition is to that

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H.O AGRAWAL INTERNATIONAL LAW AND HUMAN RIGHTS, CENTRAL LAW PUBLICATION, 2017
being recognized, and whether this recognition is itself lawful, without first focusing more
closely on the legalities surrounding the claim itself.

Recognition: –

 The term recognition as an international legal term may be defined as under: “The
acknowledgement or acceptance by the members of international community, that a new state
has acquired international personality, is said to be recognition.”

Essentials: –

 The main essentials of recognition may be given as under:

 That the community ( of new state ) must be politically organized,

 That it should have control over a definite territory,
 That the control should tend towards permanency,
 That such community must be independent. In other words, the attributes of
statehood are people, territory, Government, and sovereignty.

Theories of Recognition: – 

There are mainly two theories of recognition which may discussed as under:

 Constitutive Theory.
 Declarative Theory or Evidentiary Theory.

Constitutive Theory:  Oppenheim, Hegal and 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 states. In other words a new entity shall only
be called a state when the existing states acknowledges about its statehood. So, the
independence of a new entity shall not amount it to be called a state unless it has not
recognized by the existing states.

 Criticism: – The theory has severely been criticized by a number of jurists. Because, at 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, according 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.

Declaratory 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 the followers of this theory, the recognition by the existing states is merely a
formal acknowledgement of the statehood and not the condition. In fact the statehood is
dependent on the some prior conditions necessary for an entity to be called as a state.

Criticism: – 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.
Conclusion: – From the above discussion it may be concluded that both the theories are
insufficient to reflect the real explanation of recognition. In fact there shall be intermediate
course of approach between the two theories to understand recognition. Briefly, speaking, the
definition of recognition depends upon the mode, scope and nature of each case. In other
words, recognition may be sometimes constitutive and sometimes declaratory.

 Modes of Recognition: – There are two modes of recognition, which may be given;

 De facto Recognition.
 De jure Recognition.

De facto Recognition: – This is a provisional recognition and not a permanent one. i.e it
can be withdrawn by other States at any time. It is the first step towards becoming a
recognized country. Recognition is only by fact and not legal. State may have more than one
Governments. No exchange of diplomatic representatives takes places. State succession
might not happen. Mere de facto recognition is not sufficient to get UN membership.
Example: Israel, Bangladesh, Taiwan, Sahawi Arab Republic etc.

 De jure Recognition: – The grant of recognition to a new born state by an existing state,
when it considers that such new born state has attained all the attributes of statehood with
stability and permanency, is called De jure Recognition. This is a permanent recognition
which one granted cannot be taken back or withdrawn by other States. It is regal and rightful.
State will have only one Governments. Exchange of diplomatic representatives takes places.
State succession happens smoothly. de jure recognition by majority states is essential for UN
membership.

Forms of Recognition: – There are following two forms for the declaration of
recognition.

1. Express Recognition.

2. Implied Recognition.

 Express Recognition: – 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. In other words, 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.

 Implied Recognition: – When the existing state shows its intention of recognition of a
newly born state by some acts, the recognition is said to be implied recognition. In other
words, in case of implied recognition no formal statement or declaration is to be made, rather
the intention of recognition is to be collected by the acts or transactions of the existing state.
So, if such acts purport intention of recognition, it is said to be implied recognition.

Conditional Recognition: – The grant of recognition by an existing state to a newly

born state stipulated on fulfillment some conditions in addition to the requirements of
statehood is said to be conditional recognition. As for as, the recognition is concerned it is
itself conditioned with the fulfillment of the essentials of statehood, that is to say, the new
state must occupy some territory, has some population, government and sovereignty. If these
requirements have been complied with by the new state, then that should be recognized by
existing states. But as for as, the recognition is concerned it is usually based on some political
considerations. So, in the pursuance of these considerations the existing states sometimes
declare recognition but stipulated with certain other conditions for the recognized state to be
fulfilled.
Withdrawal of Recognition: – Withdrawal of recognition may be explained as under:

 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 condition for statehood. In such a case the
recognizing state may withdraw from the recognition by communicating a declaration
to the 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 this behalf, it is evident that the
withdrawal of de jure recognition is not valid in any case. Though recognition is a
political act but de jure but it by nature and status it is a 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 where a
state subsequently loses any essential of statehood. In such a case the state
withdrawing from recognition shall send his express intention to the concerned
authority issue a public statement to that extent.
Conclusion:-

The view of most international lawyers is that the position taken by other states – whether
recognition or non-recognition – as to the creation of a new state or the continuance of an
existing state is merely declaratory, not also constitutive of, the legal position in this regard.
In other words, the usual position is to apply the criteria reviewed above, irrespective of the
view taken on this matter by other states. However, most of those who adopt this
“declaratory” theory of recognition accept that recognition can have a constitutive role in
certain marginal cases. it is capable of pushing things further in favour of a particular
outcome towards which the existing criteria are pointing but which itself is not reached by
considering them alone. Thus, if an entity claims to be a new state, but is somewhat deficient
in conformity to the viability criteria, recognition by other states in favour of its claim to
statehood may tip the balance.
References:-

 S.K.KAPOOR, HUMAN RIGHTS UNDER INTERNATIONAL LAW AND INDIAN

LAW , CLA , ALLAHABAD

 V.K. AHUJA , PUBLIC INTERNATIONAL LAW, LEXISNEXIS , GURGAON

 H.O.AGRAWAL, PUBLIC INTERNATIONAL LAW, CLA , ALLAHABAD

 WWW.LEGALBITES.IN

 WWW.JSTOR.ORG