Theories of recognition of states
1. Introduction:
Recognition is a process of accepting the legal status of a state. it is an act by which another state acknowledges that a recognized political entity possesses attributes of statehood. recognition is important for a state to acquire international status. The recognition confers rights and duties upon the states.
2. Meaning:
It means a free act by which one or more states acknowledge the existence of a definite territory of human beings, politically organized independent of any other states, and capable of observing obligations of international law.
3. Definition:
Oppenheim:
"In recognizing a state as a member of the international community the existing states declare that in their opinion the new states fulfill the conditions of statehood as required by the international law."
Fenwick:
"Recognition is the international personality of a state."
4. Aspects of recognition:
The topic of recognition may be broadly divided into the following.
- Recognition of states.
- Recognition of government.
- Recognition of belligerency.
- Recognition of insurgency.
5. Law on "Recognition of states" :
I. Essentials of statehood:
According to Kelson a community to be recognized as an international person must possess the following essentials.
- Population.
- Government.
- Sovereignty.
- Territory.
II. Nature of recognition:
Acknowledgment of the possession of the attributes of statehood in a state depends upon the discretion of the existing state. The discretionary power is exercised by the policy of the state.
6. Theories of recognition:
There are two theories about recognition which are as follows.
I. Constitutive theory:
According to constitutive theory, recognition creates statehood or clothes on a new state with any authority or status in the international sphere. it implies that other states constitute the personality of the state recognizing it.
Criticism:
This theory is criticized for the reason that it cannot explain the retrospective effects of recognition.
II. Declaratory theory:
According to declaratory theory, the state comes into existence as soon as it acquires the attributes of statehood. so recognition is merely a formal acknowledgment through which facts about the existence of a state are accepted.
Criticism:
Recognition creates new rights in a newly recognized state.
7. Forms of recognition:
The following are two forms of recognition.
I. Express recognition:
Where an existing state recognizes the new state by a notification or declaration, announcing the intention of recognition is called to be expressed.
II. Implied recognition:
It is done by accrediting diplomatic representatives or the head of state visits.
8. Kinds of recognition:
I. De facto recognition:
Where an existing state considers that the new state has not acquired sufficient stability, it may grant recognition to that state provisionally which is termed as De Facto recognition. the recognition state must possess essential elements of statehood and should be the subject of international law.
Schwargen Berger's views:
"When a state wants to delay the de jure recognition of any state, it may, in the first stage grant de-facto recognition."
(i) De- facto recognition when can be withdrawn:
De Facto recognition once granted can be withdrawn if the recognizing state considers that the new state does not possess the capability of administering its territory.
Case law
National Bank of Ethiopia v/s National Bank of Egypt 1973
II. De jure recognition:
De jure is actual recognition it is granted when in the view of a recognized state the recognized state possesses all the essential requirements of statehood and it is capable of being a member of the international community.
9. Difference between de facto and de jure recognition:
I. As to nature:
De facto recognition is temporary.
De-jure recognition is permanent.
II. As to revocation:
De facto recognition can be revoked.
De jure recognition cannot be revoked.
III. As to effect:
De- facto has no retrospective effect.
De-jure recognition has a retrospective effect.
IV As to the right:
Ce facto recognition does not confer title to retain property in other states.
De jure recognition confers title to retain property in other states.
V. As to diplomatic relations:
In de facto recognition diplomats are not appointed.
In de jure recognition diplomatic relations are established.
VI. As to scope:
De facto recognition is of less scope because recognition is not possible through a united nation when it is admitted to the membership of an under nation.
10. Consequences of non-recognition:
- Cannot sue.
- No diplomatic relation.
- No right to get property situated in the territory of the recognizing state.
11. Legal effects of recognition:
(i) Right to sue:
The recognized state becomes entitled to sue in the court of the recognized state.
(ii) Establishment of diplomatic relations:
In case of de jure recognition diplomatic relations are established.
(iii) Application of the rules of international law:
The rule of international law applies to the recognized state.
(iv) Right of succession:
The recognized states become entitled to get property situated in the foreign state.
(v) Sovereign immunity:
The recognized state becomes entitled to sovereign immunity for itself and its property in the court of recognizing states.
12. Collective recognition:
International law does not prohibit collective recognition similarly there is no prohibition on collective de-recognition. There are many instances of collection recognition.
13. Conclusion:
To conclude it can be said that recognition is a process through which a political community acquires international personality by becoming a member of the nation. De facto and de jure are two important modes of acquiring recognition. de facto recognition is a step toward de jure recognition.