Topic :-

RECOGNITION OF STATES AND ITS

NUANCES

Submitted By

ANAS KHAN
S. No.-14 , regular
Class – BA.LLB(Hons) sem- 4th of
Faculty of Law
JAMIA MILLIA ISLAMIA UNIVERSITY
In
APRIL, 2019

Under the Guidance of

Dr. NOOR JAHAN MAM
Assistant Professor Faculty of law
 TABLE OF CONTENTS

1. INTRODUCTION......................................................................... 3

2. MEANING OF RECOGNITION....................................................4

3. THEORIES OF RECOGNITION....................................................5

4. MODES OF RECOGNITIO……................................................... 6

5. FORMS OF RECOGNITION………………................................. 7

6. CONCLUSION….........................................................................8
Recognition of States in 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 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:

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

1
H.O AGRAWAL INTERNATIONAL LAW AND HUMAN RIGHTS, CENTRAL LAW PUBLICATION, 2017
 2. That it should have control over a definite territory,
3. That the control should tend towards permanency,
4. 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:

1. Constitutive Theory.
2. 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.

Modes of Recognition: – There are two modes of recognition, which may be given;
1. De facto Recognition.
2. De jure Recognition.
 3. De facto Recognition: – The provisionally grant; that is subject to fulfillment
of all the attributes of statehood, of recognition to a new state which has acquired sufficient
territory and control over the same, but the recognizing states considers it not stable more,
is said to be De facto Recognition.

4. 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.

Differences Between De facto and De jure Recognition. De facto and De jure recognition may
differentiate on the basis of following points of distinction. De facto Recognition. De jure
Recognition.

1. De facto Recognition is provisional recognition subject to fulfillment all attributes of

statehood.
2. It is absolute recognition granted to a state which have attained all the attributes of
statehood, possesses sufficient control with permanency.
3. De facto Recognition creates few essential rights and duties for recognized and recognizing
states. It creates absolute rights for the parties thereto.
4. De facto Recognition does not create full diplomatic intercourse between the parties. It
creates full diplomatic intercourse between the parties.
5. The full diplomatic immunities are not granted in this De facto Recognition. Here in full
diplomatic relations are granted to the recognized state.
6. In this case the recognized state In this case, the claim can be made and cannot claim for
the property situate in the recognizing state’s territory
7. In such a case the official visits and dealings may be subjected to limitations. In such a
case limitations are not necessary.

Forms of Recognition: – There are following two forms for the declaration of recognition.
1. Express Recognition.
2. Implied Recognition.

3. 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.

4. 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.

Criticism: – Many jurists have criticized conditional recognition. According to them

recognition is a legal matter and it should not be accompanied with conditions other than required
by law. It is due to this reason that when in case of conditional recognition the recognized state if
didn’t fulfill the prescribed condition the recognition shall be valid and not extinguished. Rather it
will affect the relations between the recognized and recognizing states.

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. This is especially significant given
the presumption mentioned earlier against the creation of new states.
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CLA , ALLAHABAD

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

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

4. WWW.LEGALBITES.IN

5. WWW.JSTOR.ORG