THEORY OF RECOGNITION UNDER INTERNATIONAL LAW.

    Edited by: Vaani Garg


    INTRODUCTION

    Aptly remarked by Professor G. Schwarzenberger – “The growth of international law is best understood as an expanding process from nucleus of entities which have accepted each other’s negative sovereignty and on the basis of consent, are prepared to maintain and possibly expand the scope of their legal relations. Like most clubs, the prerogative the existing subjects of the international law employ the device of recognition”.

    According to Professor L. OppenheimIn recognizing a state as a member of International community, the existing states declare that in their opinion the new state fulfils the conditions of statehood as required by international Law”.

    Fenwick is also of the view that through recognition, the members of the international community formally acknowledge that the new state has acquired international personality.

    The Political map of the world undergoes change from time to time. New states emerge by unification, disintegration, or emancipation from colonial rule; and the old disappear. Like-wise changes in governments occur often by violent means such as revolutions, coup d’etat or military conquests.

    The community of states cannot remain indifferent to the developments; the immediate problem before it being to grant recognition to these new states or governments. The topic of recognition of states, recognition of government and recognition of belligerency.

    Recognition is concerned with the status of the new entity (a) on the international scene and (b) within the municipal legal system of the recognizing state. Through recognition, a state manifests its willingness to maintain necessary international intercourse with a new entity or the government. Recognition is a unilateral act of cognitive nature of a recognizing state, which is followed by certain legal consequences.

    Essentials of Recognition

    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;

    (a) It should have a permanent population.

    (b) A definite territory should be controlled by it.

    (c) There should be a government of that particular territory.

    (d)That entity should have the capacity to enter into relations with other states.

    Theories of Recognition

     Various theories on nature, function and effect of recognition are:

    (a) Constitutive Theory      (b) Declaratory Theory.

                                            

    Constitutive Theory

    According to this theory, recognition covers the recognized state with rights and duties under international law. Recognition is a process through which a political community acquires international personality by becoming a member of family of nations. Hegel, Anzilloti, Oppenheim etc, are the chief exponents of constitutive theory.

     In the words of Prof. Oppenheim–“A state is and becomes an international person through, recognition only and exclusively. According to the constitutive theory, statehood and participation in the international legal order are attained by political group only in so far as they bare recognized by established state”. Holland also supports the constitutive theory. In his view, recognition confers maturity upon state and until and unless a state is recognized, it cannot acquire rights under international law.

    In the view of Judge Lauterpacht, constitutive theory is an accordance with the practices of state and is based on sound legal principles. The practice of states, however, indicates the contrary. In practice most of the state accept the declaratory theory. In this connection, Judge Lauterpacht has remarked that the wide acceptance of declaratory theory is due reaction against the traditional conception of recognition as a political act purely and simple. In his view, there is a legal duty on the part of the state to recognize any community that has in fact acquired the characteristics of the statehood.

                                                

    Criticism of Constitutive theory

    A lot of jurists have criticized the constitutive theory. The view of judge Lauterpacht that there is legal duty on the part of the existing states to recognize any community that has in fact exist, they have not consented to the law norms that obligate to do so. Besides, the constitutive theory presents several other serious difficulties. According to this theory, if a state is not recognized, it can have neither duty or rights under international law.

    This seems a very absurd suggestion and if one accepts this proposition, it will create difficulties in the case of new state which is recognized by some states but not recognized by others. For instance, taking the example of China and Bangladesh; China was not recognized by the USA and other western countries for several years, even though China possessed all the essential elements of a State. Similarly, Bangladesh was not recognized for a while by China, Pakistan, Albina etc.

    Declaratory Theory/ Evidentiary Theory

    According to this theory, statehood or the authority of the government exists as such prior to and independently of recognition. Recognition is merely a formal acknowledgment through which established facts are accepted. The act of recognition is merely declaratory of an existing fact that a particular state or government possesses the essential attributes as required under international law.

    The chief exponents of this theory are Hall, Wagner, Brierly, Pitt Corbett and Fisher. According to professor Hall, a state enters into family of nations as of right when it has acquired the essential attitudes of statehood. Pitt Cobett has expressed the view that existence of a State is a matter of fact. In his words, “so long as a political community possesses in fact the requisites of a statehood, formal recognition would not appear to be a condition precedent to acquisition of the ordinary rights and obligations incident thereto”. Brierly has also remarked, “the granting of recognition to a new state is not a constitutive but a declaratory act”.

    A state may exist without being recognized and if it exists in fact, then whether or not it has been formally recognized by other states, it has the right to be treated by them as a state. The Soviet view and practice is also in favor of the declaratory theory of recognition. According to the soviet view, birth of a state is the act of internal law rather than that of international law.

     Criticism of Declaratory Theory/ Evidentiary Theory  

    This theory has also been criticized because the view that recognition is only a declaratory of an existing fact is not completely correct. In fact when a state is recognized, it is a declaratory act. But the moment it is recognized, there ensue some legal effects of recognition which may be said to be of constitutive nature.

    Modes of Recognition

    There are two kinds of recognition, (a) De-facto recognition & (b) De-Jure recognition. The practice of states shows that in first stage the state generally gives de-facto recognition. Later on, when they are satisfied that the state recognized is capable of fulfilling international obligations, they confer de jure recognition on it. That is why, it is sometimes said de facto recognition of state is a step towards de jure recognition.

    De-Facto Recognition

    According to professor G. Schwarzenberger, “when a state wants to delay the de jure recognition of any state, it may, in the first stage grant de facto recognition”.

    A de-jure  government is the one that ought to possess the powers of sovereignty in law, though at the moment it may be deprived of these ; and the reason for granting de facto recognition is that it is doubted that the state recognized may be stable or it may be able and willing to fulfill its obligation under international law. The state having de facto recognition are not eligible for being a member of the United Nations. e.g., Israel, Taiwan, Bangladesh.

    De- Jure Recognition 

    De-jure recognition is granted when in the opinion of the recognizing state, the recognized state or its government possesses all the essential requirements of statehood and is capable of being a member of the international community. As pointed out by professor H.A Smith, the British practice shows that three precedent conditions are required for the grant of de jure recognition of a new state or a new government. The three conditions are:

    1. A reasonable assurance of stability and performance.
    2. The government should command the general support of the population.
    3. It should be able and willing to fulfil its international obligations.

    Further recognition, de jure results from an expressed declaration or from a positive act indicating clearly the intention to grant this recognition such as the establishment of diplomatic relations. De jure recognition is final, and once given cannot be withdrawn. In the case of Luther v. Sagar, it was held in this case that for the purpose of giving effect to the internal acts of the recognized authority there is no distinction between de facto and de jure[1]   

     Illustrations of De Facto and De Jure recognition:

    1. One of the examples of de facto and de jure recognition is the recognition of the Soviet Union which was established in 1917. It was de facto recognized by the government of UK in 1921 but it was not given de jure recognition until 1924.
    2. Bangladesh was established in March 1971. India and Bhutan recognized it just after 9 months of establishment but the United States gave it legal recognition after nearly one year in April 1972.[2]

    Legal effects flowing from De-Facto and De-Jure Recognitions

    The legal effects flowing from de jure and de facto recognition with respect to new government’s legislative and executive acts, right to sue, immunity from legal process as well as retroactive operation are some. There are however some differences between the two viz;

    1. No formal diplomatic relations are established with the de facto government. The de jure government and its representatives alone are entitled to fulfill diplomatic immunity and privileges as a matter of right.
    2. Immovable property situated in the recognizing state can only be claimed by de jure government, although de facto government has a prior claim on a movable property.
    3. Only de jure government can espouse the claims of its national for injury in breach of international law.  

    Manner/Forms of Recognition

    International law does not specify any manner or form for granting recognition. However, in the practice of state, it may be express or implied, that should unequivocally establish the intention of the recognizing state.

    • Expressed Recognition
    • Implied Recognition- (1) Bilateral Acts (2) Multi-lateral acts

    Expressed Recognition

    When an existing state recognizes a new state expressly through official declaration or notification, it is considered to be the expressed form of recognition. Expressed 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 recognized by expressed ways, it is a de jure recognition unless provided otherwise by the recognizing state in the declaration. Recognition may also be granted by the conclusion of a bilateral treaty or agreement. Recognition of Bangladesh by India on December 6 1971 was through a formal declaration.

    Implied Recognition

    When the existing state recognizes 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. Article 7 of the Montevideo Convention 1933, states that “the tacit or implied recognition results from any act which implies the intention of recognizing the new state”.

    Withdrawal of Recognition

    Withdrawal of De facto recognition:

    Under international law when a state having de facto recognition fails to fulfill 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.

    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. Although 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 recognized 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 recognizing state by issuing a public statement.

    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, provides various rights, privileges and obligations. When a state gets its de facto recognition, the rights, privileges and obligations are less but when it is recognized de jure, it gets absolute rights, liabilities and privileges. The recognition of the state is too much politically influenced 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 recognizing 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 [3]

                                                         


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

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

    [3] https://blog.ipleaders.in/