Recognition of States and Governments in International Law

Recognition of States and Government in International Law

Recognition is the process by which a new state becomes a member of the international community.
To be called a state, an entity must possess the essential elements of the state such as population, territory, government and the ability to form relationships with other states. When the existence of these elements in the state is accepted by other existing states, then it is called a state.

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Definitions of Recognition-

According to Oppenheim,

Acceptance of recognition proves that in the opinion of the existing states the new state fulfills the conditions of statehood recognized by international law. So that in the view of the recognizing State the new State may be regarded as an international person possessing the rights and duties which international law confers on States.

According to Fenwick, by recognition the members of the international community formally acknowledge that the new state has acquired international personality and is entitled to the rights and privileges of a member of the international community.
According to Kelson, a community can receive all recognition under international law when it has the four necessary elements.

be politically organized,
have control over a certain amount of land,
The control should be effective and moving towards stability,
The community should be completely independent from other states.

According to Philip C. Jessup, recognition is the act of a state by which it accepts that the essential elements of nationhood are present in a political unit.

According to Proff. Schwarzenberger, Recognition is better understood as the process by which international law has evolved by which states have accepted each other’s negative sovereignty and are willing to extend their legal relations by consent.

Theories of recognition-

There are mainly two theories of recognition

Constitutive Theory
Declaratory Theory

Constitutive Theory

According to this theory, a state is not created by fact but through recognition by other states. The main supporters of the constructive theory are Oppenheim, Hegel, Angelotti, Holland, Latterpet.
Oppenheim said in the eighth edition of his book International Law that “a state becomes an international person only and exclusively by recognition.” According to Holland, recognition provides maturity to states and when a state is not recognized, He cannot acquire rights as a member of the family of states.

According to Latterpet, “the constitutive theory appears to be justified by the practice of States and by sound legal principle.”
According to Latterpet, states accept declaratory theory as a reaction to the old notion that recognition is a political act. He has also expressed the view that it is the legal duty of every State to recognize a community when it possesses the essential elements of nationhood.

In practice, most states follow the declaratory theory. Constitutive theories are not in practice among states. Even if this principle is accepted, it is not clear what will happen about such new states which have been recognized by some states but not by others. The example of China and Bangladesh can be presented in this context.

Declaratory Theory

According to the declaratory theory, nationhood or the existence of a new state exists before recognition. Recognition merely declares that a state has the elements of nationhood specified by international law.
Supporters of declaratory theory are – Hall, Banger, Brearley, Pitkovet Fisher etc.
According to Hall – “A State becomes a member of the family of States as a matter of right when it has acquired nationhood.”

According to Brierley, “Granting recognition to a new state is not a constitutive but a declarative act.”
According to Soviet opinion, “the birth of a state is not a matter of international law but a matter of internal law.”
It is not entirely appropriate to say that recognition is only a declaratory act, but it is true that states accept this opinion more.
According to the declaratory view, when recognition is given to a new state, it is an act, the effects of recognition are constitutive in nature.
In conclusion it can be said that recognition is both constructive and declarative.
According to Justice Latterpet, “As far as acceptance of the fact of nationhood of a political community is concerned, recognition is declarative but after granting recognition, it has some legal effects, hence recognition in this regard is constitutive.”

Modes of Recognition

There are mainly two types of recognition –
Defacto Recognition
Dejure Recognition

Defacto Recognition – Defacto Recognition is interim.

De facto recognition – When the existing states understand that the new state has not achieved sufficient stability, then they grant it provisional recognition. Provisional recognition is called de facto recognition.

According to Oppenheim, de facto recognition is granted when a state is truly independent and has effective control over a certain territory. But it has not yet achieved sufficient stability and it still lacks some qualities of recognition, such as the willingness and ability to fulfill the obligations of international law.

According to Jessup, the use of the words de facto recognition is objectionable and is similar to the practice of states recognizing new states without establishing diplomatic relations.

According to Professor Schwarzen Berger, when a state delays in giving full or de jure recognition, it gives de facto recognition in the first stage. The main reason for giving de facto recognition is that there is doubt about the state to be recognized. whether it is permanent or not and whether it is willing and able to fulfill its obligations under international law.

De facto recognition, once granted, may be withdrawn by the recognizing State if it considers that the new State has lost the capacity to administer the territory.

If the existing state grants de jure recognition later, after de facto recognition, the effect of de jure recognition will be retrospective i.e. from the date when de facto recognition was granted.

By granting de facto recognition to a state, the recognizing state ensures certain benefits, especially economic benefits. This enables it to protect the interests of its citizens in the de facto recognized state.

Dejure Recognition

If, according to the state granting recognition, the recognized state or its government has all the necessary qualities for recognition and is eligible to become a member of the international community, then it can be legally recognized.
In UK practice, before legal recognition can be granted, the following essential elements must be in place

Stability
The government of the state should have the general support of the people there,
There must be a desire to fulfill international responsibilities,
And must be able to meet international obligations.

The essential condition for legal recognition is that such declaration be made expressly. Diplomatic relations can be established only with legally recognized states.

Difference between De Facto recognition and De Jure recognition-

De Facto recognition	De Jure recognition
the nature of de facto recognition can be interim and it can be based on conditions	de jure recognition is complete and unconditional.
When the existing states understand that the new state has not achieved sufficient stability,	has all the necessary qualities for recognition and is eligible to become a member of the international community
temporary and factual recognition.	permanent and legal recognition.
primery step to grant de jure recognition	directly be granted without de facto
may be easily revoked	never be revoked
States can not enjoy diplomatic immunities	States can enjoy diplomatic immunities
States have only few rights against other states	States have absolute rights against other states

According to Professor Schwarzen Berger, the nature of de facto recognition can be interim and it can be based on conditions. On the other hand, de jure recognition is complete and unconditional.

According to Kelson, de jure recognition is final while de facto recognition is only interim.
According to Professor Oppenheim, “As far as the internal legislative and other functions of the recognizing state are concerned, the courts do not recognize any difference between de facto and de jure recognitions.”

According to Professor Oppenheim, the essence of the two types of recognition is that de jure recognition is a complete type of recognition whereas de facto recognition has some shortcomings and in which the current realities are taken into account on an interim basis.

In the case of Luther vs. Sagar, it was decided that there is no difference between de jure recognition and de facto recognition in the case of internal functions of the state to be recognized.

In the cases of Bank of Ethiopia v. National Bank of Egypt and Liquori, the Court applied the rule of Luther v. Sagor.

The summary of Aranttaju Mendi’s decision is also that there is no difference between de jure recognition and de facto recognition for internal work.

According to Bishop, if there is any difference between de facto recognition and de jure recognition, then it is a political difference and not a legal one.

According to Fenwick and Latterpat, there is some difference between de jure recognition and de facto recognition. According to them, in the case of succession, only the de jure recognized states will be considered the successors.

According to Professor Cochrane, succession obligations are the same in de jure and de facto recognition and it would not be appropriate to say that there is a difference between de jure and de facto recognition in the matter of inheritance rights.

But in de facto recognition, formal diplomatic relations are not established whereas in de jure recognition diplomatic relations are established. Apart from this, if there is any difference then it is only political and not legal.

Forms of Recognition

Recognition of Insurgency

State Insurgency means political rebellion in a country.

According to Kelson, civil war is necessary for state insurgency.

State insurgency(mutiny/ rebillion, riot) is a civil war between the rebels of the state and the established government there in which the rebels try to change the established civilian government.

Essential elements of state insurgency recognition-

State insurgents should have control over a substantial portion of the land,
The residents living on that land must support the rebels,
State insurgents must have the willingness and ability to meet international obligations.