Written by:Adv. Pooja Gupta

Recognition of States under International Law

Meaning of Recognition of States under International Law: – Recognition is an important part of International Law. The process by which a new state has become a member of International Law is known as recognition. Recognition is the process by which a new state has become a part of the international community of states. The value of recognition has grown significantly in modern times.

As per Prof. Oppenheim, as a member of the international community, the country of the international organizations proclaims that the new state has acquired the recognized aspects of a state as recommended by international law.

The decision to grant recognition by one or more nations, according to the Institute of International Law, is an autonomous act by which they recognize that a politically organized group of people on a specifically designated land constitutes an independent state capable of performing its international law duties. The recognition-giving governments demonstrate their willingness to understand the new state as a member of the international community of states by adopting this approach.

According to Kelsen

Any community can be recognized under international law if the aforementioned factors are taken into account:

  • It is politically established,
  • It has common control over a defined territory of land, the control is efficacious and is progressing towards certainty, and
  • Society is totally independent of other nations.

As per Jessup, recognition is the feature of a state in which it acknowledges that all the aspects of statehood exist in a specific political entity. In other words, recognition gives states acknowledgment that all the factors of statehood are acquired by the state that is being recognized. International law is silent on what will serve as a basis for evaluating these essential components.

International Law Theories of State Recognition

Recognition of States under International Law

Constitutive Theory

This theory states that only a recognized state is awarded statehood and rights in international arenas. This is the process through which a political entity becomes an international personality under international law by joining the world community. Hegal, Anzilotti, and Oppenheim are the most prominent proponents of this hypothesis. According to Oppenheim, a nation is and only becomes a regional and global individual though recognition.

 Holland is a supporter in constitutive theory as well. As according to him, recognition gives states maturity, and when a state is awarded recognition, it loses all rights as a member of the state community.

Declaratory or Evidential Theory

According to this idea, a new state’s or government’s statehood or authority exists before recognition and is not contingent on it. Recognition, according to this idea, is a formal acceptance of a truth that has already been established. Only a declaration is made by an acknowledgment that a state possesses all of the necessary components of statehood as established by international law.

Cobbet, Hall, Brierly, Fisher, and Pitt all supported this thesis. Whenever a state attains statehood, according to Hall, it’s become a member of the community of states by right. This fact, according to Pitt Corbet, is a subject of actual fact. As per him, if a political state possesses all of the necessary elements of statehood, formal recognition is not required to obtain obligations and responsibilities under international law.

Criticism

The declaratory theory of recognition has also been criticized by jurists. It does not seem entirely appropriate to say that recognition is merely a declaration. This doctrine is highly valued by states. In reality, granting a state recognition is merely a declaratory function. Moreover, once recognition is approved, the consequences for the state are so significant that they are made reference to as socially constructed.

According to Kelsen, recognition is essential to an understanding when it confers an international individuality on a state; it is also legally enforceable because it merely contends the possible outcomes & facets of a state that it already acquires by recognizing them as statehood & awarding them the power to enter the community of states.

Modes of Recognition

de facto recognition

According to Professor Schwarzenberger When a state intends to grant full or de jure recognition or wishes to postpone it, the first step is to grant de facto recognition. The main rationale for granting “de facto recognition” is that there is ambiguity about the stability and development to be recognized, as well as the state’s ability and desire to fulfill its international commitments.

Sometimes it can be also the main cause for granting de facto recognition that a recognized state may reject to resolve possesses the necessary characteristics of nationhood and has the privilege to become the source of international law. The significance of de jure recognition is broader than that of de facto recognition.

de jure recognition

De jure recognition is permitted when, in the opinion of the state granting recognition, the state or government to be recognized possesses all of the elements and attributes of nationhood and is capable of joining the international community of states. According to Prof. Smith, a British citizen, before granting de jure recognition.

The following important conditions must exist

  1. Consistency; and
  2. Widespread public support for the present government.
  3. The ability and willingness to fulfill international obligations.

De jure recognition is final recognition, and once awarded, it is rarely revoked. There is a favorable desire for de jure recognition to be declared explicitly and diplomatic relations to be established.

Legal effect of Recognition of State

The effect of recognition mainly gives the following results-

  1. The recognized state gets a right to file claims in the court of the state which gives recognition.
  2. In the court of recognition granting state, the recognized state may enforce its past and present legislative and executive actions.
  3. The recognized state gets immunity in relation to its diplomatic and proper matters.
  4. As a matter of right, the ambassador and other diplomatic officials of the recognized state are conferred privileges and immunities.

so it is evident that after getting recognition a state becomes a full-fledged member of the international community of states as a matter of right with many other privileges and immunities.

Implications of State Non-Recognition

  1. A non-recognized state cannot file a Lawsuit in the court of a state that has not granted recognition;
  2. A state that does not have recognition cannot establish diplomatic channels with other states;
  3. A non-recognized state’s ambassador or representatives are not immune from legal proceedings in a foreign state;
  4. A non-recognized state has no right to reclaim its property.

Read more: –

International Commercial Arbitration

Law of the Sea under International Law 1982

International Criminal Law (International Law)

International Family Law under International Law

International Economic Law Fundamental and resource

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