State Recognition under International Law:

A new State can enjoy its rights, privileges, and obligations when it will be recognized as a state.

Introduction

A new state is born out from an existing State or an old State which disappeared and
comes with a new name or by splitting an existing State into two States. If a new state enjoys
certain rights, privileges and obligations then it must get recognition as a state, which is very
essential. However, there are some minimum criteria required before a State is considered to
be a State. A State must get the De Jure (when a state is legally recognized) recognition for
considering a State as a sovereign State. Political thought plays an important role in this
decision whether to grant recognition or not. For recognition as a State, it must enter into
relations with the other existing States. The elements, theories, and processes are reflected in
this article.

Recognition of a State can be defined as;

A state acknowledgment or acceptance as an international personality by the existing State

of the international community. The declaration to fulfill certain essential conditions of
Statehood as required by International Law.

Essentials of Recognition of a State

 Population;
 Territory;
 Government;
 Sovereignty;
 Control should tend towards permanency.
If these conditions are fulfilled, then the State can be recognized.

Kelson’s view on the recognition of states;

For a state to be recognized the following conditions must be fulfilled-

 Must be politically organised.

 Have control over definite territory.
 Must be permanent.
 Must be independent.
  Process of Recognition

 State is not only an institution with international legal standing but they are the primary
subjects of International Law and possess the greatest range of rights and obligations.
 Mixture of fact and law and the establishment of particular factual conditions and
compliance with relevant rules are the process of creating new States.
 States are not bound to recognise new claimants of Statehood and make it a positive
duty to recognize a State.
 Recognition is mainly a matter of intention.

Israel-Palestine Dispute

In this dispute, India did not recognize Israel till 1999 and also South Africa till 1991 due to
racism. Even though India got military support from Israel, still it didn’t recognise Israel. Where
both the countries had all the parameters under Montevideo Convention.

But Palestine got limited recognition by countries because they had large number of Zewish
population.

China-Taiwan Dispute

In this dispute, 15 countries recognised Taiwan as a state all over the world. Taiwan was
officially known as the Republic of China and is recognised by 19 member states of the UN.
Other countries have business relations with Taiwan but they don’t recognise it as a state.
Taiwan unofficially maintains diplomatic relations with 57 other members of the UN.

Political Recognition of State

 Political act in recognition is used to support or to reject a state or a government which

is new in an international community.
 Mixture of fact and law and the establishment of particular factual conditions and
compliance with relevant rules are the process of creating new States.
 Criteria of Statehood is laid down in the Montevideo Convention, which provides that
State must have a permanent population, a defined territory and a government and the
capacity to conduct International relations.
  Recognition of State is a political act based on interest and assessment made by States
individually, but legal arguments are important.

Montevideo Convention

To consider a State as an international person, State should adhere to following qualifications-

 Permanent Population;
 Definite Territory;
 Government;
 Capacity to enter into relations with other States.

Theories of Recognition
There are two theories of recognition-

 Constructive Theory,
 Declarative Theory.

Constructive Theory of Recognition

 This theory is coined by Hegel and Oppemheim.

 According to this theory, the State is considered as an international person. This theory
views that after the recognition a State gets its status of an International person and
becomes a subject to International Law.
 This doesn’t mean that State doesn’t exist unless recognised, but in this theory State
gets the exclusive rights and obligations and becomes a subject to International Law
after its recognition by other existing States.

Criticism

This theory is criticized by many of the jurists, few of them are-

 That except the State which is recognised by other existing States, rights, duties, and
obligations of Statehood community under International Law is not applicable to this
theory.
  It also comes into confusion when a new State is recognised by some of the existing
States and not recognised by other States.

Oppenheim’s View on Recognition of State

 A State is and will only be an international person if recognised as extraordinary. There is

no agreement that countries have to give recognition to a State, there is no obligation on
the countries, obligation lies under international law who will give recognition to a new
State.
 Existing countries recognised a country as a member of the international community and
believe that the State meets the requirements of international law outside the country.

Declarative Theory of Recognition

 Declarative Theory is coined by Hall Wagner and Fisher.

 This was developed in the 20th Century to address shortcomings of constitutive theory.
 Before the recognition of the State, a new State has the right to defend its integrity and
independence under International Law.
 This theory is laid down under Article 3 of Montevideo Conference of 1933
 Followers of this theory consider this process of recognition as merely a formal existence
of Statehood by other States

Criticism

This theory has also been criticized. It is criticized on the grounds that this theory cannot be
applicable for recognition of the State.

When the essential characteristics are fulfilled by a State then it comes into existence. If
international rights and obligations are exercised by the State then declarative theory applies.
But when the State gets the legal rights of recognition then constructive theory applies.

Modes of Recognition

Recognition of a new State

Recognition specifies the willingness of recognizing State. Existing State is a member of the
International Community who will deal with a new State.Under International law it allows the
recognized State to exercise the rights and duties of the State. Recognition of the Government
automatically involved in recognition of a new State.

Recognition of a new government

Through the medium of the government a State participates in the benefits of International Law
largely. To recognise the government, recognising the State is important.

Objective Test

 Is there any opposition or not?

 Whether the new government has effective territory?

Subjective Test

 Whether fulfilled the International Obligations?

Recognition of belligerency
Belligerency exists when a portion of the States territory and population is under the de facto
control of the people who are fighting against the government to establish a separate State or
to overthrow the existing government.

A civil war may turn into a real war if the rebels are in possession of a substantial part of
territory.

Recognition of belligerency was granted during most of the civil wars of the 19th Century, such
as the American civil war and war during the Independence of the Twentieth Century.

Forms of Recognition

De Facto Recognition

 De Facto Recognition is mostly granted to governments.

 It is a temporary recognition of a State, this can be conditional or without any condition.
  This mode of recognition is granted when a new State holds a sufficient territory or
control over a particular territory, but the other existing State consider that when they
don’t have enough stability or any other unsettlement issues. So we can take it as a test
of control for newly formed States.
 The UK first recognized Soviet Government as de-facto recognition in 1921 and later
recognised as de-jure in 1924.

De Jure Recognition

 De Jure Recognition is given to a new State when a new State fulfills all the essential
characteristics of a State.
 De Jure recognition can directly be granted to a State who has or has not granted de-
facto recognition.
 Newborn States grant the permanent status as a sovereign State through de-jure mode
of recognition.

Difference between De Facto and De Jure Recognition

De Facto Recognition De jure Recognition

De Facto recognition is temporary and

De Jure recognition is a permanent and legal recognition.
factual recognition.

De Facto recognition is granted to a State De Jure recognition is granted to a State when all the
when it fulfills the essential conditions of essentials are fulfilled along with the permanent control
State. of that essentials.

De Facto recognition is the primary step to De Jure recognition can directly be granted without De
grant De Jure recognition. Facto recognition.

De Facto recognition can easily be revoked. De Jure recognition can never be revoked.

The States having De Facto recognition The States having De Jure recognition can enjoy
cannot enjoy diplomatic immunities. diplomatic immunities.
 The States having De Facto recognition have
The States having De Jure recognition have absolute
only few rights and obligations against other
rights and obligations against other States.
States.

Express Recognition

 When an existing State identifies a new State expressly by official declaration or

notification, then it is considered to be a expressed form of recognition.
 Express recognition can be expressed through formal means such as sending or
publishing declaration or statement to the opposite party.
 It can also be expressed through personal messages from the head of State or from the
minister of foreign affairs.

Implied Recognition

 When an existing State identifies a new State through any implied act then it is
considered as implied recognition. There is no formal statement or declaration issued.
 The recognition through implied means may vary from case to case. The actions required
for implied recognition must be ambiguous and there shouldn’t be any doubt in the
intention of the State who recognises a new State.

Conditional Recognition

 Some conditions are attached to the recognition of the State to obtain status as a
sovereign State. The conditions attached may vary from State to State such as religious
freedoms, the rule of law, democracy, human rights etc.
 The recognition of any State which is already associated with the essential conditions are
needed to be fulfilled for the status of sovereign State, but when any additional
condition is attached then it is Conditional Recognition.
 Jurists criticise conditional recognition. It was criticized on the ground that recognition is
a legal procedure and nothing additional condition can be attached unless the conditions
are recognised by law.

Withdrawal of Recognition
Withdrawal of De Facto Recognition

 Under International Law, when a State having De Facto recognition but fails to obtain or
fulfill the essential conditions then the recognition can be withdrawn.
 The recognition can be withdrawn through declaration or through communicating with
the authorities of the recognised State. It can also be withdrawn by issuing a public
Statement.

Withdrawal of De Jure Recognition

 Withdrawal of De Jure recognition is a debatable topic under International Law.

Withdrawal of this recognition comes under as an exception.
 This recognition can be withdrawn when a State loses the essentials elements or other
circumstances.

Conclusion
The recognition of the State is an essential procedure, so that the State can enjoy the rights and
privileges as an independent community under International law. The recognition be it De Facto
and De Jure, both provides rights, privileges and obligations.

When a state gets De Facto recognition, its right, privileges and obligations are less but when
De Jure is recognised by the State it gets absolute rights, liabilities and privileges. The
recognition of the State has some political influence on the International Platform.

There are many situations where powerful States create difficulties in recognition of a newly
formed State. This can be withdrawn when any State does not fulfill the conditions for being a
sovereign State. De Jure and De Facto recognition may vary from case to case. De Jure
recognition can be given directly to the State, there is no necessity of De Facto recognition even
if De Facto is considered as the primary step to achieve De Jure recognition.