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Concept of Recognition of State

Introduction

Each state conducts its relations with other states on the basis of particular understandings of the legal status of those other states. In many instances, such understandings are uncontroversial and amount to a recognition of the status quo: the UK and its dealings with France, for example. Sometimes, however, a state can take a position which challenges the existing order[1]According to Philip Jessup, “recognition means that an existing State acknowledges the political entity of another State, by overt or covert act.” It is important to know what constitutes a State.International law states that, an entity which meets the international legal criteria of statehood is able to be a State. Article 1 of the Montevideo Convention on Rights and Duties of States[2] provides the criteria of the statehood. According the Convention a state should have; a) a permanent population b) a defined territory c) governmentd) capacity to enter into relations with other states.

Theories of recognition

There are mainly two theories which revolve around recognizing a state by other nations, Constitutive Theory and Declarative Theory or Evidentiary Theory.

The Constitutive theory defines a state as a person of international law if, and only if, it is recognized as sovereign by other states. This theory of recognition was developed in the19th century.In 1815 at the Congress of Vienna the Final Act recognized only 39 sovereign states in the European diplomatic system, and as a result it was firmly established that in future new states would have to be recognized by other states, and that meant in practice recognition by one or more of the great powers.In 1912, L. F. L. Oppenheim said;

“...International Law does not say that a State is not in existence as long as it is not recognized, but it takes no notice of it before its recognition. Through recognition only and exclusively a State becomes an International Person and a subject of International Law”

One of the major criticisms of this law is theconfusion caused when some states recognize a new entity, but other states do not. A state may use any criteria when judging if they should give recognition and they have no obligation to use such criteria. Many states may only recognize another state if it is to their advantage.

According to declarative theory, an entity's statehood is independent of its recognition by other states. The declarative model was most famously expressed in the 1933 Montevideo Convention[3]. Article 3 of the Convention declares that statehood is independent of recognition by other states.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.This theory has been subject to criticism as recognition is only declaratory of an existing fact isnot completely correct. In fact when a state is recognized, there ensure some legal effects of recognition which may be said to be constitutive in nature

Modes and Withdrawal of Recognition

There are two modes of recognition, De facto Recognition and De jure 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.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.

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.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.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.

Belligerency and Insurgency

When a state goes in a state of belligerency where the rebels have a considerable control over a substantial territory of nation, the rebels may be recognized by the existing state. Such recognition is said to be recognition of belligerency.

There are following conditions by the movement of rebels to recognize by other states:

  • That the movement shall be of a general character.
  • That rebels shall have in possession a substantial part of the national territory.
  • That they are giving respect and bind themselves for the warfare laws and other international duties.
  • That they have a proper force. If the above conditions have been fulfilled by rebels then they may recognized by other existing states, and shall enjoy the international rights.

The recognition by existing states the de facto authority over a large territory of the rebels is said to be insurgency. In case of insurgency the rebels or the insurgents occupy a large part of the national territory which was formerly governed by the parent government. And if they are capable to control over that occupied part then the existing states may recognize it.

Prior to recognize the insurgency it is necessary for the recognizing state to satisfy the following conditions;

  • Firstly, when insurgents occupies a considerable parent state’s territory,
  • Secondly, they have a support from the majority of the citizens of the parent state,
  • Thirdly, they are acting under a proper command and,
  • Fourthly, they have good control over the occupied territory.

When the in case of an insurgency the above requirements have been complied with then it is on the discretion of the existing state weather to recognize or not.

International law has been transformed from a European-based system enabling sovereign states to interact in a relatively limited number of areas to a truly international order with profound and increasingly cooperative requirements. Globalization has ensured that the doctrine of the sovereignty of states has in practice been modified, as the proliferation of regional and global international organizations demonstrates. With the growing interaction of states amongst each other, it only makes sense that the recognition of new upcoming states turn beneficial to a few.

 


[1]All Answers ltd, 'Recognition of States and Governments in International Law' (Lawteacher.net, June 2019) <https://www.lawteacher.net/free-law-essays/international-law/recognition-of-states-and-governments-in-international-law-international-law-essay.php?vref=1> accessed 20 June 2019

[2]https://www.ilsa.org/Jessup/Jessup15/Montevideo%20Convention.pdf

[3] Ibid

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Submitted by Varun Ahuja

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