RECOGNITION

An entity in order to be called a state should possess essential attributes of statehood such as population, territory, government and the capacity to enter into relations with other states.

When possession of these attributes in a state is acknowledged by other existing states, it is known as recognition of state.

It is defined as a formal acknowledgement by the existing members of the international community of the international personality of a new state.

It is said, therefore, that the acknowledgement of the possession of the attributes of the existing states.

Recognition is not the conclusive proof of the existence of the state.

THEORIES OF RECOGNITION

  1. Constitutive Theory

According to this theory personality of a state’s is created not by fact but through recognition by other states.

An entity does not become a state of possessing essential attributes of statehood. It becomes so, when it is recognized by other states.

The other state constitutes the personality of state by granting recognition. This theory has been advocated by Anzilotti and Holland.

Criticism:-

  • When a state comes into possession of all the attributes of statehood, it is not necessary that its existence is recognized by other states simultaneously. Ex: Bangladesh was recognized by Pakistan much after the recognition granted by India and some other states.
  • Recognition is a political act of a state. (Fate of the new state would be determined by other states)
  • Recognition is the acknowledgement of the existence of the attribute of statehood in an entity.
  • Recognition has a retrospective effect. (When a new state is recognized by other states, the latter is regarded to have recognized all the acts of the former from the date of its establishment.)

 

  1. Declaratory theory
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According to this, a state comes into existence in International law as soon as it acquires all the attributes of statehood.

The act of recognition is declaration of an existing fact that an entity possesses the essential attributes of statehood.

This theory has been advocated by Hall, Brierly and fisher.

It is better than the constitutive theory.

The effect of recognition of a new state by the recognizing state according to this theory is to create a relationship between them.

Criticism:-

  • A state although would come into existence by having all the essential attributes of statehood, it would not have legal relationship with other states unless recognized.
  • The theory is not strictly declaratory. It has elements of constitutive theory.

Neither of these theories alone is correct. The practice of states shows that recognition has elements of constitutive theory as well as of declaratory theory.

STATEHOOD : 1. Natural        2. Juridical

NATURAL: Natural statehood cam be acquired in the sense that it acquires an international personality, and possesses minimum rights of existence.

A new state possesses natural statehood even if it has not been recognized by any state.

JURIDICAL: A state acquires juridical statehood when it possesses more specific rights. This statehood can be acquired by a state only when it is recognized by other states.

Recognition although is declaratory of the existence of the natural statehood, it is constitutive of juridical statehood.

 MODES OF RECOGNITION

  1. De- facto Recognition

When an existing state considers that the new state has not acquired sufficient stability, it may grant recognition to the latter provisionally which is termed de facto recognition.

De facto recognition is granted normally when the recognizing state considers that the new state although has a legitimate government, its effectiveness and continuance to govern the territory is doubtful.

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It may be regarded as a preliminary step towards de jure recognition. {Soviet union was recognized by Great Britain de facto on March16, 1921 and later de jure on February1, 1924.}

De facto recognition once granted may be withdrawn by the recognizing state when the latter considers that the new state has ceased to possess the capability of administering the territory. If the existing state, after granting de facto recognition, later choose to recognize de jure, the effect of the latter is given from the retrospective date,i.e., from the date when the de facto recognition was granted.

 

  1. De- Jure Recognition

When an existing state considers that the new state is capable of possessing all the essential attributes of statehood with stability and permanency and it commands the general support of the population, the recognition granted is known as de jure recognition.

De- jure recognition is given, with or without prior to de facto recognition.

When a new state comes into existence peacefully and constitutionally, de jure recognition may be granted directly.

When the new state id formed through revolt, recognition may be granted after granting the de facto recognition.

Luther V. Sagor (UK) 1921

Fact: Luther was a british citizen who used to run a timber industry in Soviet Russia. On 1917 the Russian Govt. Nationalized his factory and thereafter Mr. Luthra left Russia and went to U.K. In 1920, Mr. Sagor came to an agreement with Russia Nationalized business company to buy some timber, the company sent timbers accordingly but when timber reached in U.K. Mr. Luther claimed that those timbers were his timber, he pointed that as U.K. never recognized the government of Russia as well as Russia wrongfully take over his factory, therefore, the civilized court of U.K. cannot validate the rule of Russian law. The lower court held the judgement in Luther’s favour but an appeal to the kings Bench Division it held that they cannot interfere in an internal matter of another state, because in the meantime Russia was given the de facto recognition, the court also declare the retrospective effective on the recognition from 1917.

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Held: Laid down that there is no distinction between de facto and de jure recognition for the purpose of giving effect to the internal acts of the recognized authority.

WITHDRAWAL OF RECOGNITION

  • Withdrawal of de facto Recognition

It is manageable under international law only on the reason that if the recognition state has been unsuccessful 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 state or by a public statement.

 

  • Withdrawal of 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.

Though recognition is a political act but de jure by nature and status it is legal oriented. Only those de jure recognition may be withdrawn where a state subsequently loses any indispensable of statehood.

 

Author: AKANKSHA CHHABRA,
School of Law,IIMT

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