THE CONCEPT OF DUTY TO RECOGNIZE IN STATE RECOGNITION

RECOGNITION

Recognition of state State recognition in in an international system of law ore is known as “the acknowledgement or for the acceptance as an international personality of a state which is new you and such recognition must be done by the states which are are already in existence in international community”

“WHAT IS LEGAL RECOGNITION”

LEGAL RECOGNITION of state is when a state it is formally acknowledged as being a true , legal and having validity and is worthy of being considered and it it also needed to be approved for grant by the international community andd same right.

It is the acknowledgement done by any community established on international basis of the new state .

A state is capable of recognition if it possesses or must have certain functions .

“Population of the state,

territory  ,

capacity to enter into relation with other states and

government of the state.[1]

The above following factors can be changed , one can grant even if there is not all the above factors are present or some and the state can deny recognition even if factors are their.

The recognition depends upon the decision or choice or description of the states which are already in existence at the time when a new states to be recognized

  • .Population
  • Territory

When a new state is acknowledged it is assumed that the conditions are fulfilled under international law and after this only e the states already in existence have granted the position to new state.

The recognition of a new state depends upon the choice/discretion of state already present in international community by taking in mind policies of the state of international law.

For instance – many Arab states refused to acknowledge Israel as a state although it was in existence or was established on the year 1948.

The United States of America ( U.S.A.) have denied people’s republic of China as a state for long years.

Long debates we are going that whether to list recognition of states and government as one of the topics for codification , after all of debates the conclusion was made as to remove as a topic in codification. So , it is not well settled nowdays and depends upon the state practice and decesion of judicials.

 Need of state recognition

  • To secure equality & equal status
  • To establish international relations
  • To obtain rights ,duties and obligations

“Theories of recognition”[2]

Constitutive theory of recognition

The theory had came in 19th century

“State exist when recognisedby other existing States . According to the constitutive theory the validity/ personality office state not by the fact but by recognition by the other existing states”

READ  CASE ANALYSIS: State of West Bengal V. Washi Ahmed

Mere qqualification of essential attributes does not make you a state it , it is only done when recognized by the other states which are already in existence.

Other States give the grantl/provide recognition to new states. The supporters of this theory was anzilloti and Holland.

The theory is an older theory when compared to  other theories of recognition.

State is called as a state only when it is recognized by other states which are in existence at that time. And and much recognition is in descertion of the states whether to recognize or deny recognition.

For instance – Polland and Czechoslovakia were recognized by treaty of Versailles .

Germany was separated into 2 parts after the world war 2

Korea was divided into 2 parts after a treaty.

Demerits

  1. State can be denied recognition even after all the attributes are present

China was recognized by usa in 1979 but many other states have recognized it earlier.

  1. Fate of new state is determined by other states
  2. The theory has retrospective effect

The acts of the newly formed States are determined by existing States.

Example – Bangladesh was formed after 2 years of Pakistan and Pakistan recognized all the acts of Bangladesh.

Declaratory theory

The theory came in in 20th century

A state is said or becomes a state when it completes the requirements/criteria of a statehood .The supporters of this theory was hall , brierly and fisher .

According to declaratory theory state move into existence aur comes into existence when it completes/acquires all the requirements in statehood.By completing all the requirements/factors /attributes , it comes into existence .

Declaratory theory lays down that declaration done by other states is just evidence . Thus it is said under this theory that it is only a declaration when other states recognize a new state.

Hall said “state enters into the family of nations as a right it when it has required the essentials attributes of statehood”.

It is supported by Monte video convention 193 “the political existence of the state it is independent of recognition by the other states”.

For instance- Taiwan (a country which follows democracy) is not yet recognised bi some States but it has business dealing with many countries.

Demerits

Even if the state have all the factors completed then and it can still be e not counted as a member aur as a state until it is recognized by the other existing States.

Modes of recognition

“De facto recognition”

When a state which is already in existence things that a new state is independent and efficient but is not sufficiently stable for proper working then it provides de facto recognition

READ  LEGAL CONSEQUENCES RELATED TO INTERNET BANKING

De facto recognition simply means grant recognition literally.The existing state is when in doubt as for the new state’s effectiveness to govern its territory e than the existing state provides de facto recognition

According to Oppenheim , “the de facto recognition shows willingness of the existing state to establish or start a new relationship with the new state but it with subject to the fulfillment of all the factors is statehood and sufficient stability the willingness is given provisionally” 1

 

It is called as our first step towards De jure recognition. It is the opinion of the existing state or the state which will recognize the new state that with you reservation in future the new state fulfill the requirement in fact.

For instance – Soviet state de facto in 1921 and de jure in 1924

People republic of China (Taiwan) is still de facto but recognized by many states.

The de facto recognition is not permanent and can be withdrawn by States at any time also it does not provide membership in United Nations.

De jure recognition

This means that the existing States considers/ feels that the new state is capable and has fulfil is of the opinion

All the requirement/ attributes /factors of statehoodin international community and such state should be allowed for international participation .

The states are of the opinion that a new government has been formed and such government is capable to perform international duties , obligations and rights.

The states are of the opinion that a new government has been formed and such government is

Where a recognized state is of the opinion that a newly formed state is capable and fulfills all the requirements / factors of a statehood and such government is effective and stable and can efficiently control/govern the territory than the recognizing states give de jure recognition.

 

For instance – Israel was given de jure recognition by USA .

 

“Is recognition a duty of state?”[3]

 

It is one of the most controversial question. Many jurists have many distinct views on this problem .

A very well known jurist “lauterpacht”

” had the opinion that Venice state (which is not recognized ) text possession and completes all attributes whether legal or not of statehood , then the the other states which are already in existence has obligation/duty to recognized the unrecognized state who completed the attributes/factors”

 

So the state which are already in existence are bound and have duty to recognize state as it do not own any legal duty/right in international law till , it is not recognized.

According to him “To recognize a commodity as a state is to decide that it fulfills the conditions of statehood as required by international law . If these conditions are present , existing states are under the duty to grant recognition. In the absence of an int organ competent to ascertain and authoritatively declare the presence of rrequirements of fulfill international personality , states already established fulfil that the functions in their capacity as organs of int law . in thus acting , they administer the law of nations”

READ  CONSTITUTIONAL VALIDITY OF MINIMUM WAGES ACT, 1948

Some other popular tourist have added certain points in lauterpacht’s approach . They said sensor recognition is done by legal means and creates new person internationally , 10 sach should be e and collective function of UN and United Nations must carry it away and act as a representative of legal community internationally, instead arbitrary decisions of several other states.

But accepting lauterpachtand his followers view will show/proove that the new state ons are right to get recognized by other states in existence…..

So, existing States does not have legal duty/ obligation to recognize a state. Recognition can also be called as a political act and it is descretion  of  existing States.

“1 cannot get recognition even after completing all the attributes “

After considering the United nation charter the conclusion comes

Charter says that “to develop friendly relations among Nations….. and other appropriate measures to strengthen universal places” para 2 of article 1

Para 3 article 1 “to achieve international co-operation in solving international problems”

If States dinner to recognize other states then the agenda of UN would be failed. As it is not possible to have good relation with other states which are not recognized yet

Therefore it can be said that the existing States have a legal duty for legal obligation to recognize any other state which has fulfilled all the attributes.

Non recognisation can be called unlawful. Duty is imposed by the world organization and violation will result in serious consequences and international organization may take certain steps.

 

Case : Luther v. sagor[4]

Certain armed official of Russia and the officials took assets of the plaintiffs factor and started manufacturing their and also they entered into contact with a company of London.

The plaintiff filed a complaint and said that the defendant cannot enter into contract as the good was owned by him and also the. Soviet govt is not recognized by UK govt.

The defendant said that their was defacto recognition . So , the court gave judgement in side of defendant.

Bankes J , held that the act of govt is valid as the Soviet govt was recognized as proper and is capable of such contract by a recognized state (UK)

Author: Shivam Sharma,
Delhi Metropolitan Education , GGSIPU 3rd Year BBA LLB

Leave a Comment