Recognition

By Mohit Kumar

Introduction

Recognition holds a paramount significance in International law. In order to be referred to as

a state an entity has to possess all four attributes of statehood— population, territory,
sovereignty and government—when these attributes of an entity are perceived by other
existing states, it is referred as recognition of state. Recognition perhaps can be defined as
acknowledgment or admission by the existing members of the international community. This
article will deal with the recognition of State and its subtopic—theories of recognition, forms
of recognition, modes of recognition, withdrawal of recognition, and lastly retroactive effects
of recognition theory.

Definition

Prof Jean D'Aspremont of University of Oxford defines recognition as an ‘political act

whereby a subject of international law, whether a state or any other entity with legal
personality, expresses its unilateral interpretation of a given factual situation, be it the birth
of a new state, the coming to power of a new government, the creation of a new
intergovernmental organization, the status of an insurgent, the outcome of an election, the
continuation of a defunct state by another, a specific territorial arrangement, and so
on.’1However, even if an entity fulfils the attributes of statehood perhaps it may not be
recognised by other existing states For instance, although Israel was established in 1948,
some Arab states have withheld recognition of Israel (owing to the conflict of interest
regarding the sovereignty of Palestine). The United States of America refused to perceive
People’s Republic of China as an independent state for many years despite the fact that it was
a state. Consequently, it can be said that recognition is not the conclusive corroboration of the
existence of a State.

Theories of Recognition

 Constitutive Theory
 Declaratory Theory

Constitutive Theory: — According to this theory personality of a State is not created ipso
facto but through recognition by the other States. Otherwise speaking, an entity does not
become a State by possessing imperative attributes of statehood. For instance, Bangladesh
became a State in 1971 but due the very fact that Bangladesh possessed all the attributes of
statehood did not thwart Pakistan from recognising Bangladesh much later than its year of
establishment.

Drawbacks of Constitutive Theory

1
Prof Jean D'Aspremont, Recognition in International law, Oxford Bibliographies, (26 Jan, 2019, 3:32 PM)
http://www.oxfordbibliographies.com/view/document
 1. When a state comes into existence, possessing all the attributes of statehood,
notwithstanding this fact other States might not perceive it as a State. For instance,
United States of America recognised China much later from its establishment
whereas, States other than USA recognised China since its establishment. Therefore,
it can be comprehended that recognition is not a conclusive confirmation for
existence of a State.
2. As aforementioned, recognition is a political act of a State 2, placing reliance on this
notion would imply that fate of a new State would be determined by the other State.
Rendering discretionary power to the existing state is not a feasible option owing to
the vendetta against a State or otherwise.
3. Recognition is an admission of the existence of attributes of statehood in an entity. It
implies that a State always exists prior to its recognition. Unless and until a State
exists, the question of recognition would never arise.
4. Recognition has a retrospective effect that is when a new State at the time of granting
recognition to a new State accepts that it has come into existence prior to its
recognition.

Declaratory Theory: —As per the conjecture mentioned, State comes into existence in
International Law as soon as an entity exists ipso facto. It implies that the act of recognition is
therefore declaration of an existing fact that an entity possesses the imperative attributes of
statehood. The advocates of this theory have articulated that recognition is necessary only
because it enables to enter into official intercourse with other States.

Drawback of Declaratory Theory

1. State would come into existence after possessing all the imperative attributes of
statehood although it will fail to establish legal relationship with other States unless
recognised.

After undergoing all the facets of Declaratory and Constitutive theory conclusion can be
drawn that both the theories have defects in fact, the practice of States shows that recognition
has elements of both the theories.

Forms of Recognition

 Express Recognition
 Implied Recognition

Express Recognition: —When a State perceives an entity as State by a notification or

declaration it is referred to as Express Recognition. It implies, recognition of a State in
express terms. The formal declaration may perhaps take the form of public statement, the text
of which is sent to the party recognised as a State, by sending diplomatic note, note verbal et

2
Ibid.
cetera. For instance, India recognised Bangladesh on 6 th Dec. 1971 in an express
proclamation.

Implied Recognition: —When a State does not make any formal declaration. In other words,
when the existing State shows its intention of recognition of a newly formed State by some
actions, the recognition is referred to be implied.

Mode of Recognition

 De facto Recognition
 De Jure Recognition

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. Oppenheim enunciates that de facto recognition takes place
when, in the view of the recognising State, the new authority although actually independent
and wielding effective power in the territory under its control, has not acquired sufficient
stability or does not as yet offer prospects of complying with other requirements of
recognition.3 The willingness of existing State in establishing legal relation with other entity
is to the extent of fulfilling all the attributes of statehood. In other words, relationship
between the two is subject to fulfilment of imperative attributes of statehood. Henceforth, we
can say that de facto recognition is a preliminary step towards de jure recognition. For
instance, the Soviet Union was recognised by Great Britain de facto in 1921 and later de jure
on 1/2/1924.

Moreover, by granting de facto recognition to a State, the recognising State secures certain
advantages to itself, enabling it to safeguard the interests of its citizens in the de facto
recognised State. Further, the effect of de facto recognition is not the same as de jure
recognition. De facto recognised State lacks the ability to form diplomatic relations with
other State. Further, representatives of the de facto recognised State do not enjoy diplomatic
immunities within the territory of the recognising State. However, this notion also has its
share of exceptions, United States of America abhors this practice by providing diplomatic
immunity to the representatives of a de facto recognised government.

De jure Recognition

When an existing State considers that the new State is capable of possessing all the essential
attributes of statehood with sturdiness and permanency and it commands the general support
of a population, the recognition granted is referred to as de jure recognition. For instance,
when Israel came into existence, full recognition was expressly granted by many States.

Differentiating De jure and De facto on the basis of the following points: —

3
International Law, Eight Edition (1955) p.135
  As aforementioned, De facto Recognition does not create full diplomatic intercourse
between the parties whereas, De jure creates full diplomatic intercourse between the
parties.
 De facto recognition being provisional can be withdrawn on many grounds other than
those justifying a withdrawal of de jure recognition.
 While full diplomatic immunities are not granted to the representatives of the de facto
recognised State, the representatives of the de jure recognised State are granted such
immunities.
 While the de jure recognised State can claim to receive the State property situated in
the territory of recognising State, de facto recognised State cannot make such claim.
 Where certain property situated within the territory of another State has been claimed
both by the de facto and de jure government, the claim of the de facto government
may normally be ignored.
 While diplomatic relations cannot be established with a de facto recognised State, it
can be done so when State is recognised de jure.

Withdrawal of Recognition

Withdrawal of de facto Recognition: —De facto recognition, being provisional in its nature is
liable to be withdrawn as soon it becomes clear that there is no prospect of the requisite
conditions of recognition being fulfilled. In such a case recognising State may withdraw from
the recognition by communicating a declaration to the concerned State or through public
statement. And article 6 of the Montevideo Convention of 1933 which declared that de jure
recognition as irrevocable lends credence to the aforementioned view.

Withdrawal of de jure Recognition: —The views regarding the withdrawal of de jure

recognition is ambiguous. But according to the mainstream notions of international law and
by the virtue of some conventions in this behalf, it is very much evident that the withdrawal
of de jure recognition is not valid in any case. But some jurists think that de jure recognition
may be withdrawn, because it is a political act. But in fact it is not so. 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.

Retroactive Effects of Recognition

Recognition, de facto as well as de jure has a retroactive effect in the sense that all the acts of
newly recognised State are treated valid dating back on the commencement of the activities
of the authority this recognized. 4 For instance, the Communist China was recognised by the
U.S.A.in 1979, the latter would treat valid all the acts of the former from the date when it in
fact came into existence.

Recognition of Government

4
Dr. H.O. Agarwal, International law and Human Rights (Central Law Publication, Allahabad, 17th Edition)
Government is an imperative element of statehood, recognit ion of State itself signifies the
acknowledgement of the recognising State. However, once a government comes into being, it
may change with the passage of time. And if any change takes place in the form of
government, the existing States are not required to perceive the contemporary government.
However, when the incumbent government is toppled by virtue of rebellion. In such a case,
ascertainment of competence of the newly formed government becomes essential. Does the
government enjoy popular support of the people of the territory, if yes then are they willing to
take cognizance of international responsibility and duties? If the answer to both the questions
is positive and the existing States are on board with idea of this new incumbent government
exercising its authority in consonance with above criteria, then the new incumbent
government is recognised. However, modern practice has sought to reject the doctrine of new
government. For instance, Unites States of America, United Kingdom, and Australia have
abandoned the practice of giving recognition to new governments. The policy of non-
recognition by the afore mentioned State, and at the same time, entering into relationship with
the new regimes when circumstances demand, is likely to create confusion in future. 5 The
question of duty to recognise the new government, as far as these States are concerned, has
come to an end.

References

Articles

1. Prof Jean D'Aspremont, Recognition in International law, Oxford Bibliographies,

(26th Jan, 2019, 3:32 PM) http://www.oxfordbibliographies.com/view/document
2. Recognition of State, legal Bites (17th Sept., 2016, 9:47 AM)
https://www.legalbites.in/recognition-state-implication-modes-necessity

Books

 Dr. H.O. Agarwal, International law and Human Rights (Central Law Publication,
Allahabad, 17th Edition)

5
Ibid.