Recognition of States under International Law

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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.

Meaning of State Recognition in Public International Law

The term “Recognition” means ratification, confirmation, acknowledgment that something done by
any other person in one name had one’s authority.

Recognition of State
“In recognizing a state as a member of international community, the existing states declare that in
their opinion the new state fulfills the conditions off statehood as required by International
law” (Oppenheim)

According to Kelsen

The country to be recognized as an international person must be:-

1. Politically organized
2. Have control over a definite territory.
3. Which tends towards permanence.
4. And must be independent.

Essentials for recognition as a state under Public International

Law
Under the International Law, Article 1 of the Montevideo Conference, 1933 defines the state as a
person and lays down following essentials that an entity should possess in order to acquire
recognition as a state:

Population;
Territory;
Government;
Sovereignty;
Control should tend towards permanency.

If these conditions are fulfilled, then the State can be recognized.

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Legal effects of state recognition in Public International Law
When a state acquires recognition, it gains certain rights, obligations and immunities such as.

1. It acquires the capacity to enter into diplomatic relations with other states.
2. It acquires the capacity to enter into treaties with other states.
3. The state is able to enjoy the rights and privileges of international statehood.
4. The state can undergo state succession.
5. With the recognition of state comes the right to sue and to be sued.
6. The state can become a member of the United Nations organisation.

Theories of recognition in international law

The recognition of a new entity as a sovereign state is based on two main theories:

Consecutive Theory
Declaratory Theory

1.  Consecutive theory of state recognition in International Law

The main exponents related to this theory are Oppenheim, Hegal and Anziloti.

According to the consecutive theory of state recognition in International Law, for a State to be

considered an international person, its recognition by the existing states as a sovereign required.
Consecutive theory of state recognition in International Law is of the view that only after recognition
a State gets the status of an International Person and becomes a subject to International Law. So,
even if an entity possesses all the characteristics of a state, it does not get the status of an
international person unless recognised by the existing States.

Consecutive theory of state recognition in International Law does not mean that a State does not
exist unless recognised, but according to this theory, a state only gets the exclusive rights and
obligations and becomes a subject to International Law after its recognition by other existing States.

Criticism of the consecutive theory of state recognition in International

Law
This theory has been criticised by several jurists. Few of the criticisms of this theory are:

This theory is criticised because unless a state is recognised by other existing states, rights,
duties and obligations of statehood community under International Law is not applicable to it.
This theory also leads to confusion when a new state is acknowledged and recognised by
some of the existing states and not recognised by other states.

2. Declaratory theory of state recognition in International Law

The main exponents of the Declaratory Theory of Statehood are Wigner, Hall, Fisher and
Brierly. According to this theory, any new state is independent of the consent by existing states.
This theory has been laid down under Article 3 of the Montevideo Conference of 1933. This theory
states that the existence of a new state does not depend on being recognised by the existing state.
Even before recognition by other states, the new state has the right to defend its integrity and
independence under International law.

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The followers of theory consider the process of recognition as merely a formal acknowledgement of
statehood by other states.

Criticism of the declaratory theory of state recognition in International

Law
The declaratory theory of statehood has also been criticised. This declaratory theory of state
recognition in International Law has been criticised on the ground that this theory alone cannot be
applicable for recognition of a state. When a state having essential characteristics comes into
existence as a state, it can exercise international rights and obligations and here comes the
application of declaratory theory, but when other states acknowledge its existence and the state
gets the legal rights of recognition, the consecutive theory comes into play.

Modes of Recognition of State in International Law

1. De facto Recognition.
2. De jure Recognition.

These are the two modes of recognition of State in International Law.

 De facto Recognition of States under International Law

It is the process of acknowledging a new state by a non-committal act.

De facto recognition is a provisionally grant.

It is the first step to the next mode of recognition.
It is a temporary and factual recognition as a state
It can either be conditional or without any condition.
A test of control for newly formed states.

When the other existing countries have an opinion that the new state does not have enough
capacity but the new state holds a sufficient territory and control over a particular territory.

Example: The Soviet Union was de facto recognized by the government of the UK in 1921.

De jure recognition of States under International Law

When the other existing countries have an opinion that the new state has all the eligible capacity
then such state will be recognized by the de jure recognition. To grant recognition under the de jure
method there is no need for the fulfillment of the first mode.

It is granted when the newly formed state acquires permanent stability and statehood.
It grants the permanent status of a newborn state as a sovereign state.

Example: The Soviet Union was given de jure recognition Soviet Union was in 1924.

In conclusion, there is no distinction between de facto and de jure as it is for the states to give effect
to the internal acts of the recognized authority. This was held in the case Luther v. Sagar [3].
[(1921)3 KB 532]

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The distinction between De Facto and De Jure Recognition of
State in International Law

S.No. De facto Recognition of State De jure Recognition of State

1. De facto recognition is a De jure recognition is legal recognition.

provisional and factual
recognition.

2. De facto recognition is granted De jure recognition is granted when the

when there is the fulfilment of state fulfils all the essential condition of
the essential conditions of states along with sufficient control and
statehood. permanency.

3. De facto recognition is a primary De jure recognition can be granted either

step towards grant of de jure with or without grant of de facto recognition.
recognition.

4. De facto recognition can either De jure recognition is a final and non-

be conditional or non- conditional recognition
conditional.

5. De facto recognition is De jure recognition is non-revocable.

revocable in nature.

6. The states recognised under The state recognised under this mode have
this mode have only a few rights the absolute right and obligations against
and obligations against other other states.
states.

7. The state with de facto cannot The state with de jure recognition can under
undergo state succession. state succession.

8. The state with de facto The state with de jure recognition enjoys full
recognition cannot enjoy full diplomatic immunities.
diplomatic immunities.

As soon as the de facto recognition under International Law is given, the Government acquires
sovereign immunity from being sued in the courts of a foreign State which so recognizes it. It does
not matter in such cases, whether de facto or de jure recognition is given, because a de facto
recognition dates back in the same manner as a de jure recognition.

This rule has been applied in a number of cases viz. Bank of Ethiopia v. National Bank of Egypt
& Ligouri (1937) 3 All ER 8. The Arantzanu Mendi (1939) 1 All ER 719. So far as conflict of
authority takes place between a displaced de jure government and a newly recognized de facto
government, concerning matters in the territory ruled by the de facto government, the rights and
status of de facto government will prevail.

Forms of Recognition of State in International Law

When a newly formed state is recognised, its declaration can be made in two forms:

1. Expressed Recognition

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 2. Implied Recognition

1. Expressed Recognition of State

When an existing state recognises a new state expressly through official declaration or notification,
it is considered to be the expressed form of recognition. Express recognition can be made through
any express or formal means such as sending or publishing declaration or statement to the
opposite party. When a state is recognised by expressed ways, it is a de jure recognition unless
provided otherwise by the recognising state in the declaration.

2. Implied Recognition of State

When the existing state recognises a newly formed state through any implied act, then it is
considered as an implied recognition. Implied recognition can be granted through any implied
means by which a current state treats the newly formed state as an international person. The
implied credit not granted through any official notification or declaration. The recognition through
implied means varies from case to case.

Conditional recognition of State in International Law

The recognition of state with which certain conditions are attached in order to obtain its status as a
sovereign state is conditional recognition in International Law. The conditions attached varies from
state to state such as religious freedom, the rule of law, democracy, human rights etc. The
recognition of any state is already associated with the essential conditions to be fulfilled for the
status of a sovereign state but when an addition condition is attached it is conditional recognition in
International Law.

Criticism
Many jurists criticise conditional recognition. The conditional recognition is criticised on the ground
that recognition is a legal procedure, and no additional conditions should be attached with it other
than the conditions recognised by law. Another reason for criticism is that the recognised state if it
does not fulfil the condition attached for its recognition, recognition is not extinguished and it should
still be valid.

An example is Palestine Liberation Organization (P.L.O.), recognized by many States including

India. In contrast to de facto government, governments-in-exile lack effective control over the
territory of a State and have been accorded de jure recognition.

Withdrawal of Recognition of State in International Law

1. Withdrawal of De facto recognition in International Law

Under international law when a state having de facto recognition fails to fulfil the essential
conditions of statehood, its recognition can be withdrawn. The recognition can be withdrawn in
International Law by the recognizing state through declaration or through communicating with the
authorities of the recognized states. The withdrawal can also be done by issuing a public statement.

2. Withdrawal of De Jure recognition in International Law

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Withdrawal of de jure recognition is a very debatable issue under the International
Law. Withdrawal of a de jure recognition in International Law is a very exceptional event. If strictly
interpreted, the de jure recognition can be withdrawn.

Even though the process of recognition is a political act, de jure recognition is of legal nature.
Jurists who consider de jure recognition as a political act considers it revocable. Such revocation of
de jure recognised states can be withdrawn only when a state loses the essential characteristics of
statehood or any other exceptional circumstances. This type of revocation can be done expressly
by the recognising state by issuing a public statement.

Recognition of government
For any statehood, the government is an important element. When a state is formed, its
government changes from time to time. When the government changes as an ordinary course of
political action, the recognition of government by the existing state is not required but when the
government changes due to any revolution, then its recognition by the existing state is required.

For recognising the new government established out of revolution, the existing states need to
consider that:

1. The new government have sufficient control over the territory and its people or not.
2. The new government is willing to fulfil the international duties and obligations or not.

When the existing states are satisfied that the new government resulting out of the revolution is
capable of fulfilling the conditions as mentioned above, then the new government can be
recognised by the existing states.

Conclusion
The recognition of the state is an essential procedure so that it can enjoy all the privileges of
statehood community under international law. There is a controversy between Consecutive Theory
and Declaratory theory of Recognition by different jurists, but we can conclude that the theory
followed for recognition is in between the consecutive and declaratory theory.

The recognition being either de facto or de jure, it provides rights, privileges and obligations. When
a state gets its de facto recognition, the rights, privileges and obligations are less but when it is
recognised de jure, it gets absolute rights, liabilities and privileges. The recognition of the state is
too much politically influences on the International platform.

There have been many instances where the powerful states create obstructions in recognition of a
newly formed state. It can even be withdrawal when the recognising state feels that the new state is
not fulfilling the prerequisites for being a sovereign state. The recognition can be done either by
express form or implied form and its mode, i.e., de facto and de jure recognition varies from case to
case basis.

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