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State Recognition under
International Law
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.
Recognition of a State
Under International Law, recognition of a State can be defined as: A state acknowledgment or acceptance as an international personality by the existing State of the international community. The declaration to fulfill certain essential conditions of Statehood as required by International Law.
Essentials of Recognition of a State
Population; Territory; Government; Sovereignty; Control should tend towards permanency. If these conditions are fulfilled, then the State can be recognized.
Kelson’s view on the recognition of states
For a state to be recognized the following conditions must be fulfilled- Must be politically organised. Have control over definite territory. Must be permanent.
Must be independent.
Process of Recognition
State is not only an institution with international legal standing but they are the primary subjects of International Law and possess the greatest range of rights and obligations. Mixture of fact and law and the establishment of particular factual conditions and compliance with relevant rules are the process of creating new States. States are not bound to recognise new claimants of Statehood and make it a positive duty to recognize a State. Recognition is mainly a matter of intention Theories of Recognition There are two theories of recognition- Constructive Theory, Declarative Theory.
Constructive Theory of Recognition
This theory is coined by Hegel and Oppemheim. According to this theory, the State is considered as an international person. This theory views that after the recognition a State gets its status of an International person and becomes a subject to International Law. This doesn’t mean that State doesn’t exist unless recognised, but in this theory State gets the exclusive rights and obligations and becomes a subject to International Law after its recognition by other existing States.
Criticism
This theory is criticized by many of the jurists, few of them are- That except the State which is recognised by other existing States, rights, duties, and obligations of Statehood community under International Law is not applicable to this theory.
Recognition of a new State
Recognition specifies the willingness of recognizing State. Existing State is a member of the International Community who will deal with a new State.Under International law it allows the recognized State to exercise the rights and duties of the State. Recognition of the Government automatically involved in recognition of a new State.
Recognition of a new government
Through the medium of the government a State participates in the benefits of International Law largely. To recognise the government, recognising the State is important.
Objective Test
Is there any opposition or not? Whether the new government has effective territory?
Subjective Test
Whether fulfilled the International Obligations?
Recognition of belligerency
Belligerency exists when a portion of the States territory and population is under the de facto control of the people who are fighting against the government to establish a separate State or to overthrow the existing government. A civil war may turn into a real war if the rebels are in possession of a substantial part of territory. Recognition of belligerency was granted during most of the civil wars of the 19th Century, such as the American civil war and war during the Independence of the Twentieth Century. Forms of Recognition
De Facto Recognition
De Facto Recognition is mostly granted to governments. It is a temporary recognition of a State, this can be conditional or without any condition. This mode of recognition is granted when a new State holds a sufficient territory or control over a particular territory, but the other existing State consider that when they don’t have enough stability or any other unsettlement issues. So we can take it as a test of control for newly formed States. The UK first recognized Soviet Government as de-facto recognition in 1921 and later recognised as de-jure in 1924.
De Jure Recognition
De Jure Recognition is given to a new State when a new State fulfills all the essential characteristics of a State. De Jure recognition can directly be granted to a State who has or has not granted de-facto recognition. Newborn States grant the permanent status as a sovereign State through de-jure mode of recognition.
Difference between De Facto and De Jure
Recognition
De Facto Recognition De jure Recognition De Facto recognition is temporary and factual recognition. De Jure recognition is a permanent and legal recognition. De Facto recognition is granted to a State when it fulfills the essential conditions of State. De Jure recognition is granted to a State when all the essentials are fulfilled along with the permanent control of that essentials. De Facto recognition is the primary step to grant De Jure recognition. De Jure recognition can directly be granted without De Facto recognition. De Facto recognition can easily be revoked. De Jure recognition can never be revoked.
condition can be attached unless the conditions are recognised by law. Withdrawal of Recognition
Withdrawal of De Facto Recognition
Under International Law, when a State having De Facto recognition but fails to obtain or fulfill the essential conditions then the recognition can be withdrawn. The recognition can be withdrawn through declaration or through communicating with the authorities of the recognised State. It can also be withdrawn by issuing a public Statement.
Withdrawal of De Jure Recognition
Withdrawal of De Jure recognition is a debatable topic under International Law. Withdrawal of this recognition comes under as an exception. This recognition can be withdrawn when a State loses the essentials elements or other circumstances. Legal effects of recognition: When a state recognizes it is assumed that it is accepted as a legal entity in the eyes of the world. However, if a state is not recognized that does not mean that it has no duties and obligations in international law. There are many states or governments which are not recognized but still if they enter into a treaty or an agreement then it is binding on them. they can not excuse themselves by the reason of unrecognized state. Even if they are not recognized they have to follow the rules of disarmament, nuclear weapons, peace agreements etc. However internally, the act of recognition is under executive authorities. Judiciary can not recognize a state or a government. It just has to maintain the rules set by executives regarding recognition. Recent case law regarding recognition Recognition of Kosovo: On 17 February 2008, Kosovo declared its independence from the state of Serbia. However, this decision brought a lot of concern and chaos amongst states. Many states expressed their concern over Kosovo's declaration as a separate state. Russia and China rejected the declaration calling it illegal however united states, the united kingdom and France have recognized the declaration of independence. At last international court of justice held that the declaration of independence of Kosovo does not
violate their rules laid down by international law. Hence it can be recognized as a fully independent state. To date, 116 states have recognized the state of Kosovo, of which 15 have since been withdrawn.
