State Recognition in International Law

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Introduction:

The international community often witnesses territorial changes. New states are born out of the existing states or old states disappear by merging with other states or splitting into many new states. Revolution occurs and new government takes over. The members of international community cannot remain indifferent to these developments. It is for them to prove or disapprove these changes. It is through recognition that a state expresses its approval of the change that has occurred. Political considerations have usually played a large role in the decision whether or not to grant recognition. International community also faces the problem of recognition of national liberation movements and situations of insurgencies and belligerencies and other territorial changes as a result of state’s action.

Recognition –A Question of Policy:

It is not a matter of law; it is the matter of a policy of a particular state.

According to UN Charter:

If a new state is admitted in organization it is an indication of recognition.

Meaning of Recognition:

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.

Pre-Requisite of Statehood:

Montevideo Convention:

The state as a person of International Law should possess the following qualification:-

  1. Permanent population.
  2. A defined territory.
  3. Government
  4. Capacity to enter into relation with other states

But state becomes international person only after the recognition by other states.

Recognition of Government:

It is complicated one, when come into power by revolutionary means or a situation arises in which a new power appears and it challenges the authority of legal government.

Objective Test:

  1. Whether there is an opposition or not
  2. Whether the new government has the effective territory:

Subjective Test:

Fulfillment of international obligation.

Modes of Recognition:

De-Facto Recognition:

De-facto-recognition involves a hesitant assessment of the situation, an attitude of wait and see, to be succeeded by de-jure recognition when the doubts are sufficiently overcome to extend full acceptance.

Meaning of De-Facto Recognition:

It means that recognized state possesses all the essentials of the state and it can be a subject of international law.

Reasons for Granting De-Facto Recognition:

De-facto recognition has been accorded, in practice in situations:-

  1. When the recognition state has doubts that the new state or government lacks stability and permanence it may grant recognition to the latter provisionally with all due reservations for the future. For instance, Britain recognized the Soviet Govt. De-facto in 1921 and de-jure in 1924,
  2. When there are two rival governments competing for power. Thus, in the Spanish Civil War (1936-39), Britain continued to recognized the Republican government as the de-jure government, but granted de-facto recognition to General Franco as he extended his control over the county.
  3. when there is a doubt to carry out international obligation.
  4. When there is a doubt to solve its own problems.
Effects of De-Facto Recognition:
  • De-facto recognition is provisional.
  • It can be withdrawn.
  • No immunity to diplomats
  • The recognized states or governments are not entitled to immunity from the jurisdiction of recognition state’s court.
  • It is objectionable.

De-Jure Recognition:

According To J.G Starke:

Recognition de-jure means according to the recognizing state, the state or government recognized fulfills the requirements laid down by international law for effective participation in the international community.

Requirement to Grant De Jure Recognition:
According to Prof. Smith:

Following three conditions must be fulfilled in order to grant de-jure recognition.

  1. Permanence and stability.
  2. Population should give support to the government.
  3. Willingness and stability to carry out international obligation.
De-Jure Recognition is Final:

“De-jure Recognition is final and once given cannot be withdrawn.”

Express Declaration:

In order to be granted recognition, it is necessary that there should be some written declaration to grant de-jure recognition. There can be some positive acts to grant de-jure recognition.

Effects of De-Jure Recognition:

As a rule, de-jure recognition once given is irrevocable; it is final and cannot be withdrawn.

Unilateral Recognition:

An individual state, already accepted as a state, recognizes that an entity claiming to be a state meets the factual requirement of statehood and is therefore, to be regarded as a state, with the rights and duties attached to statehood. Recognition is a pre-condition for granting diplomatic relations but it is not essential that the recognizing state must enter into diplomatic relation with the new state.

Collective Recognition:

It occurs when a group of states, such on UN or the EU recognizes the existence of a claimant state by the admission of the state to the organization in question.

Legal Effects of Recognition:
  1. Right to sue:
  2. Recognizing state becomes entitled to sue the court of recognized state.
  3. The courts of the recognizing state give effect to the past as well as present legislation and executive acts of the recognized state.
  4. In case of de-jure recognition, diplomatic relations are established and the rules of international law relating to privileges and immunities apply.
  5. A recognizing state is entitled to sovereign immunity for itself and its property as well in the court of recognized state.
  6. The recognized state is also entitled to the succession and possession of property situated in the territory of the recognizing state.

Withdrawal Of Recognition:

De-Facto Recognition:

Recognition many be withdrawn on any of the ground as it is not permanent but temporary.

De-Jure Recognition:

According to Starke recognition once given cannot be withdrawn it is irrevocable though is given out first instance. Even a jester as a termination of relationship does not simply means withdrawal of recognition.

DIFFERENCE BETWEEN DEFACTO AND DE-JURE RECOGNITION:

De-Facto RecognitionDe-Jure Recognition
1.      It is recognition in fact.

2.      It does not entitle the recognized state to fulfill diplomatic immunities and privileges.

3.      It can be withdrawn.

4.      It is conditional and temporary.

5.      Only the de-jure recognized government, according to national legislationin certain countries can claim to receive property such as archives bank deposits or real estates situated in the territory of the recognizing countries.

6.      According to Bishop, only difference is that of political and not legal.

7.      De-facto is provisional.

8.      De-facto is objectionable.

1.      It is in law.

2.      It bestows all the facilities to the recognized state.

3.      It cannot be withdrawn.

4.      De-jure recognition is formal and final.

 

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