INDEX

1. Introduction………………………………………………………………………………….……4

2. Essentials for Recognition as a State……………………………………………..……5

3. Theories of Recognition……………………………………………………………………..6

4. Theories Regarding Subjects of International Law………………………..….6-7

5. Forms of Recognition………………………………………………………….……………….7

6. Modes of Recognition………………………………………………………………………7-8

7. Legal Effects of Recognition…………………………………………………………….…8

8. International Effects of Recognition………………………………………………..8-9

9. Internal Effects of Recognition………………………………………………………..…9

10.Conditional Recognition…………………………………………………………………...10

11.Withdrawal of Recognition…………………………………………………………….…11

12.Conclusion………………………………………………………………………………………..12

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 Introduction
Recognition of state under the international legal system can be defined as “the formal
acknowledgement or acceptance of a new state as an international personality by the existing
states of the international community”.

The term recognition as an international legal term may be defined as under: “The
acknowledgement or acceptance by the members of international community, that a new
state has acquired international personality, is said to be recognition.”

For any entity of being called a state and to enjoy rights, duties and obligations under
international law, it is necessary that the existing state have given awareness of its capability
of being a state and such awareness by existing states is called recognition. An entity in order
to be called a State should possess essential attributes of statehood such as population,
territory, a government and the capacity to enter into relations with other States. When
possession of these attributes in a State is acknowledged by other existing states, it is known
as recognition of state. Recognition may therefore be defined as a formal acknowledgement
by the existing members of the international community of the international personality of a
new state. The grant of recognition establishes that the new state, in the opinion of existing
recognizing states, fulfils the condition of statehood required by International Law, so that
the new state can be regarded, quoad the recognizing states, as an international person
possessing the rights and duties which International Law attributes to states. 1 Withholding of
recognition is not to be taken necessarily as the denial of the existence os a state. Recognition
therefore is not the conclusive proof of the existence of a state.

1 Oppenheim’s International Law, Vol. 1, Ninth Edition, (19920 p. 130-131.

4
 Essentials for Recognition as a State

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. The different essentials to
recognize a state are:-

i. Permanent population
ii. Definite territory
iii. Government
iv. Capacity to enter into relations with other states.

State is the primary subject in International Law. The requirements to be considered as a subject of international law are the
capacity to have rights and duties under international law. Some writers also argue that a State must be fully independent
and be recognized as a State by other States. The international legal system is a horizontal system dominated by States which
are, in principle, considered sovereign and equal. International law is predominately made and implemented by States. Only
States can have sovereignty over territory. Only States can become members of the United Nations and other international
organizations. Only States have access to the International Court of Justice. According to Montevideo Convention the state
as a subject of international law should possess the above mentioned essentials.

i. Permanent population: -A permanent population is another necessary requirement for statehood. There are
no criteria relating to the size of the population: Andorra with its 68,000 inhabitants is as much a State as
India, which now has currently well over one billion inhabitants. Neither does international law set any
requirements about the nature of the population: the population may largely consist of nomads (such as in
Somalia), it may be ethnically (relatively) homogeneous (such as in Iceland) or very diverse (such as in the
former Soviet Union), it may be very poor (such as in Sierra Leone, where in 2000 nearly 70 percent of the
population lived below the poverty line) or it may be very rich (as in many Western States). It should also be
noted that the requirement of a permanent population does not relate to the nationality of a population: it
merely requires that States have a permanent population. According to Brownlie it connotes a stable
community with a physical basis.
ii. Definite territory: - The development of the State is closely linked to the ability to exercise effective control
over a defined territory. However, the existence of border disputes is not an obstacle to attaining statehood
in international law. There is no rule stating that the boundaries of a State should be undisputed or
unambiguously established. Israel for example, was admitted to the United Nations on 11 May 1949, despite
its ongoing territorial disputes with the Arab States. According to O'Keefe there is no limit to size. Undefined
boundaries will not matter as long as the core territory is defined. With regard to the size of the territory it
can be stated that no specific requirements exist: the international community of State consists of both micro-
States, such as Liechtenstein and San Marino and very large States such as Canada or Russia.
iii. Government: -The third requirement for statehood, is the existence of a government capable of exercising
independent and effective authority over the population and the territory. The importance that is attached
to the criteria of independence and effectiveness is understandable considering the predominantly

5
 decentralized nature of international law. Since international law lacks a central executive body, with the
power to enforce compliance with international obligations, compliance with international obligations must
often be guaranteed by the States themselves. A State must therefore be able to the effectively and
independently exercise its authority within its borders. According to Brownlie the existence of effective
government, with centralised administrative and legislative organs, is the best evidence of a stable political
community.
iv. Capacity to enter into relation with other states: - It can be said that the capacity to enter into full range of
international relations can be a valuable measure, but capacity or competence in this sense depends in part
on the power of the government, without which a State cannot carry out its international obligations. The
ability of the government to independently carry out its obligations and accept responsibility for them in turn
greatly depends on the previously discussed requirements of effective government and independence.
Moreover, a State cannot enter into relations with other States if it is not recognized. Consequently, it cannot
be recognized as a State. According to Shaw the concern is the lack of competence to enter into legal relations,
and the essence of such a capacity is independence.

Theories of Recognition

The legal significance of recognition is controversial. This has led to emerge of two principal theories as to the nature,
function and effect of recognition.

i. Constitutive Theory: - According to this theory, it is the act of recognition alone which creates statehood or
which clothes a new government with any authority or status in the international sphere. Anzillotti,
Oppenheim, etc. are the chief exponents of constitutive theory. According to Openheim a state is, and
becomes, an international person, through recognition only and exclusively. In other words, an entity does
not become a state by possessing essential attributes of statehood. It becomes so, when it is recognized by
other states. It implies that other states constitute the personality of a state by granting recognition. This
theory has been advocated by Anzilottti and Holland. 2 According to them a new entity cannot become a state
ipso facto. It has to be recognized by other states so as to become an international person. The theory attaches
great importance to the act of recognition.
ii. Declaratory Theory: -According to this theory, statehood or the authority of a new government exists as such
prior to and independently of recognition. The act of recognition is merely a formal acknowledgment of an
established situation of fact. The chief exponents of this theory are Brierly, fisher etc. Brierly has remarked,
the granting or recognition to a new State is not a 'Constitutive' but a 'Declaratory' act. A state may exist
without being recognized and if it exists in fact, then whether or not, it has been formally recognized by other
States it has a right to be treated by them as a State.
Brierly has stated, “A state may exist without being recognized, and if it does exist in fact, then, whether or

not it has been formally recognized by other states, it has a right to be treated by them as a state.” 3

The theory appears to be better than the constitutive theory. However, it still has a defect in the sense that a

state although would come into existence by having all the essential attributes a statehood, it would not have

2 Oppenheim in Eight Edition of his book also subscribed the view that a state is, and becomes, an
International Person, through recognition only and exclusively.
3Brierly, ‘The Law of Nations’, Sixth Edition, p.139

6
 legal relationship with other states unless recognized. The theory therefore is not strictly declaratory. It has

elements of constitutive theory.

Theories Regarding Subjects of International Law

Mainly there are three theories regarding subjects of International that what all are the components required for
International Law to exist. Following are the three theories prevalent in regard to the subjects of international law: -

i. Realist Theory: - Some jurists have expressed the view that only states are the subjects of international law.
In their view, international law regulates the conduct of States and only States alone are the subjects of
international law. This view has been subjected to severe criticism by jurists. According to the view expressed
by Oppenheim, States are primarily, but not exclusively, the subjects of international law. To the extent that
bodies other than states directly possess some rights, powers and duties in international law they can be
regarded as subjects of international law, possessing international personality. Further, “International law is
no longer if ever was concerned solely with states. Many of its rules are directly concerned with regulating
the position and activities of individuals, and many more indirectly affect them.” Thus, it is wrong to say that
individual is not the subject of international law. It is now generally recognized that besides States, public
international organisations, individuals and certain other non-State entities are also the subjects of
international law. Many of the rules of international law are directly concerned with regulating the position
and activities of the individual and many more directly affect them. Thus it is wrong to say that individuals are
not the subjects of international law.
ii. Fictional Theory: -There are certain jurists who have expressed the view that in the ultimate analysis of
international law it will be evident that only individuals are the subjects of international law. Professor Kelson
is the chief exponent of this theory. By Kelson, Individual alone is the subject of international law. The duties
and rights of States are only the duties and rights of the men who compose them. Many modern treaties do
bestow rights or impose duties upon individuals. Kelson's view appear to be logically sound. But so far as the
practice of the States is concerned it is seen that the primary concern of the international law is with the rights
and duties of the States. From time to time certain treaties have been entered into which have conferred
certain rights upon individuals. Although the statute of the ICJ adheres to the traditional view that only states
can be parties to international proceedings, a number of other international instruments have recognized the
procedural capacity of the individual. There are number of examples wherein international law applies on
individual not only immediately but also directly
iii. Functional Theory: -This view not only combines the first and second view but goes a step ahead to include
international organisations and certain other non-state entities as subjects of international law. This view
appears to be more practical and is better than the other two views. The reason in support of this view are as
under: - (i) in present times, several treaties have conferred upon individual certain rights and duties, for
example International Covenant on human rights. (ii) Geneva Convention on Prisoners of War 1949, has
conferred certain rights upon the Prisoners of law. (iii)The Genocide Convention 1948, has imposed certain
duties upon the individuals. (iv)It is now agreed that International organisations are also the subjects of
international law. United Nation is an international person under international law and it is held by
International Court of Justice that United Nation is a subject of international law and capable of possessing
rights and duties and it has capacity to maintain its right by bringing International things. (v) The law making

7
 treaties in respect of international criminal law, have imposed certain obligations upon the individuals, for
example narcotic drugs convention, 1961.

Actually, the two theories are of little assistance in explaining recognition or determining the status of non-recognized
entities in practice. In addition, the practical differences between these two theories are not significant. Under the
declaratory theory, the decision whether an entity satisfies the criteria of statehood is left to other States, and the
granting formal recognition to another State, which is a unilateral act, is left to the political discretion of States. On the
other hand, the significance of the constitutive theory has diminished because of the obligation imposed on States to
treat an entity that satisfies the criteria of statehood as a state. Moreover, the States practice regarding recognition
shows that States follow a middle position between these two theories.

Forms of Recognition

Recognition is essentially a matter of intention. It is founded upon the will and intention of a State. It may be express or
implied. The mode by which recognition is accomplished is of no special significance. It is essential, however, that the act
constituting recognition must give a clear indication of the intention either to deal with the new State as such, or to accept
the new government as the effective government of the State and to maintain relation with it, or to recognize in case of
insurgents that they are entitled to belligerent rights. A state may be recognized in two ways:-

i. Express Recognition: -Express recognition indicates the acknowledgment of the recognized State by a formal
declaration. In the practice of States, this formal declaration may happen by either a formal announcement
of recognition, a personal message from the head of a State or the minister of foreign affairs, a diplomatic
note, or a treaty of recognition. Recognition needs not to be express. It may be implied in certain
circumstances. There are circumstances in which it may be possible to declare that in acting in a certain
manner, one State does by implication recognize another State or government. However, because of this
possibility, States may make an express declaration to the effect that a particular action involving another
State is by no means to be regarded as inferring any recognition.
When an existing state recognizes the new state by a notification or declaration, announcing the intention of
recognition, the recognition is said to be express. In other words, it is granted in express terms. The formal
declaration may take the form of public statement, the text of which is sent to the party recognized as a state.
A state may be recognized also by sending diplomatic note, note verbale, personal message from the head of
state or Minister of Foreign Affairs, or by a parliamentary declaration.
ii. Implied Recognition: -The required actions for implied recognition must be unequivocal, leaving no doubt of
the intention of the State performing them to recognize the State or government and to deal with it as such.
The practical purpose of recognition, namely, the initiation of formal relations with the recognizing state, must
also always be borne in mind. Once granted, recognition in sense estops or precludes the recognizing state
from contesting the qualifications for recognition of the state or government recognized.
When the existing states do not make any formal declaration as to recognition of a new state by some acts, it
amounts to recognition. Montevideo Convention of 1933 under Article 7 states that the tacit or implied
recognition results from any act which implies the intention of recognizing the new state.

8
Modes of Recognition

Recognition is of two kinds, De facto and de jure recognition. The practice of States shows that in first stage the State
generally give de facto recognition. Later on when they are satisfied that the recognized state is capable of fulfilling
International obligations, they confer de jure recognition on it, that is why sometimes it is said that de facto recognition of
state is a step towards de jure recognition.

i. 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 as de facto
recognition. According to Prof.G.Schwarzenberger, “When a state wants to delay the de jure
recognition of any state, it may, in first stage grant de facto recognition.” The reason for granting de
facto recognition is that it is doubted that the state recognized may be stable or it may be able and
willing to fulfil its obligations under International Law. De facto recognition means that the state
recognized possesses the essentials elements of statehood and is fit to be a subject of International
Law. According to Prof.L.Oppenheim, “The de facto recognition of a State or government takes place
when the said State is free state and enjoys control over a certain fixed land but she is not enjoying
the stability at a deserved level and lacking the competence to bear the responsibility of
International Law.” In view of the Judge Phillips C Jessup, “De facto recognition is a term which has
been used without precision when properly used to mean the recognition of the de facto character
of a government; it is objectionable and indeed could be identical with the practice suggested of
extended recognition without resuming diplomatic relations.” The de facto recognition is
conditional and provisional. If the state to which De Facto recognition is being given is not able to
fulfil all conditions of recognition then that recognition is withdrawn.
Government of an established or a new state actually wields effective authority, without, however,
satisfying other conditions of full de jure recognition. Should these remaining conditions be
forthcoming, full recognition de jure will become a matter of course; should they remain
permanently absent recognition will lapse automatically or will be finally or expressly withdrawn. 4

ii. De-Jure Recognition: -De jure recognition is granted when in the opinion of recognizing State, the
recognized State or its Government possesses all the essential requirements of statehood and it is
capable of being a member of the International Community. Recognition de jure results from an
expressed declaration or from a positive act indicating clearly the intention to grant this recognition
such as the establishment of diplomatic relations. According to Phillips Marshall Brown, “De jure
recognition is final and once given cannot be withdrawn, said intention should be declared expressly
and the willingness is expressed to establish political relations.”

Legal Effects of Recognition

The legal effects of recognition differ depending on the forum. While in international and continental European courts

recognition has only probative value, in English and American courts an official statement of recognition or non-recognition

by the forum government is conclusive evidence as to the legal status of a foreign authority or entity. The question of

4 ‘Recognition in International Law’ p. 340.

9
recognition may determine access to the courts (locus standi), privileges and immunities, the legal status of individuals, the

right to recover State property in the forum, and the judicial cognizance of foreign legal acts. The traditional (English)

common law rule of “non-recognition, non-cognizance,” according to which a State or government that is not recognized as

such does not exist in the eyes of the law, has been mitigated by the courts, inter alia, by giving retroactive effect to

recognition, treating an unrecognized authority as the “subordinate body” of a recognized State, and by giving effect to the

laws and legal acts that regulate the day-to-day affairs of the people in an unrecognized State or government.

Although recognition is essentially a political act, it is one that entails important legal consequences. Recognition involves

legal effects both in the international level and in the domestic level. If an entity is recognized as a State, it will be entitled

to rights and subjected to duties that would not be relevant otherwise, and it will enjoy privileges and immunities of a foreign

State before the national courts of other States, which would not be allowed to other entities.

International Effects of Recognition

Apart of all the theoretical arguments involving the constitutive and declaratory theories, it is accepted that recognition of a
State or government is a legal acknowledgement of factual situations. Recognition entails the recognized State the
enjoyment of rights and the subjecting to duties prescribed in International Law for States.

Recognition of a State by another State does not lead to any obligation to establish diplomatic relations or any other specific
links between them. Nor does the termination of diplomatic relations automatically lead to withdrawal of recognition. These
remain a matter of political discretion.

It should not be assumed that non-recognition of a State or government would deprive that entity rights and duties under
International law. It is well established in International Law that the political existence of a State is independent of recognition
by other States, and thus an unrecognized State must be deemed subject to the rules of International Law. Unrecognized
State is entitled to enjoy certain rights and be subject to many duties. It has the rights to defend its integrity and
independence, to provide for its conservation and prosperity and consequently to organize itself as it sees fit. The exercise
of these rights by unrecognized State has no other limitation than the exercise of the rights of other States according to
International Law. Moreover, unrecognized State is subject to most of the rules of International Law, such as those related
to the law of wars, and is bound by its agreements. Non-recognition, with its consequent absence of diplomatic relations,
may affect the unrecognized State in asserting its rights against unrecognizing States, or before their national courts.
However, non-recognition will not affect the existence of such rights, nor its duties, under International Law.

Internal Effects of Recognition

Recognition entails the recognized State the rights to enjoy privileges and immunities of a foreign State before the national

courts, which would not be allowed to other entities. However, because recognition is essentially a political act reserved to

the executive branch of government, the judiciary branch must accept the discretion of the executive branch and give effect

to its decisions. The national courts can only accept and enforce the legal consequences that flow from the act of recognition.

They can accept the rights of a foreign government to sue, to be granted immunities or to claim other rights of a

10
governmental nature. They can give effect to the legislative and executive acts of the recognized State. In the case of non-

recognition, national courts will not accept such rights. In this context, recognition is constitutive, because the act of

recognition itself creates the legal effects within the domestic jurisdiction of a State.

Conditional Recognition

The grant of recognition by an existing state to a newly born state stipulated on fulfillment of some conditions in addition to
the requirements of statehood is said to be conditional recognition. AS for as, the recognition is concerned it is itself
conditioned with the fulfillment of the essentials of statehood, that is to say, the new state must occupy some territory, has
some population, government and sovereignty. If these requirements have been complied with by the new state, then that
should be recognized by existing states. But as far as, the recognition is concerned it is usually based on some political
considerations. So, in the pursuance of these considerations the existing states sometimes declare recognition but stipulated
with certain other conditions for the recognized state to be fulfilled.

Conditions are imposed wherein the recognizing state obtains, as the price of recognition, promises, and undertakings given
for its particular advantages.5 Oppenheim rightly says that recognition, in its various aspects, is neither a contractual
arrangement nor a political concession. It is a declaration of the existence of certain facts. This being so, it is improper to
make it subject to conditions other than the existence, including the continued existence of the requirements which qualify
a community for recognition as an independent state.6

If the condition is not fulfilled by the recognized state, it will not annul the recognition, though the relationship between the
recognized and recognizing state is likely to become unfriendly. Consequently, it will open to the recognizing state to sever
diplomatic relations or to take some other forms of sanction. However, as far as recognition is concerned it shall have no
real effect. Perhaps, because of this reason conditional recognition has disappeared from contemporary practice.

Withdrawal of Recognition

Withdrawal of recognition may mean withdrawal for political reasons from a state which is not overthrown. It is significant
to note that if states would start withdrawing recognition of a state on political grounds, they would find a number of
occasions for doing so. And if this practice is continued by them, the situation would be quite difficult one. Such acts of states
are likely to affect friendly relations of the states which, in turn, may affect international peace and cooperation amongst
the states.

i. Withdrawal of De facto recognition: -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 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.
ii. Withdrawal of De Jure recognition: -Withdrawal of de jure recognition is a very debatable issue under the International
Law. Withdrawal of a de jure recognition 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 recognized states loses the
essential characteristics of statehood or any other exceptional circumstances. This type of revocation can be done expressly
by the recognizing state by issuing a public statement.

5 Oppenheim’s International Law, Vol I, Ninth Edition (1992) p.144.

11
 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 constitutive
theory and declaratory theory of recognition by different jurists, but we can conclude that
the theory followed for recognition is in between the constitutive and declaratory theory.

There is also a question that whether the states have the duty to recognize other entity as a
state or not, so without recognition any state is not able to represent itself at international
platform, so it is necessary for any state to be recognized already existing one in order
maintain relation with other states. The international community is the community of
sovereign states at an international platform, so for any state to enjoy the rights, duties and
obligations of international law and to be a member of the international community,
recognition of the entity as a state is very important. Only after recognition of the entity as a
state, it becomes acknowledged by other states who are a member of the International
Community. The act of recognition in international law is considered as an independent act
of the existing statehood community.

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 recognized 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 recognizing 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 ode, i.e., de facto and de jure recognition
varies from case to case basis.

12