International societies are not unchangeable entities rather they depend upon
the ebb and flow of political circumstances. Entities change day by day and time
by time. Their agendas change, their political belief changes, their government
changes etc. Some new entities or insurgents or belligerents come into
existence, they seek their recognition against other .new facts and questions
arise as to whom to give recognition, what are the basic needs or the rules to
get an entity recognized, who can recognize others etc. Recognition involves
consequences on both international and municipal platforms.
Recognition is a statement by a legal person as to the status in international
law of another real or alleged legal person of the validity of a particular
factual situation. Rights and duties come in handy with recognition. Any entity
which gets recognized has some rights and duties in international law toward
other legal persons and they have to follow some particular set of rules and
regulations. Recognition can be extended to states, governments, insurgents
Now talking about theories of recognition of states there are two theories
related to it:
So basically recognition requires these basic standards:
- Constitutive theory:
This theory states that it is the act of recognition that gives the legal
personality to the new state. They can not get legal rights and duties only
by the virtue of their independence. To get into the legal arena of
international law, they have to get recognition from other states. Their
rights and duties under international law depend on the will of other
states. Their acts do not make them a legal entity. Although this theory is
not very ideal because it allows unrecognized states to not follow some
basic international rules such as the use of force aggression etc.
- Declaratory theory:
This theory is just the opposite of the abovementioned theory. It says that
the recognition of a new state does not depend on the will of other existing
states. Act of recognition is just a mere acceptance of already exiting
states. Their rights and obligations in international law are not by the
virtue of other states but based on some facts and situations. It says that
rights and duties do not arise as a result of recognition. it says that a
new state gets its legal identity based on its efforts and not because of
others. This theory is comparatively practical.
Recognition of government:
- There should be acceptance of different treaties and agreements signed
among the states.
- There should be respect regarding the charter of united nations
- There should be a guarantee of the protection of legal rights of
different communities under the state.
- Preference should be given to agreements, arbitrations and settlements
over war and rage.
The concept of recognition of governments is
different from recognition of states. Recognition of government as a category
tend to minimize the fact that the precise capacity of recognition may be
characterized in different ways. If a government is recognized by the other
state this means that the recognized government has fulfilled some particular
set of rules and the recognizing state is ready to have treaties and agreements
with the recognized state. It has accepted the legal consequences in terms of
immunities and privileges. Recognition constitutes acceptance by the recognizing
state both in term of factual criteria as well as legal repercussions.
Although political considerations play a vital role in the recognition of
government. Recognition of the government depends on the fact that how much
control it has on the territory of the state. This is called the effective
control test. It gives a guideline to the recognizing states.
In the Tinoco Arbitration Case
, in 1917 the established government
was ousted by Tinoco. Then they ruled for over 2 years and in 1919 they were
ousted by a new government. This new government in turn refused certain
obligations established concerning British nationals. In this case, justice Taft
held that the Tinoco has ruled over the territory for over 2 years and it was
effective in the control of government so it was a valid government even if it
was not recognized by so many states including the united kingdom.
Forms of recognition
De facro and de jure:
De facto and de jure are different. De facto recognition is assisted by some
doubts. It is not permanent. It is given temporarily. recognizing state is
hesitant while confirming the recognition for a long period.it shows a question,
ark on the long-run viability of the government while in de jure recognizing
state has the firm believe regarding the viability of the government. it is
permanent. It shows that recognizing state has a firm belief in effective
control possessed by the recognized government and it is enrooted in depth.
United kingdom recognized the soviet union by the status of de facto in 1921 and
after so many observations and instances, it finally granted the status of de
jure in 1924.
Here is this notable point that only a government recognized de jure is
authorized to claim to property located in the recognizing state. the de facto
recognized state has no such power and also full diplomatic relations can not be
established by de facto recognized state.
This kind of recognition is granted by a third state or government to emerging
insurgents. It is given to those who have not even got the permanence of
statehood. It is an unfriendly act towards the standing government it is an act
of intervention rather than an act of recognition.
It is a kind of recognition where the act of recognition is implied rather than
expressed. For example, if a state enters into a treaty with another
unrecognized state or government it is concluded that the recognizing state has
the intention to give it recognition. The intention may be unilateral or
it is a kind of recognition that is granted based on conditions. the recognized
state has to fulfil some requirements to get the status of a recognized state or
government. It is a practice subject to certain stipulations.
It is an act of recognition through the international decision. Membership in
the united nations is one of the criteria for gaining recognition in a
collective form. However, member states are free to use their own will and they
are not bound by the decision of united nations. They can decide as to whom to
Withdrawal of recognition:
Withdrawal of recognition is not that easy procedure especially in de jure
recognition. According to the Montevideo convention 1933, also declared that
recognition de jure is unconditional and irrevocable. De jure recognition is
granted on the basis that the recognized government has permanence in nature.
Even in situations where the relationship is not good between the states, it can
take other steps and cur the diplomatic relation with the state. However in de
jure recognition where there is the complete disappearance of one of the
essential elements of statehood then the recognition can be revoked.
For example, the united kingdom de facto recognized the Italian conquest of
Ethiopia and 2 years later as de jure. however, due to fights and dispatch of
the military, the united kingdom revoked the recognition granted to Ethiopia.
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
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
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.
So we can say that Recognition of states and government is more or less a
diplomatic matter. it is an essential process because it gives rights and
privileges to states. Recognition be it de jure or de facto gives a
representation to the state and endows with rights and obligation. It gives an
identity of a legal entity in international law. A state or government once
recognized can enter into treaties and agreements with other states. It provides
a legal representation at an international stage.
Award Winning Article Is Written By: Ms.Akshata Singh
Authentication No: MA34017218559-13-0521