Theories Of Recognition In International Law

Recognition in international law is the act of existing states acceding to the fact that a political entity satisfies the test of statehood under international law. It makes that State a subject of international relations with rights and obligations.

Essentials For Recognition As A State Under Public International Law

According to the Montevideo Convention on the Rights and Duties of States (1933), the minimum requirements for state recognition are:

• Permanent Population – A defined community that permanently resides within the entity.

• Defined Territory – Clear and recognised boundaries, though they need not be undisputed.

• Effective Government – A functioning authority capable of exercising control.

• Capacity to Enter into Relations – The ability to engage in international relations independently.

Legal Consequences Of State Recognition In Public International Law

• Confers international personality.

• Allows the recognised State to contract for international treaties and diplomatic relations.

• Entities have such rights as territorial integrity and non-intervention.

• Binds the State to observe internationalism in norms and principles.

Theories Of Recognition In International Law

Here are two theories of recognition:

1. Constitutive Theory of State Recognition in International Law

Fostered by Hegel and Oppenheim, this theory posits that recognition makes a state an international legal person. The entity has no legal personality and rights under international law without recognition.

Holland says that a state cannot be said to attain maturity unless it bears the stamp of recognition, which is essential to the full enjoyment of rights that it connotes. Similarly, Oppenheim declares that a state is and becomes an international person by recognition only and exclusively.

As per this doctrine, recognition grants the rights and duties under international law to the recognised states. Accordingly, a new state can acquire rights and obligations only when the former old states have recognised it. Thus, although an entity may possess the criteria of statehood, a new community can only claim to participate in international law if and when there has been a formal act of recognition.

This theory states that after the recognition, a state gains its status as a global person and becomes subject to international law.

However, this does not mean that a state does not exist if it is not recognised; in this theory, the state receives exclusive rights and obligations and becomes a subject of international law after being recognised by other existing states.

Criticism of the Constitutive Theory of State Recognition in International Law

• Limits sovereignty and independence since statehood depends on the will of others.

• This theory completely negates the objective criteria of statehood under the Montevideo Convention.

• State recognition then becomes biased toward political considerations.

2. Declaratory Theory of State Recognition in International Law

This theory holds that recognition only declares a state's existing legal status on the objective criteria of statehood. Hall, Fisher, Wigner, and Brierly are exponents of this recognition theory. According to them, no consent is required from the existing theories for a new state. Article 3 of the Montevideo Conference, 1933, enunciates the Declaratory theory, also known as an Evidentiary theory. 

For Brierly, recognition of a new State is 'declaratory' rather than a 'constitute' act; it imports no legal existence into a State if that State did not, in any case, exist before. A State can exist without having been so recognised, and if such be the case, then, whichever the fact may be as to previous recognition by other states, it is entitled to be treated by them as a State. This theory requires a declaration/request for evidence. It is an assertion of the already existing State.

This theory directly contradicts the constitutive theory. It argues that in this theory, statehood takes precedence over recognition, which is a formal recognition of an already existing state.

According to this theory, the new government's statehood or authority existed before and independently of recognition. The moment the entity acquires the attributes of statehood, it automatically becomes a state. It becomes subject to the rights and duties of international law without any formal action by other members of the global system.

Criticism Of The Declaratory Theory Of State Recognition In International Law

• Risk of denial of recognition when, objectively, criteria for statehood are met;

• This leaves entities, although functioning as de facto states, in legal limbo.

Modes Of Recognition Of State In International Law

Recognition is given to states and governments, especially in cases of revolutionary changes or disputed leadership. A government can be recognised de facto (for practical purposes) or de jure (as a legitimate legal authority).

• De Facto Recognition of States under International Law- It implies acceptance of an entity's control over territory and governance without full statehood. It is often temporary and contingent on further developments. As de facto recognition is provisional, it is easier to withdraw.

• De jure recognition of States under International Law- It is the official and absolute acceptance of a state as sovereign under international law. It is usually permanent and tends to follow de facto recognition. De jure recognition is withdrawn rarely and for any just cause under international law.

Difference Between De Facto And De Jure Recognition Of State In International Law

Forms Of Recognition Of State In International Law

• Expressed Recognition of State- Explicit and formal recognition of a state through diplomatic ties, treaties, or declarations.

• Implied Recognition of State- Indirect acknowledgement is inferred through acts such as establishing diplomatic relations or entering agreements.

Another state of recognition is also granted, with conditions such as adherence to human rights or cessation of hostilities. This is heavily criticised as it politicises the recognition process and often imposes unequal demands, undermining sovereign equality.

Non-Recognition In International Law

Non-recognition is a legal and political tool meant to condemn illegal acts such as aggression or invasion. There is no right to file a suit in the courts of a non-recognising State by an unrecognised state.

In addition, a state that has not been recognised is not entitled to enter diplomatic relations with the non-recognising states. The diplomatic agents of a state that has not been recognised do not have immunity from legal processes in foreign states. Thus, such states cannot get their properties located in foreign states.

The United States declared, as per the Stimson Doctrine, that it would not recognise the territorial gains obtained through force.

According to this Doctrine, the United States did not recognise any treaty or agreement between Japan and China designed to infringe upon U.S. rights or agreements to which the United States has subscribed.

In international law, the theories of recognition balance the legal and the political dimensions of statehood or international legitimacy. In this respect, current theories of the Declaratory or Constructive views present foundational frameworks, whereas newer approaches being emphasised today underline even more nuanced interaction between factual statehood and international acceptance in forming a changing world order.

Conclusion

Recognition in international law is very much these days a decisive act that determines the legal status of a state within the realm of the international system. While the Constitutive Theory argues that recognition must be stipulated for a state to gain legal status, the Declaratory Theory states that a state is in existence without being influenced from other actors around it. De facto and de jure recognition represent different levels of acknowledgment in international law. Moreover, non-recognition is a political tool used by a state to reject any illegitimate territorial acquisitions. The continuously evolving landscape of state recognition continues to draw a delicate balance of legal principles with the political reality that impact global diplomacy and international relations.

FAQs

Here are some common questions about state recognition in international law, covering its principles, theories, and legal implications.

Q1. What is state recognition in international law?

State recognition in international law is the formal acceptance of a political entity as a sovereign state that has the capacity to have rights and obligations under international law.

Q2. How can we differentiate between de facto and de jure recognition?

De facto recognition is provisional in that it expresses recognition of control lifted in the light of the full sovereignty enjoyed by that state, while de jure recognition is a permanent and legal acknowledgment that a political entity has reached statehood.

Q3. What are the basic criteria for statehood under international law?

As laid down in the Montevideo Convention of 1933, a state must ensure a permanent population; have clearly defined territorial boundaries; have an effective government; and possess the capacity to enter into international relations.

Q4. Difference Between the Constitutive Theory and Declaratory Theory of Recognition

The Constitutive Theory states that recognition creates a state under international law; the Declaratory Theory states that a state exists regardless of the influence from other actors around it.

Q5. What is the Impact of Non-recognition under International Law?

Non-recognition is wielded as a legal tool and a political tool to delegitimize entities which have functioned in violation of established rules of international norms like those pertaining to territorial acquisition by force such as Stimson Doctrine.