Introduction
International Law is also known as public international law and the law of nations is the set of rules, norms and standards generally accepted in relations between nations.[1] Usually, every country is termed as ‘State’ under international law. Under international law, the agreements and treaties are binding between the states. For a state to enjoy its rights, duties and obligations of the international law, it must be recognized on an international platform or in an international community. An entity to be recognized as a state should possess all the attributes of statehood that are population, sovereignty, government and the capacity to enter into relations with other states. It is only after the recognition of the states that the other states of the international community will acknowledge it.
Requirements of Statehood
As such there are no fixed rules or criterions for an entity to be a state. It is from the point of view of others that the essentials are drafted to some extent.
Montevideo Convention
According to Montevideo Conference, 1993 under international law, the essential for an entity to become a state are as follows:-
- Permanent population
- Definite / fixed territory
- Well organized government
- Capacity to enter into an agreement or relationship with other states
Kelsen’s Theory
According to Kelsen, a community to be recognized as an international person it must fulfill the following four conditions:
- The community must be politically organized.
- It should have control over the definite territory.
- This control tends towards permanence.
- The community thus constituted must be independent.
Definition of Recognition
“In recognizing state as a member of the international community, the existing state declares that in their opinion the new state fulfills the condition of statehood as required by the International law.” – Prof. Oppenheim.
“It is a political community acquiring or satisfying the requirements of statehood, qualifying itself to be the members of the international community.” – J. Jessup.
Thus the recognition of a state can be defined as the acknowledgment or acceptance of a state as an international entity by the existing state of the international community.[2]
The requirements laid down by the Montevideo Convention are fourfold requirements to a political community. One cannot say whether the nature of these requirements is legal or political. Sometimes it is theoretically legal and sometimes it is practically political. Hence the nature of the requirement is legal or political affairs. The recognition of the state is sometimes a free act and sometimes a political act. Through the political act, recognition is used to support or to reject a state or a government which is new in an international community.
The legal importance of recognition is the interrelation between the states that are governed by the process of recognition. Various rights and duties are conferred on recognized states. For example – the recognized states have diplomatic immunity and the ability to file a suit in the International Court of Justice whereas the unrecognized states do not have such diplomatic immunity.
Expressed or Implied Recognition
Recognition usually depends upon the matter of will and intention of the state. It may be either expressed or implied. The new entity must however give a clear indication as to enter into relations with other states or to accept the new government.
Express recognition means the acknowledgment of the recognized state by a formal declaration. This formal declaration can be made via the 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.[3]
Implied recognition means the recognition of a state or government where in there is no need to make an official declaration or actions is intended to grant recognition.
Theories of recognition
There are mainly two traditional theories of recognition:-
- Constitutive Theory
- Declaratory Theory
The constitutive theory was the standard nineteenth-century model of statehood, and the declaratory theory was developed in the twentieth century to address shortcomings of the constitutive theory.[4]
1. Constitutive Theory
The constitutive view is largely expounded by legal positivists. This theory is supported and propounded by Hegel, Anzilloti, Holland and Oppenheim.
According to Holland, a State cannot be said to have attained maturity unless it is stamped with the seal of recognition, which is indispensable to the full enjoyment of rights which it connotes.
According to Oppenheim, a State is and becomes an international person through recognition only and exclusively.
According to this theory, recognition gives the rights and duties to recognized states under international law. Thus a new state can acquire rights and duties only when the former old states have recognized it. Thus even though an entity may possess the criteria of statehood but a new community cannot claim to participate in international law unless and until there has been formal act of recognition.
Criticism
The first and foremost drawback of this theory is that for an entity to be recognized there should be recognized from the pre–existing states. Secondly, the pre–existing states have got no rights, duties and obligations to recognize any entity which in fact has acquired the attributes of statehood. Thirdly, the government of the new state cannot be recognized on the same footing as the state is recognized. The government clearly cannot be “constituted” by the recognizing state, although they can be admitted to the rights which the pre-existing state possessed. Fourthly, non-recognition of the state means it is not protected under international law, war and peaces as well as they also do not possess any rights and duties which cannot be accepted.
2. Declaratory Theory
This theory was supported and propounded by Brierly, Moore, Verdross, Chen, Kunz, and Briggs. This theory is exactly the opposite of the constitutive theory i.e. in this theory it is first statehood and then recognition. It is a formal acknowledgment of an already existing state. According to this theory statehood or authority of new government existed even prior to and independently of recognition. When the entity acquires the attributes of statehood than it automatically turns into a state and becomes subject to the rights and duties of the international law without any formal action on the part of the other members of the international system.
As Moore says, “The rights and attributes of sovereignty belong to it independently of all recognition, but it is only after it has been recognized that it is assured of exercising them.” Like an infant who obtains majority without expressed recognition similarly a community which has satisfied the objective conditions of international law, obtains statehood. This thus results in setting up of standard objectives like population, territory, independence and the existence of government. This theory has made it possible to overcome the problems of accommodating government. The government of the state cannot be constituted directly through recognition but their existence can be made by declaratory actions of the recognizing states.
Criticism
As compared to the constitutive theory, this theory also has some drawbacks to it. The sates do not acquire international rights unless and until they are recognized on the international platform. The major difficulties of this theory would be the eligibility criteria to apply, instability and unpredictable natures of the competing versions of the criteria, the hypocrisy in applying different criteria to different states and the legitimacy of some proposed criteria.[5]
Analysis of the theories
Both the theories of recognition are appropriate within their own limited spheres and that the term ‘recognition’ contains too many concepts which can be usefully distinguished. Many activists have tried to merge the two theories but it was not possible as the theories are not entirely convincing. Lauterpacht’s attempted to create a synthesis—that the constitutive theory should be applied for the notion that the new state begins its existence upon recognition and the declaratory theory for the notion that states’ discretion in recognizing the new state was constrained.
Thomas Grant stated that there is more than one institution of recognition. Michael Schoiswohl has proposed a “dissolving succession” theory in relation to Somalia, but which might apply more widely.[6] This theory proposes that recognition is declaratory when the new state’s status is not disputed, but that it is constitutive (or semi-constitutive) when the state’s personality is disputed.
Practically, in today’s world, for a community to recognize as a state by the United Nations, it has to qualify the attributes of statehood. However, as the act of recognition is the free will of each State, even in the case of recognition by U.N., the States, which did not vote in favor, are not deemed to have recognized a new State.[7] India also considers the legal qualifications a state must comply in order to be recognized. The recognition is widely influenced by political, economical and strategic considerations.
Three main functions of recognition must be separately considered[8]:
1. In the general international law which imposes state responsibility for external actions, recognition is granted by a declaratory process. Such an approach is necessary in order to avoid the possibility of hostile confrontations. Any community which meets the standards of statehood must be treated with all the respect due to a foreign state.
2. This declaratory standard does not apply to matters which international law leaves to the discretion of each state, such as the exchange of diplomatic representatives, which may be called political recognition. Since these matters are merely discretionary, the constitutive theory provides a better description of them.
3. In cases involving private law transactions, considerations of commercial and general convenience dictate that acts of an unrecognized government taking effect upon persons or chattels within its physical control are recognized if these persons or chattels later come within another jurisdiction. Hence, recognition of foreign acts which take place abroad is properly declaratory. The same considerations, however, dictate the opposite result in relation to acts-in-the-law of the non-recognizing state, especially when the unrecognized government attempts to apply its legislation or directly to claim assets located in the non-recognizing state. Here recognition is properly constitutive.
Conclusion
Thus these are the two theories i.e. the constitutive theory and the declaratory theory through which the states can be recognized. Though it is complicated to analyze if the function of recognition under international law is constitutive or declaratory because both the theories are featured distinctively and sometimes used simultaneously by many commentators. It solely depends upon the circumstances of the situation in declaring and recognizing a new state.
References
- Recognition in International Law: A Functional Reappraisal
- Prof Pathan’s, S.P. Law Classes – Public International Law
[1] https://en.wikipedia.org/wiki/International_law
[2]https://blog.ipleaders.in/staterecognition/#:~:text=Under%20International%20Law%2C%20recognition%20of,as%20required%20by%20International%20Law.
[3] http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/UNIT_III_INTERNATIONAL_LAW.pdf
[4] https://www.lawteacher.net/free-law-essays/constitutional-law/declaratory-and-constitutive-theories-of-state.php
[5] LAW, POLITICS, AND THE CONCEPTION OF THE STATE IN STATE RECOGNITION THEORY, William Thomas Worster, http://www.bu.edu/law/journals-archive/international/volume27n1/documents/worster.pdf
[6] Michael Schoiswohl, Status And (Human Rights) Obligations Of Non-Recognized De Facto Regimes In International Law: The Case Of ‘Somaliland’ (2004).
[7] http://www.legalserviceindia.com/legal/article-2203-recognition-of-states-and-governments-an-analysis.html
[8] Recognition in International Law: A Functional Reappraisal
This article has been written by Rutuja Dhotre, 4th Year BA.LLB Student at ILS Law College, Pune.
Also Read – State Succession, Recognition And Jurisdiction Under International Law
