Recognition : International Law

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• published: 17 Sep 2015
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State enjoys the rights, duties and obligations under International law. When the existing States declare that in their opinion the new state fulfills the condition of statehood as required by International law then the new state is recognised as a state and becomes member of International community. Recognition means acknowledgement for acceptance of a new state as a member of International community. The attributes of Statehood are people, territory, Government and sovereignty. There are two main theories of recognition. 1. Constitutive theory and 2. Declaratory theory. 1. Constitutive theory- According to this theory, when existing states recognises new state by their consent, then only the new state becomes International personality. Recognition depends on will and consent of existing States. Therefore independence of new entity shall not amount to be called state unless it is recognised by existing states. 2. Declaratory theory- According to declaratory theory, a new state already possesses essential attribute of statehood, prior to recognition. Recognition is only formal acknowledgement of established fact. The act of recognition is only declaratory of an existing fact. Mode or Kinds of Recognition- There are two kinds of recognition 1. De facto recognition 2. De jure recognition. De facto recognition- De facto recognition is provisional, subject to fulfillment of all the attributes of statehood. In this recognition, recognising states considers that attributes of statehood is not stable, they are doubtful. De facto recognition gives few rights, duties and obligations under International Law. However diplomatic relations cannot be established. Thus diplomatic immunity are not granted. De facto recognition can be withdrawn in case of non-fulfillment of the prerequisite conditions of statehood. Because it is interim and provisional. De jure recognition- De jure recognition is permanent recognition. It is given when a new state had achieved all the attributes of statehood and is stable. De jure recognition amounts new state to enjoy all the rights, duties and obligations under International law. He can establish diplomatic relations with other states. De jure recognition is final and irrevocable it cannot be withdrawn. Is there a duty to recognize? International Law grants a duty to existing state to recognise new states when they fulfill all the attributes of statehood. However under International Law there is no obligation to recognise a new state. In practical States do not accept this duty normally. For example when Bangladesh emerged as a new state Pakistan and China did not accord recognition for some time but by doing so they did not violated International law because recognition is diplomatic political function and depend on the discretion of the recognising state. Legal effect of recognition- • The recognised state becomes entitled to sue in the court of recognising state. • The court of recognising state acknowledges to the past as well as present legislation and executive act of recognised state (Retroactive effect). • Recognised a state can make diplomatic relations and can claim certain immunity and property. • Diplomatic Envoy of recognised state gets number of privileges and immunities in the recognizing state. Retroactive effect of recognition – De jure recognition is said to have retrospective effect, it means after a state is recognized, its act done prior to the date of recognition are also recognized. This is generally done with a view to establish friendly relations with the state recognized.