Introduction

Recognition is a process whereby certain facts are accepted and endowed with a certain legal status, such as statehood, sovereignty over the newly acquired territory, or the international effects of the grant of nationality. An example of recognition is when you spot a familiar face in the crowd who is someone you met before. An example of recognition is when someone is given an award to recognize and honor his service.

A new state is born out of an existing State or an old State which disappeared and comes with a new name or by splitting an existing State into two States. If a new state enjoys certain rights, privileges and obligations then it must get recognition as a state, which is very essential. However, there are some minimum criteria required before a State is considered to be a State. A State must get the De Jure (when a state is legally recognized) recognition for considered a State as a sovereign State. Political thought plays an important role in this decision of whether to grant recognition or not. For recognition as a State, it must enter into relations with the other existing States. The elements, theories, and processes are reflected in this article.

Meaning of Recognition

The term “Recognition” means ratification, confirmation, or acknowledgment that something done by any other person in one name had one’s authority.

Recognition of State

“In recognizing a state as a member of the international community, the existing states declare that in their opinion the new state fulfills the conditions of statehood as required by International law” (Oppenheim)

According to Kelsen

The country to be recognized as an international person must be:-

1. Politically organized
2. Have control over a definite territory.
3. Which tends towards permanence.
4. And must be independent.

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 the following essentials that an entity should possess in order to acquire recognition as a state:

• Population;
• Territory;
• Government;
• Sovereignty;
• Control should tend towards permanency.

If these conditions are fulfilled, then the State can be recognized.

Legal Effects of state recognition

When a state acquires recognition, it gains certain rights, obligations, and immunities such as.

1. It acquires the capacity to enter into diplomatic relations with other states.
2. It acquires the capacity to enter into treaties with other states.
3. The state is able to enjoy the rights and privileges of international statehood.
4. The state can undergo state succession.
5. With the recognition of the state comes the right to sue and to be sued.
6. The state can become a member of the United Nations organization.

Theories of state recognition

The recognition of a new entity as a sovereign state is based on two main theories:

• Consecutive Theory
• Declaratory Theory

1.     Consecutive Theory

The main exponents related to this theory are Oppenheim, Hegal, and Anziloti.

According to this theory, for A State must be acknowledged as a sovereign by the existing states in order to be regarded as an international person. According to this viewpoint, a State only acquires the status of an international person and is subject to international law after being recognised. Therefore, unless an entity is acknowledged by the existing States, even though it exhibits all the features of a state, it does not acquire the status of an international person.

This theory does not imply that a State does not exist unless it is acknowledged, but rather that a State only acquires exclusive rights and obligations and comes under the jurisdiction of International Law upon recognition by other States that are already in existence.

Criticism of the theory

This theory has been criticized by several jurists. A few of the criticisms of this theory are:

• This theory is criticized because unless a state is recognized by other existing states, rights, duties, and obligations of the statehood community under International Law are not applicable to it.
• This theory also leads to confusion when a new state is acknowledged and recognized by some of the existing states and not recognized by other states.

2      Declaratory Theory

In support of the Declaratory Theory of Statehood, Wigner, Hall, Fisher, and Brierly are the leading figures. This theory holds that any new state can form without the approval of any current states. According to Article 3 of the Montevideo Conference from 1933, this hypothesis has been established. According to this theory, a new state’s existence is independent of whether or not it is acknowledged by an older one. Under international law, a new state has the right to preserve its integrity and independence even before being acknowledged by other governments. The followers of the theory consider the process of recognition as merely a formal acknowledgment of statehood by other states.

Criticism of the theory

Critics have also attacked the declarative view of statehood. This theory has drawn criticism on the grounds that it cannot be used in isolation to determine whether a state should be recognised. Declaratory theory is used when a state with certain essential characteristics declares itself to be a state and can then exercise its international rights and obligations; however, consecutive theory is used when other states recognise the state’s existence and grant it the legal privileges associated with that recognition.

Modes of Recognition of a State

1. De facto Recognition.
2. De jure Recognition.

These are the two modes of recognition.

De facto Recognition-  It is the process of acknowledging a new state by a non-committal act.

• De facto recognition is a provisionally grant.
• It is the first step to the next mode of recognition.
• It is a temporary and factual recognition as a state
• It can either be conditional or without any condition.
• A test of control for newly formed states.

When the other existing countries have an opinion that the new state does not have enough capacity but the new state holds sufficient territory and control over a particular territory.

Example: The Soviet Union was de facto recognized by the government of the UK in 1921.

De jure recognition

When the other existing countries have an opinion that the new state has all the eligible capacity then such a state will be recognized by the de jure recognition. To grant recognition under the de jure method there is no need for the fulfillment of the first mode.

• It is granted when the newly formed state acquires permanent stability and statehood.
• It grants the permanent status of a newborn state as a sovereign state.

Example: The Soviet Union was given de jure recognition Soviet Union was in 1924.

In conclusion, there is no distinction between de facto and de jure as it is for the states to give effect to the internal acts of the recognized authority. This was held in the case Luther v. Sagar . [(1921)3 KB 532]

The distinction between De Facto and De Jure Recognition

S.No.	De facto Recognition	De jure Recognition
1.	De facto recognition is a provisional and factual recognition.	De jure recognition is legal recognition.
2.	De facto recognition is granted when there is the fulfillment of the essential conditions of statehood.	De jure recognition is granted when the state fulfills all the essential conditions of states along with sufficient control and permanency.
3.	De facto recognition is a primary step towards the grant of de jure recognition.	De jure recognition can be granted either with or without the grant of de facto recognition.
4.	De facto recognition can either be conditional or non-conditional.	De jure recognition is a final and non-conditional recognition
5.	De facto recognition is revocable in nature.	De jure recognition is non-revocable.
6.	The states recognized under this mode have only a few rights and obligations against other states.	The state recognized under this mode have absolute right and obligations against other states.
7.	The state with de facto cannot undergo state succession.	The state with de jure recognition can understate succession.
8.	The state with de facto recognition cannot enjoy full diplomatic immunities.	The state with de jure recognition enjoys full diplomatic immunities.

The Government gains sovereign immunity from being sued in the courts of a foreign State that so recognises it as soon as the de facto recognition is granted. De facto recognition has the same historical roots as de jure recognition, hence in these situations, it makes no difference whether it is granted. In a number of cases, including Bank of Ethiopia v. National Bank of Egypt & Ligouri, this rule has been used (1937) The Arantzanu Mendi (1939) 1 All ER 719. 3 All ER 8. When a de jure administration that has been ousted and a de facto government that has just been recognised clash over issues pertaining to the region that the de facto government,the rights and status of the de facto government will prevail.

Forms of State Recognition

When a newly formed state is recognized, its declaration can be made in two forms:

1. Expressed Recognition
2. Implied Recognition

1. Expressed Recognition

The declared form of recognition is one in which an existing state expressly declares or notifies a new state of its existence. Any express or formal action, such as sending or publishing a proclamation or statement to the other party, might be considered express acknowledgement. Unless the recognising state specifies differently in the proclamation, when a state is acknowledged expressly, it is recognised de jure.

2. Implied Recognition

Whenever an existing state implicitly recognises a newly established state, it is referred to as an implied recognition. Any inferred method through which a present state treats a newly constituted state as an international person can be used to provide implied recognition. There is no formal announcement or declaration granting the inferred credit. It depends on the circumstances if recognition is made implicitly.

Conditional recognition

Conditional recognition refers to the acceptance of a state under the condition that it fulfil certain requirements in order to be recognised as a sovereign state. Conditions like freedom of religion, respect for the law, democracy, and human rights are different from state to state. Any state that is recognised already has to meet the prerequisites for having the status of a sovereign state, therefore when a second criterion is added, recognition becomes conditional.

Criticism

Conditional recognition is criticised by several Jurists. According to the argument that recognition is a legal procedure, no further restrictions should be applied to it beyond those recognised by law, conditional recognition is condemned. Criticism also stems from the fact that recognition should still be true even if the recognised state fails to meet the requirements that accompanied it.

An example is Palestine Liberation Organization (P.L.O.), which is recognized by many States including India. In contrast to the de facto government, governments-in-exile lack effective control over the territory of a State and have been accorded de jure recognition.

Withdrawal of Recognition

1. Withdrawal of De facto recognition

In accordance with international law, a state that has received de facto recognition may have that recognition revoked if it does not meet the requirements for statehood. The recognised state has the option of declaring its intent to withdraw recognition or informing the authorities of other recognised states. A public announcement can also be made to announce the withdrawal.

2. Withdrawal of De Jure recognition

Withdrawal of de jure recognition is a very debatable issue under International Law. Withdrawal of a de jure recognition is a very exceptional event. If strictly interpreted, the de jure recognition can be withdrawn.

De jure acknowledgment is of a legal nature, even though the process of recognition is a political act. De jure recognition is revocable, according to jurists who view it as a political act. A state can only have its de jure recognition revoked when it no longer possesses the necessary elements to qualify as a state or under other extraordinary circumstances. The recognising state may expressly revoke this form of recognition by making a public announcement.

Recognition of government

The government is a crucial component of statehood for each nation. When a state is created, its administration occasionally changes. It is not necessary for the existing state to recognise the new government when it arises as a result of a revolution; but, this requirement applies when the new government arises as a result of a routine political action.

For recognising the new government established out of revolution, the existing states need to consider that:

1. The new government has sufficient control over the territory and its people or not.
2. The new government is willing to fulfill international duties and obligations or not.

When the existing states are satisfied that the new government resulting from the revolution is capable of fulfilling the conditions mentioned above, then the new government can be recognized by the existing states.

Civil Air Transport Inc. v. Central Air Transport Corpn. (1952) 2 All ER 733. In this case, the court held:

1. Retroactivity depends upon intention.
2. Where there is a clear date mentioned, recognition takes effect from that date (mentioned) Thus, it is an exception to the general rule of retroactivity.
3. Acts of previous de jure government cannot be invalidated by subsequent de jure recognition of new government.
4. Prima facie, recognition operates retrospectively not to invalidate the acts of a former government, but to validate the acts of a de facto government, which has become the new de jure government. It may be noted that where a State is granted de facto recognition initially and de jure recognition later on, the effect of recognition starts from the date of de facto recognition. It may be regarded as a prima facie rule (Starke).

India’s practice is in conformity with the norms and principles of international law as well as general practice of States. In recognizing States, India had accorded recognition as soon as the conditions of Statehood had been fulfilled. As a matter of general policy, India has attached primacy to de factoism and has generally recognized the supremacy of de facto regimes. Another striking feature of India’s recognition policy is that it has adopted the broader version of Stimson doctrine and, as a matter of policy, has denounced illegal territorial acquisitions and unlawful governments.

By recognizing Israel in 1950, though not establishing diplomatic relation with her (till 1992), the Government of India has clearly proved weighty reasons for thinking that it distinguishes between recognition as a legal act and the establishment of diplomatic relations as a purely political act. The recognition of Palestine Liberation Organization (PLO) affirms India’s strong commitment to the principle of self-determination and its long-standing support to national liberation movements.

Conclusion

It is necessary to recognise the state in order for it to be granted all the rights that come with being a statehood community under international law. Although there is disagreement between the Consecutive Theory and the Declaratory Theory of Recognition among various jurists, we can get the conclusion that the theory used for recognition is somewhere between the two.

De jure or de facto recognition confers obligations, rights, and privileges. De jure recognition confers absolute rights, liabilities, and privileges on a state; de facto recognition confers only limited rights, privileges, and duties. The state’s recognition has an excessive amount of political sway on the global stage.

In order to prevent a newly established state from being recognised, powerful states frequently put up barriers. It may even be revoked if the recognising state believes the new state does not meet the requirements to qualify as a sovereign state. De facto and de jure recognition vary depending on the circumstances and can be done in either an express form or an implied form.