Recognition: According to Fenwich “recognition” is a formal acknowledgement by an existing member of the international community of the international personality of a state or political group not hitherto (previously, formerly) maintaining official relations with it.
Recognition of state may be defined that the free act by which one or more states acknowledge the existence on a definite territory of human society politically organized, independent of any other existing state which is capable of observing the obligations of International Law.
Recognition is, one of the most difficult topic, in International Law. It is a confusing mixture of politics, International Law, and municipal law.
Elements of new emerged state requiring recognition: New emerged state, which requires recognition must have certain elements such as, population, territory, government, sovereignty, and capability of agreement.
Legal nature of recognition: Recognition is as the practice of most states shows much more a question of policy then of law. There are two theories as to legal nature of recognition, such as, constitutive theory and declaratory theory.
1. Constitutive theory - Holland and Oppenheim: According to the constitutive theory, it is the act of recognition alone which creates statehood, or which clothes a new government with any authority or status in the international sphere.
2. Declaratory or evidentiary theory: According to this theory, statehood or the authority of a new government exists as such prior to and independently of recognition. The act of recognition is merely a formal acknowledgement of an established situation of fact.
German - Polish Arbitral Tribunal 1929: The tribunal observed that recognition of a state is not a constitutive but merely a declaratory act inasmuch as (because, since, due to the fact that, for the reason that) the state exists by itself. Recognition is nothing but the ascertainment (estimation, conclusion, measurement) of that existence.
Retroactive (backward) effect of recognition: Recognition of state has retroactive effect and dates back to the time when the recognized community possesses the necessary elements of statehood.
Modes of recognition: Following are the different modes of recognition, such as express and implied recognition and de facto and de jure recognition.
Express recognition: Recognizing state may make the act of recognition expressly through mere declaration to that effect. Normally, when a state recognized another state or government, it says so expressly.
Implied recognition: Implied recognition is very much a matter of intention of the state said to have given recognition. It is sometimes said that recognition cannot be implied from a state’s conduct unless the state intends that it should be implied but law may deduce intentions from behavior, which are different from a state’s real intention. It is just as a person who signs a contract without reading it will be deemed by the law to have intended all sorts of things, which he never intended in fact.
The implication is made solely when the circumstances unequivocally (openly, frank) indicate the intention to establish formal relations with the new state or new government. Implied recognition may be inferred from:
1. Entering some form of relations with new state or government.
2. Common participation in a multilateral treaty.
3. Participation in an international conference.
4. Initiation of negotiation between a recognizing and recognized state.
De facto recognition: Recognition de facto means that in the opinion of the recognizing state, provisionally and temporarily and with all due reservations for the future, the state and government recognized fulfills the requirement laid down by International Law for effective participation in the international community.
De jure recognition: Recognition de jure means that according to the recognizing state, the state or government recognized formally fulfills the requirements laid down by International Law for effective participation in the international community.
Conditions for recognition: New emerged state is subject to recognize provided it has certain ingredients such as:
1. Politically organized community.
2. Community must have a specific territory.
3. Strong occupation.
4. Free and independent community.
5. Establishment of constitutional system.
Difference between de facto and de jure recognition: Following points can be referred as distinction in both the recognitions:
1. Durability:
(1) De jure: It is permanent and durable.
(2) De facto: It is temporary and transitory.
2. Revocation:
(1) De jure: It cannot be revoked.
(2) De facto: It can be revoked.
3. Succession:
(1) De jure: Legally or constitutionally recognized government succeeds former government.
(2) De facto: De facto recognition does not follow succession.
4. Status:
(1) De jure: State having de jure recognition can sue.
(2) De facto: State having de factor recognition cannot sue.
5. Diplomatic relations:
(1) De jure: This recognition enjoys diplomatic relations and immunities as well.
(2) De facto: Diplomats do not enjoy immunities.
6. Demand of property:
(1) De jure: State, which is recognized de jure, can demand her share in state property.
(2) De facto: This recognition lacks demand of property.
7. Treaties:
(1) De jure: State may make treaties with other states.
(2) De facto: State cannot make treaties with other states and if so, temporarily and with due reservations.
Legal effects of recognition: Following are the points notable as legal effects of recognition:
1. Right to sue: Right of suing in the courts of the recognizing state.
2. Effect on enactment: Have effect of its legislation by these courts.
3. Certain immunities: May claim immunity from suit in regard of its property and its diplomatic representatives.
4. Right to demand property: Entitles to demand and receive property.
5. Certain privileges: Privileges of membership of international community.
6. Right of treaties: Capacity to conclude treaties.
7. International obligations: Subject to various obligations under International Law.
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