Define Recognition. What are conditions for recognition of a new State. Critically examine both – Constitutive and Declaratory theory in relation to the nature of recognition under International law.

Ans.
Meaning and Definition of the term „Recognition

:- According to Prof. Oppenheim :-
“ In recognizing a State as a member of international community the existing states declare that in their opinion the new State fulfills the conditions of statehood as required by International Law.”
The Institute of International Law has defined the term „recognition‟ in the following words :
“It is the free act by which one or more States acknowledge the existence of the definite territory of a human society, politically, independent of any other existing State and capable of observing obligations of International Community.”

Conditions for recognition of a new State:
According to Kelson, a Community to be recognized as an international person must fulfill the four conditions.

(a) The Community must be politically organized.
(b) It should have control over a definite territory.
(c) This control should tend towards permanence; and
(d) The Community thus constituted must be independent.

But International law does not provide as to how those essential conditions are to be determined. International Law leaves the members of International Community free to determine whether the States to be recognized contain essential conditions of Statehood. It is because of this reason that recognition is very often said to be a political diplomatic function.
THEORIES OF RECOGNITION :-
There are two main theories of recognition :-
(1) Constitutive Theory
(2) Declaratory or Evidentiary Theory

(1) Constitutive Theory :-

According to Oppenheim – “a State is, and becomes, an international person through recognition only and exclusively”.
According to this theory, recognition clothes the recognized State with duties and rights under international law, Recognition is a process through which a political community acquires international personality of becoming a member of the family of nations. Hegel, Anzilloti Holland, Oppenheim, etc are the chief exponents of this theory. Judge Lauterpacht has written that there is a legal duty on the part of the States to recognize any community that has in fact attained Statehood.

Criticism :-
This theory has been severely criticized by many jurists. In practice, States do not accept any obligation to recognize a community that has attained statehood, although they may normally recognize it. According to this theory, unrecognized State can have neither rights nor duties under International law. This is a very absurd suggestion.

(2) Declaratory Theory :-
According to this theory, statehood or the authority of the new government exists as such prior to and independently or recognition. Recognition is merely formal acknowledgement through which established facts are accepted. The act of recognition is merely declaratory of an existing fact that a particular State or government possesses the essential attributes of statehood as acquired under International law. The chief exponents of this theory are Hall, Wagner, Brierly, Pitt Carbett and Fisher.

Brierly has remarked that :- the granting of recognition to a new state is not constitutive,‟ but a declaratory‟ act.
Criticism :-The view that recognition is only a declaratory of an existing fact is not completely correct, In fact when a state is recognized, it is declaratory act. But the moment it is recognized, there ensue legal effects of recognition which may be said to be of constitutive nature.
Conclusion :- On the basis of the above discussion it may be concluded that recognition is declaratory as well as constitutive.
Oppenheim has admitted that :- “recognition is declaratory of an existing fact but Constitutive in nature”.
Kinds of Recognition
1. Express recognition – may be verbal or in writing;
2. Implied recognition – when the recognizing state enters into official intercourse with the new member by exchanging diplomatic representatives with it, trade relations etc.

The Act of Recognition is Indicative of the Following Intentions
1. To treat with the new state as such;
2. To accept the new government as having authority to represent the state;
3. To recognize in the case of insurgents that they are entitled to exercise belligerent rights.

Recognition of State
The recognition of a new state is the free act by which one or more states acknowledge the existence on a definite territory of a human society politically organized, independent of any other existing state, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it a member of the international community.

Recognition of Governments
The recognition of the new government of a state which has been already
recognized is the free act by which one or several states acknowledge that a
person or a group of persons are capable of binding the state which they claim to
represent and witness their intention to enter into relations with them.
Recognition of Belligerency
Belligerency exists when the inhabitants of a state rise up in arms for the purpose of overthrowing the legitimate government.
Conditions for a Belligerent Community to Be Recognized
1. There must be an organized civil government directing the rebel forces;
2. The rebels must occupy a substantial portion of the territory of the state;
3. The conflict between the legitimate government and the rebels must be serious, making the outcome uncertain; and,
4. The rebels must be willing and able to observe the laws of war.

Consequences of Recognition of Belligerency
Upon recognition by the parent’s state, the belligerent community is considered a separate state for purposes of the conflict it is waging against the legitimate government. Their relations with each other will, thenceforth and for the duration of the hostilities, be governed by the laws of war, and their relations with other states will be subject to the laws of neutrality.




Two Kinds/Modes of Governments
1. De Jure
2. De facto

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.

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.



Note: I have prepared this from int law by LN tandon and cssforum thread