The term “Recognition” means ratification, confirmation, acknowledgment that something done by any other person in one name had one’s authority. Recognition involves consequences both on the international plane and within municipal law.

State is the main subject of international law. According to Salmond, “State is a community of people which has been established for some objectives such as, internal order and external security.” In the view of Oppenheim, the existence of State is possible only when the people of State have settled under the highest governmental authority and habitually follow its order. Ideal definition of term `State’ is not possible. However, in the modern period it is finally settled as to what are the essential elements of a State. According to Oppenheim, population, a defined territory, government and sovereignty are the essential elements of a State. Holland has added one more essential element, namely, to some extent `civilisation’ because of which the State becomes an international person.

Conditions for recognition of a New State:

 According to Kelsen, a community to be recognised as an international person must fulfil the four conditions –

(a) The community must be politically organised;

(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 recognised contain essential conditions of Statehood. It is because of this reason that recognition is very often said to be a political diplomatic function.

 There are basically two theories as to the nature of recognition.

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 recognised State with duties and rights under international law. Recognition is a process through which a political community acquires international personality by becoming a member of the family of nations. Hegel, Anzilloti, Holland, Oppenheim, etc. are the chief exponents of this theory. The constitutive theory maintains that it is the act of recognition by other states that creates a new state and endows it with legal personality and not the process by which it actually obtained independence.

• Declarative Theory: The second theory, the declaratory theory, adopts the opposite approach and is a little more in accord with practical realities.  The chief exponents of this theory are Hall, Wagner, Brierly, Pitt Corbett and Fisher. It maintains that recognition is merely an acceptance by states of an already existing situation. A new state will acquire capacity in international law not by virtue of the consent of others but by virtue of a particular factual situation.

Modes of Recognition of a State

1)De facto Recognition: It is a temporary recognition of a State, this can be conditional or without any condition. This mode of recognition is granted when a new State holds a sufficient territory or control over a particular territory, but the other existing State consider that when they don’t have enough stability or any other unsettlement issues. So we can take it as a test of control for newly formed States.

2)De jure Recognition:  De jure recognition is granted when in the opinion of the recognising State the recognised State or its government possesses all the essential requirements of Statehood and is capable of being a member of the international community. The British practice shows that three conditions precedent are required for the grant of de jure recognition of a new State or a new government. The three conditions are –

(a) A reasonable assurance of stability and permanence;

(b) The government should command the general support of the population; and

(c) It should be able and willing to fulfil its international obligation.

Conclusion:

Recognition is declaratory as well as constitutive act. Oppenheim said:

Recognition is declaratory of an existing fact but constitutive in its nature at least so far as concerns relations with the recognizing States. Further there is no settled view whether recognition is the only means through which a State becomes part of the international community.

References:

https://blog.ipleaders.in/state-recognition/#Essentials_of_Recognition_of_a_State

https://lawbhoomi.com/recognition-of-states-under-international-law/#Meaning_of_Recognition

Aishwarya Says:

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