UNIVERSITY OF PETROLEUM & ENERGY STUDIES

COLLEGE OF LEGAL STUDIES

B.Com., LL.B.(Hons.)
SEMESTER - 6
ACADEMIC YEAR: 2018-19 SESSIONS: JANUARY-MAY
PROJECT
FOR
HUMAN RIGHTS & INTERNATIONAL LAW
ON
“Concept of State Recognition”
Under the Supervision of Mr. Vishal Sharma

PRESENTED BY
PARITOSH GARG – 66- 500055096
HARSHIT SHASTRI – 107 - 500056006
SIDDHANT SINGH SIKARWAR – 90 - 500055710
INTRODUCTION
According to International Law, Recognition is the formal
acknowledgment of the status of an independent State by other existing
states.

 Every State must have some essential features, called attributes of

statehood, for other States to recognize the State as independent.
 States are considered as the principal persons in International Law.
 The recognition of a state is often a political act of a state.
 Recognition is not a conclusive proof of the existence of the state.

DEFINITION

The recognition of a state under international law is a declaration of intent

by one state to acknowledge another power as a "state" within the meaning
of international law. Recognition constitutes a unilateral declaration of
intent. It is entirely at the discretion of any state to decide to recognize
another as a subject of international law.

THEORIES OF STATE RECOGNITION1

Recognition of a State is more of a political concept than a legal concept
because there are no specific rules for recognition of a State. There are
two popular theories laid down for the purpose of understanding the
nature of recognition:

 Constitutive Theory
 Declarative or Evidentiary Theory

1
https://www.lawnotes.in/Recognition_of_a_State
CONSTITUTIVE THEORY2
According to this theory, recognition is a necessary condition for
statehood and personality. It is a process by which a political community
acquires personality and becomes a member of the family of nations. A
State comes into existence through recognition only and exclusively.
Examples:

 Poland and Czechoslovakia were recognized by the instrumentality of

the Treaty of Versailles.
 Germany was divided into two parts after the World War II by a treaty
 Korea was divided into two parts.

Disadvantages of the theory

 Recognition is political and diplomatic but not legal. This theory
imposes an obligation on all member states to recognize a State.
Practically, no states want to do something on obligation.
 There is no law the obliges established states to recognize new States.
 Recognition of a State can be done by few States and others might
refuse. According to this theory, the recognition should be done by all
the States.
 Palestine is recognized as country by 80 nations thought it does not
have a definite territory, population and a definite Government.
 Isreal is formed in 1947 by the United Nations Organization. Within
few hours, many countries too recognized it. However, India
recognized it in 1992.

2
Teacher, Law. (November 2013). Declaratory and constitutive theories of state. Retrieved from
https://www.lawteacher.net/free-law-essays/constitutional-law/declaratory-and-constitutive-theories-of-
state.php?vref=1
DECLARATIVE THEORY or EVIDENRTIARY THEORY3
This theory states that declaration is a mere formality and has no legal
effect as the existence of a State is a mere question of fact.
Every new state becomes a member of the family of nations ipso facto by
its coming into existence. Recognition only provides the evidence to this
fact. This theory says recognition is not important.

Disadvantages
The theory fails to explain legal rights and consequent of a recognized
state.

Example:
Taiwan is a democratic country and is adjoining areas where Chinese
territory. Only few countries recognize Taiwan, yet it had business
dealings with almost every country

FORMS OF RECOGNITION

 Express Recognition
 An existing state recognizes another state by releasing a public
statement by way of notification or a declaration announcing the
intention of recognition
 Grant is expressed in written words
 Implied Recognition
 Does not release a formal state but recognizes the state by some acts
which imply that the state is being recognized.
 Unilateral Acts
 State entering bilateral treaty establishes diplomatic relations
with an unrecognized state.
3
Teacher, Law. (November 2013). Declaratory and constitutive theories of state. Retrieved from
https://www.lawteacher.net/free-law-essays/constitutional-law/declaratory-and-constitutive-theories-of-
state.php?vref=1
  Collective Acts
 A new state is recognized collectively by the existing states.

MODES OF RECOGNITION
There are two important modes of recognition:

 De Facto Recognition4
 De Jure Recognition

De Facto Recognition5
This is a provision recognition and not a permanent one. i.e it can be
withdrawn by other States at any time. It is the first step towards becoming
a recognized country. Recognition is only by fact and not legal. State may
have more than one Governments. No exchange of diplomatic
representatives takes places. State succession might not happen. Mere de
facto recognition is not enough to get UN membership.
Or in easy words It is extended where a govt. has not acquired enough
stability. It is provisional (temporary or conditional0 recognition. It is not
legal recognition. However, it is recognition in principle.
Three conditions for giving de-facto recognition.
(i) Permanence
(ii) The govt. commands popular support
(iii) The govt fulfills international obligations

Example: Israel, Bangladesh, Taiwan, etc.

4
https://digitalcommons.law.yale.edu/ylj/vol31/iss5/2
5
http://internationallawu.blogspot.com/2012/11/recognition-de-facto-and-de-jure.html
De Jure Recognition6
This is a permanent recognition which one granted cannot be taken back
or withdrawn by other States. It is regal and rightful. State will have only
one Governments. Exchange of diplomatic representatives takes places.
State succession happens smoothly. de jure recognition by majority states
his essential for UN membership.
It is legal recognition. It means that the govt. recognized formally fulfills
the requirement laid down by International law. De-jure recognition is
complete and full and normal relations can be maintained. De-facto
recognition of a state is a step towards de-jure recognition. Normally the
existing states extend de-facto recognition to the new states or govts. It is
after a long lapse of time when they find that there is stability in it that
they grant de-jure recognition. Such practice is common among the states.
The essential feature of de-facto recognition is that it is provisional and
liable to be withdrawn.

LEGAL EFFECTS OF RECOGNITION7

The recognized state or Govt. acquires the capacity to enter diplomatic

relations and treaties. She acquires the right to suing in the courts of the
recognizing state. The state can claim immunity od diplomatic
representatives

Related Case Laws

 Luther vs. Sagor (1921 (1) KB 456)8

6
http://internationallawu.blogspot.com/2012/11/recognition-de-facto-and-de-jure.html
7
https://digitalcommons.law.yale.edu/ylj
8
https://lawhelpbd.com/international-law/luther-v-sagor/
CONCLUSION
Like ‘recognition’, the terms ‘de facto recognition’, ‘diplomatic
recognition’, and ‘de jure recognition’ can be given meaning by
establishing the intention of the authority using them within the factual
and legal context of each individual case. The meaning of de facto and de
jure recognition as well as of the other variants is therefore to be
determined by an analysis of the cases in which these terms have been
employed by states. This chapter examines the variants of the term
‘recognition’ and their meanings, early usage of the terms as exemplified
by the recognition of the new states in America, and modern usage of de
facto and de jure recognition. Areas of use of de facto and de jure
recognition are discussed, including secession, decolonization, or
partition of states; annexation of states, rival governments of the same
state, and effective governments of states.