Recognition

V In simple words, it means a process by which the
existing States recognize those communities which

have attained Statehood.
V According to Oppenheim, ǲ In recognising a State

as a member of International Community the
existing States declare that in their opinion the
new State fulfils the condition of Statehood as
required by International Law.ǳ
V According to Kelson a community to get
recognition must fulfill the following 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.
V Recognition is a Political Diplomatic Function.
V It is not a legal duty on the part of existing States
to give recognition. On the other hand it is the
discretion of the concerned State to give
recognition or not.
V Constitutive Theory: In simple words, this
theory says that recognition is must.
V According to Oppenheim, ǲ a State is and becomes a
international person through recognition only and
exclusively.
V It is only after the recognition that the rights and duties
of States are established and that the diplomatic
relations are established.
V It is only after the recognition that a community becomes
a member of the family of Nations that is to say that it
becomes an international person and International
personality is attributed to it.
V According to Judge Lauterpacht, there is a legal
duty on the part of the States to recognise any
community that has in fact attained Statehood. It
is herein that the criticism of this theory can be
made that it is not a legal duty on the part of
existing States to declare those communities which
have attained the elements of Statehood but, as
earlier stated, it is the discretion of the concerned
State whether to go for recognition or not.
V According to P.E. Corbett, ǲ According to the
Constitutive theory, Statehood and
participation in the International legal order
are attained political groups only in so far as they
are recognised by established States.ǳ
V The chief exponents of this theory are Hegel, Anzilloti,

Holland, Oppenheim etc.
V Declaratory Theory (State exists as such and
recognition is not at all must): According to this
theory, Statehood or authority of a new Government,
exists as such prior to and independently of
recognition.
V According to this theory recognition is only formal
acknowledgement through which established facts are
established.
V The chief exponents of this theory are Hall, Wagner,
Brierly, Pitt Corbett and Fisher.
V According to Brierly, ǲ The granting of recognition to a
new State is not constitutive but a declaratory
act, a State may exist without being
recognised if it exists in fact, then whether or
not it has been formally recognised by other States, it
has a right to be treated by them as a State.ǳ
V According to Starke, ǲ The truth lies somewhere
between these two theories.ǳ
V According to Oppenheim, ǲ Recognition is

declaratory of an existing fact but constitutive in
nature.ǳ (that is to say that recognition is a much
necessary requirement in order to make
diplomatic relations etc.
V De facto Recognition means State possess
elements of Statehood and is fit to be a subject of
International Law.
V De facto Recognition in a sense means provisional
recognition and not permanent recognition and
can be withdrawn at any time afterwards granting it.
V Here Diplomatic Relations are not established.
V According to Judge Lauterpacht, de facto
recognition shows that the recognising State wants
to establish relations with the recognised State
without establishing diplomatic relations
V According to Professor Schwarzenberger, ǲ When a
it
State wants to delay rcognition de jure of any State,
may in the first stage grant de facto
recognition. De facto recognition is given because it
is doubted that the State recognised may not be
stable or it may not be able and willing to
fulfill its obligations under International
Law.ǳ
V This is full and final recognition. Once granted it can
not be taken back. This recognition is irrevocable .
V When it is granted? Two things have to be present

there in order to grant recognition De Jure and these
are: Elements of Statehood are present +
recognised State is stable and it shall be able
and willing to fulfill its obligation.
V Diplomatic Relations are established here.

V According to Professor H.A. Smith, three conditions
precedents are required for the grant of de jure
recognition and these are:
(1) A reasonable assurance of stability and permanence.
(2) The Government should command the general

support of the population.
(3) It should be able and willing to fulfill its

international obligations.
V Tranquility, Insurgency and Belligerency.
V Points to remember: (1) armed struggle against an
established order, (2) armed struggle by a group of
citizens, (3) armed struggle is for the purpose of
obtaining power, (4) armed struggle is not an armed one
i.e. hostilities not conducted under any responsible
authority (like commander), (5) International rules
relating to hostilities (act of warfare) are not followed,
(6) Hostilities are conducted within a local area, (7)
Recognition of insurgency may amount to intervention
(basically recognition is granted to insurgents by another
State which is interested in its internal affairs. It may
cause blood shed revolution and may be against the
interests of parent State.)
V Essential conditions for recognising insurgents: (1)
Control over a considerable part of the territory. (2)
Support from the majority of people living in the
territory. (3) Insurgents should be capable and willing to
carry out international obligations.
V Effects of recognition of insurgency: (1) Insurgents are
not treated as pirates/public enemy. (2) The civil rebels
are treated as enemy of human beings untill they are
recognised as insurgents. (3) The international rules of
war become applicable to them.
V Example: USA in 1989 in support Afghan rebel groups
appointed Ambassador over there. (Against Article 2 (7)
of the UN Charter).
V When the insurgents are (1) well organised, (2)
conduct hostilities according to law of war and (3)
have control over a definite part of State territory ten
insurgents may be recognised as belligerents. (4) The
hostilities should be of such magnitude that it
becomes necessary for the foreign States to define
their attitude towards belligerents.
V Effects of recognising belligerents: (1) relations
between belligerents and parent State are governed by
International Law and not by municipal law. (2)
International rules relating to war become applicable
to them.
V The recognised State becomes entitled to sue in the
court of recognising State.
V The courts of the recognising State give effect to the past
as well as present State Legislations and Executive Acts
of the recognised State.
V Diplomatic relations are established.
V Treaties are entered into with recognising States.
V The diplomatic envoys of recognised State get a number
of privileges and immunities in the recognising State.
V Help from the International Institutions. (financial).
V Some immunity regarding property matters in
recognising State.
V A non recognised State can not sue in the courts of the
State which has not recognised it.
V An unrecognised State can not establish diplomatic
relations with the State which has not recognised it.
V An unrecognised State can not enter into treaties with
States which have not recognised it.
V Diplomatic envoys donǯt possess any privilege and
immunity.
V An unrecognised State can not claim its property
situated in foreign State.

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V In simple words, it means a process by which the

existing States recognize those communities which

V According to Oppenheim, ǲ In recognising a State

V The chief exponents of this theory are Hegel, Anzilloti,

V According to Oppenheim, ǲ Recognition is

V When it is granted? Two things have to be present

V Diplomatic Relations are established here.

(1) A reasonable assurance of stability and permanence.

(2) The Government should command the general

(3) It should be able and willing to fulfill its

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