The Concept of Recognition of States in International Law

The concept of Recognition is closely related to the concept of Statehood. Before a State is recognized as a State, it should fulfill the essential attributes of Statehood as laid down in the Montevideo Conference[1]:

  • Sovereignty
  • Defined Territory
  • Population
  • Government

Recognition is the process whereby certain facts are received and invested with legal statuses, such as statehood, sovereignty, or international impact of the grant of nationality. To recognize a new entity as a State on the condition that it meets the criteria of statehood is a political process, and each country must decide for its own whether to extend such confirmation or not.[2]

The act of recognition is not followed by strict legal criteria or controls. The recognition is itself a political act. However, given that the consequences of the recognition of an entity are part of international law, it is considered a legal act.

Methods of Recognition:

Recognition may be express or implied.

Express Recognition is the Recognition given through a formal statement or notification.

Implied recognition is inferred from the act of States. For example, an implied Recognition may be given through signing a bilateral treaty with the unrecognized state or participating in a multilateral treaty or in an international conference where the unrecognized state is also present.

However, these methods are not rigid, and the Recognition of a State by another is purely factual and depends on other circumstances as well.

Conditional recognition: the political character of recognition is based on what is known as conditional recognition. Sometimes states are recognized subject to certain conditions, in general, compliance with certain obligations. Examples of such conditions are: respect and guarantee the rights of ethnic groups, national groups and minorities; respect for religious freedoms; and respect for the rule of law, democracy, and human rights.[3]

Types of theories:

There are two theories related to Recognition:

1. Constitutive theory:  

This theory states that the act of recognition by other states creates a new state and confers its legal personality and not the process itself by which its independence has been gained.

It anticipates that the new states are formed by virtue of the will and consent of existing states. The main exponents of this theory are Oppenheim, Anzilotti, and Holland.

The disadvantage of this theory is that a non-recognized state might not be subjected to the obligations imposed by international law and may be free of restrictions and obligations to the international community, for example, the prohibition of aggression. And mainly that in the first instance states do not seem to accept recognition as a legal obligation and see it as a purely political act.

2. Declaratory theory:

This theory states that a new State or a new government exists independent of Recognition. The recognition is merely an assumption of an existing state of affairs.

It provides that the identification of a new State under international law occurs not by virtue of recognition by other states, but by virtue of a factual situation legally built by its own efforts. Recognition gives only a formal acknowledgment of an existing fact and recognition of a State’s willingness to accept the consequences of this fact. Recognition is necessary for the reason of officiating the intercourse between nations.

This theory is often supported by citing the Tinoco Arbitration[4] case as it deals with the validity of the Tinoco regime thereby stating the that government’s capacity to enter into agreements can bind successive governments of Costa Rica. This again emphasizes the practical difficulties in bifurcating State recognition from governmental recognition.[5]

Modes of Recognition:

There are two modes of recognition:

  • De facto Recognition:  De facto recognition of the government occurs when the entity, even though is truly independent and exercises effective control over its territory, has not acquired sufficient stability or does not fulfil all the essential criteria for the recognition in international law such as the will or ability to fulfil the international obligation. [6] De facto Recognition is a temporary stage that precedes a de jure government. It is a provisional recognition of a state, and it can be done either conditionally or unconditionally.
  • De jure Recognition: De jure recognition occurs when an existing State recognizes a new state while considering that it meets all the essential features of a state. De jure recognition may be granted with or without granting de facto recognition. It is granted when the state acquires permanent stability and statehood. De jure recognition gives permanent status to the nascent state as a sovereign state.

Withdrawal of Recognition:

1. In case of De facto recognition

When a state which obtained de facto recognition does not meet the prerequisites of statehood, recognition may be withdrawn. The recognition may be withdrawn by the recognizing State by explicit or implicit methods.

2. In case of De Jure recognition

Although recognition of a state is a political act, de jure recognition is a legal act. The recognition of a state-recognized de jure can be removed when a state loses the essential characteristics of statehood or under other exceptional circumstances. Such revocation can be done by the express method by issuing a public statement.

Case: The Arantzazu Mendi Case[7]

During the Spanish Civil War, the United Kingdom recognized de jure the Republican government of Spain, but also de facto recognized the rebel government, the Nationalists. Both governments brought an action in the British courts to control the Spanish ship, Arantzazu Mendi when it arrived at a British port. The question was whether the Republican government has the right to own the ship. It was held by the Court that the de facto government control over state assets whose territory it controls. A de jure recognized government has control over its assets abroad. When there is effective control over the territory of a de facto government a foreign court cannot enforce its jurisdiction in the matter. It was held by the House of Lords, that since the Nationalists were recognized de facto, the contract had no effect on a large part of Spain, and it was immune from the jurisdiction of local courts of another sovereign.

Case: Luther vs Sagor[8]

In this case, the defendant purchased a quantity of timber from the new government of the Soviet Union in 1920. The applicant, a Russian company claimed title to the wood on the ground that it came from the factory of the applicant which was confiscated under the 1919 decree by the new government. The assertion of the plaintiff was that since the Soviet Union was not recognized by the British government, the decree of the Soviet Union should not be recognized. Court of First Instance of Britain ruled that the Soviet government has not yet been recognized by the British government and therefore, not entitled to the recognition of its sovereign acts. But when the case came on appeal, the new Soviet regime was recognized de facto by Britain and the Court of Appeal reversed the judgment of the trial court and concluded that the national government has recognized the government Soviet that the government really in possession of the sovereign powers in Russia, and the acts of government should be treated by the courts of this country with all due respect as the acts of a duly recognized foreign sovereign state.

[1] Montevideo Convention on the Rights and Duties of States, 1933. Article 1: ‘The state as a person of international law should possess the following qualification: a permanent population; defined territory; government; and capacity to enter into relations with the other states.’

[2] Recognition, Encyclopedia Britannica, available at:

[3] Shaw, The 1991 European Community Declaration on Yugoslavia and on the Guidelines on the Recognition of New States, 31 I.L.M. (1992), 1485-7. p. 387

[4] Tinoco Concessions (Great Britain v. Costa Rica), 1 R.I.A.A. 369 (1923)

[5] Sloane, Robert. (2006). The Changing Face of Recognition in International Law: A Case Study of Tibet.

[6] Oppenheim, International Law- a Treatise- 135, Nabu Press (2011)

[7] (1938) 61 Ll.L.Rep. 309

[8] (1921)3 KB 532

Riya Sharma from Vivekananda Institute of Professional Studies

“A law student, eager to look for opportunities to learn and grow. I believe in taking life as it comes

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