Author : VS Warrier
The growth of international law is best understood as an expanding process from a nucleus of entities which have accepted each other’s negative sovereignty and on the basis of consent, are prepared to maintain and possibly expand the scope of their legal relations like most clubs, the society of sovereign states is based on the principle of co-operation. In exercising these prerogative, the existing subjects of international law employ the device of recognition.
It is the free act by which one or more States acknowledges the existence of a definite territory of a human society politically organised independent of any other existing States and capable of observing obligations of international law by which they manifest through their intention to consider it a member of international community.
In recognising 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 the international law. Under international law most important essentials of a State are;
(a) Permanent Population.
(b) Defined territory, a Government, and,
(c) Capacity to enter into international relations.
There are two theories of recognition. One is Constructive Theory, and the other is Declaratory Theory/Evidentiary Theory.
Constitutive means which essentially constitutes something, to be the constituent element of, to give a legal form to a court, tribunal, country, etc. According to this theory, recognition is the most essential element. Recognition gives constitutive effect. Recognition is necessary condition to create statehood and personality. By recognition only, a State takes active part in international law. A State comes into existence through recognition only and exclusively. A State doesn’t exist for the purposes of international law, until it is recognised. It is the process by which a political community acquires personality in international law by becoming a member of the family of nations.
According to the Constitutive theory of statehood and participation in the international legal order are attained by political groups only in so far as they are recognised by established state. A state cannot be said to have attained maturity unless it is stamped with the seal of recognition, which is indispensable to the full enjoyment of rights which it connotes.
Declaration means a document formalising matters to be made publicly. While Constructive theory gives utmost importance to recognition, the Declaratory theory, which is also called as Evidentiary Theory doesn’t give any importance to the process of recognition. According to this theory, recognition of a State is formal only. It has no legal effect as the existence of a State is mere question of facts.
According to this theory, recognition is merely an acknowledgement of the facts. A State, if possesses the characteristics of statehood, viz. population, government and capacity to maintain relationship with other States, are evidentiary facts, and by these facts, a State becomes a member of international family.
The existence of a State is a matter of fact. So long as a political community possesses in fact the requisites of a statehood, formal recognition would not appear to be a condition precedent to acquisition of the ordinary rights and obligation incident thereto.
The granting of recognition to a new State is not a ‘Constitutive’, but only a ‘Declaratory’ act. A State may exist without being recognised and if exists it, 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. A State is theoretically a politically organised community. It has a right to enter the family of nations, if it has the characteristics of statehood. No state has a right to withhold recognition when it has been achieved and earned the status of a State.
Recognition is both constitutive and declaratory. Recognition is declaratory of an existing fact, constitute in nature. According to Constitutive Theory, only recognition affords a State the rights and liabilities in the international law. The existing States have the legal duty to recognise a new State, which possess the characteristics of a statehood.
According to Declaratory Theory, recognition is a mere receipts of a matter of facts. The existing States are not bound to recognise a State. A State, which has the characteristics of a statehood, is automatically recognised by the other existing States. Recognition doesn’t owe any duty. It depends upon the harmonial relations, sweet will between the new State and the existing States. No State is bound to recognise any new State immediately on its birth.
Hence, we can say that, to grant recognition is not a legal duty, but its purely political and diplomatic. However, recognition can be conditional. Recognition may be given on certain conditions imposed by recognising States.