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    Wednesday, 18 January 2017

    Different Theories on Recognition of State

    Recognition of states according to Oppenheim ‘A State is land becomes on International person through recognition only and exclusively in order to appreciate this position it is necessary to set out the salient features and theories of recognition.

    As aptly remarked by Professor G. Schwargenberger. “The growth of International law is best understood as an expanding process from a nucleus of entitles 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-option. In exercising this prerogative the existing subjects of International Law employ the device of recognition.

    According to Prof L. Oppenheim. In recognizing 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 international Law.

    Fenwick also subscribes to the view that through recognition the members of the international community formally acknowledge that the new state has acquired international personality.

    The institute of International Law has defined the term recognition in the following words; It is the fee act by which one or more states acknowledge the existence of a definite territory 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.

    According to Kelsen, a community to be recognized as an international person must fulfill the following conditions
    a. The community must be politically organized
    b. It should have control over a definite territory
    c. This definite control should tend towards permanence, and
    d. The community thus constituted must be independent.
    Recognition may be defined as formal acknowledgement by an existing member of the international community of the international personality of a state of political group not hitherto maintaining official relations with it. According to starke. The subject of recognition can be presented less as a collection of clearly defined rules or principles than as a body of fluid, inconsistent and unsystematic state practice.

    Recognition is a declaration on the part of the recognizing state that a foreign community or authority is in possession of the necessary qualifications of statehood of Government capacity or of belligerency. Thus it is one of the chief methods of putting of seal of approval upon the existence of state.

    Theories of Recognition

    There are two main theories of recognition
    a. the constitute theory: The legal existence of new States according to this theory is deduced from the will of those already established. He was the founder of this school and Fellink was the first to offer the modern formulation of the constructive doctrine. According to this theory, it is the act of recognition alone which creates statehood and clothes a new Government with an authority in sphere. It is the process by which a political community acquires personality in International Law by becoming a member of the family of nations.

    The constitutive theory presents serious difficulty. It would oblige us to say that an unrecognized state has neither rights nor duties at international Law which is an absurd suggestion. Critics find fault with the constitutive theory.

    b. Declaratory or evidentiary theory: According to this theory statehood of the authority of a new government exists prior to and independently of recognition. A state can exist without recognition but it gets international character only when it is recognized. Thus we see that recognition is purely a political act and it proceeds from political considerations.

    Out of the above two theories regarding recognition the truth seems to lie somewhere between the two extremes. Sometimes one theory is applicable and sometimes another theory is acted upon. However, international practice is in favor of the evidentiary or declaratory theory. Pitt cobbet also holds the declaratory theory to be correct and in consonance with it he says that no formal recognition by the state is needed. Critics find fault with the constitutive theory. In their opinion this theory marks the origin of mutuality which is expected in the process of recognition. This theory presents serious difficulty some times.

    Criticism

    This theory has also been subject to criticism. The view that recognition is only a declaratory of an existing fact is not completely correct. In fact when a state is recognized, it is a declaratory act. But the moment it is recognized there ensures some legal effects of recognition which may be said to be of constitutive nature. 
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