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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