Law Optional (State Recognition and state Succession) by Rajnish Jindal

Model Answer

Question #1.What do you understand by the principle of ‘Continuity of State’ in the context of succession of government? Pinpoint the major areas to be addressed to improve upon the existing position relating to State succession rules and practice.
Ans.

Recognition of States must be distinguished from the recognition of governments, both of which are subject to their own set of rules. Questions regarding the recognition of governments normally only arise in relation to a (previously) recognized State (a State may have ‘competing’ governments, without having its (legal) continuity affected). While international law distinguishes States from their governments, it is normally only the government of a State that has the capacity to bind a State, such conduct of international relations. States can be roughly divided into three categories based on their recognition policy: States that explicitly recognize governments such as the United Kingdom before 1980 (de jure recognition), States that generally do not explicitly recognize governments, but might do so out of political considerations, such as the United States and lastly States that formally recognize only States and not their governments such as the Netherlands and those that follow the Estrada doctrine (de facto recognition). The recognition of a government merely implies that a State acknowledges that one or more persons are competent to act as organs of the State and to represent it in its international relations. This may be important for example, in cases where there are competing governments within the same recognized State (such as Congo in 1960), or in case of a possible secession. However, while it is generally accepted that statehood requires a government capable of exerting (effective and independent) authority over the territory and its people, it is not required that this government is recognized by the international community. The recognition of governments must therefore be considered separate from the criterion of effective authority.

Question #2.In the opinion of existing recognizing states, “the grant of recognition establishes that new state who fulfills the conditions of statehood required by International Law and that new state as an international person possesses the rights and duties which International Law attributes to states.” Comment.

Ans.

A new state is born out from an existing State or an old State which disappeared and comes with a new name or by splitting an existing State into two States. If a new state enjoys certain rights, privileges and obligations then it must get recognition as a state, which is very essential. However, there are some minimum criteria required before a State is considered to be a State. A State must get the De Jure (when a state is legally recognized) recognition for considering a State as a sovereign State. Political thought plays an important role in this decision whether to grant recognition or not. For recognition as a State, it must enter into relations with the other existing States. The elements, theories, and processes are reflected in this article.

Under International Law, recognition of a State can be defined as:

A state acknowledgment or acceptance as an international personality by the existing State of the international community. The declaration to fulfill certain essential conditions of Statehood as required by International Law.

Essentials of Recognition of a State

1. Population;
2. Territory;
3. Government;
4. Sovereignty;
5. Control should tend towards permanency.

If these conditions are fulfilled, then the State can be recognized.

Recognition of a new State: Recognition specifies the willingness of recognizing State. Existing State is a member of the International Community who will deal with a new State.Under International law it allows the recognized State to exercise the rights and duties of the State. Recognition of the Government automatically involved in recognition of a new State.

Recognition of a new government: Through the medium of the government a State participates in the benefits of International Law largely. To recognise the government, recognising the State is important.

Objective Test

1. Is there any opposition or not?
2. Whether the new government has effective territory?

Subjective Test

1. Whether fulfilled the International Obligations?

The recognition of the State is an essential procedure, so that the State can enjoy the rights and privileges as an independent community under International law. The recognition be it De Facto and De Jure, both provides rights, privileges and obligations.

When a state gets De Facto recognition, its right, privileges and obligations are less but when De Jure is recognised by the State it gets absolute rights, liabilities and privileges. The recognition of the State has some political influence on the International Platform.

There are many situations where powerful States create difficulties in recognition of a newly formed State. This can be withdrawn when any State does not fulfill the conditions for being a sovereign State. De Jure and De Facto recognition may vary from case to case. De Jure recognition can be given directly to the State, there is no necessity of De Facto recognition even if De Facto is considered as the primary step to achieve De Jure recognition.