Abstract  

The legal framework governing state recognition is pivotal in shaping a nation’s standing in the international community. This write-up explores the implications of state recognition, particularly under the Consecutive and Declaratory Theories, highlighting the rights and obligations conferred upon recognized states. These include the ability to engage in diplomatic relations, form treaties, and enjoy full international statehood. The lack of recognition hampers a state's ability to pursue legal action in foreign jurisdictions, as illustrated by Palestine's challenges due to geopolitical dynamics and the influence of powerful states within the United Nations. In contrast, Afghanistan presents a unique case; despite lacking formal recognition, it has been able to engage in international trade and diplomatic dialogues through "de facto" diplomacy. By fostering pragmatic relationships, particularly with nations like China, Russia, and Pakistan, Afghanistan mitigates regional instability and facilitates essential interactions, showcasing an alternative model of international engagement without formal acknowledgment.

Introduction:

Principle of the Recognition of States refers to the recognition of a community as a State as it fulfills the conditions of statehood as required by international law. If these conditions are fulfilled, existing States is said to be under the duty to grant recognition. But in the matter of recognition the majority of writers support the view that the act of recognition as such is not a matter governed by law, but a question of policy.[1] In this write-up, the question ‘whether recognition in International Law is a constitutive necessity or just a declaratory formality’ is going to be focused. To lay down the answer of the said question a critical evaluation of example of Palestine and Afghanistan is going to be referred.

Definition and Essential Elements of Recognition in International law:

Recognition in international law is the formal acknowledgment by existing states of a new state or government, confirming its status as an international legal person. It is a discretionary act of a state that enables the entity to establish diplomatic relations, enter treaties, and access international courts. It does not create the state but recognizes its existence.[2] It is often dependent on political decision or political relation between states. Recognition of state under the International Legal System can be defined as

"The formal acknowledgement or acceptance of a new state as an international personality by the existing States of the International community"[3]

According to Black's Law Dictionary,

“Recognition of a state is the formal acknowledgment by one state that another state exists as a separate and independent government. This official act acknowledges, either expressly or by implication, the existence of a state or government, including changes in territorial sovereignty.”[4]

However, the recognition of a state under international law is a declaration of intent by one state to acknowledge another power as a "state" within the meaning of international law. But a state for being recognized has to have some criterion or essential elements as prescribed in International Law. In this respect, the Montevideo Conference, 1933 defines the state as a person and outlines the following essentials[5] that an entity should possess with a view to acquiring recognition as a state:

Ø  It should have a permanent population.

Ø   A definite territory should be controlled by it.

Ø   There should be a government of that particular territory.

Ø   That entity should have the capacity to enter into relations with other states.

Kelsen identifies the essential conditions of recognition that “a community to be recognized as international person must fulfill the following conditions: (1) The community must be politically organized; (2) It should have control over a definite territory: (3) This definite control should tend towards permanence and (4) The community thus constituted must be independent. Thus, the conditions of Statehood are (a) People: (b) a territory: (c) a government; and (d) sovereignty.”[6]

Thus, International law does not specify how to assess these fundamental criteria. In reality, it allows members of the international community to decide on their own whether the recognized states fulfill the necessary conditions for statehood. This is why recognition is often viewed as a function of political diplomacy.

Forms of Recognition:

a.      Express and Implied recognition: Recognition fundamentally revolves around intention. It's based on the will and intent of a State and can be either express or implied. The specific means through which recognition takes place is not particularly important. What truly matters is that the act of recognition must clearly demonstrate the intention to engage with the new State, acknowledge the new government as the legitimate authority, maintain a relationship with it, or grant insurgents the rights of belligerents. Express recognition signifies the official acknowledgment of a State through a formal declaration. In practice, this can occur through various means, such as an official announcement, a personal communication from a head of State or a foreign affairs minister, a diplomatic note, or a treaty recognizing the State. However, recognition does not always need to be express; it can also be implied in certain situations. There are instances where one State's actions might lead to the conclusion that it implicitly recognizes another State or government.[7]

b.      De facto and De jure Recognition: De facto recognition refers to a provisional acknowledgment of statehood, serving as an initial step toward de jure recognition. This type of recognition is temporary and based on actual circumstances, and it may come with conditions or be unconditional. Conversely, de jure recognition occurs when an established state acknowledges a new state, deeming that the new entity possesses all the fundamental attributes of a state. De jure recognition can be awarded with or without the prior grant of de facto recognition. This recognition is typically bestowed once a newly established state achieves lasting stability and is seen as a legitimate entity. Essentially, de jure recognition solidifies the status of a newly born state as a sovereign entity.[8]

Principles of recognition (Consecutive and Declaratory Theory):

The recognition of a new entity as a sovereign state is based on two main theories, i.e. Consecutive Theory and Declaratory Theory.[9]In consecutive theory, a State has to be considered as an international person, its recognition by the existing states as a sovereign is required. This theory is of the view that only after recognition a State gets the status of an International Person and becomes a subject to International Law. So, even if an entity possesses all the characteristics of a state, it does not get the status of an international person unless recognized by the existing States. On the other hand, The Declaratory Theory of Statehood posits that the formation of a new state does not require the consent of existing states. It is outlined in Article 3 of the Montevideo Conference of 1933, which asserts that a new state's existence is not contingent upon recognition by other states. Furthermore, even in the absence of such recognition, a new state retains the right to defend its sovereignty and independence according to international law.[10]

Necessities of Recognition (Constitutive Necessity or Declaratory Formality):

In line with the discussion mentioned in the preceding section it can be said that recognition is governed by Consecutive Theory and Declaratory Theory. Thus, when a state is recognized by other subjects of international law in accordance with their rules and regulations, it owes certain rights, obligations and immunities which can be outlined as follows[11]:

Ø  It acquires the capacity to enter into diplomatic relations with other states.

Ø  It acquires the capacity to enter into treaties with other states.

Ø  The state is able to enjoy the rights and privileges of international statehood.

Ø  The state can undergo state succession.

Ø  With the recognition of state comes the right to sue and to be sued.

Ø  The state can become a member of the United Nations organization.

On the other hand, a state which is not recognized by other subjects of international law lacks the legal standing to sue in foreign courts.[12] Again, an unrecognized government cannot access domestic courts to sue.[13]

Though, the above discussion advocates in favour of recognition, due to the geo-political reality a state e.g. Palestine or government cannot function properly even after it being recognized by most of the states. Adversely, some governments e.g. Taleban-led government of Afghanistan maintains international and regional relations without its recognition by most of the member states of United States of America. In this respect in Luther v. Sagor (1921) case[14]English court confirmed that acts of an unrecognized government cannot be recognized by the courts. But the requisition of recognition is curtailed to some extent in Tinoco Arbitration (Great Britain v. Costa Rica, 1923) case where it is established that recognition is declaratory, not constitutive. Even if a government is not recognized by other states, its legal actions (contracts) can remain valid if it had actual control.[15]And the same instance happened in the fact of Afghanistan.

Why has Palestine not been able to be a member of United Nations in spite of its having growing wave of recognition?

A growing wave of recognition from Western nations, spearheaded by France, the United Kingdom, Australia, and Canada, has led to 157 countries now officially recognizing a Palestinian state. Among the latest nations to extend their recognition are some of Israel's strong allies, who have sought to position this acknowledgment as a way to uphold the concept of a two-state solution, which aims for a Palestinian state to exist alongside Israel. Now question arises: does recognition bring Palestine any closer to statehood, and what does a territory need to be considered a state?

As referred earlier, there is no single definition of a state, but international law widely cites the Montevideo Convention of 1933 that is previously discussed by The UN when discussing Palestinian statehood. The convention does not require a state to be recognized by others. Rather, it requires a territory is defined by its clear borders, a governing body, the ability to engage with other nations, and a stable population. Many states that acknowledge Palestine tend to be unclear about its precise borders. However, most of them seem to envision boundaries similar to those that existed prior to Israel's 1967 war, which includes Gaza, the West Bank, and East Jerusalem. Israel has held Palestinian territory since 1967, a situation deemed illegal under international law.

Photo- I: In its short history, the state of Israel has not only occupied Palestinian land, but also the sovereign territory of 3 of its 4 neighboring countries. Today, Israel continues to occupy land in Syria, Lebanon, and Palestine[16]

The Oslo Accords, established in the 1990s between Israel and the Palestinians, were intended to initiate the journey towards establishing a Palestinian state and led to the creation of the Palestinian Authority (PA).The PA plays a role in international relations, fostering diplomatic connections with various countries and maintaining a network of diplomatic missions, which include embassies and representative offices. In terms of demographics, millions of Palestinians reside in the West Bank, Gaza, and East Jerusalem, continuing to do so for generations amidst long-standing Israeli policies. Nevertheless, there is ongoing debate regarding the extent of Israel's recognition of the PA as an independent governing body. While the PA performs certain governmental roles, its ability to fully govern has been subject to scrutiny by international organizations.[17]Although, there are some lacunas for Palestine as to its statehood, it could be given the status of member states the United Nations, as it fulfills most of the essentials of statehood. But that could not happen due geo political reality in the Middle East and alliance between United Nations and Israel. Besides, United Nations veto power in the United Nations General assembly also hinders Palestine from being a member state of United Nations.

Photo- II:  Members of the United Nations General Assembly vote on a resolution at the resumed 10th Emergency Special Session meeting on the situation in the Occupied Palestinian Territory.[18]

How has Afghanistan managed to engage in international trade, global affairs and diplomatic dialogues without formal recognition?

Afghanistan has navigated the complexities of global relations without formal recognition by adopting a strategy of "de facto" diplomacy. This involves nations interacting with the Taliban, recognizing them as the governing authority for pragmatic reasons such as regional security, humanitarian needs, and economic interests. The strategy underscores active engagement with neighboring countries and maintaining essential working-level contacts for trade and consular services. There are some key strategies Afghanistan has employed: Firstly, Countries like China, Russia, and Pakistan have established connections with the Taliban to safeguard their interests and to mitigate regional instability, all while stopping short of formal, legal recognition. Secondly, The Taliban has prioritized bilateral relations, especially with countries like Pakistan and China, aiming to secure trade agreements and investments that can help circumvent Western economic sanctions. Thirdly, various nations continue to engage at a working level, hosting Taliban representatives and keeping embassies operational in Kabul to manage consular services, trade issues, and regional security matters. Fourthly, international organizations such as the UN maintain a presence in Afghanistan to provide essential aid, which involves technical and non-political interactions with the Taliban authorities. Fifthly, since August 2021, the Taliban has engaged in over 1,380 meetings with representatives from around 80 countries, highlighting a significant, albeit unofficial, level of international interaction.[19]However, while Western nations have largely held back on granting formal recognition, this practical "de facto" approach has allowed the Taliban to operate within the global arena.

Photo- III: Dmitry Zhirnov, left, Russia's ambassador to Afghanistan, meeting with Amir Khan Muttaqi, Afghanistan's Foreign Minister in Kabul in April, 2025 [Handout/Afghanistan's Ministry of Foreign Affairs via AFP.[20]

Concluding Remarks:

The recognition of a state is a crucial process for it to enjoy the benefits of statehood under international law. There is a debate between the Consecutive Theory and the Declaratory Theory of Recognition among various scholars. However, we can say that the approach to recognition lies somewhere between these two theories. Recognition can be either de facto or de jure, and it brings different rights, privileges, and obligations. When a state achieves de facto recognition, it receives limited rights, privileges, and obligations. In contrast, de jure recognition grants it full rights, liabilities, and privileges. The recognition of a state is heavily influenced by political factors on the international stage. Many times, powerful states create hurdles for the recognition of newly formed states. They may even withdraw recognition if they believe the new state is not meeting the necessary criteria for sovereignty. Recognition can occur either explicitly or implicitly, and the approach—de facto or de jure—varies depending on each case.

Written by: 
Adv. Masum
LL. B. & LL. M., University of Dhaka
Senior Officer (Legal Officer), 
Rupali Bank PLC
             &
Former Lecturer, 
Department of Law
Primeasia University