State recognition in international law.

In all legal systems, the subject of law is an entity, which has enforceable rights and duties at the law. It can be a company or an individual and both are defined as “legal person” by the law. Legal personality is the main clause for the entities to function or in other words to allege and enforce a claim.

International law is constituted by States and it is generally concerning the activities and the transactions of States. International law covers the participants such as states, international organisations, regional organisations, non-governmental organisations, public companies, private companies and individuals.

Definition of states.

International law states that, an entity which meets the international legal criteria of statehood is able to be a State, which are given under Article 1 of the Montevideo Convention on Rights and Duties of States. These are:

1. a permanent population 
2. a defined territory. However, there is not a necessity of having well- established boundaries as the international Court of Justice said in the North Sea Continental Shelf cases, “ ... there is no rule that the land frontiers of a state must be fully delimited and defined”.
3. government and 
4. capacity to enter into relations with other states.

What is recognition?

Recognition of an entity doesn’t mean only that this entity has met the required qualifications, but also that the recognising state will enter into relations with the recognised State and let that State to enjoy usual legal consequences of recognition such as privileges and immunities within the domestic legal order. Therefore it is claimed 

that, generally the decision of to recognise or not, depends on political views rather than legal grounds. It is right because to enter into relations with a foreign State and permit some privileges to her, is directly relevant to the State’s interests. Thus, when States give a decision about recognition, of course they will weigh the advantages against the 

disadvantages of this decision.

Theories of recognition.

There are mainly two theories relevant to recognition - the constitutive and the declaratory theory. The constitutive theory asserts that States and governments do not legally exist until recognised by the international community and the declaratory theory adopts that States and governments gain in the international personality when they come into existence.

According the constitutive theory, creation of a new State depends on the acceptance of present States. The new State will have the rights and duties at the time of being recognised. 

Criticisms: This theory has some queries, such as what will happen if some existing States recognise the new one and the others do not? And how it could be possible to put in force some restrains, like prohibition on aggression, against the unrecognised State? 

The declaratory theory claims that a State will be formed free from the consents of the other States, just after she meet the international requirements. This approach is laid down in the first sentence of Article 3 of the Montevideo Convention (1933), "The political existence of the state is independent of recognition by the other states." The declaratory theory seems to be more adequate for practice than the other.

Recognition of Governments.

Recognition of government is discussed where the change of the government is unconstitutional. When a State recognizes a new “government,” it usually acknowledges a person or group of persons as competent to act as the organ of the State and to represent it in its international relations.  The only criterion in international law for the recognition of an authority as the government of a State is its exercise of effective control over the State’s territory.  States may, however, continue to recognize a government-in-exile if an incumbent government is forced into exile by foreign occupation or the de facto government in situ has been created in violation of international law. 

Tobar Doctrine. 

This is a doctrine of non-recognition of governments first enunciated by Carlos Tobar, the Minister of Foreign Relations of Ecuador, in March 1907, and subsequently adopted into two treaties concluded among the Central American Republics: 

1. the General Treaty of Peace and Amity between the Central American States (1907) and 
2. General Treaty of Peace and Amity between the Central American States (1923)

According to the doctrine as enunciated in these treaties, According to Tobar doctrine, an unconstitutional change of the government should be recognised only when the people accept it.

Estrada Doctrine.

The Estrada Doctrine suggests that under the establishment of de facto governments in other countries, Mexico is not in favor of giving recognition because it is considered a degrading practice. By hurting the sovereignty of other states, it puts them in a vulnerable position because their internal affairs can be judged by other governments, that in fact assume a critical attitude when deciding about the legality and legitimacy of foreign governments.

Legal effect.

The legal effects of recognition differ depending on the forum.  While in international and continental European courts recognition has only probative value, in English and American courts an official statement of recognition or non-recognition by the forum government is conclusive evidence as to the legal status of a foreign authority or entity as, according to the “one voice doctrine,” in matters of foreign affairs the judiciary and the executive are to speak with one voice.  The forum government’s position may be introduced in the judicial process by way of a Foreign Office certificate, amicus curiae brief or statement of interest.