1. Recognition and International Law
Dr. Thomas Grant (Grant) described the act of recognition of States as “a procedure whereby the governments of existing states respond to certain changes in the world community.”3 The act of formally recognising an entity as a State is in effect, a declaration that it has fulfilled the conditions of Statehood as required by international law. If these conditions are fulfilled, existing States have the responsibility of granting recognition.4 Only States and international organisations would stand to have an international legal personality.5 Having a legal personality allows an entity to enforce claims.6 It is often contended that the “formation of a new State is…a matter of fact and not of law”.7 Academicians agree that the declaration of recognition is a political act with legal consequences.8
A state would only come into existence when the community involved satisfied the internationally accepted characteristics of statehood. These characteristics are listed under Article 1 of the Montevideo Convention on Rights and Duties of States 1993. To qualify as a State, the entity must have a permanent population, a defined territory, under the control of its own government, and the capacity to enter into relations with other States.
A permanent population would not have to consist of a people that were homogeneous, but that they were to be seen as a settled population. The size of its territory is not of a concern either. However, they would have to be under the control of a central government that has the ability of exercising effective control of the territory, as it is the essence of a State.9 Once this is established, no domestic changes such as wars or military occupations will have any effect on that statehood.10 This extends to States of who are similar to Somalia, who still has the privilege of maintaining its United Nations (UN) membership even without a government who has effective control and is deemed to be a failed State.11 Governments of these States would also need to showcase its sovereignty in external relations.
2. Express and Implied Recognition
There are two forms of recognition of a State or government. Firstly, it is said to be express when a formal indication or declaration is issued by a recognising state. Secondly, it is implied if a state enters into an official relation with the new entity. This can happen in several ways such as, sending and receiving diplomatic representatives, acknowledging its flag and bilateral relations, to name a few. A good example of a State that frequently puts this into practice would be the United Kingdom (UK), who traditionally recognised new states through bilateral treaties. It is important that there is a very clear indication of intent to recognise that entity or it shall fall short of being impliedly recognised.12 Implied recognition is generally not desirable, as States want control of their recognition.13
Recognising (or not recognising) States would have major international significance. Typically, decisions to recognise stand to depend more upon political considerations than exclusively legal factors.14 A political case example would be when the United States (US) was unwilling to recognise the People’s Republic of China (PRC) for many years. At the time, there was no actual…