Recognition is the process by which a political community acquires personality in International Law by becoming a member of the family of Nations. Only by Recognition State becomes a participant. (See in detail... What is Recognition, Consequences of Recognition and Non- Recognition.)
Theories of Recognition:
There are two theories of Recognition are as follows-
1) Constitutive Theory:
Recognition is a process whereby a State is constituted, hence it is called as a constitutive theory. Hegel is a pioneer of this theory. Which is supported and propounded by Anzilotti, Holland and Oppenheim.
According to Anzilotti, since the rules of International law have grown up by the common consent of the States, is a subject of international law comes into being with the conclusion of the first agreement as expressed by the Treaty of recognition. Such a recognition is reciprocal and constitutive, creating rights and obligations which did not exist before.
According to Holland, a State cannot be said to have attained maturity unless it is stamped with the seal of recognition, which is indispensable to the full enjoyment of rights which it Connotes.
According to Oppenheim, a State is and becomes, an international person through recognition only and exclusively. According to this theory, recognition gives the rights and duties to recognized States under the international law. The recognition of Poland Czechoslovakia through the instrumentality of the Treaty and Versailles lends support to the constitutive theory of recognition.
2) Declaratory theory or Evidentiary Theory:
The declaratory theory is also called as an Evidentiary theory. The chief exponents of this theory are Professor Hall, Wagner, Pitt Cobbett, and Brierly. This theory requires evidence/ declaration. It is some sort of confirmation on the already existing State. It is exactly the reverse process of constitutive theory for example first statehood then recognition.
According to Professor Hall "the State, which is theoretically a political is organized Community, enters as of right into the family of States and must be treated according to the law as soon as it is able to show the marks of statehood no state has a right to withhold recognition when it was being earned.
According to Brierly the granting of recognition to a new State it is not a 'constitutive' but a 'declaratory' act it does not bring into legal existence a State which did not exist before. A State may exist without being recognized, and if it does exist in fact then, whether or not it has been formally recognized by other states, It has a right to be treated by them as a State.
Conclusion
Recognition is the status of Political Community. Constitutive and declarative are the two main theories of recognition but none of them is perfect. Each theory has its Merit and demerits. There are certain legal effects of recognition and also consequences of non-recognition.
(See legal effects of recognition and consequences of non-recognition here >> State Recognition.)
See Also
1) Difference between De Jure Recognition and De facto Recognition
2) Definition and Kinds of Sources of Law
3) Public International Law and Private international law
4) Difference between Nationality and Citizenship
5) Origin and development of Comparative Law
Theories of Recognition:
There are two theories of Recognition are as follows-
1) Constitutive Theory:
Recognition is a process whereby a State is constituted, hence it is called as a constitutive theory. Hegel is a pioneer of this theory. Which is supported and propounded by Anzilotti, Holland and Oppenheim.
According to Anzilotti, since the rules of International law have grown up by the common consent of the States, is a subject of international law comes into being with the conclusion of the first agreement as expressed by the Treaty of recognition. Such a recognition is reciprocal and constitutive, creating rights and obligations which did not exist before.
According to Holland, a State cannot be said to have attained maturity unless it is stamped with the seal of recognition, which is indispensable to the full enjoyment of rights which it Connotes.
According to Oppenheim, a State is and becomes, an international person through recognition only and exclusively. According to this theory, recognition gives the rights and duties to recognized States under the international law. The recognition of Poland Czechoslovakia through the instrumentality of the Treaty and Versailles lends support to the constitutive theory of recognition.
2) Declaratory theory or Evidentiary Theory:
The declaratory theory is also called as an Evidentiary theory. The chief exponents of this theory are Professor Hall, Wagner, Pitt Cobbett, and Brierly. This theory requires evidence/ declaration. It is some sort of confirmation on the already existing State. It is exactly the reverse process of constitutive theory for example first statehood then recognition.
According to Professor Hall "the State, which is theoretically a political is organized Community, enters as of right into the family of States and must be treated according to the law as soon as it is able to show the marks of statehood no state has a right to withhold recognition when it was being earned.
According to Brierly the granting of recognition to a new State it is not a 'constitutive' but a 'declaratory' act it does not bring into legal existence a State which did not exist before. A State may exist without being recognized, and if it does exist in fact then, whether or not it has been formally recognized by other states, It has a right to be treated by them as a State.
Conclusion
Recognition is the status of Political Community. Constitutive and declarative are the two main theories of recognition but none of them is perfect. Each theory has its Merit and demerits. There are certain legal effects of recognition and also consequences of non-recognition.
(See legal effects of recognition and consequences of non-recognition here >> State Recognition.)
See Also
1) Difference between De Jure Recognition and De facto Recognition
2) Definition and Kinds of Sources of Law
3) Public International Law and Private international law
4) Difference between Nationality and Citizenship
5) Origin and development of Comparative Law
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