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vustudents
09-06-2012, 02:59 AM
Discuss in the light of state/ general government recognition in general. (1999)
Q. What is implied recognition? discuss possible withdrawal of recognition in light of de-facto dejure recognition. (2000)
Q. What do you understand by.
(a) Recognition of state/ government.
(b) Are existing states bound to grant recognition to new state.
(c) Is there a legal compulsion or a political convenience for granting recognition.
(d) Difference between de-facto and de-jure recognition. (2001)(2002)
Q. Write a detailed note on the following aspects recognition of states.
(i) Defacto recognition.
(ii) De jure recognition.
(iii) Legal effects of recognition (2005)
Q. Discuss in detail the theories of recognition of states. (2006/A)
1. Introduction:
Recognition is a process of accepting the legal status of a state. it is an act by which another state acknowledges that political entity recognized possesses attributes of statehood. recognition is important for state to acquire international status. the recognition confers right and duties upon the states.
2. Meaning:
It means ab free act by which one or more states acknowledges the existence of a definite territory of human being, politically organized independent of any other states and capable of observing obligations of international law.
3. Definition:
According to Schwarngen Berger:
'The growth of international law is best understood as an expanding process from a nucleus of entities which have accepted each other's negative sovereignty and on the basis of consent are prepared to maintain and possibility expand the scope of their legal relation.
Oppenheim:
'In recognizing a state as a member of international community the existing states declare that in their opinion the new states fulfil the conditions of statehood as required by the international law."
Fenwick:
"Recognition is international personality of a state."
4. Aspects of recognition:
The topic of recognition may be broadly divided into the following.
(i) Recognition of states.
(ii)Recognition of government.
(iii) Recognition of billigency.
(iv) Recognition of insurgency.
5. Law on "recognition of states" :
I. Essentials of statehood:
According to Kelson a community to be recognized as an international person must possess the following essentials.
(i) Population.
(ii) Government.
(iii) Sovereignty.
(iv) Territory.
II. Nature of recognition:
Acknowledgment of the possession of the attributes of statehood in a state depends upon the discretion of the existing state. the discretionary power is exercised in accordance with the policy of the state.
6. Theories of recognition:
There are two theories about recognition which are as under.
I. Constitutive theory:
According to constitutive theory recognition creates statehood or clothes on new state with any authority or status in international sphere. it implies that other state constitute the personality of the state recognizing it.
Criticism:
This theory is criticized for the reason that it cannot explained retrospective effects of recognition.
II. Declaratory theory:
According to declaratory theory state comes into existence as soon as it acquires the attributes of statehood. so recognition is merely a formal acknowledgement through which established facts about existence of a state are accepted.
Criticism:
Recognized creates new rights in newly recognized state.
7. Forms of recognition:
Following are two forms of recognition.
I. Express recognition:
Where an existing state recognizes the new state by a notification or declaration, announcing the intention of recognition is called to be express.
II. Implied recognition:
It is done by accrediting diplomatic representative or visit by head of state.
8. Kinds of recognition:
I. De facto recognition:
Where an existing state considers that the new state has not acquired sufficient stability, it may grant recognition to that state provisionally which is termed as Defacto recognition. the recognition state must possess essential elements of statehood and should be it to the subject of international law.
Schwargen Berger's views:
"When a state wants to delay the de-jure recognition of any state, it may, in the first stage grant de- facto recognition."
(i) De- facto recognition when can be withdrawn:
Defacto recognition once granted can be withdrawn if recognizing state considers that new state has not possess the capability of administrating its territory.
Case law
National bank of Ethiopia v/s National bank of Egypt 1973
'The court ruled that in view of the fact that the British government granted recognition to the Italian government as being the defato govt. of the area of the area abyssinia which was under Italian control effects must be given to an Italian decree in abyssinia dissolving the plaintiff bank appointing liquidator.:
II. De jure recognition:
De jure is actual recognition it is granted when in the view of recognizing state the recognized state possesses all the essential requirements of the statehood and it is capable of being a member of the international community.
9. Difference between de-facto and de jure recognition:
I. As to nature:
De facto recognition is temporary.
De-jure recognition is permanent.
II. As to revocation:
De facto recognition can be revoked.
De jure recognition can not be revoked.
III. As to effect:
De- facto has not retrospective effect.
De- jure recognition has retrospective effect.
IV As to right:
Ce facto recognition dose not confer title to retain property in other state.
De jure recognition confers title to retain property in other state.
V. As to diplomatic relation:
In defacto recognition diplomats not appointed.
In de jure recognition diplomatic relation are established.
VI. As to scope:
De facto recognition is of less scope because recognition is not possible through united nation is made when it is admitted to the membership of under nation.
10. Consequences of non-recognition:
(i) Cannot sue.
(ii) No diplomatic relation.
(iii) No right to get property situated in territory of the recognizing state.
11. Legal effects of recognition:
(i) Right to sue:
The recognized state becomes entitled to sue in the court of recognized state.
(ii) Establishment of diplomatic relation:
In case of de jure recognition diplomatic relation are established.
(iii) Application of the rules of international law:
The rule of international law apply to the recognizes state.
(iv) Right of succession:
The recognized states become entitled to get property situated in the foreign state.
(v) Sovereign immunity:
The recognized state become entitled to sovereign immunity for itself its property in the court of recognizing states.
12. Collective recognition:
International law dose not prohibit collective recognition similarly there is no prohibition on collective de- recognition. there are many instances of collection recognition.
13.Conclusion:
To conclude it can be said that recognition is a process through which a political community acquires international personality by becoming member of the nations. De facto and dejure are two important modes of acquiring recognition. defacto recognition is step toward dejure recognition.