Implied Recognition Theory

Recognition

Recognition essentially denotes a willingness on the part of recognizing entity to enter into relations with the entity being recognized. However, an entity cannot demand recognition as right, because recognition is a political act which produces legal consequences. There are two types of recognition; (1) Express Recognition is recognition through public statement, diplomatic notes, or bilateral treaty which expressly states recognition by an entity to another entity, (2) Implied Recognition is commonly practiced than express recognition. The state acts such as opening diplomatic relations with new state, and the presence of a state’s leader on a new state independence’s ceremony can be interpreted as the recognition of an

The recognition of state cannot be retracted even though the requirements of statehood are expired or failed to be fulfilled, the state may no longer exist but de-recognizing is unnecessary.

Theories

a. The constitutive theory

This theory emerged in 19th century, the famous scholars who initiated of this idea are Kelsen and Vedross. It is emphasized the act of recognition itself and maintain that it is the act of recognition which establishes the international personality of the entity in question, and according to this theory even though the entity already possesses the requirements of statehood but, without state recognition the entity cannot possess international personality.

b. The declaratory (or evidentiary) theory

This theory emerged in 20th century, the famous scholars who initiated of this idea are Jellinek, Cavagleri, and Strup. It minimizes the importance of the act of recognition, regard recognition as only formal acknowledgement of already existing circumstances, the act of recognition is nor regarded as what creates the state.

c. The collective

Stimson Theory

According to this theory, recognition should not be given to a new government that born from coup d’état (Bahasa Indonesia: kudeta).

5. Estrada Theory (Non-recognition doctrine)

According to Estrada, Recognition Institutions more causing harm tan good. By using political considerations, these institutions tend to be misused by parties/entities to give recognition for their interests. Recognized or refusal of recognition a new entity as a state is same with intervention of internal affairs of that state.

Legal Consequences of Unrecognized government

- The unrecognized government cannot sue the territory of state that refused to recognized their governmental existence

- The unrecognized government cannot request disbursement of state’s assets within the territory of the state’s that refused to recognized their governmental existence

- Treaty that had been made by the government before with the state that refused to recognized the new government, cannot be implemented.

Sources:

___. Sefriani, Hukum Internasional Suatu Pengantar, PT Rajagrafindo Persada, Depok, 2017.

MM Wallace. Rebecca and Olga Martin-Ortega, International Law, Sweet and Maxwell, London,