The de facto recognized State cannot enjoy full diplomatic immunity. De jure recognition may be granted with or without de facto recognition. 155 Ibid. 148 and argues that “recognition as a state in response to a violation of international law, as opposed to non-recognition of a state on political grounds, has a clearly defined scope. In the case of non-recognition as a state, it is not the subjective will of the individual state. but the objective legal status of the `State` in question” (emphasis added). Crawford (No. 11) 160 argues that while the illegality in question is significant, “States have a duty under customary international law not to recognize the act as legal. The rule in question must be one of the few peremptory norms, or at least a substantive rule, of general international law, so that illegality concerns the international community as a whole and not only individual States.
152 Article 1 of the Montevideo Convention on the Rights and Obligations of States provides: `The State, as a person governed by international law, must possess the following qualifications: (a) a permanent population; (b) a demarcated area; (c) Government; and (d) the capacity to establish relations with other States” (Montevideo Convention on the Rights and Duties of States 165 LNTS 19 (1933), art. 1). There have been many cases where powerful States have erected obstacles in recognition of a newly created State. It may even be a withdrawal if the recognising State considers that the new State does not qualify as a sovereign State. Recognition may be explicit or tacit, and its mode, i.e. de facto and de jure recognition, varies from case to case. The main proponents of the declaratory theory of the state are Wigner, Hall, Fisher and Brierly. According to this theory, each new state is independent of the consent of existing states. This theory was established in Article 3 of the 1933 Montevideo Conference. This theory asserts that the existence of a new State does not depend on recognition by the existing State. Even before being recognized by other States, the new State has the right to defend its integrity and independence under international law. 20 Decision of the Council of Heads of State of the Commonwealth of Independent States (1992) 31 ILM 138(1).
However, Russia`s continued membership of the Soviet Union in the UN is not undisputed by legal scholars. In fact, it was not an example of a change of name of a state or the secession of part of the territory of the Soviet Union. Rather, it was an example of dissolution and “with the demise of the Soviet Union. its membership in the UN should have automatically ceased and Russia should have been admitted to the United Nations in the same way as the other newly independent republics (with the exception of Belarus and Ukraine)” (Y Blum, “Russia takes the seat of the Soviet Union at the United Nations” (1992) 3 EJIL 354, 359). As we have seen, the former Soviet republics agreed that Russia would maintain the Soviet Union`s membership in the United Nations. However, the correct legal means of achieving this objective would have been for all the republics of the Soviet Union, with the exception of Russia, to secede from the Union, thus preserving continuity between the Soviet Union and Russia for the purposes of membership in the United Nations” (ibid. 361). Nevertheless, it is questionable whether such a path was possible in the rather complicated Soviet political situation of 1991. 132 See, in that regard, the following argument: `The statements …
Kosovo`s independence is little more than feeble attempts to replace the widely accepted declaratory theory with a constitutive approach to recognition. Such claims contradict the consensus that Security Council Resolution 1244 continues to apply to the territory of Kosovo, and it should be noted that the UN`s “preliminary legal assessment” is that “the opinion does not affect the status of UNMIK or any status-neutral policy.” Hannum, H, “The Advisory Opinion on Kosovo: An Opportunity Lost, or a Poisoned Chalice Refused” (2011) 24 Leiden J Int`l L 155CrossRefGoogle Scholar, 156 (emphasis in original). Many lawyers are critical of conditional recognition. Conditional recognition is criticised on the grounds that recognition is a legal procedure and that no additional conditions other than those recognised by law should be attached. Another reason for criticism is that if the recognized State does not meet the condition attached to its recognition, it does not expire and should always be valid. De facto recognition is provisional recognition of statehood. This is a first step towards de jure recognition. This is temporary and de facto recognition as a state, which can be conditional or unconditional.
According to international law, article 1 of the 1933 Montevideo Conference defines a State as a person and sets out the following bases that an entity must possess in order to be recognized as a State: “In recognizing a State as a member of the international community, existing States declare that, in their opinion, the new State fulfils the conditions for statehood, as required by international law” (Oppenheim). States on an international platform. In order for each State to enjoy the rights, duties and obligations of international law and to be a member of the international community, the recognition of the entity as a State is very important. Only after the entity has been recognized as a State will it be recognized by other States members of the international community. International law considers the act of recognition to be an act independent of the existing community of states. This theory does not mean that a State does not exist if it is not recognized, but according to this theory, a State receives only exclusive rights and duties and becomes international law after its recognition by other existing States. Example: The Soviet Union received de jure recognition from the Soviet Union in 1924.