Assignment on Public International Law

Recognition A Question Of Policy Than Of

Law

Name:Mercy Mukhim
Roll No:36
Semester:VI Semester (Jan 2020-July 2020)
Department:Law,North Eastern Hill University
Submitted To:Mr.S Tiwari
Contents
Headings Page No.
1.Introduction 1
2.Meaning of Recognition 2
3.Theories of Recognition 4
3.Types and Forms of Recognition 6
4.Legal Effects of Recognition 14
5.Rule of Recognition 15
6.Views on Political Act of Recognition 16
7.Conclusion 18
Table of Case
1)R (Factortame) v Secretary of State for Transport (2000) EWHC 179
 1

Recognition
Introduction
  International community is a living entity in the sense that it is changeable.  The
identity and number of States are by no means fixed and invariable.  History
produces many changes.  Old States disappear or unite with other States to form a
new State, or disintegrate and split into several new States.  Former colonies attain
statehood.  Even in the case of existing State, a revolution or unconstitutional event
may occur and the status of new government becomes a matter of concern to other
States, which formerly had relations with the displaced government.These
instances raise several problems for the international community. The most
important problem is the question of recognition of the new State or the new
government.  Each State has to decide whether to recognize the new State or the
new government. Recognition involves legal consequences both internally and
internationally.If an entity is recognized as a State, it will be entitled to rights and
subjected to duties that would not be relevant otherwise, and it will enjoy
privileges and immunities of a foreign State, before the national courts, which
would not be allowed to other entities.1
Acts of recognition infuse many aspects of our lives such as receiving a round of
applause from a rapt audience, being spotted in a crowded street by a long-
forgotten friend, having an application for a job rejected because of your criminal
record, enjoying some words of praise by a respected philosophy professor, getting
pulled over by the police because you are a black man driving an expensive car,
and fighting to have your same-sex marriage officially sanctioned in order to enjoy
the same benefits as hetero-sexual marriages. Evidently the various ways we are
recognised (and recognise others) play an important role in shaping our quality of
life. Recognition theorists go further than this, arguing that recognition can help
form, or even determine, our sense of who we are and the value accorded to us as
individuals2
Recognition is a free will of a state to recognise With the development and growth
in society every country in the world started connected with each other as we can

1
https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/8-recognition
2
https://www.iep.utm.edu/recog_sp/
 2

see that no state wants to live in isolation in the present era. Every nation wants to
develop and provide security to their people.
Which is only possible through exchanging the commodity and services? For
which it is necessary that one states must be recognize by the other states of the
world. Prior to 1919 recognition of the states is based on their date of
independence and it has no meaning beyond the mutual recognition.Before the
1919 there was no international body to recognize statehood. For the first time with
the formation of league of nation states were recognized in the international level
by the member states. After dissolve of League of Nation, United Nation
Organization play the important role in recognition in the international level. The
Montevideo Convention on the Rights and Duties of States (the Montevideo
Convention) 1933 sets out some generally accepted benchmarks and provides a
good starting point for discussion; Article 1 provides that:
The state as a person of international law should possess the following
qualifications:
a permanent population;
a defined territory;
government; and
capacity to enter into relations with the other states.
In the context of recognition of states, the observation of the professor
Schwarzenberger is Noteworthy. He writes, ―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 possibly expand the scope of their legal relation. Like
most clubs, the society of sovereign states is based on the principle of co-option. In
exercising this prerogative, the existing subjects of international law employ the
device of recognition."

Recognition – Meaning
The word recognition is derived from the Latin word recognition which means
know again, recall to mind here this term is used to denote the formal
 3

acknowledgement by a country that another political entity fulfils the conditions of

statehood and is eligible to be dealt with as a member of the internal community.
Recognition is a process whereby certain facts are accepted and endowed with a
certain legal status, such as statehood, sovereignty over newly acquired territory, or
the international effects of the grant of nationality. The process of recognizing as a
state a new entity that conforms with the criteria of statehood is a political one,
each country deciding for itself whether to extend such acknowledgment.
Normal sovereign and diplomatic immunities are generally extended only after a
state’s executive authority has formally recognized another state (see diplomatic
immunity). International recognition is important evidence that the factual criteria
of statehood actually have been fulfilled. A large number of recognitions may
buttress a claim to statehood even in circumstances where the conditions for
statehood have been fulfilled imperfectly (e.g., Bosnia and Herzegovina in 1992).
According to the “declaratory” theory of recognition, which is supported by
international practice, the act of recognition signifies no more than the acceptance
of an already-existing factual situation—i.e., conformity with the criteria of
statehood. The “constitutive” theory, in contrast, contends that the act of
recognition itself actually creates the state.
Before granting recognition, states may require the fulfillment of additional
conditions. The European Community (ultimately succeeded by the EU), for
example, issued declarations in 1991 on the new states that were then forming in
eastern Europe, the former Soviet Union, and Yugoslavia that required, inter alia,
respect for minority rights, the inviolability of frontiers, and commitments to
disarmament and nuclear nonproliferation. The timing of any recognition is crucial
—particularly when a new state has been formed partly from an existing one.
Premature recognition in a case of secession can amount to intervention in a state’s
internal affairs, a violation of one of the fundamental principles of international
law. Recognition of governments is distinguished from the recognition of a state.
The contemporary trend is in fact no longer to recognize governments formally but
to focus instead upon the continuation (or discontinuation) of diplomatic relations.
By this change, states seek to avoid the political difficulties involved in deciding
whether or not to “recognize” new regimes taking power by nonconstitutional
means.
 4

Although states are not obliged to recognize new claimants to statehood,

circumstances sometimes arise that make it a positive duty not to recognize a state.
During the 1930s, U.S. Secretary of State Henry Stimson propounded the doctrine
of the nonrecognition of situations created as a result of aggression, an approach
that has been reinforced since the end of World War II. In the 1960s, the UN
Security Council “called upon” all states not to recognize the Rhodesian white-
minority regime’s declaration of independence and imposed economic sanctions.
Similar international action was taken in the 1970s and ’80s in response to South
Africa’s creation of Bantustans, or homelands, which were territories that the
white-minority government designated as “independent states” as part of its policy
of apartheid. The Security Council also pronounced the purported independence of
Turkish-occupied northern Cyprus as “legally invalid” (1983) and declared “null
and void” Iraq’s annexation of Kuwait (1990). The UN also has declared
that Israel’s purported annexation of the Golan Heights (conquered from Syria in
1967) is invalid and has ruled similarly with regard to Israel’s extension of its
jurisdiction to formerly Jordanian-controlled East Jerusalem.3

Theories of Recognition: 

There are two theories of Recognition and they are as follows;

1)The 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. 

3
https://www.britannica.com/topic/international-law/States-in-international-law#ref129019
 5

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.4

6
4
https://www.srdlawnotes.com/2017/07/theories-of-reccognition.html?m=1
 Types and Forms of Recognition                            
  There are several distinct categories of recognition. There are recognition of a
new State, recognition of a new government and recognition of belligerency.  In
addition there are different entities to be recognized.   Recognition itself may take
different forms.   Recognition may be de jure or de facto.   Recognition may be
express or implied.  It may be conditional.
A)Recognition of a State and of a Government
 When a new State comes into existence, other States are confronted with the
question whether or not to recognize it. Recognition implies a willingness of the
recognizing State to deal with the new state as a member of the international
community. To grant recognition to a new entity, the entity must satisfy the basic
requirements of statehood, which have been discussed in the previous chapter.  The
first example of State recognition in the history of nations was the recognition in
1648 by Spain of the United Netherlands.
     Recognition of a State defines its membership in the world community, and
consequently supports its claim as an international person.  It allows the recognized
State to exercise the rights and duties of a State under International
Law. Recognition of a new State automatically involves recognition of its
government, although the latter may be recognized only de facto.
     Recognition of a new government is quite different from the recognition of a
new State, although in principle most of the considerations whether legal or
political apply equally to both types of recognition.  As far as a State is concerned,
the satisfaction of basic requirements of statehood is examined by the recognizing
State before granting its recognition to the new State.  Recognition of a new
government requires its satisfaction of certain conditions such as effectiveness and
independence.  Notably, the existence of an effective and independent government
is the essence of statehood.  By recognizing a government, the recognizing State
accepts to deal with this government as the governing authority of the State and
grant it the legal consequences of such status in terms of privileges and immunities
within its domestic legal system.  In both these types of recognition, we should not
forget the great role played by political considerations in the decision whether or
not to grant recognition.
     
7
 The granting or refusal of recognition of a government has no effect on the
recognition of a State itself.  Recognition of a State affects its legal personality,
whether creating or acknowledging it, while recognition of a government affects its
status as the governing authority, not the State.  A subsequent government may not
be recognized, even though the recognition of a State is permanent as regard to its
existence and its status as a legal person under International Law.  If the
government of a State is changed in accordance to constitutional processes, no
problem of recognition arises as long as the new government is firmly in power
and secures stability in the country.  In this case, recognition by other States is
purely a matter of formality.  The problem of recognition of a new government
arises in cases when changes occur as a result of an unconstitutional practice or a
revolution.  The recognition of the revolutionary government is a serious problem
and the decision thereon is made with great care.  On this matter, no definite legal
principles are established and the practice of States is inconsistent and
confused.  However, certain rules have been recognized to cover recognition of
illegal changes in government.  Such rules imply the acceptance of the realities of
the transfer of power and suggest that once a new government effectively controls
the country and that this seemed likely to continue, recognition should not be
withheld.
(B)Recognition of Belligerency
     Belligerency exists when a portion of the State’s territory and population is
under the de facto control of insurgents seeking either to establish a separate State
or to overthrow the existing government.  To be recognized as belligerents, the
insurgents must have a political organization able to exercise such control and
maintain some degree of popular support, and conduct themselves according to the
laws of war.  Accordingly, recognition of belligerency is a formal
acknowledgement by third-party States of the existence of a state of war between
the State’s central government and a portion of that State.  This implies that the
recognizing State recognizes that a revolt within another State has attained such a
magnitude as to constitute in fact a state of war, entitling the revolutionists or
insurgents to the benefit, and imposing upon them the obligations, of the laws of
war.  Two conditions should exist before a third-party State grant belligerent
recognition, the insurgency has progressed to a state of general war and the effects
of this war have gone beyond the borders of the State to affect other States.  By
8
this recognition, the insurrectionary movement is elevated to the status of a quasi-
international person having certain rights and duties under International Law. This
sort of international personality is both nonpermanent and particular.  It is
nonpermanent, because the insurrection may fail.  It is particular, because it exists
only for the recognizing States.
          Recognition of belligerency was accorded during most of civil wars of the
Nineteenth Century, such as the revolts of the Spanish-American colonies and the
American Civil War, and during most of the wars of independence of the
Twentieth Century.
     To grant recognition of belligerency, the recognizing State is always dictated by
the primary motive, which is to protect and promote its national interests.  The
recognizing State may intend either to get the status of neutrality between the
belligerent parties or to support the legitimacy of the insurrection.
  
(C)De Jure and De Facto Recognition
The practice of States draws a distinction between  de jure and de
facto recognition. This distinction usually arises in the case of governments since
States can normally be recognized only de jure, although there have been few cases
of recognizing States de facto.  For example, Indonesia was recognized de facto by
several States while it was fighting for independence against Netherlands during
1945-1949.
De jure recognition means that according to the recognizing State the recognized
State or government fulfils the requirements laid down by International Law.  De
facto recognition means that in the opinion of the recognizing State, with all due
reservations for the future, the recognized State or government provisionally and
temporarily fulfils the above requirements in fact.  As such, de facto recognition is
provisional and temporary and could be withdrawn at any future date, although it is
usually followed by de jure recognition.  Notably, the terms de jure and de
facto describe the government, not the act of recognition.   Choosing the type of
recognition to be granted, the recognizing State is always occupied by political
realities and considerations as well as its national interests.

9
     De facto recognition of a government implies that there is a doubt as to the
permanence and viability of the concerned government.  De facto recognition
involves a hesitant position by the recognizing State, an attitude of wait and see,
which is usually followed by de jure recognition when the recognizing State
accepts that the effective control exerted by the government in question is
permanent and firmly established and there is no legal basis for withholding the de
jure recognition.
     De facto recognition may be a preface stage to the de jure recognition,
particularly in cases of governments coming into power by unconstitutional
processes.  In such a case, de facto recognition is a non-committal act whereby the
recognizing State acknowledges that there is a de facto government possessing in
fact the powers of sovereignty, but such possession may be illegal, unstable or
nonpermanent.  At a later stage when the need for reservations no longer exists
because the permanence of the de facto government is completely assured, de
jure recognition is formally granted.  For example, United Kingdom recognized the
Soviet government first de facto in 1921 and later de jure in 1924.  During the
Spanish Civil War (1936-1939), United Kingdom granted recognition to the two
rival parties, de jure recognition to the Republican government and de
facto recognition to General Franco’s government that gradually took over the
country and its recognition turned into de jure. During 1988-1991, most States
recognized the two rival governments in Lebanon de facto until the ending of the
insurrection led by General Aoun, and then the government of Salim Al Huss was
accorded de jure recognition.
     When recognition is granted by an express statement, it should always be
regarded as de jure recognition, unless the recognizing State provides
otherwise.  When recognition is implied, there will often be uncertainty as to the
intention of the recognizing State whether granting de jure or de facto recognition.
     Choosing the type of recognition to be granted, the recognizing State is
occupied mostly with political realities and considerations as well as own national
interests, and to a lesser degree with legal considerations. A statement that a
government is recognized as de facto may, on one hand, involve a purely political
judgment, involving either a reluctant or cautious acceptance of an effective
government, lawfully established according to International Law, or an
unwarranted acceptance of it as a de jure government.  It may, on the other hand,
10
be intended to be or to include a legal determination of the existence of an effective
government, but with reservations as to its viability and permanence.  It may, of
course, happen that the legal and political considerations for caution coincide.  The
distinction between these two types of recognition is insubstantial, since it is a
question of intention, not of a legal matter.  However, it is considered that de
jure recognition is irrevocable while de facto recognition can be
withdrawn.  Actually, in the political sense recognition of either type can always be
withdrawn, while in the legal sense it cannot be unless a change of circumstances
warrants such withdrawal. 
     Whatever the basis for the distinction between de jure and de facto recognition,
the effects of the two types are mostly the same.  Nevertheless, there are certain
important differences between these two types, which are:
(a)Only the de jure recognized State or government can claim to receive property
locally situated in the territory of the recognizing State.
(b)Only the de jure recognized State or government can represent the old State for
the purposes of State succession or with regard of espousing any claim of its
national for injury done by the recognizing State in breach of International Law.
(c)The representatives of the de facto recognized state or government may not be
entitled to full diplomatic immunities and privileges.

Example of de facto de jure recognition

 Bangladesh was established in March 1971. India and Bhutan recognised it
just after 9 months of establishment but the United States gave it legal
recognition after nearly 1 year in April 1972.
 Another example of the difference is when the United Kingdom recognized
the Soviet state de facto in 1921, but de jure only in 1924. Another example
is the state of Israel on occupied Palestinian land in 1948, whose
government was immediately recognized de facto by the United States and
three days later by Soviet de jure recognition. Also, the Republic of China,
commonly known as "Taiwan", is generally recognized as de facto
independent and sovereign, but is not universally recognized as de jure
independent due to the

11
 complex political status of Taiwan related to the United Nation's withdrawal
of recognition in favor of the People's Republic of China in 1971.
 For instance, the Taliban government of the Islamic State of Afghanistan,
which lasted from 1996 to 2001, was recognized by only Pakistan,
the United Arab Emirates, and Saudi Arabia, while far more had recognized
the government of ousted President Burhanuddin Rabbani. The disputed
territory of Jammu and Kashmir of the Republic of India is not recognized
by either Pakistan or the People's Republic of China.
 Crimea and Sevastopol were then annexed by Russia, where the Crimean
Autonomous Republic became the "Republic of Crimea" as a Russian
republic and Sevastopol became a Russian federal city. However, Ukraine
and the majority of the international community do not consider the merge,
the independence, the referendum, nor the annexation legitimate and still
consider both entities as parts of Ukraine
 The recognition of Kosovo is an issue in some part of the international
community even though its independence has been recognized by 116 states
and that the ICJ has given a legal opinion which confirmed that the
independence was not a violation of international law
     Whatever the type of recognition, once given may in certain circumstances be
withdrawn.  Actually, this is more easily done with regard to de facto recognition
than to de jure recognition, because of the nature of the former one, which is
temporary.  De facto recognition is intended to be a preliminary acceptance of
political realities and may be withdrawn in accordance with a change in political
conditions.  When a de facto government loses its effective control over the
country, the reason for recognition disappears and it may be withdrawn.  De
jure recognition, on the other hand, because it is intended to be generally a
definitive act, it is more difficult to be withdrawn.  When a government
recognized de jure is overthrown, a new situation arises and the question of
recognizing a new government will have to be faced.  In such instance, the
withdrawal of recognition of the overthrown government is assumed; it does not
have to be expressed. Withdrawal of recognition of one government without
recognizing a successor is a possibility.  This approach, for example, was adopted
by the United Kingdom and France with regard to Colombia in 1979.
   
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  Withdrawal of recognition remains possible in other circumstances.  The loss of
one of the required criteria of statehood will result in the withdrawal of recognition
of a State.  Recognition of belligerency will naturally terminate with the end of the
state of belligerency.
     Because recognition is essentially a political act, no matter how circumscribed
or conditioned by the law, a State has a discretionary power to determine whether a
particular situation justifies a withdrawal of recognition and to take such action if it
serves its national interests.
     Notably, we must not confuse the withdrawal of recognition with the rupture in
the diplomatic relations.  In the practice of States, the usual method of expressing
disapproval with the actions of other governments is to break diplomatic relations,
since this method does not entail the legal consequences and the problems that the
withdrawal of recognition would produce.

(D) Express and Implied Recognition

     Recognition is essentially a matter of intention. It is founded upon the will and
intention of a State. It may be express or implied. The mode by which recognition
is accomplished is of no special significance.  It is essential, however, that the act
constituting recognition must give a clear indication of the intention either to deal
with the new State as such, or to accept the new government as the effective
government of the State and to maintain relation with it, or  to recognize in case of
insurgents that they are entitled to belligerent rights.
     Express recognition indicates the acknowledgment of the recognized State by a
formal declaration.  In the practice of States, this formal declaration may happen
by either a formal announcement of recognition, a personal message from the head
of a State or the minister of foreign affairs, a diplomatic note, or a treaty of
recognition. 
     Recognition needs not to be express.  It may be implied in certain
circumstances. There are circumstances in which it may be possible to declare that
in acting in a certain manner, one State does by implication recognize another State
or government. However, because of this possibility, States may make an express
declaration to the effect that a particular action involving another State is by no
13
 means to be regarded as inferring any recognition.  This position, for example,
was maintained by Arab States with regard to Israel.
     Implied recognition is recognition of a State or a government through actions
other than official declarations or actions intended to grant recognition. The
required actions for implied recognition must be unequivocal, leaving no doubt of
the intention of the State performing them to recognize the State or government
and to deal with it as such.  There is a variety of actions undertaken by a State in
regard to an unrecognized State or government.  Some actions are conclusively
regarded implying recognition, while others are not. Included in the first category
are the official congratulatory statements upon independence, the formal
establishment of diplomatic relations and the conclusion of a bilateral treaty. The
actions that do not conclusively imply recognition are the participation in
multilateral treaty, the membership in international institutions, the common
participation in international conference, the maintenance of informal and
unofficial contacts, the initiation of negotiations with an unrecognized state, and
the making of claims against an unrecognized State.
 
(E)  Conditional Recognition
     The political character of recognition is manifested in what is termed
conditional recognition.  Sometimes States are recognized subject to certain
conditions, generally the fulfillment of certain obligations.  Examples of such
conditions are: the respect and the guarantee of the rights of ethnics, national
groups and minorities; the respect of religious freedoms; and the respect of the rule
of law, democracy and human rights.
     The failure to fulfill the obligations does not annul the recognition, as once
given it cannot be withdrawn. The status obtained by the recognized State from the
act of recognition cannot be withdrawn.  The recognized State will be guilty of a
breach of International Law, and this will allow the recognizing State to severe
diplomatic relations as a form of sanction. However, the conditional recognition of
a State or government in process of emerging is probably revocable. 
 

14
Legal Effects of Recognition             
     Although recognition is essentially a political act, it is one that entails important
legal consequences.  Recognition involves legal effects both in the international
level and in the domestic level.   If an entity is recognized as a State, it will be
entitled to rights and subjected to duties that would not be relevant otherwise, and
it will enjoy privileges and immunities of a foreign State before the national courts
of other States, which would not be allowed to other entities.
     What are the effects of recognition?  Are there effects for non-
recognition?   The Answers to these two questions are dealt with in the following
sub-sections.
(A) International effects of recognition
     Apart of all the theoretical arguments involving the constitutive and declaratory
theories, it is accepted that recognition of a State or government is a legal
acknowledgement of factual situations.  Recognition entails the recognized State
the enjoyment of rights and the subjecting to duties prescribed in International Law
for States.
     Recognition of a State by another State does not lead to any obligation to
establish diplomatic relations or any other specific links between them.  Nor does
the termination of diplomatic relations automatically lead to withdrawal of
recognition. These remain a matter of political discretion. 
     It should not be assumed that non-recognition of a State or government would
deprive that entity rights and duties under International law. It is well established
in International Law that the political existence of a State is independent of
recognition by other States, and thus an unrecognized State must be deemed
subject to the rules of International Law.  Unrecognized State is entitled to enjoy
certain rights and be subject to many duties.  It has the rights to defend its integrity
and independence, to provide for its conservation and prosperity and consequently
to organize itself as it sees fit.  The exercise of these rights by unrecognized State
has no other limitation than the exercise of the rights of other States according to
International Law.  Moreover, unrecognized State is subject to most of the rules of
International Law, such as those related to the law of wars, and is bound by its
agreements.
15
     Non-recognition, with its consequent absence of diplomatic relations, may
affect the unrecognized State in asserting its rights against unrecognizing States, or
before their national courts. However, non-recognition will not affect the existence
of such rights, nor its duties, under International Law.
(B)  Internal Effects of Recognition
     Recognition entails the recognized State the rights to enjoy privileges and
immunities of a foreign State before the national courts, which would not be
allowed to other entities.  However, because recognition is essentially a political
act reserved to the executive branch of government, the judiciary branch must
accept the discretion of the executive branch and give effect to its decisions. The
national courts can only accept and enforce the legal consequences that flow from
the act of recognition.  They can accept the rights of a foreign government to sue,
to be granted immunities or to claim other rights of a governmental nature.  They
can give effect to the legislative and executive acts of the recognized State.  In the
case of non-recognition, national courts will not accept such rights.  In this context,
recognition is constitutive, because the act of recognition itself creates the legal
effects within the domestic jurisdiction of a State.5

Rule of recognition
A central part of H.L.A. Hart's theory on legal positivism, in any legal system,
the rule of recognition is a master meta-rule underlying any legal system that
defines the common identifying test for legal validity (or "what counts as law")
within that system. According to Hart:
...to say that a given rule is valid is to recognize it as passing all the tests provided
by the rule of recognition and so as a rule of the system. We can simply say that
the statement that a particular rule is valid means that it satisfies all the criteria
provided by the rule of recognition.
In Hart's view, the rule of recognition arises out of a convention among officials
where they accept the rule's criteria as standards that impose duties and confer
powers on officials, and resolves doubts and disagreements within the
community. The rule is cognizable from the social practices of officials
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acknowledging the rule as a legitimate standard of behavior, exerting social
pressure on one another to conform to it, and generally satisfying the rule's
requirements. To this end, as explained by Hart, the rule has three functions:
i. To establish a test for valid law in the applicable legal system
ii. To confer validity to everything else in the applicable legal system
iii. To unify the laws in the applicable legal system
The validity of a legal system is independent from its efficacy. A completely
ineffective rule may be a valid one - as long as it emanates from the rule of
recognition. But to be a valid rule, the legal system of which the rule is a
component must, as a whole, be effective. According to Hart, any rule that
complies with the rule of recognition is a valid legal rule. For example, if the rule
of recognition were "what Professor X says is law", then any rule that Professor X
spoke would be a valid legal rule.
It follows that the rule of recognition is but a factual acknowledgement of what is
indeed law; as per the classic illustration of a bill passed by the legislative
authority and assented to by a head-of-state. The fact that the bill has been made
law in accordance with proper parliamentary procedure shall, in accordance with
the Rule of Recognition, render it valid law. Again, this is primarily based on the
fact of its existence in such manner. The judgment in R (Factortame Ltd) v
Secretary of State for Transport (decided March 1989 to November 2000)6
represents an alteration of the Rule of Recognition, by confirming the
incompatibility of UK legislation (the Merchant Shipping Act) with EU law, and
deciding that the provisions of such law were to be disapplied by the UK courts if
they contravened EU law. Sir William Wade, a renowned authority in British
constitutional law, would confirm this view. Following Brexit, however, this view
would maintain significance only as part of legal history.7

Views On Political Act Of Recognition

Political act in recognition is use to either support or reject a State or government
which is new in the international community. Recognition is seen as a highly
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https://en.m.wikipedia.org/wiki/Rule_of_recognition
political subject in international relations; other writers in international law see it
as a complicated issue as it is a mixture of politics and legal implications, in fact
this is the field in international law where law and politics are closely interwoven.
The political sense of recognition seems to over shadow the legal aspect as there is
no central authority in international law that states that at a particular stage a state
would have attained the level of recognition. Instead recognition in international
law is a thing of choice if a state does not want to recognise a particular state it has
its reasons and to a large extend this reasons if checked are political reasons. As
buttressed by Wallace “Recognition is a complex issue”she adds that a suitable
explanation of recognition is that it is a political act which produces legal
values.This concept has impact both on the National and the International level i.e
it considers some rights and duties in Municipal Law that once a state is recognised
it can exercise those rights otherwise no such rights will be allow, for example the
appearance of a recognised state in a municipal court is one right a recognised case
enjoy. Some states view recognition as a mark of approval and so because of
chastely political reasons they refuse to recognise other states this can be seen in
the case of America and the Communist China. This point as emphasised in May
1948 by a representative of America in the middle East case in the course of
Security Council discussions asserts that it would be: “highly improper for one to
admit that any country on earth can question the sovereignty of the United States
of America in the exercise of the high political act of recognition of the de facto
status of a state.”
His view is that no state can question this decision adopted by the United
States. The Yugoslav Arbitration commission in July 1992also reaffirmed that
recognition is a discretionary act adding that it depends on a state how a state
wants to and when they choose to recognise other state in as much as it is in
accordance with the requirements of international law.8

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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.And also Recognition is one
of the most important issues in international Law, change is said to be a permanent
thing, and this is also applicable to the international community as a whole.
International society is said to be alive and constantly evolving in doing this it
comes with new states emanating from the old ones, examples of this as mentioned
by Wallace (2005) is the disbanding of the Socialist Federal Republic of
Yugoslavia in 1991/92 and the creation of Bosnia-Herzegovina, Slovenia, Croatia
and Macedonia as independent states. Recognition therefore is subject to debate.
Therefore we have come to the conclusion that there is no proper clearcut point of
law in the basis of Recognition.Even when we have also such as the De Jure
Recognition,every State is not bound to follow that law,whatever we have,we have
the State Practices but it differs from one State to the other.Hence,one State maybe
recognised by the other State but that same State may not be recognised by another
State,for an example,Bangladesh is being recognised by India but Bangladesh has
not been recognised by Pakistan at that point of time,the same goes to Crimea an
Independent State which is being recognised by Russia but not by the United
Nation and they also claimed that it is an illegal way for taking into recognition by
Russia.
Nevertheless there is no consistency in the point of law and also it is also
mandatory for every state to be recognised by every other state.The main reason is
that for recognition the state must have certain beneficial profit for recognising that
state,in other word,they are doing so in the matter of policy and not from the point
of law. States are not bound to recognise new claimants of statehood and make it a
positive duty to recognize a State.Hence Recognition is mainly a matter of
recognition.
Bibliography
1) https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/8-
recognition
2)https://www.iep.utm.edu/recog_sp/

3)https://www.britannica.com/topic/international-law/States-in-international-
law#ref129019

4)https://www.srdlawnotes.com./2017/07/theories-of-recognition.html?m=1

5)https://en.m.wikipedia.org/wiki/Rule_of_recognition

6)https://www.lawteacher.net/free-law-essay/international-law/recognition-
important-issues-in-international=law.php