STATE
RECOGNITION
◦ When a state is recognised, it indicates that another state acknowledges it as a
legitimate international political actor.
◦ In every way, recognition is extremely beneficial to a state or government. Even
though a state or government already exists before being recognised, the
acknowledgment gives the system additional authority.
◦ Although there are many views concerning recognition, there do appear to be
basic requirements for recognition.
◦ It also discusses how the state is regarded under international law.
◦ An existing state, an ancient state that has vanished and reappears, or the
division of an existing state into two States are all ways that new states are
created.
◦ It is crucial to obtain recognition as a state if a new state possesses specific
rights, benefits, and duties.
◦ Yet before a State is regarded as a State, there are a few minimal requirements.
For a State to be regarded as a sovereign State, it must first get De Jure
recognition (when a state is acknowledged legally).
DEFINITION OF STATE
RECOGNITION
◦ A state that has been acknowledged or accepted by another state within the
international community as an international personality. The commitment to meet key
requirements for statehood set out by international law.
◦ Recognition is only a statement of existence. Despite the fact that a state or
government already exists before recognition, it gives it additional strength and
cohesion.
ESSENTIALS OF RECOGNITION OF
A STATE
◦ Population;
◦ Territory;
◦ Government;
◦ Sovereignty;
◦ The goal of control should be permanence.
KELSON’S PERSPECTIVE
◦ A state to be recognised, the following shall be the binding conditions:
◦ Must be politically organised.
◦ Have control over definite territory.
◦ Permanency.
◦ Independent.
MONTEVIDEO CONVENTION
◦ A permanent population.
◦ A defined territory.
◦ Government to rule.
◦ Ability to make new relations with other states.
THE RECOGNITION PROCESS
◦ In addition to being a recognised organisation under international law, states are also the
main objects of international law and have the broadest range of rights and duties.
◦ The process of establishing new States involves the blending of fact and law, the formation
of specific factual conditions, and adherence to pertinent regulations.
◦ States do not have a positive obligation to accept new Statehood claims and may choose not
to do so.
◦ The key factor in recognition is intention.
◦ Israel-Palestine Dispute
◦ Due to racism, India did not acknowledge South Africa until 1991 or Israel
until 1999 in this conflict. Israel provided India with military assistance, but
India refused to recognise Israel. where both nations satisfied all of the
requirements of the Montevideo Agreement.
◦ Yet, because to the country's significant Jewish population, Palestine only
received partial recognition from other nations.
◦ China-Taiwan Dispute
◦ In this issue, 15 nations worldwide recognised Taiwan as a state. The
Republic of China, which Taiwan once referred to as, is recognised by 19
UN members. Despite having commercial ties with Taiwan, other nations do
not recognise it as a sovereign state. 57 other UN members are in diplomatic
ties with Taiwan on an unofficial basis.
FORMS OF RECOGNITION - I
◦ Express recognition: When an existing state recognises the new state by announcing the
intention of recognition.
◦ Implied recognition: It results from any act that implies recognising the new state.
◦ Conditional recognition: It implies that the recognition granted is subject to the fulfilment
of certain conditions of the recognised state, in addition to the normal requirements of
statehood. Conditional recognition is not in practice now.
◦ Premature or precipitate recognition: It is granted even when a state does not possess all
the attributes of statehood.
POLITICAL RECOGNITION OF
STATE
◦ An international community may support or oppose a state or a new
administration by engaging in political action.
◦ The process of establishing new States involves the blending of fact and law, the
formation of specific factual conditions, and adherence to pertinent regulations.
◦ The Montevideo Convention lays forth the requirements for becoming a state, saying that a
state must have a permanent population, a clearly defined territory, a government, and the
ability to engage in international affairs.
◦ Legal considerations are significant, but state recognition is a political decision based on
interest and evaluation made by each state separately.
THEORIES OF RECOGNITION
◦ CONSTRUCTIVE THEORY,
◦ DECLARATIVE THEORY.
Constructive Theory of Recognition
◦ This theory is coined by Hegel and Oppemheim.
◦ The State is seen as an international person in accordance with this view.
According to this viewpoint, a State acquires its status as an international
person and becomes subject to international law after receiving recognition.
◦ Yet, according to this idea, a State only acquires exclusive rights and duties and
becomes a subject of international law after being recognised by other States
that already exist. This does not imply that a State does not exist unless it is
recognised.
Criticism:
◦ That the rights, obligations, and duties of the community of States under
international law are not relevant to this conception, with the exception of
the State that is recognised by other existing States.
◦ Confusion also arises when a new State is acknowledged by some of the
existing States but not by others.
OPPENHEIM’S VIEWS ON RECOGNITION OF
STATE
◦ A State may only be considered an international person if it is acknowledged as
exceptional. The responsibility to recognise a State rests with the country that
will do so in accordance with international law; there is no consensus that states
must do so.
◦ Existing nations acknowledge a nation as a part of the world community and
think the State complies with international law outside the nation.
◦ Declarative Theory of Recognition
◦ Hall Wagner and Fisher are the propunders of the Declarative Theory.
◦ In order to solve the flaws of constitutive theory, this was created in the 20th
century.
◦ A nascent State has the right, in accordance with international law, to defend its
integrity and independence prior to recognition.
◦ This viewpoint is outlined in Article 3 of the 1933 Montevideo Convention.
◦ Some who subscribe to this idea view the process of recognition as nothing more
than the formal acknowledgement of Statehood by other States.
Criticism
◦ This theory has also received criticism. The argument against it is that this
theory cannot be used to recognise the State.
◦ A State comes into being when it satisfies the necessary conditions.
Declarative theory is applicable if the State exercises its international rights
and duties. Yet, constructive theory comes into play after the State is granted
formal recognition privileges.
FORMS OF RECOGNITION- II
De Facto Recognition:
◦ The majority of times, governments are given de facto recognition.
◦ It is the temporary recognition of a State, which may be subject to restrictions or not.
◦ This kind of recognition is given when a new State has sufficient area under its
control or when it has control over a certain region, but the other existing States do
not deem them to have adequate stability or any other unsettling difficulties.
◦Hence, we may use it as a gauge of state control for recently
established States.
◦In 1921, the Soviet Government received de-facto recognition
from the UK, and in 1924, it received de-jure recognition.
De Jure Recognition:
◦ When a new State satisfies all the requirements for a State, it is granted de jure
recognition.
◦ A State that has or has not provided de-facto recognition may be directly
granted de jure recognition.
◦ New States are granted de-jure method of recognition, which gives them
permanent status as a sovereign State.
DIFFERENCE BETWEEN DE FACTO
AND DE JURE RECOGNITION
Sl. De Facto De Jure
No.
1. De Facto recognition is temporary and De Jure recognition is a permanent and
factual recognition. legal recognition.
2. When a State meets the requirements for When all requirements are met and the
Statehood, it is given de facto recognition. necessities are under permanent control, a
State is awarded de jure recognition.
3. De Facto recognition is the primary step Without De Facto recognition, De Jure
to grant De Jure recognition. recognition might be given directly.
Sl. De Facto De Jure
No.
4.
Revocation of de facto recognition is De Jure recognition can never be
simple. revoked.
5.
Diplomatic privileges cannot be granted to States with De Jure recognition are
the States with De Facto recognition. eligible for diplomatic immunity.
6. Just a small number of rights and duties The rights and obligations of De Jure
exist between De Facto recognised States recognised states towards other states are
and other States. unalienable.
DOCTRINES OF RECOGNITION
◦ Tobar Doctrine
◦ Estrada Doctrine
◦ Stimson Doctrine
Tobar Doctrine
◦ This is a doctrine of non-recognition of governments first enunciated by
Carlos Tobar, the Minister of Foreign Relations of Ecuador, in March 1907,
and subsequently adopted into two treaties.
◦ Carlos Tobar contends that a state or government is only acknowledged if
democracy recognises its governing system.
◦ According to the doctrine, a government should only be recognised if its
administration was elected via legal democratic processes. In 1907, Central
American nations mostly embraced it.
◦ The US later recognised this philosophy, giving it the name Wilsonian Policy.
◦ It was implemented by the US under Costa Rica's Tinoco administration. The
ideology was ineffective outside of the Americas.
◦ The spirit of this doctrine is “only a government should be recognised if its
administration was elected via democratic processes.”
Estrada Doctrine.
◦ Only a government's de facto existence should be used to determine whether it is
recognised.
◦ The doctrine emphasizes that a government should be recognised on the basis of its
de facto existence rather than its legality.
◦ It is named after Don Genero Estrada, the Mexican Secretary of Foreign Affairs,
who in 1930 issued an order prohibiting Mexican diplomats from making any
declarations that could be construed as granting recognition to other countries.
◦ He believed that doing so was disrespectful to those countries'
sovereignty. The Estrada doctrine was accepted by the US, UK, and
several other jurisdictions in 1980.
◦ Government should be accepted on the basis of its de facto existence
rather than its legality. The states are not permitted to judge the
legitimacy of other governments under this policy, which is founded on
the principles of non-intervention and self-determination for all nations.
Stimson Doctrine:
◦ The principle that an aggressor cannot obtain territory only by conquest
under public international law.
◦ After Japanese soldiers occupied Manchuria, which had previously been a
part of China, and established the puppet state of Manchukuo, the ideology
was first put forward in 1931.
◦ Nearly other nations believed Japan was aggressing, and US Secretary of State
Henry L. Stimson said that his country would not recognise any territory
changes made only via force.
◦ Following Iraq's takeover of Kuwait in 1990, the UN Security Council's non-
recognition resolution (662/1990) was based on the same concept.
◦ The doctrine was application of a principle, 'ex injuria jus non oritur'
means illegal act cannot create law.
◦ Later, in 1970, UN General Assembly declared that 'no territorial acquisition
resulting from the threat or use of force shall be recognized as legal.'
◦ But in practice this theory has not been put into effect same as the others.
◦ For instance, UK, though late but gave de jure recognition to the Italian
conquest of Ethiopian land in 1936 and the Soviet conquest of Baltic Republics
(Estonia, Latvia, and Lithuania) in 1940.
◦ Thus, the doctrine could prevent recognition but mere delayed.
CONSEQUENCES OF NON-RECOGNITION
◦ A State's refusal to recognise the new body does not imply that it will have no
legal consequences with regard to those States.
◦ The relationship between the new State and all other members of the
international community is governed by general international laws or treaties on
the coordination of States, such as those governing the high seas or the respect
for territorial or political sovereignty.
◦ As a result, a State that has not been acknowledged is exempt from the authority
of the State that did not recognise it.
Before International Courts or Tribunals, non-recognition has no
Legal Consequences:
◦ Great Britain -Costa Rica Arbitration (Tinocco Concessions Case). 1923
UN Rep (1),
◦ Evidence clearly disclosed that Tinocco regime had in fact governed Costa
Rica for two years.
◦ Non recognition cannot outweigh the evidence as to de facto character of
Tinocco government.
In reply to Costa Rica's contention that Tinocco government could not be
considered a de facto government since it was not established in accord with the
Constitution of Costa Rica, it was said that recognition was to be determined by
enquiry into a government's de facto sovereignty and complete governmental
control and not into its illegitimacy or irregularity of its origin.
Issue:
◦ Does a government need to conform to a previous constitution if the government
had established itself and maintained a peaceful de facto administration and does
non-recognition of the government by other government destroy the de facto
status of the government?
Facts:
◦ The Tinoco regime that had seized power in Costa Rica by coup was not recognized by
Great Britain and the United States. When the regime was removed, the new government
nullified all Tinoco’c contract including an oil concession to a British company.
◦ The claim of Great Britain (P) was that the contract could not be repudiated because the
Tinoco government was the only government in existence at the time of the contract was
signed.
◦ This view was not shared by Costa Rica (D) who claimed that Great Britain (P) was
estopped from enforcing the contract by its non-recognition of the Tinoco regime. The
matter was sent for arbitration.
Held:
◦ No. If a government has established itself and maintained peaceful de facto
rule, it is not necessary for it to adhere to a prior constitution, and the de facto
existence of the government is not affected by other governments' refusal to
recognise it.
◦ The de facto existence of the Tinoco government was not contested by Great
Britain's refusal to recognise it. As the new administration did not alter its
policies because of British non-recognition, there is no estoppel.
ACTIVITY
◦ WRITE THE DIFFRENCE BETWEEN PUBLIC & PRIVATE
INTERNATIONAL LAW
◦ ELUCIDATE DE-FATO RECOGNITION
