Recognition

The topic of recognition may be broadly divided into recognition of States, recognition of government,
recognition of belligerency and recognition of insurgency.

❖ RECOGNITION OF STATES:

● An entity in order to be called a State should possess essential attributes of statehood such as
population, territory, a government and the capacity to enter into relations with other States.

● When possession of these attributes in a State is acknowledged by other existing States, it is known
as recognition of State. Recognition may therefore be defined as a formal acknowledgment by
the existing members of the international community of the international personality of a new
State.

● The grant of recognition establishes that→ the new State, in the opinion of existing recognising
States, fulfils the conditions of statehood required by International Law, so that the new State can be
regarded, BY/quoad the recognising States, as an international person possessing the rights and
duties which International Law attributes to States.

● Practice of States is evident that → on many occasions a new State is not recognized by other States
even if it fulfils the essential conditions of statehood; and on some occasions recognition is granted
even if the new State does not possess all the attributes of statehood.

● Therefore, it is clear that → Grant of recognition to new states depends upon the discretion of the
existing States (Voluntary Act). And, this discretionary and unilateral power is exercised in
accordance with the policy of a State. For instance, although Israel was established in 1948, some
Arab States withheld recognition of Israel. The United States refused to recognise People's Republic
of China for many years despite the fact that it was a State, The discretionary power implies
therefore that recognition of States is a political act of a State.

● Recognition therefore is not the conclusive proof of the existence of a State

❖ Law on Recognition of States:

● Recognition is granted to a State mainly on political considerations. The International Law

Commission, after realizing the importance of the topic, in its first session in 1949 included
'Recognition of States and Government' as one of the 14 topics in its provisional list for
codification. However, later, the topic was removed from the list on grounds that same pertained to
the province of politics rather than of law. Thus, at present rules regarding recognition are not well
settled, & the topic of recognition is governed by the State practice and judicial decisions.

● THEORIES OF RECOGNITION:

The legal significance of recognition is controversial, leading to the emergence of different theories:
 1. Constitutive Theory: According to this theory, personality of a State is created by recognition by
other States. In other words, an entity does not become a State by possessing essential attributes of
statehood, BUT ONLY WHEN it is recognized by other States.

It implies that EXISTING STATES constitute the personality of a State by granting it recognition.
This theory has been advocated by Anzilotti and Holland. According to them a new entity cannot
become a State ipso facto, and it first has to be recognized by other States so as to become an
international person.

The constitutive theory suffers from a number of defects which are:

(1) When a State comes into possession of all the attributes of statehood, It is not necessary that its existence
is recognized by other States simultaneously. The timing of recognition by different States may differ.
EXAMPLE: China was recognized by the United States in the year 1979, many other States had granted
recognition earlier. Similarly, Bangladesh was recognized by Pakistan much after the recognition granted by
India.

The acceptance of the constitutive theory would mean that a State exists for some States (which have
granted recognition) and does not exist for others (which have not granted recognition). This situation
shows that recognition is not a conclusive proof for the existence of a State.

(2) Recognition is a political act of a State. If this theory is accepted, it would mean that the fate of the new
State would be determined by other States, & It is not desirable to give discretionary rights to the existing
States, whose acts are guided not by any legal norms, to decide the status of the new entity.

(3) Recognition is the acknowledgment of the existence of the attributes of statehood in an entity. It implies
that a State always exists prior to its recognition. The question of recognition would never arise.

The above criticisms show that the constitutive theory is sound neither in principle nor in practice.

0. Declaratory Theory: According to this theory, a State comes into existence in International Law as
soon as it acquires all the attributes of statehood. By having all the attributes, an entity exists in fact.
Recognition by other States supplies the evidence of this fact. THUS, the act of recognition is therefore
an act of declaration of an already existing fact that an entity possesses the essential attributes of statehood.

This theory has been advocated by Hall, Brierly and Fisher.

According to Hall, a State enters into the family of nations as a right when it has acquired the
essential attributes of statehood.
Brierly has stated, "A State may exist without being recognized, and if it does exist in fact, then,
irrespective of whether it has been formally recognized or not, it has a right to be treated by them as
a State.

The advocates of this theory, therefore HAVE reduced the importance of recognition by saying that
recognition is necessary only because it enables new State to enter into official intercourse with other
States. The effect of recognition of a new State by the recognizing State according to this theory is
to create a relationship between them. The theory appears to be better than the constitutive theory.
However, the defect is that a State, although would come into existence by having all the essential
attributes of a State, it would not have legal relationship with other States unless recognized.

It is to note that neither of them alone is correct. The practice of States shows that → recognition has
elements of constitutive as well as declaratory theory. In order to answer the above question,
statehood may be distinguished into natural statehood and juridical statehood.
A State comes into existence by possessing all the essential attributes of statehood. At this moment, it
acquires natural statehood in the sense that it acquires an international personality, and possesses
minimum rights of existence. Institute of international law in its resolution of April 23, 1936 had correctly
stated under article 1 para 3 that the existence of the new state with all the legal effects connected with that
existence is not affected by the refusal of one or more States to Recognise. The personality is conferred to a
State by the rules of International Law and not by Recognition granted to the State or government by other
existing States.

A State acquires juridical statehood when it possesses more specific rights. This statehood can be
acquired by a State only when it is recognized by other States. Thus, recognition although is declaratory of
the existence of the natural statehood, it is constitutive of juridical statehood. It marks the beginning of the
effective enjoyment of the international rights and duties of the recognised community. The above view
taken by Kelsen may be termed as modified constitutive theory, because the recognition constitutes only one
type of statehood, ie, 'juridical' statehood.

Forms of Recognition:
A State may be recognized in two ways. They are express recognition and implied recognition.

1. Express Recognition:
● When an existing State recognizes the new State by a notification or declaration, announcing
the intention of recognition, the recognition is said to be express. The formal declaration may
take the form of a public statement, the text of which is sent to the party recognized as a
State.

● A State may be recognised also by sending diplomatic note, note verbale, personal message
from the head of State or Minister of Foreign Affairs, or by a parliamentary declaration.
The minister concerned may by press statement ALSO, expressly declare formal recognition.

● Express recognition usually implies de jure recognition. However, it's very rare for
express recognition to lead to de facto recognition. The latter may be the case IF an
express recognition document explicitly states that it's a de facto recognition.

● Recognition of Bangladesh by India on December 6, 1971 is an example of express

recognition. Similarly, recognition accorded to the three Baltic republics, ie, Lithuania,
Estonia and Latvia as sovereign and independent States by India on September 7, 1991 was
also an example of express recognition.

● State Express recognition may also be granted by the conclusion of a treaty. For example,
under the treaty between UK and Burma (now Myanmar) signed on October 17, 1947, the
United Kingdom recognized Burma as a fully independent and sovereign State.

0. Implied Recognition: When the existing States do not make any formal declaration as to recognition
of a new State, but at the same time they indicate their intention to recognise the new State by some acts,
THIS amounts to IMPLIED RECOGNITION. Montevideo Convention of 1933 under Article 7 states that
the tacit or implied recognition results from any act which implies the intention of recognizing the ‘new
State.'
 The intention may be indicated by the States unilaterally or collectively.

(a) Unilateral Acts:

● When a State enters into a bilateral treaty or establishes diplomatic relations with an unrecognised
State, it may be inferred that the former has granted recognition to the latter. There cannot be an
exchange of diplomatic representatives without the presumption that the foreign State exists
independently.
● Similarly, intention may also be inferred by sending representatives to attend ceremonial
functions in an unrecognised State. The exchange of consuls, i.e., despatch and reception of consuls
with an unrecognised State also indicates an intention to recognise the new State.

(b) Collective Acts:

● It is said that a new State may be recognized collectively by the existing States when an
unrecognised State participates in a multilateral conference or in a multilateral treaty, the other
participants in the conference or treaty are regarded to have recognized the new State, IF THERE
IS AN ABSENCE of an unequivocal intention to the contrary.

● Indication of the intention is therefore the determining point in granting recognition in SUCH
cases.

● Sometimes, States expressly state that their participation in THE Multilateral Conference or Treaty
does NOT indicate their RECOGNITION to those States which have not been unrecognised.

● For instance, The United States of America and the Communist China were parties to the Geneva
Protocol on French Indo-China of 1954 and 1962, but USA’s participation did not amount to
GRANTING of recognition to the Communist China.

● The Moscow Partial Test Ban Treaty of August 5, 1963 was concluded by the USSR, USA and the
UK. When it was acceded to by the East Germany Democratic Republic, USA specifically stated
that the participation of the East Germany would not amount to recognition of that State by the
United States.

● This principle is also applied in the case of international organisations. A “new State” may be a
member of a particular organisation. BUT, it does not imply that other member States have granted
recognition by virtue of the membership of the former State.

● This is evident from the practice of States. After establishment of the UN, it appears TO HAVE
BECOME A RULE→ that→ when a State becomes a member of the UN, it does not involve a
collective act of recognition by other members. On December 14, 1950 the UNGA adopted a
resolution entitled 'Recognition by the United Nations of the Representation of a Member State',
wherein it was expressly declared that the attitude adopted by the UNGA concerning the question of-
which of several authorities shall be regarded as the Government entitled to represent a member
State" SHALL NOT AFFECT→ the direct relations of individual member States WITH the State
concerned."
 ● This view has been taken by the Secretary General of the United Nations in a Memorandum released
on March 8, 1950 which lays down:

Since recognition of either State or government is an individual act, and either admission to
membership or acceptance of representation in the Organisation are collective acts, it would be
a legally inadmissible condition IF THE LATTER ACTS by requirement need to be preceded by
individual recognition, as BOTH THESE PROCESSES ARE DISTINCT....

The members have made clear by an unbroken practice that:

(i) a member could properly vote to accept a representative of a government which it did not
recognise, or with which it had no diplomatic relations, and

(ii) that such a vote did not imply recognition or readiness to assume diplomatic relations.

● The Memorandum stated that recognition of a State is essentially a political act. It rejected the
view of collective recognition by the membership of the United Nations. Thus, the membership of a
new State in the United Nations does not indicate an intention of other States to grant recognition.
However, it cannot be denied that if a new State becomes a member, it is regarded to have been
recognized by other members for a limited purpose, i.e., in dealing only within the United Nations,
This position can utmost be said as to what is called quasi recognition

Modes of Recognition:

Recognition may be of two kinds de facto recognition and de jure recognition.

1. De facto Recognition.

● When an existing State considers that the new State has not acquired sufficient stability, it may grant
recognition to the latter provisionally, this is termed de facto recognition. De facto recognition is
granted normally when the recognizing State considers that the new State although has a legitimate
government, its effectiveness and continuance to govern the territory is doubtful.

● Oppenheim says that de facto recognition takes place when, in the view of the recognising State, the
new authority, although actually independent and wielding effective power in the territory under its
control, has not acquired sufficient stability or doesn’t yet offer prospects of complying with other
requirements of recognition.

● The grant of de facto recognition shows willingness on the part of the recognizing State to establish
relationship with the new State, but the willingness is given provisionally (subject to the fulfilment of
all the attributes of statehood with sufficient stability).

● It follows that the true purpose of de facto recognition is a declaration that the body claiming to be
the Government of an established or a new State actually wields effective authority, without,
however, satisfying other conditions of full de jure recognition.
 ● IF these remaining conditions are forthcoming, full recognition “de jure” will be the result. And, in
case the said conditions remain permanently absent, recognition will lapse automatically or will be
expressly withdrawn.

● Thus, de facto recognition may be regarded as a preliminary step towards de jure recognition.
The Soviet Union was recognized by Great Britain de facto on March 16, 1921 and later de jure on
February 1, 1924.

● The de facto recognition once granted may be withdrawn by the recognizing State when the latter
considers that the new State has ceased to possess the capability of administering the territory.

● If the existing States, after granting de facto recognition, later choose to recognise de jure, the
effect of the latter is given from the retrospective date, i.e., from the date when the de facto
recognition was granted.

● It is to be noted that by granting de facto recognition to a State, the recognizing State secures certain
advantages, especially economic. It enables it to protect the interests of its citizens in the de facto
recognized State. Further, it also enables the recognizing State to protect its interest and trade in the
de facto recognized State.

● However, the effect of the de facto recognition is not the same as that of de jure recognition.
Normally diplomatic relations are not established with a de facto recognized State. Further,
representatives of the de facto recognized States do not enjoy diplomatic immunities within the
territory of the recognizing State.

However, practice of the States in this regard is not uniform According to the practice of the United
States, representatives of a government recognized de facto enjoy diplomatic immunities.

0. De Jure Recognition:
● When an existing State considers that the new State is capable of possessing all the essential
attributes of statehood with stability and permanency, and it commands the general support of the
population, the recognition granted is known as de jure recognition.

● For instance, when Israel came into existence, 'full' recognition was expressly granted by many
States including the United States of America. This meant same as de jure recognition.

● A “de jure recognition” is final. De jure recognition may be given, with or without A PRIOR “de
facto recognition”.
 ● When a new State comes into existence peacefully and constitutionally, de jure recognition may be
granted directly. However, when it is not so, AND the new State is formed through revolt,
recognition may be granted after granting the de facto recognition.

Differences between De facto and De jure Recognition:

● It is to be noted that de facto and de jure recognition is an act intended to give rise to legal rights and
obligations. However, there are differences between the two.
● As far as the internal acts of the recognized authority is concerned, there is no difference between de
facto and de jure recognition.

Oppenheim says that→ 'recognition de facto’ is indistinguishable from ‘de jure recognition’
inasmuch as the legislative and other internal measures of the authority recognised de facto are
concerned before the courts of the recognising State, AND ARE THEREFORE on the same footing
AS a State or Government recognised de jure.

In Luther v. Sagor, it was laid down that there is no distinction between de facto and de jure
recognition for the purpose of giving effect to the internal acts of the recognised authority.

For instance, in Bank of Ethiopia v. National Bank of Egypt and Liguori, This case highlights the
practical implications of de facto recognition. Even though Britain only recognized Italy's de facto
control over Abyssinia (Ethiopia), the court in Britain still enforced an Italian decree dissolving the
plaintiff’s bank and appointing a liquidator. The case demonstrated that→ immunity in the Courts of
recognising State, and a State's international responsibility for wrongful acts remain the same
whether it is ruled by a de facto or a de jure government.

Luther v. Sagor

Facts: In 1918, Russia nationalised private factories, including one owned by the plaintiff (Luther). The

Soviet government sold nationalized wood products to the defendant (Sagor) in London. Luther sued Sagor

in England, claiming ownership of the wood.

Legal Issue: Should the English court recognize the Russian nationalization decree (passed by a government

not fully recognized by the UK)?

Arguments:

● Luther: The Soviet government wasn't fully recognized, so their decree shouldn't be valid in

England.

● Sagor: The Soviet government was the de facto ruler of Russia, and the UK recognized this.

Therefore, the decree should be respected.

Court Decision (in favour of Sagor): →The court ruled that even though the UK hadn't fully recognized

the Soviet government, it recognized them as the de facto rulers of Russia. This meant the English court

had to respect the Soviet government's acts within Russia, like the nationalization decree.

Legal Principle Upheld: Lord Bankes (who delivered the leading judgment), Lord Warrington, Lord

Scrutton: → De facto recognition: When a country acknowledges another government's effective control

over a territory, even if not fully recognized, the courts of the recognizing country may have to respect the

acts of that government within its own territory.

The Arantzazu Mendi

Facts: A Spanish ship (Arantzazu Mendi) was captured by rebel forces (Nationalist Government) during the

Spanish Civil War. Both the Republican Government (recognized by UK) and the Nationalist Government

claimed the ship in a British court.

Legal Issue: Did the Nationalist Government, even though not fully recognized (de jure) by the UK, qualify

as a sovereign state with immunity from lawsuits?

Key Points:

● The UK recognized the Nationalist Government as having de facto control over a large part of

Spain.

● The Foreign Office confirmed the Nationalist Government was a "foreign sovereign State" for

legal purposes.

Court Decision (in favor of Nationalist Government): The court ruled that the de facto control exercised

by the Nationalist Government granted them sovereign immunity. Even though not fully recognized, they

acted as a government within their territory.

Legal Principle Upheld: De facto recognition and Sovereign Immunity: A government exercising

effective control over a territory, even if not fully recognized by another country, may still be considered a

sovereign state and enjoy immunity from lawsuits in the recognizing country's courts.
The above description does not mean that no legal consequences follow from the distinction between de jure
and de facto recognition. Following are the differences between the two:-

1. De facto recognition being provisional can be withdrawn on many grounds other than those
justifying a withdrawal of de jure recognition.

0. While full diplomatic relations cannot be established with a de facto recognized State, it can be done
so when a State is recognized de jure According to the practice of some countries, including the United
Kingdom, de facto recognition does not, as a rule, bring about full diplomatic intercourse.

0. While full diplomatic immunities are not granted to the representatives of the de facto recognised
State, the representatives of the de jure recognised State are granted such immunities.

0. While the de jure recognised State can claim to receive the State property situated in the territory of
recognising State, de facto recognised State cannot make such claim The Soviet Government could get
possession of Tsarist Archives and other property in England only when the latter accorded de jure
recognition to the former in 1924.

0. Where a certain property situated within the territory of another State has been claimed both by the
de facto and de jure government, the claim of the de facto government may normally be ignored.

0. Official visits to and official dealings with the State in relation to its additional territory which has
been recognised de facto may be kept to a minimum or avoided altogether.

The above differences between de facto and de jure recognition make it clear that the distinction between the
two is of a purely political nature.

Recognition of Government-in-exile:

● When an individual or group of individuals residing in foreign State claims supreme authority over a
State which is under the control of another national or foreign authority or a State, and is recognised
by some other States and has been performing some acts of a State on behalf of the home State or
the State to be created is called government-in-exile.

● Government-in-exile usually operates under the assumption that they will return in future to their
home State and regain power. Government-in-exile frequently occurs during war-time occupation
and also in the aftermath of a civil war or military coup.

● In contemporary international law, the government-in-exile may be recognized by other States

despite the fact that a government is not an effective government.

● This situation may arise normally in cases→where the State is temporarily occupied by invaders or
by usurpers and the government has had to flee to a friendly State pending its return to its own State,
 or because it represents a rebel community which hasn’t yet succeeded in establishing itself in the
territory of which it aspires to be the government.

It is to be noted that International Law traditionally required a stable and effective government as an
element of statehood. This implies that there has to be the factual control of the organs of
government and a sufficient degree of international stability, and in its absence, a State cannot be
recognized. But, this requirement has become obsolete due to its rigidity.

After the creation of the UN, the right of self-determination has become a recognized principle of
International Law. Since the concept of effective government is against the above principle, it has
ceased to be an attribute of statehood.

This conclusion would appear to be imperative where→ a foreign power FORCIBLY prevent the
Local Population their Right to Self-Determination by the BELLIGERENT OCCUPATION of their
Territory; the local population should still have the right to be recognized as a state, even without a
fully functional government.

An entity without having an effective government may be termed as a State, and therefore be
recognized. Its recognition or non-recognition is largely dependent upon the intention of the
recognizing State.

The National Front of Liberation in Algeria declared the establishment of the provisional
Government of the Algerian Republic on September 19, 1958 in Cairo, Tunis and Rabat. The
Algerian Republic achieved recognition by a substantial number of States, prior to formal
independence granted by France in 1962.

Similarly, on November 15, 1988, Palestine Liberation Organisation (PLO) declared the
establishment of the independent State of Palestine during an extraordinary session of the Palestine
National Council or Parliament-in-exile. The government-in-exile of Palestine was based in Tunisia.
Independence of Palestine was recognized by a number of States including India despite the fact that
its territory had remained under the occupation of Israel.

Pre-mature or Precipitate Recognition:

Recognition is granted to a new State when it possesses all the attributes of statehood. However,
since it is a political act, sometimes it is granted to an entity. even if it does not possess them.
Such recognition is termed as pre-mature recognition or precipitate recognition. Generally, when
the authorities organise a secessionist movement and establish a provisional government in a
State for the prospective new State, recognition of such a Government is granted by other States.
It is to be noted that premature recognition given to a State amounts to an unwarranted and illegal
intervention in the affairs of the existing State. When some of the African States recognized Biafra
as a new State, it amounted to 109

illegal intervention in the internal affairs of Nigeria Later, when Biafra was defeated, Nigeria might
claim damages from those States for having granted premature recognition. Similarly, the
recognition of Israel by the Untied States on May 14, 1948 has been regarded as precipitate
recognition. It was granted on the same day the Israeli Act of Independence became effective,
notwithstanding that the existence of the State of Israel was not by then firmly established. When
civil war erupted in Yemen on May 4. 1994 between the Northern and Southern forces of Yemen,
the former declared itself an independent State after having seceded from the Republic of Yemen
The Southern Yemen as a new State, was recognised by Russia at the time when the civil war
between it and the Northern Yemen was continuing In the first week of July 1994 Southern forces
surrendered and the civil war ended with Northern troops overrunning the Southern capital.
Yemen's newly created Presidential Council proclaimed an end to fighting. It was also reported
that the Southern separatist leader and five of his aids slipped out of Aden to Oman, where they
have been granted asylum Thus, recognition granted by Russia to Southern Yemen fell to the
grounds

Oppenheim's contention that the recognition of Bangladesh by India on December 6, 1971, was
granted at a time when practically all of East Pakistan was still under the control of Pakistan
authorities, and the Bangladesh foothold on East Pakistan territory was meeting heavy resistance
from Pakistan forces, and therefore it being a precipitate recognition was not legal, is not correct
Bangladesh was recognised by India after Pakistan forces had surrendered and the existence of
Bangladesh was firmly established India's recognition was followed immediately by Bhutan and by
a few other States. It is therefore inappropriate to call it pre-mature recognition.

Conditional Recognition:

● The expression “conditional recognition” implies that the recognition is granted subject to the
fulfilment of certain stipulation by the recognized State, in addition to the normal requirements of
statehood.

● The concept of conditional recognition was introduced with the Protocol of June 28, 1878 signed on
behalf of Great Britain, France, Italy and Germany for the recognition of Serbia. The Protocol stated
that they recognize Serbia under the condition that it should not impose any religious inabilities on
any of its subjects.

● Conditions are imposed wherein the recognising State obtains, as the price of recognition,
PROMISES and UNDERTAKINGS, for its particular advantages.

● Oppenheim rightly argues that recognition, in its various forms, is neither a contractual

agreement nor a political favour. It is a statement acknowledging the existence of certain facts.

Because of this, it's inappropriate to impose conditions beyond the initial verification that qualify a

community for recognition as an independent state. Therefore, any conditions attached when

granting recognition contradict the true purpose of recognition.

● Once a state grants recognition to a new state, it implies that the recognizing state believes the

new state possesses all the attributes of statehood. Recognition of these attributes cannot be

conditional. Thomas Baty has pointed out that any interaction with the new state, as a governing

authority, implies recognition of its statehood. Following this logic, recognition cannot be

conditional.
 ● The very essence of recognition is that the recognizing state declares its satisfaction with the

hallmarks of a state within the Recognised State. This implies that→ setting a condition for

recognition is meaningless. If the recognized state fails to meet the condition, it doesn't negate the

recognition itself. Consequently, the recognizing state could choose to sever diplomatic relations or

take other punitive measures. However, as far as recognition is concerned, such actions wouldn't

have a real effect. Perhaps due to this reason, conditional recognition has largely disappeared from

contemporary practice.

Consequences of Recognition:

● Recognition of a State has twofold consequences, ie, political and legal.

● As far as political consequence is concerned, recognition of a State shows willingness of the

recognizing State to initiate international interaction with the new State. Recognition is legally
relevant, AS IT PROVES that the recognizing State considers THAT THE new entity fulfils all the
required conditions for becoming an international subject. It implies that non-recognition of a State
reveals disapproval of the existence of the conditions of statehood.

● When a State is recognized, it acquires certain rights in relation to a State which has granted
recognition. Firstly, the recognized State may establish diplomatic and consular relations with the
recognizing State. Secondly, the representatives of the recognized State enjoy diplomatic
immunities within the territory of the recognizing State. Thirdly, the recognized State may enter into
a treaty relationship with the recognizing State. The conclusion of bilateral treaties by States is
regarded as an evidence of their official recognition of each other. Fourthly, the recognized State
may sue in the courts of the recognizing State, and fifthly, the recognized State may claim or receive
property situated in the recognizing State.

● If a State is not recognized, it does not enjoy the above consequences of recognition. They, in turn,
become the disabilities of non recognition.

● However, non-recognition of a State does not mean that→ the new entity will be devoid of legal
entity in relation to the non-recognizing States. General international rules on the co-ordination of
States such as the NORMS on the high seas or respect for territorial or political sovereignty
SHALL APPLY to the relationships between the new State and all other members of the
international community.
 ● IN ORDER TO FULFIL → one of the purposes of the UN, i.e., 'to develop friendly relations
amongst the States, as ENVISAGED IN Article 1 Para 2 of the Charter’, it is DESIRABLE TO
GRANT RECOGNITION to a maximum number of States.

Is Recognition a Duty of a State ?

● The VIEWS of International Jurists differ on the Given ISSUE.

● Lauterpacht is of the view that→ once a State has come into possession of all the legal attributes of
statehood, there is a duty on all Existing States to recognise the new State because a new State
cannot have legal rights and duties under International Law unless it is recognized by other.

In the absence of an INTERNATIONAL ORGAN competent to→ authoritatively declare→ the

presence of requirements of full international personality, ALREADY ESTABLISHED STATES
fulfil that function in their capacity as organs of International Law.

Thus, according to Lauterpacht, the State should be aware that it is executing a legal function on
behalf of the decentralised international juridical order, namely, the creation of a new international
person.

● HOWEVER, Some writers assert that since recognition is the legal means of creating a new
international person, it should be a collective function, preferably carried out by the United Nations
as a representative of the international legal community, rather than by the variable and arbitrary
decisions of many individual States.

Since International Law does not provide THE RIGHT to a new State to be recognized by other
Existing States, THEREFORE, the existing States do not have any legal duty to recognise a
State. Granting or withholding of recognition is a question of policy rather than of law, and
therefore, recognition of a State depends upon the discretion of a State. The discretionary right is a
sovereign act and that cannot be questioned.

● Another view is that recognition is a political act. Recognition of a State depends upon the
discretion of a State, and therefore it is always optional.

While in some cases, a State is not recognized even if it possesses all the attributes of statehood, in
some other cases, pre-mature recognition is accorded to a State.

Institute of International Law in 1936 therefore declared that recognition is a 'free act’.

The “Draft Declaration on the Rights and Duties of States” drawn up by the International Law
Commission in 1949, AN important international law document, ALSO didn't make recognition
mandatory.
 ● HOWEVER, When a new government or state forms peacefully and legally, THE PRACTICE IS
UNIFORM and recognition is usually granted. Recognition is often withheld when a new State is
seen as illegitimate or has come about in breach of international law.

Almost universal non-recognition of the State of Rhodesia and the Turkish Republic of North
Cyprus are examples of such cases. In the former case recognition was widely withheld when the
White minority seized power and attempted to form a State. In the latter case recognition was widely
withheld from a State created in Northern Cyprus on land which was illegally invaded by Turkey in
1974.

● Starke lays down that recognition is granted by States according to 'legal principles and
precedents', WHEN At the time of granting recognition they ENSURE that the State to be
recognized at least possesses the requisite legal qualifications. To this degree, Starke says,
'States do treat recognition as a legal act. But, in practice, sometimes recognition is withheld
for certain POLITICAL MOTIVES and therefore it is a political act in some cases.
(synthesis of legal and political act)

● HOWEVER, considering the Provisions of the UN Charter; SUCH AS 'to develop friendly
relations among nations... and to take other appropriate measures to strengthen universal
peace' (Para 2 of Article 1) & 'to achieve international co-operation in solving international
problems' (Para 3 of Article 1), IT BECOMES CLEAR → If States do not grant recognition to other
States, the VERY purposes of UN may stand defeated.

● It may, therefore, be concluded that States are under a legal duty to recognize a new State if
the latter possesses all the essential attributes of statehood. Non-recognition of a new State is
unlawful. It is incompatible with the basic principles of International Law.

The legal duty of recognition has been imposed by the World Organisation. The World body is
required to take necessary steps against such Non-Recognising Politically-motivated States as it
takes in cases of violations of other provisions of the Charter.

Withdrawal of Recognition:
Whether recognition once given by a State may be withdrawn is a question on which THE Opinion OF
Jurists DIFFER. It is to be noted that withdrawal of recognition does not mean that in the opinion of a State,
another State has ceased to exist. J.G. Starke, defines withdrawal of recognition as a "political act"
influenced by a state's current relationship and interests towards another country.

● One view SAYS that de facto recognition, being provisional in nature, is liable to be withdrawn IF
it becomes clear that there is no POTENTIAL of the requisite conditions of recognition being
fulfilled. In October 1918, France withdrew the recognition granted in January, 1918 to the
provisional Government of the Finnish Republic.

According to this view, recognition de jure cannot be withdrawn. This view is supported by Article
6 of the Montevideo Convention of 1933 which declared that de jure recognition is 'unconditional
and irrevocable'.
 Institute of International Law in a resolution adopted in 1936 also provided that recognition once
given is irrevocable.

● Another view is that recognition is a political act, and therefore, recognition should be liable to be
withdrawn IF such GRANT is no longer Serving the Recognising State’s Policy.

If the recognising State considers that a State has lost its effective control, it may withdraw the
recognition granted.

Such recognition MAY BE withdrawn by means of an express notification to the authority from
which it is withdrawn, or by public statement.

In the case of extinction of a State, on such occasions withdrawal of recognition MAY BE affected
by an intimation to the diplomatic representatives of the defunct State that their mission must be
regarded as terminated and that they will not henceforth continue to be recognized as representing
the State in question.

● It is significant to note that if States would start withdrawing recognition of a State on political
grounds, they would find a number of occasions for doing so, BLATANTLY AFFECTING the
friendly relations of the States, AND ‘international peace and co-operation amongst the States'. It is
desirable that recognition once given by a State is not withdrawn even on political grounds.

Retroactive Effects of Recognition:

● Recognizing a new government (de facto or de jure) HAS a retroactive effect. This means other
countries might treat the new government's actions as valid, even from before it was officially
recognized.

● For instance, If the US recognized Communist China in 1979, the latter would accept China's actions
as valid from the date it came to power/existence, not just from 1979.

● This means other countries might treat the new government's actions as valid, even from before it
was officially recognized.

● However, the same is not a Legal Obligation. British and American Courts have adopted this
practice, AND THUS, the same can’t be regarded as a principle of International Law.

● AS PER OPPENHEIM, acknowledging past actions (even if the Government was not recognized at
the time & was a mere instrumentality of power) is a way to move forward and build a positive
 relationship with a new government. Thus, to give retroactive effect of recognition is a matter of
convenience rather than of any principle of International Law.

● A PRIMA FACIE RULE, as given by J.G Starke SAYS→ in cases where a State is granted de facto
recognition initially and de jure recognition later on, the effect of recognition starts from the date of
de facto recognition. It may be regarded as a prima facie rule.

RECOGNITION OF GOVERNMENTS:

● After a State has come into existence, its obligations in relation to other States are not affected in
consequence "of internal changes" which may take place. Change in the form of the government, or
overthrow of a government by an opposing political party are in a sense matters of domestic concern.
Change of the government in a State does not mean that it will lose its recognition as an international
person And therefore, recognition of a State is entirely different from the recognition of a
government. Recognition of a government means that the recognising State regards it as the
sole representative of the given State in international intercourse.

● When the regime of a State is changed, it is required to be recognized by other States. Change in the
government of a State may take place either in the normal course of political life i.e., by
constitutional means, or when it is effected through a coup d'etat'. In the former case, the question of
recognition does not arise, or, it remains a pure matter of formality. FOR INSTANCE→ when the
Constituent Assembly of Nepal voted for the abolition of monarchy to become a federal democratic
republic in 2008, question of recognition of the new government did not arise.

● However, when change occurs in the regime by revolt or by coup d'etat, or to say in an
unconstitutional way, difficulty in Recognition arises. The instances INVOLVE the case of People's
Republic of China in 1949. Recognition, in such cases is granted when other States are satisfied as to
its stability and capacity to control the territory.

● The practice of States, in particular that of the United Kingdom, was based on the principle of
effectiveness. The Criteria expressed by the British Government includes:
(a) a reasonable potential of permanence;
(b) Obedience of mass population, and
(c) the effective control of a greater part of the territory of the State concerned.

● If the new Government of a State is not recognised either expressly or impliedly no formal official
intercourse is possible, & the operation of treaties stays suspended. HOWEVER, even if the new
government fails to secure recognition from foreign States, it does not destroy the international
personality of the State, & it is not freed from its existing treaty obligations, though it involves an
interruption in that State’s ability to exercise its legal capacity for international purposes.

● The new Government of a State may be recognized de facto or de jure by other existing States. De
facto recognition is granted to the new government where the recognising State considers that:
0. New government lacks stability or
 0. where the new government is not willing to abide by the rules and principles of
International Law or
0. where it is unwilling to settle certain outstanding issues.

Thus de facto recognition is granted to the government as a test of control. When the existing
States are satisfied that the effective control is likely to continue, they may later grant de jure
recognition.

● Where there is a conflict between two Governments of the same State in regards to the ownership of
the property situated within a foreign State, claim of the De Jure Government would normally prevail
over that of the De Facto Government.

● It is to be noted that recognition of a new government, like a new State, also depends upon the
discretion of existing States. Some States follow the traditional method, wherein they make a clear
decision to either formally recognize a new government or withhold recognition based on their own
evaluation.

● However, some States opt for a more flexible approach, WHEREIN They enter into relations with
new regimes, as the circumstances may require or abstain from such relations, regardless of formal
recognition or of formal withholding of recognition

● Critics of the Flexible Approach argue that this flexibility can create ambiguity in the future, and
States may engage with unstable regimes, undermining international order. The question of duty to
recognise the new government, FOR SUCH STATES have come to an end.

Tobar Doctrine and Estrada Doctrine:

● 'Doctrine of legitimacy', OR the so-called Tobar doctrine WAS propounded in 1907 by Tobar,
the Foreign Minister of Equador. AS PER THIS DOCTRINE, they bound themselves not to grant
recognition to any Government coming into existence by revolutionary means, UNLESS it was
‘Constitutionally Recognised BY the freely elected representatives of the people’.

● The view that→ non-recognition because of the UNCONSTITUTIONAL ORIGINS of a government

WAS an interference IN ITS domestic affairs led to the introduction of the Estrada doctrine,
propounded by Estrada, the Foreign Minister of Mexico, in 1930. According to THIS
DOCTRINE, it is a duty of States to continue diplomatic relations with the States without regard to
revolutionary change in a country. Estrada doctrine is also sometimes called 'doctrine of
effectiveness'.

● But neither of the above doctrines can be regarded as a general rule in International Law.
While granting recognition, the consideration has to be given to the Parameter of Effectiveness i.e.,
the stability and capacity to control over the people of the territory. Also, what needs to be
Considered is that the Emergence of the Government is not violative of the basic principles of
 International Law. Political considerations of States MUST hold less weight, Lest international peace
is likely to be affected

● A new government may be recognized in several ways. For instance:

● Notification to the new government's head.
● Announcement.
● Letter from the recognizing head of state.
● Receiving the new government's envoy.

● When a State recognizes a new government that has taken power (through revolution, election, etc.),
it treats that government as the legitimate continuation of the previous one for official purposes (like
diplomacy).
HOWEVER, If a country doesn't recognize the new government, the original state itself (as a legal
entity in international law) still exists. However, formal official communication and interactions
between the countries are put on hold. Existing treaties between the two countries might also be
suspended until recognition happens.

RECOGNITION OF BELLIGERENCY:
● When civil war takes place in a State in such a dimension that other States start treating it as a real
war between the rival powers, it is said that the state of belligerency exists.

● When the rebels are recognized, it is known as recognition of belligerency.

● The recognition of belligerency shows that the recognizing State considers that the rebels are in a
position to exercise authority over the territory in their possession.

● Starke says→ that→ before belligerency is recognized by other States, certain conditions must exist.
They are:
● Hostilities should be of a general character. It should not be confined to only a part of the
State. THUS, it should not be of a purely local nature.
● The rebels or insurgents must be in control of a substantial part of national territory.

● Both parties must act in accordance with the laws of war.

● The rebels must have organised force under a proper command.

● As to modes of recognition of belligerency, Formal recognition usually involves an unequivocal

statement of neutrality from another State.
 ● The result of recognition of belligerency is that both the rebels and the parent government are
entitled to exercise belligerent rights and are subject to the obligations imposed on belligerent.

● Once the belligerency is recognized by other States certain consequences follow. Recognizing State
can declare its attitude of neutrality. This attitude would enable the recognizing State to possess all
the rights which the neutral States are normally granted in International Law. Such rights are
required to be respected by rival parties involved in a conflict. SIMILARLY, recognizing State is
also bound to accord the rights of belligerents- Both sides in the conflict gain rights associated with
belligerency, such as having their ships admitted to neutral ports and the right to visit and search
enemy ships at sea.

● The recognition essentially transforms the civil war into an international conflict governed by the
rules of warfare. This includes applying the Geneva Conventions 1949, which outline how warring
parties must behave.

RECOGNITION OF INSURGENCY:

● When in a civil war, rebels or insurgent forces start operating in such a way that they occupy a
large part of the territory formerly governed by the parent government, and they constitute de
facto authority over it, the rebels or insurgents may claim some measure of international
subjectivity.

● After the Second World War, a number of cases of internal conflicts occurred. When the insurgents
or rebels are recognized by other existing States, it is known as recognition of insurgency. Before
insurgency is recognized, recognizing State is required to satisfy the following conditions:
● Firstly, insurgents have occupied control over a considerable part of the territory.

● Secondly, insurgents have support from the majority of the people inhabiting the territory.
● Thirdly, when the rebel forces do not act under the command of an organised authority in
possession of considerable territory or when they do not by their conduct offer the necessary
guarantees of complying with the accepted rules of war.

● If the rebels are defeated, or if they fail in their attempt to secede or in the seizure of power,
recognition granted to them falls to the ground. However, if the rebels come out successfully,
recognizing them as a new State, follows.

● When the existing States consider that it is premature to recognise the rebels or insurgents because
they have not yet established substantial territorial control or setting up an administration with
widespread support, they may provide support to the rebels without recognizing them. For instance,
United States in April 1989. in order to demonstrate continuing support to rebel groups in
Afghanistan, appointed a Special Envoy with a rank of an ambassador (interim step by USA short of
diplomatic recognition).
 ● As a general rule, when a civil war takes place in a country, other States are not required to interfere
in it as it is a domestic affair of a State. Any interference from the international community is bound
to bolster insurgents and make them even more dangerous.

● Oppenheim has rightly stated that for an untimely and precipitate recognition as a new State is more
than a violation of the dignity of the parent State.

It is an unlawful act, and it is frequently maintained that such untimely recognition amounts to
intervention. However, in some cases, recognition is granted so as to protect the interest of nationals,
property and also for securing commercial intercourse. Further, some States may GRANT
recognition on account of political, religious or ideological affinities or because of military or
strategic considerations.

When the insurgency is recognized by a State, the latter protects the insurgents from being treated by
it as pirates.

De facto recognition of insurgents by the Great Britain in the Spanish Civil War, (1936-39) in regard
to the territory under their control is an example of recognition of insurgency.

Distinction between Recognition of Insurgency and Belligerency:

● An insurgency describes a less organized rebellion. Insurgents might not follow international law,

lack a clear commander, or only fight in a limited area. Belligerency applies when rebels are more

organized, have a defined leadership, and control significant territory. Belligerents are expected to

follow the rules of war and can be recognized by other countries.

● The question arises of whether to recognize insurgencies. Some argue such recognition is

unwarranted. Others believe recognition is justified if insurgents control territory, have a structured

organization, and follow the rules of war.

● International law offers some protections even in insurgency situations. For instance, states can

demand insurgents protect foreign citizens and property within their controlled areas, without

formally recognizing the insurgency.

● The political instability of insurgencies creates tension in international relations. Recognizing

insurgencies can be seen as interference in another country's affairs, which is against international

law.