Public International Law 2022 Recognition

RECOGNITION
Recognition is acknowledging political entity of another State. It could be Express or
Implied, Conditional or pre-mature.
According to Article 1 of the Montevideo Convention on the Rights and Duties of
States, 1933 and Oppenheim, the entity of a state can be created if it possesses the
following characteristics:
1. Permanent Population
2. Definite Territory
3. Government
4. Capacity to enter into relations with other States (Sovereignty)

Change of Regime of State can happen in 2 ways-

 Normal Course.
 Coup d’ eat’ (revolt, revolution etc.)

Recognition of Belligerency:
Belligerency exists when a portion of the State’s territory and population
is under the de facto control of the people who are fighting against the
government to establish a separate State or to overthrow the existing
government. A civil war may turn into a real war if the rebels are in
possession of a substantial part of territory.
Insurgency is a lower form of belligerency, when the rebels don’t have a
good enough portion of the state under their control

Effects of Recognition: Recognition enables the State-

1. To sue in the courts of recognizing States.
2. To get sovereign immunity for itself from recognizing state.
3. To enter into diplomatic and treaty relationship with recognizing state.
4. To get retroactive effect for its past legislative and executive acts from
recognized state THAT MEANS BEFORE GETTING RECOGNITION ALL LAWS ACT WILL VALID
AFTER GETTING RECOGNITION
5. To be entitled to the succession and possession of property situated in
recognizing state.

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Public International Law 2022 Recognition

Theories of Recognition.
Constitutive/Constructive Theory (Hegel, Anzilloti, Oppenheim)
HAO An entity becomes state when other State Recognise it, not when it
possesses essential attributes of Statehood. This doesn’t mean that State
doesn’t exist unless recognised, but in this theory, State gets the exclusive
rights and obligations and becomes a subject to International Law after its
recognition by other existing States.

Declaratory/Evidentiary Theory (Hall, Wagner, Brierly, Fisher)

State Exists prior to and independent of Recognition. Recognition is just a
formal acknowledgment. The theory has been given in Article 3 of the
Montevideo Convention where it recognizes the existence of a new state
does not depend upon the mind of the existing state’s consent.

Modified Constitutive Theory (Kelson)

Natural Statehood exists in a state as soon as it attains essential elements
of statehood, but Juridical Statehood only exists in a State after
recognition by other States.

Doctrines of Recognition
TOBAR DOCTRINE (No Recognition for Unconstitutional Governments).
Named after Carlos Tobar, Foreign Relations Minister of Ecuador, the
doctrine states that recognition of government should only be granted if
its administration came to power by legitimate democratic means.

ESTRADA DOCTRINE (Recognize Existence of Government not Legitimacy).

Named after Mexican Secretary of Foreign Affairs, Genaro Estrada, the
doctrine states that; "Recognition of government should be based on its
de facto existence rather than on its legitimacy." This policy based on the
principles of non-intervention and self-determination of all nations does
not allow the states to assess the legitimacy of governments of other each
-others.

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Public International Law 2022 Recognition

BETANCOURT DOCTRINE (No Recognition for Military Rules).

This doctrine which inter alia became the cause of isolation of Venezuela
denied the; "Diplomatic recognition of any regime that came to power by
military force.”
STIMSON DOCTRINE.
Named after American Secretary of State, Stimson, this doctrine pledged,
"Not to recognize international territorial changes brought about by the
aggression." The doctrine was application of a principle, 'ex injuria jus non
oritur' means 'illegal act cannot create law’. This policy was mainly implemented by US federal
govt. but later adopted around world

De-Facto & De-Jure Recognition

In law and government, de facto describes practices that exist in reality, even though
they are not officially recognized by laws, de jure describes practices that are legally
recognised.

DE FACTO Recognition DE JURE Recognition

Provisional and Temporary. Formal and Definitive.
Lesser Degree of Recognition. Fullest kind of Recognition.

Dependant on conditions, can be Final, cannot be Withdrawn (Article 6,

Withdrawn. Montevideo convention, 1933)

Given to State which formed through Given to State which formed by peaceful
Revolt. and constitutional means.

Full Diplomatic Relations cannot be Full Diplomatic relations can be

established, full immunities to established, Full Immunities granted to
Diplomats may not granted. Diplomats.

Cannot make claim in the recognizing Can make such claim.

states property.

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Public International Law 2022 Recognition

Luther v. Sagor (1921)

1917 - Luther (Citizen of UK) had business of timber in Russia, Russia nationalised all
timber factories. Luther left Russia.

1920 - Sagor made an agreement with Russian nationalized business company for
supply of timber, but when the timber reached UK, Luther claimed that it was his
timber and UK never recognised the Government of Russia and Russia took over his
factory illegally, so UK court cant validate Russian law.

During this whole time Russia was given de Facto Recognition.

- Court held that Once a government is recognized, its acts will be granted as
valid, even those prior to its recognition, known as retrospective effect and
about the point of whether it would make a difference if the recognition is de
facto or de jure, court held that there is no distinction between de-facto and
de-jure recognition for the purpose of giving effect to the international acts
of the recognised authority

Bank of Ethiopia v. National Bank of Egypt and Liquori (1937)

Addis Ababa(capital of Ethiopia) was captured in the italo-Ethiopian war.

Decree passed by Italy to dissolve Bank of Ethiopia.

Decree challenged by Bank of Ethiopia.

Court said the Italian government has been recognised as the de facto
government of the area. So, effect to the decree must be given.

The Arantzazu Mendi case (1939)

Facts: During the Spanish Civil War, the UK recognized de jure the Republican
government of Spain, but also recognized de facto the rebel government (the
Nationalists). Both governments sued in British courts to control the Spanish-flagged
vessel Arantzazu Mendi, when arrived in a British port.

Issue: Whether the republican government shall have the right to possess the ship.

Held: A de facto government has control over state assets within the territory it
controls. A de jure government has control even over state assets abroad.

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 Public International Law 2022 Recognition

Bank of China v Wells Fargo (1952)

In 1949, the communists were victorious in the revolt of China. Before this, China
was controlled by the KMT which was a US friendly govt. This government was
saving some money in the Wells Fargo bank in California. By 1948, it had $800,000.
When the communist government came to power, they realized that this money
was available in the Wells Fargo bank and wanted the bank to send them the
money. Wells Fargo refused.

The court of California decided that the money should go to the KMT government in
Taiwan. (This judgement is based more on politics rather than principles)

Civil Air Transport Inc. v. Central Air Transport Corp (1953)

Communist Revolt in China, Communist government took territories under control.
Granted de facto recognition. While Government of People’s Republic of China still
had de jure recognition. 40 airplanes were sold by the nationalist government to a
US company. (Central Air Transport Corp.)

Communist Party of China was given de jure recognition later. Now because the
recognition is retroactive in nature, the deal could be cancelled because subsequent
recognition de jure of a new government as the result of successful insurrection can
in certain cases annul a sale of goods by the previous government. This is to validate
acts of the new de jure government and not to invalidate the acts of the previous
de jure government.

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