Meaning of State Recognition in Public

International Law
The term “Recognition” means ratification, confirmation,
acknowledgment that something done by any other person in
one name had one’s authority.
Recognition of State
“In recognizing a state as a member of international
community, the existing states declare that in their opinion
the new state fulfills the conditions off statehood as required
by International law” (Oppenheim)
According to Kelsen
The country to be recognized as an international person must
be:-
1. Politically organized
2. Have control over a definite territory.
3. Which tends towards permanence.
4. And must be independent.
Essentials for recognition as a state
under Public International Law
Under the International Law, Article 1 of the Montevideo
Conference, 1933 defines the state as a person and lays
down following essentials that an entity should possess in
order to acquire recognition as a state:
 Population;
 Territory;
 Government;
 Sovereignty;
 Control should tend towards permanency.
If these conditions are fulfilled, then the State can be
recognized.
 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
Theories of recognition in international
law
The recognition of a new entity as a sovereign state is based
on two main theories:
 Consecutive Theory
 Declaratory Theory
2. Declaratory theory of state recognition
in International Law
This theory has been laid down under Article 3 of the
Montevideo Conference of 1933. This theory states that the
existence of a new state does not depend on being
recognised by the existing state. Even before recognition by
other states, the new state has the right to defend its
integrity and independence under International law.
The followers of theory consider the process of recognition as
merely a formal acknowledgement of statehood by other
states.

In conclusion, there is no distinction between de facto and de

jure as it is for the states to give effect to the internal acts of
the recognized authority. This was held in the case Luther v.
Sagar [3]. [(1921)3 KB 532]
3. 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.
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’.

The distinction between De Facto and De

Jure Recognition of State in International
Law
S.N De facto Recognition of
De jure Recognition of State
o. State

De facto recognition is a
De jure recognition is legal
1. provisional and factual
recognition.
recognition.

2. De facto recognition is De jure recognition is granted whe

 granted when there is the the state fulfils all the essential
fulfilment of the essential condition of states along with
conditions of statehood. sufficient control and permanency

De facto recognition is a De jure recognition can be granted

3. primary step towards grant either with or without grant of de
of de jure recognition. facto recognition.

De facto recognition can

De jure recognition is a final and
4. either be conditional or non-
non-conditional recognition
conditional.

De facto recognition is De jure recognition is non-

5.
revocable in nature. revocable.

The states recognised under

The state recognised under this
this mode have only a few
6. mode have the absolute right and
rights and obligations
obligations against other states.
against other states.

The state with de facto

The state with de jure recognition
7. cannot undergo state
can under state succession.
succession.

8.

This rule has been applied in a number of cases viz. Bank of

Ethiopia v. National Bank of Egypt & Ligouri (1937) 3 All
ER 8. The Arantzanu Mendi (1939) 1 All ER 719. So far as
conflict of authority takes place between a displaced de jure
government and a newly recognized de facto government,
concerning matters in the territory ruled by the de facto
government, the rights and status of de facto government
will prevail.
Withdrawal of Recognition of State in
International Law
1. Withdrawal of De facto recognition in
International Law
Under international law when a state having de facto
recognition fails to fulfil the essential conditions of
statehood, its recognition can be withdrawn. The recognition
can be withdrawn in International Law by the recognizing
state through declaration or through communicating with the
authorities of the recognized states. The withdrawal can also
be done by issuing a public statement.
2. Withdrawal of De Jure recognition in
International Law
Withdrawal of de jure recognition is a very debatable issue
under the International Law. Withdrawal of a de jure
recognition in International Law is a very exceptional event. If
strictly interpreted, the de jure recognition can be withdrawn.
Such revocation of de jure recognised states can be
withdrawn only when a state loses the essential
characteristics of statehood or any other exceptional
circumstances. This type of revocation can be done expressly
by the recognising state by issuing a public statement.
Recognition of government
For any statehood, the government is an important element.
When a state is formed, its government changes from time to
time. When the government changes as an ordinary course of
political action, the recognition of government by the existing
 state is not required but when the government changes due
to any revolution, then its recognition by the existing
state is required.
For recognising the new government established out of
revolution, the existing states need to consider that:
1. The new government have sufficient control over the
territory and its people or not.
2. The new government is willing to fulfil the international
duties and obligations or not.
When the existing states are satisfied that the new
government resulting out of the revolution is capable of
fulfilling the conditions as mentioned above, then the new
government can be recognised by the existing states.

Fact
Luther was a British Citizen who used to run a Timber industry in Soviet
Russia. On 1917 the Russian Government nationalized his factory and
thereafter Mr Luther left Russia and went to the UK. In 1920 Mr. Sagor came
to an agreement with Russian Nationalized business company to buy some
timber, the company sent timbers accordingly but when timers reached in UK
Mr. Luther claimed that those timbers were his timbers, he pointed that as UK
never recognized the government of Russia, as well as Russia, wrongfully
took over his factory, therefore, the civilized court of UK cannot validate the
rule of Russian law.

Issues
1. Whether Russia was recognized by Britain or not?
2. Whether the nationalization was legal or valid?
Decision
In this case, the lower court of Britain found the judgment in
favour of Luther by considering his argument, being aggrieved on
such judgment Sagor appeal to the Higher Court of Britain. After
appeal, it was found that Britain provided De-Facto
Recognition to in 1921 as a result the Kings Bench Division,
Court of Appeal held the judgment in favour of Sagor.
It was held that the British Government recognized the
Government of Russia and the retrospective effect will be
applicable for that recognition. So the Nationalization by Russia
was legal and valid.

Reasoning
To determine the issues the Kings Bench Division considered the
following matters
 That the British Government provided de-facto recognition of
the present government of Russia.
 That the recognition of Russia had retrospective effect,
therefore, the time in question is not a concern.
 That, in the matter of effective relationships and in the
question of law De-facto or De-jury recognition does not
create any real difference.
It also takes the “Act of state doctrine” into consideration,
this doctrine articulates that A state can not take any step to
question the legality of another states internal matter for being a
sovereign country.
Kings Bench Division it held that they cannot interfere in an
internal matter of another state, because in the meantime Russia
was given the de Facto Recognition, the court also declare the
retrospective effective on that recognition form 1917. So the
Nationalization by Russia was legal and valid.

Fact:
Arantzazu Mendi was a Spanish ship which was registered under
the Bilbao area of Spain. In 1936 there was a civil war in Spain
between two-party the Republics and the Nationalists.
Nationalists were under the comment of General Franco. The UK
recognized de jure the Republican government of Spain, on the
other hand, they also recognized de facto the rebel government
(the Nationalists). Slowly General Franco overtook many areas
including Bilbao and at that time the Republics nationalized all the
(Registered) ships of that area. At that time the ship Arantzazu
Mendi was anchored at a port of UK. The De Facto Nationalist
government of Spain who was recognized by UK appeal to the
UK that as The United Kingdom gave them the legal recognition
the Arantzazu Mendi ship legally belongs to the Nationalist
government and therefor UK should cease the ship and handover
to the Nationalist government.
Issue:
Whether the republican government shall have the right to
possess the ship?
Decision:
It was held: A de facto government has control over state assets
within the territory it controls. A de jure government has control
even overstate assets abroad.
Reasoning:
It was held by the House of Lords that since the Nationalist was a
de-facto recognized sovereign ineffective contract over a large
portion of Spain, it was immune from the jurisdiction of the local
courts of other sovereigns.

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.
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)

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.

Tinoco Claims Arbitration (Great Britain v. Costa Rica)