Recognition

1- Introduction:
International society is not an unchanging entity, but is subject to the ebb
and flow of political life. New states are created and old units fall away.
New governments come into being within states in a manner contrary to
declared constitutions whether or not accompanied by force. Insurgencies
occur and belligerent administrations are established in areas of territory
hitherto controlled by the legitimate government. 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.

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.

It is purely a political judgment, although it has been clothed in legal

terminology.—shaw

Recognition is a discretionary unilateral act exercised by the government of a State

officially acknowledging the existence of another State or government or
belligerency. It is a complicating mixture of politics and laws both national and
international.

2- Definition of Recognition;

1- According to Oppenheim:
In recognizing a State as a member of international community, the existing states
declare that in their opinion the new state fulfils the conditions of statehood as
required by the international law.

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 2- According to Fenwick:
Through recognition the members of international community formally
acknowledge that the new state has acquired international personality.

3- According to the institute of international law:

Recognition is the free act by which one or more states acknowledge the existence
of a definite territory of a human society politically organized independent of any
other existing States and capable of obligations of international law by which they
manifest through their intention to consider it a member of international
community.

4- According to Hans Kelsen:

Recognition of a State is an act by which another State acknowledges that the
political entity recognized, possesses the attributes of statehood.

5- According To M.Shaw:
Recognition is a statement by an international legal person as to the status in
international law of another real or alleged international legal person or of the
validity of a particular factual situation.

3- Theories of Recognition:

There are basically two theories as to the nature of recognition.

1- Constitutive Theory:
Hegel was the founder of this theory. According to this theory it is the act of
recognition by other states that creates a new state and endows it with legal
personality and not the process by which it actually obtained independence. Thus,
new states are established in the international community as full fledge subjects of
international law by virtue of the will and consent of already existing states.
Anzilotti maintains that the state as a subject of the international law comes into
existence only with the condition of the first agreement as expressed by the treaty
of recognition.

Criticism on the theory:

a- The disadvantage of this approach is that an unrecognized ‘state’ may not be
subject to the obligations imposed by international law and may accordingly
be free from such restraints as, for instance, the prohibition on aggression.

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 b- A further complication would arise if a ‘state’ were recognized by some but
not by other states. In such circumstances, one can not say that it is partially
created and partially not created.

c- If according to this theory, a new state is created only as a result of a treaty

of recognition but in International law treaty can only be enforced into
between states.

d- This can not explain the retrospective effect of recognition.

2- Declaratory or Evidentiary Theory:

According to this theory statehood or the authority of a new government exists as
such prior to and independently of recognition. The act if recognition is merely a
formal acknowledgement of an established situation of fact. This theory is a little
more in accord with practical realities. A new state will acquire capacity in
international law not by virtue of the consent of others but by virtue of a particular
factual situation. It will be legally constituted by its own efforts and circumstances
and will not have to await the procedure of recognition by other states. This
doctrine owes a lot to traditional positivist thought on the supremacy of the state
and the concomitant weakness or non-existence of any central guidance in the
international community.

Lauterpacht, recognition was not an act of policy but it was an act of law.
There is a duty on each state to recognize a new state or new government
fulfilling the legal requirement of the statehood. Whether a particular
community has acquired the qualifications necessary for attaining statehood
was a question of law, and once the political community has attained those
qualifications, there is a duty imposed on the other states to recognize it.
Therefore, the recognition is constitutive.

Criticism on the theory:

a- States continue to treat recognition as an act of political rather than
as an act of law. This attitude of the state is fully evidenced in the
divergence of practice regarding recognition of Israel and
communist government of China.
b- If there is a duty imposed on the state to recognize the new
community of a new Government, how could this duty be
enforced? And as every duty pre-supposes a right, where is this
right located? Is it in the new state claiming recognition or in the

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 international community generally and how could such claim of
right be made effective.

Two Theories:
Probably the truth lies somewhere between these two theories. The one or the other
theory may be applicable to different sets of facts. The bulk of international
practice supports evidentiary theory, in as much as while recognition has often
been given for political reasons and has tended therefore to be constitutive in
character, countries generally seek to give or to refuse it in accordance with legal
principles and precedents.

For the constitutive theorist, the heart of the matter is that fundamentally an
unrecognized ‘state’ can have no rights or obligations in international law. The
opposite stance is adopted by the declaratory approach that emphasizes the factual
situation and minimizes the power of states to confer legal personality.

4- Mode of Recognition:
Generally, there are two modes of recognition.
i- De jure recognition: Recognition De Jure means that according to the
recognizing State, the Stat of government recognized formally fulfils the
requirements laid down by international law for effective participation in
the international community. According to M. Shaw: Recognition de jure
usually follows where the recognising state accepts that the effective
control displayed by the government is permanent and firmly rooted and
that there are no legal reasons detracting from this, such as constitutional
subservience to a foreign power.

ii- De facto recognition: Recognition De Facto means that in the opinion of

recognizing State, provisionally and temporarily and with all due
reservations for the future, the State or Government recognized fulfils the
above requirements in fact. According to M. Shaw: Recognition de facto
implies that there is some doubt as to the long-term viability of the
government in question. De facto recognition involves a hesitant
assessment of the situation, an attitude of wait and see, to be succeeded
by de jure recognition when the doubts are sufficiently overcome to
extend formal acceptance.

Comprehending the mode of recognition:

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The United Kingdom recognized the Soviet government de facto in 1921 and de
jure in 1924. A slightly different approach is adopted in cases of civil war where
the distinction between de jure and de facto recognition is sometimes used to
illustrate the variance between legal and factual sovereignty. For example, during
the 1936–9 Spanish Civil War, the United Kingdom, while recognizing the
Republican government as the de jure government, extended de facto recognition
to the forces under General Franco as they gradually took over the country.
Similarly, the government of the Italian conquering forces in Ethiopia was
recognized de facto by the UK in 1936, and de jure two years later.

There are in reality few meaningful distinctions between a de facto and a de jure
recognition, although only a government recognized de jure may enter a claim to
property located in the recognizing state. Additionally, it is generally accepted that
de facto recognition does not of itself include the exchange of diplomatic relations.

Difference Between De Facto and De Jure Recognition

De Facto De Jure
1- As to De facto recognition is De-jure recognition is
Nature temporary permanent
2- As to De-facto recognition can De-jure recognition can not be
Revocation be revoked revoked
3- As to De-fecto has no De-jure has retrospective effect
Effect retrospective effect
4- As to De facto does not confer De-jure confers title to retail
Right tittle to retail property in property in other states
other states.
5- As to In de facto diplomatic In de-jure diplomatic envoys
Diplomatic envoys are not appointed are appointed
Relations
6- As to De facto is of less scope De-jure is of wider scope. The
Scope because recognition is not recognition through united
possible through united nations is made when it is
nations admitted to the membership of
Un

5- Aspects of Recognition:
i- Recognition of Government:
The recognition of a new government is quite different from the recognition
of a new state. As far as statehood is concerned, the factual situation will be

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 examined in terms of the accepted criteria. Different considerations apply
where it is the government which changes. Recognition will only really be
relevant where the change in government is unconstitutional. In addition,
recognition of governments as a category tends to minimize the fact that the
precise capacity or status of the entity so recognized may be characterized in
different ways.

ii- Recognition of Insurgency:

Recognition of insurgency may become necessary during the times of
civil war when the insurgent forces may attain such a position that
they are in effective occupation of and constitute the de facto
authority in a large part of the territory formally governed by the
parent govt. But at the same time, the insurgent forces may not have
required the status of a government. In such circumstances,
recognition of insurgency becomes necessary when the vital interests
of a foreign state are at stake. In such a case, the external powers may
enter into some contracts or intercourse with the insurgents as the de
facto authorities in order to protect their nationals, their commercial
interests or their sea-borne trades. De facto recognition of the
insurgents may be limited to the territory of which they are in
effective occupation. When that happens, the rebels possess as against
third state, the state of insurgents. The recognition of the state may be
for mutual benefits. This recognition might enable the recognizing
state to exact certain advantages only from the insurgent but also from
the legitimate government.

iii- Recognition of Belligerency:

A belligerency exists when the inhabitants of a state rise up in arms,
for the purpose of overthrowing the legitimate government. Following
conditions must be noted for a belligerent community to be
recognized;
i- There must be an organized civil government directing the
rebel forces.
ii- The rebels must occupy substantial portion of the territory of
the state.
iii- The conflict between the legitimate government and the rebels
must be serious making the outcome uncertain.
iv- The rebels must be willing and able to observe the laws of war.

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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 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.

6- Legal Effect of Recognition:

Recognition produces legal consequences affecting the rights, powers, and
privileges of the recognized State of Government both at the International Law and
under the Municipal law of States which have been given it recognition. Also,
when the subject of recognition arises for examination, however, incidentally, by
the municipal Courts of such States, various problems of evidence, legal
interpretation and procedure enter into consideration.

a- Effect of Recognition:
A new recognized State or Government entertains following privileges:
i- Acquires the right of suing in the courts of law of the recognizing State

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 ii- May have effect given by these courts to its legislative and executive acts
both past and future
iii- May claim immunity from suit in regard to its property and its diplomatic
representatives
iv- Becomes entitled to demand and receive possession of, or to dispose of
property situate within the jurisdiction of a recognizing State which
formerly belonged to a preceding Government.

b- Effect at International Law:

i- Recognized state or govt becomes a member of the international
community and it acquires the capacity to enter into diplomatic
relations to make treaties with other states.
ii- Subject to some limitations, former treaties if any, concluded
between two states assuming it to be an old state not a newly born
one, are automatically revived and come into force.

c- Effect at Municipal Law:

i- It cannot sure in the courts of a State which has not recognized it. The
principle underlying this rule was well expressed on one American case.
ii- By reason of the same principle, the acts of an unrecognized State or
Government will not generally be given in the Courts of a non-
recognizing State the effect customary according to the rules of ‘comity’.
iii- Its representatives cannot claim immunity from legal process
iv- Property due to a state whose government is unrecognized may actually
be recovered by the representatives of the regime which has been
overthrown.

Retroactive effect of Recognition:

That means the effect would relate back to the date on which the concerned
authority acquired the necessary qualifications. So far as the British practice
regarding retroactive operation of recognition is concerned.
It might be concluded that through recognition operates retroactivity, it cannot
operate in such a way as to invalidate the acts of a former govt, recognized de jure.
But it can only validate the acts of a De facto government which has become the
new De jure government.

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  Recognition in the Court of Law:
As the right and obligations of the state are affected by recognition, it becomes
very often necessary for the courts to decide as to whether a particular state or
government is recognized or not. The practice of British and the American Courts
regarding this question is to consult the executive on this question and to be guided
by the opinion of the executive. The one advantage of this American and British
practice is that a conflict between the judiciary and executive may be avoided.

 Withdrawal of recognition:
Recognition once given may in certain circumstances be withdrawn. This is more
easily achieved with respect to de facto recognition, as that is by its nature a
cautious and temporary assessment of a particular situation. Where a de facto
government loses the effective control it once exercised, the reason for recognition
disappears and it may be revoked. It is in general a preliminary acceptance of
political realities and may be withdrawn in accordance with a change in political
factors. De jure recognition, on the other hand, is intended to be more of a
definitive step and is more difficult to withdraw. Of course, where a government
recognized de jure has been overthrown a new situation arises and the question of
a new government will have to be faced, but in such instances withdrawal of
recognition of the previous administration is assumed and does not have to be
expressly stated, providing always that the former government is not still in
existence and carrying on the fight in some way. Withdrawal of recognition of one
government without recognizing a successor is a possibility and indeed was the
approach adopted by the UK and France, for example, with regard to Cambodia in
1979.

 Premature Recognition:
There is often a difficult and unclear dividing line between the acceptable
recognition of a new state, particularly one that has emerged or is emerging as a
result of secession, and intervention in the domestic affairs of another state by way
of premature or precipitate recognition, such as, for example, the view taken by the
Nigerian federal government with respect to the recognition of ‘Biafra’ by five
states.

Recognition may also be overdue, in the sense that it occurs long after it is clear as
a matter of fact that the criteria of statehood have been satisfied, but in such cases,
different considerations apply since recognition is not compulsory and remains a
political decision by states.

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  Implied Recognition:
When the recognizing state enters into official intercourse with the new member to
exchanging diplomatic representatives with it etc. The issuing of a consular
exequatur, the accepted authorization permitting the performance of consular
functions, to a representative of an unrecognized state will usually amount to a
recognition of that state, though not in all case. A British Consul has operated in
Taiwan, but the UK does not recognize the Taiwan government.

 Conditional Recognition:
The political nature of recognition has been especially marked with reference to
what has been termed conditional recognition. This refers to the practice of making
the recognition subject to fulfilment of certain conditions, for example, the good
treatment of religious minorities as occurred with regard to the independence of
some Balkan countries in the late nineteenth century, or the granting of most-
favored-nation status to the recognized state. One well-known instance of this
approach was the Litvinov Agreement of 1933 whereby the United States
recognized the Soviet government upon the latter undertaking to avoid acts
prejudicial to the internal security of the USA, and to come to a settlement of
various financial claims.

 Collective Recognition:
The expediency of collective recognition has often been noted. This would amount
to recognition by means of an international decision, whether by an international
organization or not. It would, of course, signify the importance of the international
community in its collective assertion of control over membership and because of
this it has not been warmly welcomed, nor can one foresee its general application
for some time to come. The most that could be said is that membership of the
United Nations constitutes powerful evidence of statehood. But that, of course, is
not binding upon. Other member states who are free to refuse to recognize any
other member state or government of the UN.

 Non-Recognition:
There has been developing since the 1930s a doctrine of non-recognition where,
under certain conditions, a factual situation will not be recognized because of
strong reservations as to the morality or legality of the actions that have been
adopted in order to bring about the factual situation. It is a doctrine that has also
been reinforced by the principle that legal rights cannot derive from an illegal
situation (ex injuria jus non oritur). This approach was particularly stimulated by

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the Japanese invasion of Manchuria in 1931. The US Secretary of State declared in
1932 that the illegal invasion would not be recognized as it was contrary to the
1928 Pact of Paris (the Kellogg–Briand Pact) which had outlawed war as an
instrument of national policy.

The doctrine was examined anew after 1945. Article 2(4) of the UN Charter
prohibits the threat or use of force inter alia against the territorial integrity of
states, while the draft Declaration on the Rights and Duties of States, 1949,
emphasized that territorial acquisitions by states were not to be recognized by other
states where achieved by means of the threat or use of force or in any other manner
inconsistent with international law and order.

The Declaration on Principles of International Law, 1970, also included a

provision to the effect that no territorial acquisition resulting from the threat or use
of force shall be recognized as legal,104 and Security Council resolution 242
(1967) on the solution to the Middle East conflict emphasized ‘the inadmissibility
of the acquisition of territory by war’.

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