Recognition

Definition

According to Philip Jessup, recognition means that an existing state

acknowledges the political entity of another State, by overt or covert act. Through
recognition, the members of International community formally acknowledge that
the new State has acquired international personality. It is to be noted that
recognition is neither a contractual arrangement nor a political concession. It is a
declaration of the existence of certain facts.

Montevideo Convention on Rights and Duties of States, 1993 laid down

certain essential requirements to be qualified as state-

1. A permanent Population
2. A defined territory
3. Government
4. Capacity to enter into relations with other states.

Recognition can be granted to-

1. States
2. Government
3. Belligerents
4. Insurgency

Theories of Recognition

A. Constitutive Theory
B. Declaratory Theory

Constitutive Theory (Anzilloti, Hegel, Oppenhiem)

- An entity does not become state merely by possessing the attributes of state
but does so, when it is recognised by other States.
 - It is only through recognition that a state attains legal personality and
becomes subject of International Law.
- Criticisms:
i. Recognition is a Political Act of a state and the fate of a new state
cannot be decided by other states.
ii. There is no legal duty on the states to recognise other states
iii. States exists prior to recognition. Recognition has a retrospective
effect
iv. States have some rights and duties even without recognition.

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

- Statehood or the authority of the new government exists as such prior to

and independently of recognition.
- Recognition is merely a formal acknowledgement through which
established facts are accepted.
- Any new state is not dependent on the consent of the other states.
- Provided in A. 3 of the Monetvideo convention.
- Brierly has stated, “A State may exist without being recognised, and if it
does exist in fact, then, whether or not it has been formally recognised by
the other states, it has the right to be treated by them as a State.”

Facultative Theory

- According to this theory, the act of recognition is a political or

discretionary act.
- Granting of recognition is a question of policy than of law, and thus,
recognition of a State depends upon the discretion of a State.
Most of the States abide by this theory and agree that recognition is a
political diplomatic Act and is influenced by economic and other strategic
factors.
- China recognition by countries
- Taiwan recognition by China
- Bangladesh recognition by China and Pakistan
- In general today, admission into UN amounts to a certificate of recognition
of statehood. However, as it is an act of free will, the states who do not
vote in favour of other country in UN is deemed to have not recognised
that state.

Legal Effects of Recognition

- Rights to sue in the courts of recognising states

- Entitlement to sovereign Immunity for itself as well as its property in the
courts of recognising states
- Entitlement to succession and possession of property situated in the
territory of the recognising states.
- Recognised states may enter into diplomatic and treaty relationships with
the recognising states.
- Recognising state gives effect to past legislative and executive acts of
recognized states.

Consequences of Non- Recognition

- Unrecognised states are not entitled to enter into diplomatic or treaty

relations with other non recognising states.
- Cannot sue in the courts of non recognising states.
- Not entitled to get its property situated in foreign states.
- General principles of IL like laws of High Seas will still be applicable
between the non recognised states and non recognising states.
Stimson Doctrine
This doctrine is based on the legal maxim ex injuria jus non oritur which
means that illegal acts do not create law. In 1931, a dispute near the
 Chinese city of Mukden (Shenyang) precipitated events that led to the
Japanese conquest of Manchuria. In response, U.S. Secretary of
State Henry Stimson issued what would become known as the Stimson
Doctrine, stating that the United States would not recognize any
agreements between the Japanese and Chinese that limited free commercial
intercourse in the region. This meant that states formed as a result of
aggression were not recognised, any territorial changes that were the result
of execution by forces was not recognised.

Recognition of State and Recognition of Government

Recognition of government means that the recognising states regard it as the

sole representative of the given state. Change in regime either through
constitutional means or through Coup d’ eat’ require recognition by other
states. In the former case recognition is granted without any hurdle, but in the
latter, recognition is not granted until and unless the states believe that the new
governments enjoys the support of the majority.

Forms of Recognition

1. Express Recognition- When an existing state recognises the new state by

a notification or public statement or declaration announcing the intention
of recognition it is said to be express. Eg: in 1991 three Baltic republics
(Lithuania, Estonia and Latvia) were expressly recognised by India viz. the
Indian Prime Minister sent the messages to this effect to the President of
these states. It may also be granted by conclusion of a treaty.
2. Implied Recognition- it results from the tacit act which implies intention
of recognition. The intention may be indicated by-
i. Unilateral Acts- when a state enters into diplomatic relations, sends
representatives to attend ceremonial functions, exchange of consuls.
 ii. Collective Acts- A new state may be recognised collectively by the
existing states. It occurs when an unrecognised state participates in
a multilateral conference/ treaty, the participants or the parties are
regarded to have recognised the new state, if the intention has been
indicated.
3. Conditional Recognition- it implies that the recognition is granted subject
to the fulfilment of certain stipulation by the recognising states in addition
to the normal requirements of statehood. Eg: In 1878, while recognising
Bulgaria and Romania, Germany imposed the condition that the said States
shall not discriminate their citizens on the basis of religion.
4. Pre mature or Precipitate recognition- Recognition is granted to a new
state when it possesses all the attributes of statehood. However, as it is a
political act, the state may be granted recognition even when it does not
possess any characteristics. It is sometimes regarded as unwarranted and
illegal intervention into the affairs of a country. Eg: Recognition of Israel
by US in 1948 has been regarded as precipitate recognition.

Modes of Recognition

1. De facto Recognition

De facto recognition is a provisional recognition of statehood. It is a

primary step to de jure recognition. It is a temporary and factual recognition
as a state, and it can either be conditional or without any condition.

This mode recognition is granted when a new state holds a sufficient

territory and control over a particular territory, but the other existing states
consider that it does not have enough stability or any other unsetting issues.
So, we can consider it as a test of control for newly formed states. De facto
recognition is a process of acknowledging a new state by a non-committal
act.
 The state having de facto recognition are not eligible for being a member
of the United Nations. e.g., Israel, Taiwan, Bangladesh.

2. De Jure Recognition

De jure recognition is the recognition of a new state by the existing state

when they consider that the new state fulfils all the essential characteristics
of a state. The de jure recognition can be granted either with or without
granting de facto recognition. This mode of recognition is granted when
the newly formed state acquires permanent stability and statehood The De
jure mode of recognition grants the permanent status of a newborn state as
a sovereign state.

S.No. De facto Recognition De jure Recognition

De facto recognition is a provisional

1. De jure recognition is legal recognition.
and factual recognition.

De jure recognition is granted when the state

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

De facto recognition is a primary

De jure recognition can be granted either with
3. step towards grant of de jure
or without grant of de facto recognition.
recognition.
 De facto recognition can either be De jure recognition is a final and non-
4.
conditional or non-conditional. conditional recognition

De facto recognition is revocable in

5. De jure recognition is non-revocable.
nature.

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

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

The state with de facto recognition

The state with de jure recognition enjoys full
8. cannot enjoy full diplomatic
diplomatic immunities.
immunities.