CHAPTER X

RECOGNITION
0.39. For every State that is not already but wants to beea
member recognition is...necessary. A State is and becomes an
international person through recognition only and exclusively."
(Oppenheim). Discuss the above statement in the light of the main
theories of recognition.
Or
Q. 40. What do you understand by recognition' ? Is the
function of recognition in International Law constitutive or declar
atory ?
Or
Discuss the various theories of recognition in International
Law.
Or
A State is and becomes an International person through
recognition only and exclusively. Comment.
Ans. Meaning of Recognition.-Recognition, according to
Fenwick, is "the formal acknowledgement by an existing member of
the international community of the International personality of a State
or political group not hitherto
maintaining official relations with it."
The institute of International Law defines recognition as, "the
Iree act by which one or more States aknowledge the existence on a
detinite territory of a human society politically organised, independent
of any other existing State and capable of observing the obligation of
International Law, by which they manifest, therefore, their intention to
consider it a member of the International community.""
The British Year Book of International Law, 1944.-It states
that "the recognition of State implies that in the opinion of the recog-
nizing State the nascent community posSesses the requirements of
Statehood and is therefore a normal subject of International rights and
duties,"
According to Prof. Schwarzenberger.-The growth of Interna-
Onal law is best understood as an expanding process from a nucleus
nities which have accepted each other's negative sovereignty and
basis of consent, are prepared maintain and
to
possibly expand
Scope of their legal relations. According to the ninth edition of Prof.
Ppenheim's book (Int. Law, 9th edn. 1992 p. 127-128) :
n recognising a new State as a member of International Com-
munity, the existing States declare thatin their opinion the new State
C Conditions of statehood as required by Intenational Law."

107
108 PUBLIC INTERNATIONAL LAW

Prof. Oppenheim observes, "Recognition is a declaration, on h

part of the recognizing State, that a foreign community or authoritu
he
in possession of necessary qualification of Statehood, of governme
ent
capacity, or of belligerency."
Prof. Kelsen points out that a community to be recognised as an
an
international person must fulfil the following requisites
(a) The community must be politically organized.
(b) It should have control over a definite territory.
(c) This definite control should tend towards permanence.
(d) The community thus constituted must be independent.
Thus, the conditions of a Statehood are (a) people (b) a territory
(c) a government (d) sovereignty. Recognition of a State is an act by
which another State aknowledges that the political entity recognized
possess the attributes of Statehood. Further the fifth requisite for state.
hood, as per U.N. Charter, is that the particular State must be capable
and welling to fulfil its international obligations.
Theories of recognition.-There are two main theories of
recognition. They are: (1) Constitutive theory; and (2) Declaratory or
Evidentiary theory.
Constitutive theory
Hegel, Anzillotti, Oppenheim etc. are the chief exponents of
constitutive theory. According to Oppenheim 'through recognition
only and exclusively a State becomes an International person and a
subject of International Law.' This theory cannot stand the test of
reason will be evident from the divergencesin the recognition of Istracl.
the communist Government of China, and Bangla Desh. The status of
a State recognized by State A but not recognized by State B, and
therefore apparenty both an "international person', and
'non-interna
tional person' would be a legal curiosity. 'Perhaps a mere substantial
difficulty is that the doctrine would odlige us to say, that an unrecog
nized State has neither rights nor duties at International Law and some
of the consequences of accepting that conclusior. might be
startling.
"Non-recognition may certainly make the enforcement of rights
duties more difficult than it would otherwise be but the practice
States does not support the view that they have no legal
before recognition." (Brierly).
existen
Thus, according tothe constitutive theory, statehood and paa r t i -
Cipation in the international legal order are attained by political groups
only so far as they are recognized by established States.
Criticism.-The view of Judge Lauterpacht that there is legal
duty the part of the existing States to
on ht
recognize any communy
RECOGNTTION
109
has in fact acquired the characteristics of
be correct, because in practice State do not
statehood does not seem to
accept any such obligation.
Besides this, this theory presents several
ties. If a State is not other serious difficul-
recognised it can have neither duty nor rights under
International Law according to this theory; which is very absurd
suggestion as it will create difficulties in the case of those States which
are recognised by some States but not by others.
Declaratory Theory-There is another group of jurists, who ex-
pound the theory which is known as declaratory or
whereby they maintain that recognition has merely a evidentiary and theory,
a constitutive effect and that declaratory not
recognition
fact that a particular community or merely declares or evidences a
government possesses the necessary
qualifications of a State or Government
They maintain that as soon as a communityrequired by International Law.
as
fulfils the necessary require
ments of Statehood it becomes a State in the sense of International
independentlyis of any recognition by the old States and that the actLaw,of
recognition simply a formal acknowledgement of the existence of an
established fact, namely, the existence of a State in the
sense of Interna-
tional Law. This theory is supported by Hall,
and Pitt-Cobbott. Wagner, Fischer, Williams
Criticism.-The view that recognition is only a
an declaratory of
existing fact is not completely correct. In fact when
recognised, it is a declaratory act. But the moment' it is a State is
there ensue some legal effects of recognised,
of constitutive nature. recognition which may be said to be

Judge Lauterpacht's
scribes the constitutive theoryview-Lauterpacht
that it
who more or less sub-
in accordance with the
says (constitutive theory) is more
practice of the states and with sound legal
principle. His theory rests on the legal nature of the act of
and he criticises, not only the
declaratory
recognition,
constitutive doctrine which regards theory but also the traditional
recognition as an act of policy.
The bulk of international
practice is in favóur of the declaratory
or
evidentiary theory. State' says Brierly 'may exist, without
'A
recognized, and if it does exist, in fact, being
then whether or not it has been
formally recognized by other States, it has a right to be treated them
as a State'. There are
further two rules which support the by
theory: (1) The fact that recognition dates back to the timeevidentiary
when the
Tecognized community, in fact, possessed elements of Statehood,
shows that
recognition does not by itself, confer statehood on that
Community but that the State existed much prior to the date of its
recognition. (2) The other well-established rule of law is
OI a new State will take into consideration not the date that the courts
but the date on which that new State came into ot recogniuon
tne date
when the existence, that is to say,
requirements of statehood were fulfilled. This rule
 110 PUBLIC INTERNATIONAL LAWw

again supports the declaratory theory. The result, therefore, is that tho
recognition simply implies a declaration or evidence or the fact that
the
a
particular community possesses the necessary qualification of stato
hood. According to Soviet view, birth ofa State is the act of law rather
than that of international law. The Soviet view and practice are also in
favour of the declaratory theory of recognition. In modern times, inte
ter-
national personality does not depend upon recognition.
The German Polish Arbitral Tribunal (1929).-I was de.
clared by this tribunal that the recognition of a State IS not a constit-
tive but merely a declaratory act, inasmuch as, the State exists by itself
and recognition is nothing but the ascertainment of that existence, A
further authority against the constitutive theory is the Tinoco Arbitra
tion (1923). Here the arbitration held that the revolutionary Tinoco
Government of Costa Rica which came into power in 1917 was a
properly constituted Government, although not recognized by Great
Briiain, and, that Great Britain was not stopped by such prior recogni-
tion from latter alleging that the Government was in fact a duly and
properly constituted one.
In Wulfsohn v. Russian Socialist Federated Soviet Republic
(1923) 235 N.Y. 255, it was held by the court that despite its non.
recognition by the United States, the Soviet Union was immune from
the jurisdiction of the American Courts. It was further held that the
unrecognised state cannot sue in the courts of that State which has not
recognised it. This power of bringing an action is the creature of
comity, until such government is recognised by United States, no such
comity exists.
Conclusion.-There is an element of truth in constitutive theory
also, though the declaratory theory commands larger support.Unfortu
nately, the declaratory theory also has not the merit of universal accep
tance 'Probably, says Starke, the truth lies somewhere between these
two theories'. Lauterpacht also subscribes to this view when he says
that while recognition is constitutive in some sphere it is declaratory
in the other. Inasmuch as its object is obligatory it is said to be declar
atory. As recognition is decisive for the purpose of creation of interna-
tional personality on account of its being treated as the normal subject
to
of intermational law, it is Constitutive. Svarlien in his "Introduction
the Law of Nations' also holds a similar opinion, when he says
"recognition is always declaratory in that it confirms the existence
of a State and recognizes its legal position in the international commu-
nity. But it may also at times be constitutive in so far as it has the effec
of actually creating a State where none existed before." Prof. T.C.
of inter-
Chen has also remarked: *"In the last analysis, the question
cleavage
national recognition is but a reflection of the fundamental
between those who regard the State as the ultimate source of interna
RECOGNITION
111

sional rights and duties, and those who regard it as

being under a
of law which determines its rights and duties under that law." system
Q.41. (a) Write a brief note on the modes of recognition of a
new State. Distinguish between de facto and de jure
recognition.
Or
De facto recognition of a State is a
step towards de
recognition of it. Comment on the above statement bringing jure
out
the nature and implications of the two-kinds of recognition.
(b) Is recognition a purely political act ? Discuss.
Or
Is recognition of State and Governments the discretion of the
recognizing State ? Discuss the position.
Ans. (a) Modes of recognition.
) Recognition may be express or implied.-Recognition may
be either express, or implied. It may be expressed by notification or
declarations or it may be inferred from some conduct on the part of the
recognizing States. The conduct is to be such as may clearly show an
unequivocal intention to recognize. In either case the recognition may
be individual or collective. An express declaration by a State, to the
effect that it recognizes a nascent society as a State, furnishes, the
example of an individual and express recognition. In case the recoog-
nizing State sends its consular representative to the State to be recog-
nized, it is an individual and implied declaration. Collective express or
implied recognition is secured by some collective international act on
the part of some nations or through the medium of an international
institution like the U.N.O. There are a number of historical precedents
of collective recognition, e.g., recognition of Bulgaria, Montegro,
Servia and Rumania by the Berlin Congress of 1878 and of Estonia and
Albania by the Allied Powers in 1921. In the light of the advisory
opinion of the International Court of Justice on Condition of Member-
Ship of the United Nations, which recognizes Statehood as a primary
qualification for admission to the United Nations, it is clear that such
admission is tantamount to recognition of the member admitted as a
State.
(ii) De facto and de jure recognition.-De facto recognition is
Provisional and can be withdrawn while de jure recognition is legally
g and permanent. Recognition de jure implies that the State or
overnment in question is fully qualified to be a member of the inter
nal community. Recognition de facto on the other hand implies a
norary and provisional acknowledgement on the part of the recog
qualae be the
9ualified to to effect that the State secking recognition isDein fact
a member of the international community. factO
112 PUBLIC DNTERNATIONAL LAw
recognition means that the new State or Government though indene
depen.
dent and in effective control of the territory has not acquired sufficie
stability so as to be able to fulfil international obligations. De f
recognition may be regarded as a preclude to the permanent type

recognition that is de jure recognition. "When a state wants to delau

the de jure recognition of any State, it may, in the first stage grant
facto recognition." (Scharzenberger)
modern times the practice
According to Prof. Starke, "In
hao

preface the stage of de jure recognition by period a

generally been to
the case of a legally constituted
of de facto recognition, particularly in
government giving way to a
revolutionary regime."
""The de facto recognition of a
According to Prof. Oppenheim, in the view of the recognising
State or government takes place when, and wielding
State the new authority although actually independent
has not acquired
effective power in the territory under its control,
stability or does not yet
sufficient
offer proposal of complying other
such as willingness or ability to fulfil
requirements of recognitions
international obligations.'
de facto by Great Britain
The Soviet Government was recognized the Italian
came in 1924. Similarly
in 1921, the de jure recognition in 1936 by Great Britain
of Abyssinia was de facto recognized
conquest
1938. The grant of de jure recognition
but it was recognized de jure in
pre-supposes the
existence of the following facts
reasonable assurance of stability
and perma
(1) That there is a

nence of the new State Government;

Government commands the general
(2) That the State or the
support of the population ; and willing
the Government is both able
(3) That the new State
or

to fulfil its obligations.

international
is n0
and de facto recognition
The distinction between de jure
W.w. Bishop, the
one of the form
but of substance. According to
distinction between de facto and de jure
recognition is political ratne
view, tne
to Kelsen, ""From the juristic point of
than legal. According
distinction between de jure and de facto
recognition is of no impo
International law relating to recognition ca
ance. Any codification of
Lauterpacht, there a
ignore it." But in the views of Fenwick and
recognition. 1he sta
certain differences between de facto and de jurereceive
property Sed
or Government recognized de jure can claim to
State or Government recughat
within the recognizing State while the
de facto can make no such claim. It is only
the recognition ae e of
can present the old State
in matters of State succession. 1necase **

L (1939 Ch. 182), I3

v. Cable and Wireless, . ,
Haile Selassie
on this point.
RECOGNITION
113

It may, however, be noted that the acts of the

Government rec-
Ognized de facto with respect to persons and property of the governed
territory are considercd valid as compared to the acts of the de jure
oovernment which are regarded as nullity. In the case of Bank of
Ethiopia v. National Bank of Egypt & Liguori (1937) Ch. 513, it was
held that the decree of the Italian Government which had been
recog-
nized as being in control de facto of Abyssinia was valid and effective.
This case was followed in another case Luther v. Sagor (James) & Co.
(1937) Ch. 517, were it was laid down that the act of the Soviet
Government which had been recognized de facto by the British Gov
ernment must be treated by the courts with all respect due to the acts
of a duly recognized Sovereign State.
In Luther v. Sagor (James) & Co., it was held that there is no
distinction between de facto and de jure recognition for the purpose of
giving effect to the internal acts of the recognized authority.
(b) Is recognition purely a political act ?-The question some-
imes arises whether recognition is a
legal or a political act. Judge
Lauterpacht is the votary of the view that recognition is granted or
withheld on legal principles. He criticizes the traditional
doctrine which regards recognition as an act of constitutiye
him, the wide acceeptance by the policy. According to
internatic ial lawyers of the declara-
tory theory is really due to a reaction agaii t the traditional
of recognition as a conception
political
is a duty on each State
act purely and imply. He argues that theere
towards the internutional community to
nize a new State recog-
or new Government fulfilling the
ot statehood or other necessary qualifications. His legal
thesis requirements
proceeds on
the line of the majority of view of the International Court of Justice in
its advisory opinion on Conditions of Membership of the United Na-
Tions, (1948) where the court held that the member States voung for
the admission to the United Nations of a new member were under a
duty to confine themselves to the conditions for candidature set out in
Article 4 of the Charter, and could not take into áccount extraneous
political considerations.
Judge Lauterpacht's suggestion, however, does not appear to be
Plausible for as Prof. Starke points out the weight of
ractuces, such as the divergence in the recognition ofprecedents and
Isracl and the
unist Government of China can hardly be reconciled with
Prof. Starke further observes that the action of the States the
n g withholding recognition is as
or in
yet uncontrolled
the ntcrnational Law. On the contrary, recognition isbytreated
any rigid
tor
nost part, as a matter of political
decide for itself. Podesta Cásta's policy that such State is entitled
view that recognition
tative"
practice. and not an obligatory
act is more in is
consonance with the
a

o-8
114
PUBLIC INTERNATIONAL L

This view is also shared by Brierly who observes: "In

and more especially in recent years not alw e
non-recognition does not practi
State is a matys
simply tell that the existence of the unrecognized
doubt, States have discovered that the granting or withholdina
recognition can be used to further a national policy ; they have ref
fused
it as a mark of disapproval.... Recognition is supposed to be a mer
as when in 1903 the United States recognized Pana
nama
aknowledgement
only three days after it had revolved trom columbia and at the same
time took steps to prevent the re-establishment of Columbian
sovereignty or when in 1948 the United States recognized Israel within
a few hours of its proclamations of independence."
Q. 42. Recognition is a facultative'" and not "obligatory
act. Discuss fully this statement in relation to the theories as to
the nature, function and effect of recognition.
Ans. Recognition is, as the practice of most States shows, much
more a question of policy than of law. The policy of recognising States
is conditional principally by the necessity of protecting its own inter
with any new Sate
ests, which lie in maintaining proper relations
or

new Government that is likely to be stable and permanent.

in International Law and
considering the
It is important that
for the exi-
practice as to recognition, due allowance should be made
gencies of diplomacy. States have frequently delayed, refused or even-

tually accorded recognition to newly formed States or Governments tor

reasons that lacked strict legal jurisdiction.
or
In view of Judge Lauterpacht, a State possess the elements
statehood, international law imposes a duty on the State to recogniz
Such a community. The view of Lauterpacht is not supported by u
practice ofthe States. Because in practice State have not consented
any such obligations.
No right to recognition is laid down in the Draft DeclarationLaw
O
the Rights and Duties of States, drawn up by the Internationae ding
Commission in 1949. The action of States in affording or witnnon
recognition is as yet uncontrolled by any rigid rules of Internation.
rt
as.

Law; on the contrary recognition is treated, for the most par

matter of vital policy that each State is entitled to decide for i
and not
Podesta Costa's view that recognition is a ultative'

no even
not
even

an obligatory act is more consistent with the practice. Ther ition i

a duty on a State under International Law to withdraw reeaSeS
the qualifications of Statehood or of
government authou ard
exist, The apparent arbitrariness of State 1s
practice
intnis a s

tempered by the consideration that most States endeavour, as

prece-

possible, to give recognition according to legal principe

RECOGNITION
115

dents, to the extent at least that although they may withhold

for Dolitical reasons, when they do grant it they generallyrecognition
make sure
that the State or Government to berecognised at least possess the
Teauisite legal qualifications. To this degree States do treat
as a legal act. recognition
Now, the question arises whether recognition is political or dis-
criminatory act. In tact the
granting of
recognition depends upon the
discretion ofthe recognizing State. In other
word_, international law
leaves the State free to determine as to whether a
possess the essential element of statehood. particular State
The practice of States shows that the recognition is a political
function. Recognition constitutes the weakest link in international law.
Since recognition tends to enhance the
prestige of recognized commu-
nity and also sometimes its material resources,
recognition
permaturely to sympathetic regimes and is protectedly
is accorded
withheld from
unsympathetic ones.
Q.43. What are the legal consequences
of recognition State of
or a Government ? Has a non-recognised Government
in International Law ? What are any status
recognition ? disqualifications
due to non-

Ans. The consequences of

summarised recognition of State may be
below.-Recognition produces
as
affecting the rights, powers, and privileges of the legal consequences
Government both at International and recognized State oE
have given its recognition. Also, when Municipal
Law of States which
the subject of recognition arises
tor examination, however, incidentally, by the municipal court of such
State, various problems of evidence, interpretation and
into consideration. procedure enter
Here, it is important to bear in mind the limits between Interna-
tional Law and State law. Recognition confers on the recognized State
Or Government a status both under International Law and Municipal
Law.
Some of the
nition of State are important consequences which flow from the reco8
as under
4 The recognized State or Government acquires the capacity to
er into diplomatic relations with the recognizing States and to make
treaties with them.
I n the case of a recognition of a new Government in old State
previous treaties of the predecessor of the new Government are
automatically revived and come into force.
in i ) The recognized State or the Government
in the courts of the gets a right of suing
recognizing State.
116 PUBLIC INTERNATIONAL LAW

(iv) The recognized State or the Government acquires for

and its property, immunity from the jurisdiction of the court of itself
law of
the recognising State.
(v) The recognized State or Government becomes entitla
demand and receive possession of the property lying within the
diction of a recognizing State.
juris.
(vi) The courts of law of the recognizing State are after recooni
tion, precluded from questioning the legality or validity of the lepiol
tive or executive acts of the recogn1zca State and ot the Government

(vii) The recognized State or Government becomes bound to

in general and with respect to th
respect international obligations
recognizing State in particular.
Legal disabilities of an unrecognized State or Government.
Although, recognition is essentially a political act, there are certain
political as well as legal consequences of non-recognition of a State
Recognition' can bring, inter alia an opportunity to establish diplo-
matic and consular relations with the recognising States; an increase
in stability at home and prestige abroad; access to foreign aid, loan
and trade and in the case of new government of an established State
access to State funds on deposit in the bank of recognising State. A
decision to withhold recognition can be powerful or an important po-
litical weapon, depending upon the relative power of non-recognizing
and unrecognized entities. The principal legal disabilities of an unre-
cognized State or Government may be enumerated as follows
(a) It cannot sue in the court of a State which has not recognised
it. The principle underlying this rule was thus expressed in Russian
Socialist Federated Soviet Republic v. Cibrario (1923). (New York
Court of Appeals) 235 N.Y. 255, "A foreign power brings an action
in our courts not as a matter of right. Its power to do so is the creature
of commity'". In Re Al Fin Corporations Patent (1970) Ch. 160, it was
held that the Court shall recognize the executive acts of only those
States who have been recognised.

(b) By reason of the same principle, the acts of an unrecognize

State or Government will not generally be giving in the courts of
State the effect customary to the rules
non-recognizing
comity.
according
(C) lts representatives cannot claim immunity from legal proces

(d) Property due to a State, whose Government is recognie

may actually be recovered by the representatives of the
has been overthrown. reg
The unrecognised State cannot enter into diplomatic relation
with the State which has not
recognised it.
RECOGNITION
117
(0 The unrecognized State cannot enter into
cial relations with the State which has treaty and commer-
not
recognised it.
(g)Unrecognised States are not entitled to
get their property
situated in foreign State (Bank of China v. Wells Fargoe Bank,
104 F. Supp. 59). (1952)
Tinocco Concessions case.-Great Britain
British Companies had acquired certain claimed that certain
contract entered into with one Tinocco.rights against Costa Rica by
It appears that in 1917
Tinocco overthrew the existing Government of
Costa Rica and
established a new constitution which lasted till 1919, when the old
constitution was restored and Tinocco ousted and
that in 1922 the
;
restored government passed legislation
nullifying all engagements
entered into by Tinocco's Government. During the regime of Tinocco
a number of concessions were
granted to the British Companies and
the Government of Tinocco became
of Canada, on British
heavily indebted to the Royal Bank
Corporation.
The Chief JusticeTaft held that if Tinocco's Government was the
actual Government of Costa Rica at the time
when the rights were
alleged to have been acquired, the restored Government could not
repudiate the obligation which his acts had imposed on the State of
Costa Rica. He further said that this question must be decided
evidence of the facts. It was immaterial that by the law of Costa by
Tinocco's Government was unconstitutional. Even the Rica,
objection put
forward by Costa Rica that many States including Great Britain
had never recognized Tinocco's Government was
herself,
only relevant as sug-
gesting, though it did not prove, that Government had not been the
actual Government of Costa Rica. But since Tinocco, was in actual and
peaceable control without resistance or conflict or contest by any one
until a few months before the time when he
retired, he held that his
acts were binding upon Costa Rica.