IV.

Recognition of States and Governments

A. Recognition of a State: Declaratory or Constitutive
Recognition.
-The act by which a state acknowledges the existence of another state, a government or a belligerent community,
and indicates its willingness to deal with the entity as such under international law.

A new state is born from an existing State or an old State which disappeared and comes with a new name or by
splitting an existing State into two States. DOCTRINE OF CLEAN SLATE STATE

If a new state enjoys certain rights, privileges and obligations then it must get recognition as a state, which is very
essential.

However, there are some minimum criteria required before a State is considered to be a State.

Political thought plays an important role in this decision whether to grant recognition or not.

Essentials of Recognition of a State

-Population;
-Territory;
-Government;
-Sovereignty;
-Control should tend towards permanency.

If these conditions are fulfilled, then the State can be recognized.

Process of Recognition
-State is not only an institution with international legal standing but they are the primary subjects of International
Law and possess the greatest range of rights and obligations.
-States are not bound to recognise new claimants of Statehood and make it a positive duty to recognize a State.
-Recognition is mainly a matter of intention.

i) Theories on Recognition:

ia) Constitutive (Minority view): RECOGNITION IS COMPULSORY

needs the 4th element before it could be recognized as a state.

Recognition is the act which constitutes the entity into an international person.

Under this view, recognition is compulsory and legal; it may be compelled once the elements of a state are
established.

ib) Declarative (Majority view): RECOGNITION IS DISCRETIONARY

If the 4 elements of the state exists, the state is recognized.

Under the majority view, recognition merely affirms an existing fact, like the possession by the state of the essential
elements. It is discretionary and political.

B. Recognition is a Political Act

The political act of recognition of a state or government means that the recognizing state is willing to enter into
political and other relations with the recognized state or government, relations of the kind which normally exist
between members of the family of nations.
ii) Basic Rules on Recognition:
It is a political act and mainly a matter of policy on the part of each state; it is discretionary on the part of the
recognizing authority; and it is exercised by the political (executive) department of the state. Thus, the legality and
wisdom of recognition is not subject to judicial review.
 C. Recognition: De Facto
D. Recognition: De Jure
Kinds of Recognition. May be express or implied: may also be: PAGE 107 OF SARMIENTO FOR ANNOTATION

iva) De facto (as of the fact): Extended by the recognizing state which believes that some of the requirements for
recognition are absent; treatment of entity as a state without extending recognition; provisional, recognizing state
offers for the time being to enter into relations without cordiality and usual courtesies of diplomacies; a government
is in control but illegally so; commonly utilized when there exists unstable circumstances.
The recognition is generally provisional and limited to certain juridical relations; it does not bring about full
diplomatic intercourse and does not give title to assets of the state held/situated abroad.

ivb) De jure (as of the law): Extended to a government fulfilling the requirements for recognition. When there is no
specific indication, recognition is generally considered as de jure; government is lawfully in power even though it
retains little actual power.

The recognition is relatively permanent; brings about full diplomatic intercourse and observance of diplomatic
immunities; and confers title to assets abroad.

Difference between De Facto and De Jure Recognition

E. The Estrada Doctrine

iii) Requirements for Recognition of Government:
-The government is stable and effective, with no substantial resistance to its authority;
-the government must show willingness and ability to discharge its international obligations;
-and the government must enjoy popular consent or approval of the people.

iiia). Tobar/Wilson Doctrine:

-precludes recognition of any government established by revolutionary means until constitutional reorganization by
free election of representatives.

The doctrine was first expressed in a treaty concluded in 1907 by Central American republics at the suggestion of
Foreign Minister Tobar of Ecuador and was reiterated by President Woodrow Wilson of the United States in a public
statement made 1913.
Example

The Baltic State

Latvia, Lithuania and Estonia were recognized as independent states in the early 1920's. The United States,
announced its de jure recognition on 28 July 1922 after noting `the successful maintenance within their borders of
political and economic stability' by the governments of the three Baltic states.

iiib) Stimson Doctrine: No recognition of a government established through external aggression.

It was “incumbent upon the members of the League of Nations not to recognize any situation, treaty or agreement
which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris.”

iiic) Estrada Doctrine: Since recognition has been construed as approval (and non-recognition, disapproval) of a
government established through a political upheaval, a state may not issue a declaration giving recognition to such
government, but merely accept whatever government is in effective control without raising the issue of recognition.

Dealing or not dealing with the government is not a judgment on the legitimacy of the said government.

It claims that foreign governments should not judge positively or negatively the governments or changes in
government of other states, as such an action would imply a breach of state sovereignty.

The policy was said to be based on the principles of non-intervention, peaceful resolution of disputes and self-
determination of all nations.

F. Recognition of Insurgency
What is insurgent in international law?
Purely domestic, internal affairs; IAC VS. NIAC; INSURGENCY VS. BELLIGERENT; Insurgency will not reach Belligerency;
IMPORTANT DISTINCTION: SUBSTANTIAL CONTROL OVER THE TERRITORY OF THE STATE (BELLIGERENT ACT), HOW?
CONDUCT OF PACIFIC BLOCKAGE.The term insurgents describes a group of people who reject the authority of their
State's government. 

Are insurgents subjects of international law?

International law treats insurgencies and civil wars in the internal affairs falling within the domestic jurisdiction of
the State concerned and it is up to municipal law enforcement to deal with it.

Belligerency is the treatment to Consider a civil war as a real war between two rival Powers by other existing States.
The recognition by the existing States of the rebels in case of civil war in a belligerent State is said to be recognition
of belligerency.

When a State goes in a State of belligerency where the rebels have a Considerable Control over a Substantial
territory of nation, the rebels may be recognized by the existing State. Such recognition is said to be recognition of
belligerency.

Insurgency can be considered to be of a more serious nature than rebellion. Unfortunately, as with the rebellion, the
traditional international law provides no precise definition of the insurgency, and this leaves a lot of confusion
around this topic. There are two schools of thought as to the status of insurgents under international law. Some
scholars, such as Higgins and Greenspan are of the view that the granting of the status of "insurgents" in a group
leads them outside the jurisdiction of municipal law and brings them into the purview of international law, while
others are as Castren review that the status of insurgency does not confer any rights or obligations on the group and
they are still subject to the municipal criminal law. However, there seems to be the case that the status of the
insurgency group brings them out the exclusive domain of national law, thus giving them a status of quasi-
international law.

While the precise definition of the insurgency is unclear, it seems to be the case that the insurgency is a type of civil
disturbance which usually is confined to a limited area of the territory of the State and with the support of a
minimum of section of the people in the State.10 An analysis of the law relating to the insurgency leads to the
conclusion that certain characteristics must attach to the rebels so they can be recognized as insurgents.

The Conditions for recognition of insurgents

Some essential conditions for recognition of insurgency can be listed as follows:
a) The insurgents need to have control over a considerable part of the territory;
b) Most of the people living in the territory must support the rebels for their own accord and not as a result of the
enforcement actions taken by the insurgents;
 c) The insurgents must be able and willing to comply with international obligations.
Much scholarly attention has focused on the rights and obligations of the insurgents, but as Wilson points out, there
seems to be general agreement that the rights of the insurgents are limited to the territorial limits of the State
concerned. For example, through the International Committee of the Red Cross (ICRC)., Insurgents are allowed to
enter the arrangements for humanitarian protection and other general agreements. However, there is also another
other point of view that other rights such as the right of blockade, which bind the belligerents, in fact, do not bind
the insurgents. Thus, insurgency could be seen to partially internationalize a conflict / are billion without being fully
given the status of belligerency. Thus insurgency is a status of potential belligerency.

G. Recognition of Belligerency
Recognition of Belligerency; Conditions.

Belligerent Community – Civil war, international laws will apply; rebels need to have control over a substantial
territory of a state that government entities need permission to enter on the same; group of levels under an
organized civil government who have taken up arms against the legitimate government; when recognized it is
considered as a separate state.

The usual conditions for the recognition of the status of belligerency are:
-organized civil government having control and supervision over the armed struggle;
-serious and widespread struggle with the outcome uncertain;
-occupation of a substantial portion of the national territory;
-and willingness on the part of the rebels to observe the rules/ customs of war.
[Note: (1) Absence of any of the foregoing conditions will result merely in insurgency which is rarely recognized.
(2) Recognition may be either express or implied; the proclamation by the parent state of a blockade of a port held
by the rebels is implied recognition of belligerency; so is the proclamation of neutrality by a third state.

Effects of Recognition of Belligerency.

-Responsibility for acts of rebels resulting in injury to nationals of the recognizing state shall be shifted to the rebel
government;
-the legitimate government recognizing the rebels shall observe the laws of war in conducting hostilities;
-third states recognizing the belligerency shall maintain neutrality; and
-recognition is only provisional (for the duration of the armed struggle) and only for the purpose of the hostilities.

Belligerency is the final category of a challenge to the established government, recognized by customary
international law, and implies a more serious conflict than any rebellion or insurgency. It is also a concept more
clearly defined in international law than any of the other categories of conflict. The recognition of belligerency
formalizes the rights and obligations of all parties in a war. It is “the acknowledgement of a legal fact that there exists
a state of hostilities between the two groups vying for power or authority; it is ... the recognition of the existence of
war.” However, certain conditions needs to be attached for a conflict to happen so that it can attain the status of
belligerency.

The Conditions for Recognition of belligerency are as follows:

1) There should exist within the state a status of armed conflict
2) The insurgents must administer and occupy a major portion of national territory
3) The hostilities must be conducted in accordance with the rules of war and through organized armed forces acting
under a responsible authority.
4) There must exist certain circumstances which make it necessary for outside states to define their attitude by
means of recognition of belligerency. This recognition of belligerency as a specific institution as we are aware of it
today probably originated in the first quarter of the nineteenth century, when text-writers began to discuss the
status granted by the British and U.S. governments to the nasty Spanish colonies. While the situation in the
recognition of belligerency is defined more specifically as that of rebellion or insurgency, there is still some amount
uncertainty and vagueness surrounding this topic. The rights and duties of belligerents are however, clearer, and as
recognition of belligerency gives insurgent’s rights and duties under international law similar to those of the States.
"The belligerent becomes a subject of international law when a group becomes a subject of international law. This
leads to the belligerents acquiring some, but not all, of the rights and obligations of States. This includes the rights
and obligations of international humanitarian law. Recognition of belligerency may be awarded by one of the 'parent
state’ or a ‘third state’. In traditional international law the recognition of the state of belligerency confers a very little
advantage on the third state. The reasons for recognizing the belligerency by third states, McDougal and Riesman
states that: “One of the obvious reason could be that the recognizing state, indeed, support the purpose for which
the rebels were fighting. Self-interest and political motives mostly form the basis on which the state practice has
historically been built.”

LEGAL CONSEQUENCES OF RECOGNITION TO THE BELLIGRENTS

1.      One of the legal consequences of the recognition is that the laws and customs of war can be applied to
belligerents and the legitimate government. It includes Protection of civilians against internal armed conflicts and
Provision of rights to the belligerent’s soldiers against each other.
2.      The protection and security of civilians against internal armed conflicts is dealt by the Additional Protocol II to
the Geneva Conventions of 1949, of 1977. This convention sets standard regulations prohibiting the belligerents of
intentionally causing civilian casualties on the other side.
3.      Using poisoned weapons on arms as projectiles that cause suffering are prohibited. The Red Cross Conventions
provides for protection of medical relief personnel ships and aircraft for any loss of life or property.
4.      Article 4 of The Geneva prisoners of war convention, 1949, provides that troops of organized resistance
movements are entitled to be treated as ‘prisoners of war’ if they are well commanded, have a fixed distinctive
signal recognizable at a distance, openly carry arms and conduct their operations in accordance with their laws and
customs of war. Article 118 and 119 also provide for humanitarian reasons that the Prisoners of war should be
released and repatriated without delay after cessation of active hostilities.
5. The Geneva Convention on Wounded and Sick in Armed Forces in the field obligates the belligerents to protect the
wounded and sick personnel and to respect medical units and establishments. A warship of recognised belligerents
will not be treated as a private boat.
6.   The belligerents can have bilateral trade with the recognizing state
7 .The belligerents can enter into treaties with the recognizing state.
8. A recognized belligerent state becomes entitled to sue in courts of the recognised state.
9. The recognized belligerents are not be treated as pirates and rules of war become applicable to them. By the very
limited nature and scope of insurgency as against belligerency, these legal consequences are comprehensively
applicable when the party is recognized as a belligerent rather than an insurgent.

H. Forms of Recognition
“DE JURE DE FACTO”
“CONSTITUTIVE DECLARATIVE”

I. Consequences of Recognition
It acquires the capacity to enter into diplomatic relations with other states. It acquires the capacity to enter into
treaties with other states. The state is able to enjoy the rights and privileges of international statehood. The state
can undergo state succession.