 Subject: International Law

 Teacher: Agha Shahriyar Khan (CSS 2019 Qualifier)

 Contact number: 03432374304 (If you have any further questions, kindly WhatsApp your
queries and wait. I’ll definitely reply)
 Facebook Page: https://www.facebook.com/AghaShahriyarKhanCSS/ (Visit the page for all
material and articles for side reading)
 Note: Write review please
 Lecture: 4
 Time Limit: 90min

Topics for Today’s Class

 Recognition
 Extradition
 Asylum
RECOGNITION

“Recognition is an act by which other states acknowledge that the political entity being recognized
possesses the attributes of statehood” Hans Kelsen

Attributes of Statehood

 Independent and definite territory

 Organized population
 Government willing to perform its obligations under International law
 Sovereignty

Complexity of the topic

The practice of most States shows that recognition is more a question of policy, than of law. States,
motivated by their self-interest, grant or withhold recognition for political exigencies.
• America granted recognition to China on January 1, 1979.
• After First World War, Allied powers and other countries recognized Poland and Czechoslovakia
before they actually existed as independent States or governments.
• Recognition of government-in-exile and national liberation movements is governed by the
same considerations of diplomacy and self-interest as in the case of recognition of States and
governments. For example, Palestine Liberation Organization (PLO), declared the establishment of the
independent State of Palestine on November 15, 1988, by its Parliament-in-exile or Palestine National
Council. The Government-in-exile of Palestine was based in Tunisia and recognized by a number of
States.
• During the Second World War, the UK and U.S recognized many governments-in-exile even
though they lacked effective control over the territory of the State.
• Similarly, Algeria's National Front of Liberation established the Provisional Government of the
Algerian Republic on Sep. 19, 1958 in Cairo, which was recognized by many countries before
being granted independence by France in 1962.
But despite its being a political act, its legal significance cannot be minimized because the very act of
recognition of a State, bestows on the new entity certain legal rights under international law and
municipal law vis-a-vis the recognizing state. Further, once granted, the recognizing State is stopped or
precluded from contesting the qualifications for recognition of the State or government recognized. Thus,
recognition in form and substance remains primarily a unilateral political act with evidential value in law.

(I have furnished many examples. No need to memorize all of them)

1. Express Recognition
A State may convey its decision of recognition to the new entity or government through a formal
announcement which may take the form of public statement or notification or diplomatic note or a
personal message sent to the new entity.

2. Implied Recognition
Recognition can be inferred from the conduct of the parties involved. The act must be such as to
clearly indicate that recognition was intended or is inescapable.
Article 7 of the Montevideo Convention, 1933 on the rights and duties of States, states that
the tacit or implied recognition “results from any act which implies the intention of recognizing the new
State”. Usually, the acts indicating the intention may be bilateral or multilateral.
a. Bilateral Acts. If a state concludes or signs a treaty with the new entity, it amounts to recognition.
Mere signature and not ratification is sufficient for this purpose. Treaty between the Federal Republic of
Germany and Democratic Republic of Germany on November 8, 1972, had the preamble reference to
“two German States” and “both German States” signified mutual recognition of each other’s Statehood.
Establishing diplomatic relations between a State and a new entity, or receiving consuls of an
unrecognized State, or sending representatives to attend ceremonial functions in an unrecognized State
establishes the intention to recognize the new entity. Initiation of negotiation between the two is also a
pointer towards recognition.

b. Multilateral Acts. A state may express its intention of recognition through common participation in a
multilateral treaty or an international conference along with the unrecognized entity. But the significance
of this mode in according recognition is questionable, because recognition is a unilateral and discretionary
act of a State. However, participation in an international conference with an unrecognized State or
government will not indicate recognition if it is made clear that it is not intended to have that effect.

Theories of Recognition
Though recognition is an important institution under international law, its legal significance remains
controversial. Different theories have been propounded about the nature and actual import of recognition.
1. Constitutive Theory
This theory attaches considerable importance to recognition. According to this theory, it is
through the act of recognition alone that a new State emerges as an international person or a new
government derives the requisite authority or status in the international arena.
In Oppenheim's view,
“a State is, and becomes, an international person through recognition only and exclusively.”
This theory has also been advocated by Anzilotti and Holland.
The theory advocates that a new entity cannot become a State ipso facto (from the fact itself,
automatically), but has to be recognized by other nations to become an international person.
Drawbacks
• One country might recognize a new country and the other not. So is the NEW country half State?
• Pueblo case – US’ vessel caught by North Korea, which was not recognized by US. NK released
the vessel without trial when US signed a document (It means recognizing NK) that Pueblo was spying.
An unrecognized entity would neither have rights nor duties under IL, which obviously would lead to
absurd conclusions.
2. Declaratory Theory
This theory considers that a new State or new government exists independent of recognition. The
recognition is merely an evidence of the fact that the new entity fulfills the essentials of Statehood or of a
government. Hall, Fisher and Brierley are its main advocates.
Brierley says:
“A State may exist without being recognized, and if it does exist in face, then, whether
or not it has been formally recognized by other States, it has a right to be treated by
them as a State”
According to these theorists, the recognition is required only for the reason that it enables the new entity
to enter into official intercourse with other nations.

Absence of Duty to Recognize:

Jurists say States should recognize a new entity when it fulfills the factual characteristics of Statehood.
But State practice does not support this proposition and States do not consider recognition as a duty.
In 1976, the US State Department stated,
“In the view of the US, international law does not require a State to recognize
another entity as a State, it is a matter for the judgment of each State whether
an entity merits recognition as a State”
Collective Recognition:
IL does not prescribe or prohibit the grant of collective recognition nor does it preclude de-
recognition. States, if so desire, may collectively grant recognition. However, as recognition is considered
to be unilateral act of a State, collective recognition is not in practice now
In the past, Berlin Congress of 1878, granted recognition to Bulgaria, Serbia, Romania and
Montenegro; and Allied Powers to Estonia and Albania in 1921.
• In the UN membership case, the ICJ clearly stated that admission of a new entity to the UN is
merely an acknowledgment by the organization that the new member is a State. Admission to the
membership may not amount to collective recognition.
Since 1980 UK and many other countries seem to follow Estrada Doctrine and follow the
practice of granting recognition to States only and not to governments.

Difference between Recognition of State and Recognition of Government:

De Facto and De Jure Recognition

Montevideo Convention, 1933 in Article 6 declares that “de jure recognition is unconditional and
irrevocable”.
Institute of International Law in 1936 also opined that recognition once given is irrevocable.

The only exception in this regard is that de jure recognition may be withdrawn when the State merges
into another State through annexation or conquest (recognition comes to an end in such a situation).

Differences between de facto and de jure recognition

(Difference is only political no legal)
1. “De jure recognition is final, whereas de facto recognition is only provisional and thus may be
withdrawn”.
~ Kelsen
2. In de facto recognition diplomatic relations are not formally established.
3. In case of succession only the State, which has been granted de jure recognition will be deemed to be
the Successor State.
4. Diplomatic relations can only be in de jure recognition.
De facto and De Jure recognitions are for governments not for States.
In the case of nascent States, the State practice differs. Sometimes the recognition is withheld altogether,
as was the case with German Democratic Republic before 1974, which was not recognized by most of the
countries till then, or the practice is to accord recognition to the government and to the State. For
example, India was not recognized as an independent State before August 15, 1947, but the US took
certain steps to recognize the de facto status of the interim government of India, prior to that date and in
Feb 1947, received the Indian Ambassador representing the Govt. of India.

Estrada Doctrine (Fo Minister of Mexico)

“If Mexico govt. considers that after the change of govt. in any State through revolution, a revolutionary
govt. commands the support of the people, it establish diplomatic relations with it”.
Criticism
It disregards the rules of I.L
It encourages the individual appraisal in this field. However, in practice it takes a new way so far as the
recognition of new States are concerned.
“Estrada doctrine properly assumes that diplomatic representatives should be considered as accredited
to the State and not to the government”. ~ Philip C. Jessup

Stimson Doctrine (SOS of USA) Doctrine of Non-Recognition

“If a state grants recognition to another State in violation of KBP – 1928, such a treaty would not be
valid”.
KBP = Parties renounced war as their national policy
The doctrine was propounded after Japan attacked Manchuria in 1931.
League Assembly also passed a resolution that any State who violated the KBP, would not be granted
recognition.

Extradition
“Extradition is the delivery of an accused individual to the State on whose territory he is alleged to have
committed a crime, by the State on whose territory the alleged criminal happens to be for the time being”.
Grotius says, “It is the duty of each State either to punish the criminals or to return them to the States
where they have committed crime”.
However, “States have always upheld their right to grant asylum to foreign individuals as an interference
from their territorial supremacy, those cases excepted, of course, which fall under stipulations of specials
extradition treaties, if any”.
Besides, I.L does not recognize any general duty of States in respect of extradition. It depends on the
provisions of the existing extradition treaties.
“There is no universally recognized practice that there can be no extradition except under a treaty, for,
some countries grant extradition without a treaty”. ~ Wheaton’s I.L
Basis of Extradition: Aut Dedre Judicare (Offender must be punished) Surrender the person or prosecute
the person
Restrictions on surrender
i. Non-extradition of political criminal:
Extradition for political criminals is not allowed.
This practice began with French revolution, 1789.
Difficulties arise as the term political criminal is not perfectly defined.
Case: Re Castioni – The Queen’s bench of England held that Castioni was guilty of a political party and
there he could not be extradited.
Attentat Clause – Murder of the head of a foreign government, or of a member of his family, should not
be considered a political crime. (Enacted by Belgium in 1856 – then Britain and many other Europeans
States also adopted it)
Swiss solution to the problem – 1892
a. Extradition of military criminals is not allowed.
b. Similarly of religious crimes.
c. Rule of specialty – The extradited criminal is only subject to the law relating to the crime for
which he was extradited. Case: U.S v Rauscher (1886)
d. Double criminality – The crime for which extradition is claimed should be crime in both the
countries.
e. There should be sufficient evidence for crimes relating to extradition.
f. When a person is charged with having been an accessory in a crime committed in a foreign
State which seeks his extradition, it is not necessary that at the time of offence the said person
must be present in the said foreign State. Case: Rex v Godfrey
g. There must be a formal treaty of extradition, not simply an agreement or notification.

Asylum
1. Introduction:
Asylum is the protection which a state gives on its territory on in some other place under the control of
certain of its organs to a person who comes to seek it. it is the right to every state to refuse to extradite
any refugee in certain circumstances.
2. Meaning:
The word Asylum is Latin and derived from theGreek word "Asylia" which means invoidable place.
3. Definition:
Asylum is shelter and active protection extended to a political refugee from another state by a state which
admits him on his request.
4. Basis of Asylum:
A state has a right to grant asylum to a person on the principle that it has a sovereign right to control over
the individual found on its territory. the right of territorial asylum has been conferred to a state on the
basis of its sovereignty over territory.
5. Elements of Asylum:
There are two main element of Asylum which are following.
(a) Shelter.
(b) Active protection on the part of the authorities in control of the territory of asylum.
6. Reasons for Asylum:
Following can be the main reasons for grantingasylum.
(a) To save a person from the jurisdiction of the local authority.
(b) May be granted on extra legal ground so on humanitarian ground.
(c) For the sake of national security.
Corfu Channel Case 1949:
It was held by ICJ that Asylum may be granted on humanitarian ground in order to protect political
offenders against the violent action.
7. Right of a person to claim asylum:
In accordance with the "universal declaration of human rights under article 15 "every one has a right to
seek and enjoy in other countriesasylum from prosecution.
8. Types of Asylum:
Asylum has two types.
(i) Territorial asylum.
(ii) Extra territorial or diplomatic asylum.
I. Territorial asylum:
When asylum is granted by a state in its own territory it is called territorial asylum. a state has right to
admit or expel any person found on its territory. the grant of territorial asylum is discretionary in its
nature.
(i) Reason for grating territorial asylum:
The right to grant asylum by a state to a person on it territory flows from the fact that every state exercise
territorial sovereign over all person, on its territory.
(ii) Resolution of the general assembly on asylum 1967:
According to the resolution of the general assembly on asylum 1967, the states shall do the following in
granting asylum.
(i) Where a person requests for asylum his request should not be rejected.
(ii) If state feels difficulty in granting asylum, then it must take appropriate meanures.
(iii) If asylum is granted, it should be respected by other states.
II. Extra territorial or diplomatic asylum:
When asylum is granted by a state at places outside its own territory it is called extra territorial or
diplomatic asylum.
M' cnair views:
The term extra territorial or diplomatic asylumis usually, described to those cases in which a state decline
to surrender a person demanded who is not upon its own physical territory but its upon one of its public
ships lying foreign territorial waters or upon its diplomatic premises within foreign territory.
(a) Classification of extra territorial or diplomatic asylum:
Extra territorial or diplomatic asylum can be classified in to the following.
(i) Asylum in legation or foreign embassies:
Where asylum is granted by a state within its embassy premises situated in foreign country it is
called asylum in legation. there is no general right to grant asylum in the premises of the legation. the
international court of justice held that there is no general right of diplomaticasylum.
Exceptional cases:
Diplomatic asylum can be granted in the following cases.
(i) It can be granted for temporary period.
(ii) It can be granted where there is well established custom.
(iii) It can be granted where there is treaty.
(ii) Asylum in consulates:
The rules regarding asylum in consulates are similar to that of asylum in diplomatic or legation.
(iii) Asylum in warships:
Men of war and public vessels of foreign states, while in post or internal waters of another state are
exempted from the jurisdiction of latter for the certain objects. asylum in warships may be granted on
ground of humanity and fugitive once or board is perhaps immune from seizure by the territorial state.
Challies vs Fenwick case:
Court hold that asylum in warships can only be granted to political refugees not to criminal.
(iv) Asylum in Merchant Vessels:
Merchant vessels are not exempted from the local jurisdiction and therefore asylum can be granted to an
offender however asylum can be granted if they conclude a treaty to this effect.
(v) Asylum in the premises of international institutions:
International law does not recognize rule regarding the grant of asylum in the premises of the
international institutions. however temporary asylum may be granted in an extreme case of danger.
9. Conclusion:
To conclude it can be said that, asylum is shelter and active protection extended to a political refugee
from another state by a state which admits him of his request. it has two main from territorial and extra
territorial asylum. the main difference between two is in territorial asylum the refugee is within the
territory of the state or refuge and in case of extra territorial the refugee is within the territory of the state
where the offence was committed.