RECOGNITION

-By Mrs. Monica Pradyot

Visiting Faculty
SOL UPES
 DEFINITION

• Recognition is defined as a formal acknowledgement by the existing members of the

international community of the international personality of a new State.
• According to Phillip Jessup, recognition means that an existing State acknowledges the
political entity of another State, by overt or covert act.
• Fenwick is of the view that through recognition the members of the international
community formally acknowledge that the new State has acquired international personality.
• It may be noted that recognition is neither a contractual arrangement nor a political
concession.
• It is a declaration of the existence of certain facts.
 ESSENTIALS OF RECOGNITION

• Population;
• Territory;
• Government;
• Sovereignty;
• Control should tend towards permanency.
If these conditions are fulfilled, then the State can be recognized
 KELSEN VIEW ON RECOGNITION

For a state to be recognized the following conditions must be fulfilled-

• Must be politically organised.
• Have control over definite territory.
• Must be permanent.
• Must be independent.
 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.
• Mixture of fact and law and the establishment of particular factual conditions and
compliance with relevant rules are the process of creating new States.
• 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.
 DISPUTES

• Israel-Palestine Dispute
• In this dispute, India did not recognize Israel till 1999 and also South Africa till 1991 due to racism.
Even though India got military support from Israel, still it didn’t recognise Israel. Where both the
countries had all the parameters under Montevideo Convention.
• But Palestine got limited recognition by countries because they had large number of Zewish
population.
• China-Taiwan Dispute
• In this dispute, 15 countries recognised Taiwan as a state all over the world. Taiwan was officially
known as the Republic of China and is recognised by 19 member states of the UN. Other countries
have business relations with Taiwan but they don’t recognise it as a state. Taiwan unofficially
maintains diplomatic relations with 57 other members of the UN.
 POLITICAL RECOGNITION OF STATE

• Political act in recognition is used to support or to reject a state or a government which is

new in an international community.
• Criteria of Statehood is laid down in the Montevideo Convention, which provides that
State must have a permanent population, a defined territory and a government and the
capacity to conduct International relations.
• Recognition of State is a political act based on interest and assessment made by States
individually, but legal arguments are important.
 MONTEVIDEO CONVENTION ON RIGHTS AND
DUTIES OF STATES, 1933

Article 1: To consider a State as an international person, State should adhere to following

qualifications-
1. Permanent Population;
2. Definite Territory;
3. Government;
4. Capacity to enter into relations with other States.
When possession of these attributes (of Statehood) in a State is acknowledged by other existing
States, it is known as recognition of a State.
 THEORIES OF RECOGNITION

• There are two theories of recognition-

1. Constitutive Theory,
2. Declaratory Theory.
 CONSTITUTIVE THEORY

• This theory is coined by Hegel, Anzilloti, Lauterpacht and Oppenheim.

• According to this theory, an entity does not become a State by possessing essential
attributes of Statehood; it becomes so, when other States recognizes it.
• This theory views that after the recognition a State gets its status of an International person
and becomes a subject to International Law.
• This doesn’t mean that State doesn’t exist unless recognised, but in this theory State gets
the exclusive rights and obligations and becomes a subject to International Law after its
recognition by other existing States.
• The act of recognition is defined as, a clearly legal act, with new States having the legal
right to be recognized and established States having the legal duty to recognize them.
 CRITICISM OF CONSTITUTIVE THEORY

• This theory is criticized by many of the jurists, few of them are-

1. Firstly, if this theory were accepted, it would mean that other States would determine the fate
of new State. It may be noted that recognition by no means produces subjects of international
law. The acceptance of this theory would mean that a State exists for some States (which
have granted recognition) and does not exist for others (which have not granted recognition).
This situation shows that recognition is not a conclusive proof for the existence of a State.
2. Secondly, there is no legal duty on the part of the existing States to recognize any community
that has in fact acquired the characteristics of Statehood.
3. Thirdly, a State exists prior to its recognition. Recognition has retrospective effect.
4. Fourthly, a State does have some rights and obligations under international law, even without
recognition.
 CRITICISM OF CONSTITUTIVE THEORY

• Oppenheim’s View on Recognition of State:

• A State is and will only be an international person if recognised as extraordinary. There
is no agreement that countries have to give recognition to a State, there is no obligation
on the countries, obligation lies under international law who will give recognition to a
new State.
• Existing countries recognised a country as a member of the international community
and believe that the State meets the requirements of international law outside the
country.
 DECLARATORY THEORY

• Declarative Theory is coined by Hall, Wagner, Brierly, Fisher, etc.

• This was developed in the 20th Century to address shortcomings of constitutive theory.
• Before the recognition of the State, a new State has the right to defend its integrity and
independence under International Law.
• This theory is laid down under Article 3 of Montevideo Conference of 1933.
• According to this theory, 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.
 DECLARATORY THEORY

• The act of recognition is merely declaratory or evidence of an existing fact that a particular
State or government possesses the essential attributes as required under international law.
• Recognition is necessary only because it enables new State to enter into official
intercourse with other States.
• There is no legal duty to recognize States even after it has attained statehood.
• Thus, according to this theory, recognition depends upon the discretion or sweet will of the
recognizing States. In practice, most of the States accept the declaratory theory.
Recognition frequently been withheld for political reasons. The theory also finds support
in the fact that recognition has retrospective effect.
 CRITICISM OF DECLARATORY THEORY

• This theory has also been criticized. It is criticized on the grounds that this theory
cannot be applicable for recognition of the State.
• When the essential characteristics are fulfilled by a State then it comes into existence.
If international rights and obligations are exercised by the State then declaratory theory
applies. But when the State gets the legal rights of recognition then constitutive theory
applies.
 JURISTS OPINION ON THEORIES

• According to Oppenheim:
• Recognition is declaratory of an existing fact but constitutive in its nature at least so far as
concerns relations with the recognizing States. Further there is no settled view whether
recognition is the only means through which a State becomes part of the international
community.
• According to Kelsen,
• Statehood may be distinguished into natural statehood and juridical statehood. The former
exists in a State from the moment it comes into possession of the essential elements of
statehood. The latter can be acquired by a State only when other States recognizes it.
 NECESSITY OF RECOGNITION

• Non-recognition does not mean that the entity does not qualify for Statehood. Recognition should
however be granted because it has important legal consequences. The recognized State acquires
certain rights, privileges and immunities under international law as well as municipal law.
• The typical act of recognition has two legal functions: firstly, the determination of statehood, a
question of law, secondly, the act of recognition is a condition of the establishment of formal,
optional and bilateral relations, including diplomatic relations and the conclusion of treaties.
• However, non-recognition of a State does not mean that the new entity will be devoid of legal effects
in relation to the non-recognizing States. General international rules or treaties on the co-ordination
of States such as the norms on the high seas or respect for territorial or political sovereignty, etc. do
apply to the relationship between the new State and all other members of the international
community.
 LEGAL EFFECTS OF RECOGNITION

1. Recognized State becomes entitled to sue in the courts of the recognizing State.
2. Recognized State is entitled to sovereign immunity for itself as well as its property in the
courts of recognizing State.
3. Recognized State is entitled succession and possession of property situated in the territory of
the recognizing State.
4. Recognized State may enter into diplomatic and treaty relationships with the recognizing State
(de jure recognition).
5. Recognizing State gives effect to past legislative and executive acts of recognized State
(retroactivity of recognition).
 RECENT RECOGNITION

• On 17 February 2008, Kosovo declared its independence from the state of Serbia.
However, this decision brought a lot of concern and chaos amongst states. Many states
expressed their concern over Kosovo's declaration as a separate state. Russia and China
rejected the declaration calling it illegal however united states, the united kingdom and
France have recognized the declaration of independence.
• At last international court of justice held that the declaration of independence of Kosovo
does not violate their rules laid down by international law. Hence it can be recognized as a
fully independent state. To date, 116 states have recognized the state of Kosovo, of which
15 have since been withdrawn.
• President Barack Obama declared that the United States formally recognized the Republic
of South Sudan as a sovereign and independent state on July 9, 2011.
 NON RECOGNITION

• Stimson Doctrine:
• 1932 - Named after American Secretary of State, Stimson, this doctrine pledged, Not to
recognize international territorial changes brought about by the aggression. The doctrine
was application of a principle, 'ex injuria jus non oritur' means illegal act cannot create law.
Later, in 1970, UN General Assembly declared that, 'no territorial acquisition resulting from the
threat or use of force shall be recognized as legal.‘
• But in practice this theory has not been put into effect same as the others. For instance, UK,
though late but gave de jure recognition to the Italian conquest of Ethiopian land in 1936 and
also the Soviet conquest of Baltic Republics (Estonia, Latvia, and Lithuania) in 1940. Thus the
doctrine could prevent recognition but mere delayed.
• The theory also had one positive application in 1990 when UNSC adopted a resolution for not
recognizing the Iraqi annexation of Kuwait.
 MODES OF RECOGNITION

1. De facto Recognition
2. De Jure Recognition
 DE FACTO RECOGNITION

• De facto recognition is a provisional recognition of statehood. i.e., it can be withdrawn by

other States at any time. 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.
 DE FACTO RECOGNITION

• For example:
• United kingdom recognized the soviet union by the status of de facto in 1921 and after
so many observations and instances, it finally granted the status of de jure in 1924.
• Here is this notable point that only a government recognized de jure is authorized to
claim to property located in the recognizing state. the de facto recognized state has no
such power and also full diplomatic relations can not be established by de facto
recognized state.
 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.
• In the case of Luther v. Sagar, it was held in this case that for the purpose of giving effect to
the internal acts of the recognised authority there is no distinction between de facto and de jure .
 EXAMPLE OF DE FACTO AND DE JURE RECOGNITION

• One of the examples of de facto and de jure recognition is the recognition of the Soviet
Union was established in 1917. It was de facto recognised by the government of UK in
1921 but it was not given de jure recognition until 1924.
• Bangladesh was established in March 1971. India and Bhutan recognised it just after 9
months of establishment but the United States gave it legal recognition after nearly 1
year in April 1972.
 LUTHER V. SAGOR
(1921) 3 KB P. 532

• In June 1918, Russia passed a decree for nationalizing mechanical sawmills and wood
working establishments belonging to private or limited companies. In consequence to
the above, in 1919, certain official armed with authority from the Soviet Govt. took
possession of the plaintiff’s factory and of the manufactured goods lying there.
• On August 14, 1920, a contract was made in London between L.B. Krassin (the
representative of the Russian Commercial Delegation in London) and the defendants
whereby Krassin sold to the defendants, a firm carrying on business in London, a
quantity of birch, alder and aspen plywood seized by the officials.
• The plaintiff claimed title to those goods on the ground that the goods were their
property and it had come from a factory in the U.S.S.R that had owed by it before
being nationalized.
 LUTHER V. SAGOR
(1921) 3 KB P. 532

• The plaintiff argued that the decree should not be recognized by an English Court, inter alia
because the Soviet Govt. had not been recognized by the UK. The defendant contended that the
Republican Govt which had passed the decree nationalizing all factories was the de facto Govt
of Russia at that time and had been recognized by his Majesty Govt as such and the decree was
one to which the Courts could not refuse recognition.
• The Court decided in favour of the defendant.
• Warrington, L.J. held that there is no difference for the present purposes between a govt
recognized as such de jure and one recognized de facto. In the latter case as well as in the
former the govt in question acquires the right to be treated by the recognizing state as an
independent sovereign state. Thus, de facto govt acquires sovereign immunity from being sued
in the courts of a recognizing State.
 ARANTZAZU MENDI
(1939) 1 ALL ER 719

• There was a civil war going on in the State of Spain. A major part of it was under the
effective control of the insurgent forces under the leadership of General Franco whose
govt was recognized de facto by the Govt of Britain.
• The Arantzazu Mendi was a Spanish ship registered at Bilbao which was under the
control of General Franco. After the port was captured by the insurgent forces, it was
requisitioned by the Spanish republican govt while on the high seas on June 28, 1937.
• On August 11, 1937, the vessel arrived in London, its owners issued a writ in rem for
its possession. To this writ Spanish Govt entered a conditional appearance. The Franco
agent in London on April 5, 1938 served notice on the owners that the vessel had been
requisitioned for public services by the Franco insurgents.
 ARANTZAZU MENDI
(1939) 1 ALL ER 719

• The owner and master chose to recognize the Franco requisition. They gave consent to
remain in their possession in notorial decalarations.
• While the vessel was still under arrest, the Spanish govt issued a writ in rem, “to have
possession of the said Arantzazu Mendi”. The Franco insurgents entered a conditional
appearance to set aside the writ on the ground that it impleaded a foreign sovereign
state which was unwilling to submit to the jurisdiction to the court.
 BA N K O F ET H I O P I A V. N AT I O N A L B A N K O F E G Y P T & L I G O U R I
(1937) 3 ALL ER 8

• This rule has been applied in a number of cases.

• In Bank of Ethiopia case, the court held that in view of the fact that the British Govt
granted recognition to the Italian Govt as being the de facto govt. of the area of
Abyssinia (which was under Italian control), effect must be given to an Italian decree
in Abyssinia dissolving the plaintiff bank and appointing liquidator. It was held that
authority of de jure ruler (exiled emperor of Abyssinia) was merely theoretical
(incapable of being enforced), and effect must be given to the acts of de facto ruler.
 FORMS OF RECOGNITION

• When a newly formed state is recognised, its declaration can be made in two forms:
1. Expressed Recognition
2. Implied Recognition
3. Conditional Recognition
 EXPRESSED RECOGNITION

• When an existing state recognises a new state expressly through official declaration or
notification, it is considered to be the expressed form of recognition. Express
recognition can be made through any express or formal means such as sending or
publishing declaration or statement to the opposite party. When a state is recognised by
expressed ways, it is a de jure recognition unless provided otherwise by the
recognising state in the declaration.
• In 1991, three Baltic republics (Luthuania, Estonia and Latvia) were expressly
recognized by India viz. the Indian Prime Minister sent the messages to this effect to
the Presidents of these States. Express recognition may also be granted by the
conclusion of a treaty.
 IMPLIED RECOGNITION

• When the existing state shows its intention of recognition of a newly born state
by some acts, then it is considered as an implied recognition. Implied
recognition can be granted through any implied means by which a current state
treats the newly formed state as an international person. The implied
recognition not granted through any official notification or declaration. The
recognition through implied means varies from case to case.
a) Unilateral acts
b) Collective acts
 CONDITIONAL RECOGNITION

• It implies that the recognition is granted subject to the fulfilment of

certain stipulation by the recognized State in addition to the normal
requirements of Statehood.
• For example, in 1878, while recognizing Bulgaria and Romania,
Germany imposed the condition that the said States shall not discriminate
their citizens on the basis of religion.
 WITHDRAWAL OF RECOGNITION

1. Withdrawal of De facto recognition

• Under international law when a state having de facto recognition fails to fulfil
the essential conditions of statehood, its recognition can be withdrawn. The
recognition can be withdrawn by the recognizing state through declaration or
through communicating with the authorities of the recognized states. The
withdrawal can also be done by issuing a public statement.
 WITHDRAWAL OF RECOGNITION

2. Withdrawal of De Jure recognition

• Withdrawal of de jure recognition is a very debatable issue under the International Law. Withdrawal of a
de jure recognition is a very exceptional event. If strictly interpreted, the de jure recognition can be
withdrawn. According to the Montevideo convention 1933, also declared that recognition de jure is
unconditional and irrevocable.
• Even though the process of recognition is a political act, de jure recognition is of legal nature. Jurists who
consider de jure recognition as a political act considers it revocable. Such revocation of de jure recognised
states can be withdrawn only when a state loses the essential characteristics of statehood or any other
exceptional circumstances. This type of revocation can be done expressly by the recognising state by issuing
a public statement.
• Eg., The united kingdom de facto recognized the Italian conquest of Ethiopia and 2 years later as de jure.
however, due to fights and dispatch of the military, the united kingdom revoked the recognition granted to
Ethiopia.
 RECOGNITION OF GOVERNMENT

• For any statehood, the government is an important element. When a state is formed, its government
changes from time to time. When the government changes as an ordinary course of political action, the
recognition of government by the existing state is not required but when the government changes due to
any revolution, then its recognition by the existing state is required.
• For recognising the new government established out of revolution, the existing states need to consider
that:
1. The new government have sufficient control over the territory and its people or not.
2. The new government is willing to fulfil the international duties and obligations or not.
3. When the existing states are satisfied that the new government resulting out of the revolution is capable
of fulfilling the conditions as mentioned above, then the new government can be recognised by the
existing states.
 RECOGNITION OF GOVERNMENT

• In the Tinocco Arbitration Case, in 1917 the established government was ousted by Tinoco.
Then they ruled for over 2 years and in 1919 they were ousted by a new government. This new
government in turn refused certain obligations established concerning British nationals. In this
case, justice Taft held that the Tinoco has ruled over the territory for over 2 years and it was
effective in the control of government so it was a valid government even if it was not
recognized by so many states including the united kingdom.
 DOCTRINES FOR STATE RECOGNITION OF GOVERNMENT

• Tobar Doctrine:
• On many occasions States have refused to recognize a revolutionary govt. on the ground that such a govt.
has come into existence after applying force. The five Central American Republics concluded treaties in
1907 and 1923 which embodied the ‘doctrine of legitimacy’, the so-called Tobar doctrine propounded in
1907 by Carlos Tobar, Foreign Relations Minister of Equador in which they bound themselves not to
grant recognition to any Govt. coming into existence by revolutionary means ‘so long as the freely elected
representatives of the people have not constitutionally recognized the country’, i.e., until such a govt has
been recognized by its own people in a constitutional manner.
• The recognition of government should only be granted if its administration came to power by legitimate
democratic means.
• Later recognition of the US to this doctrine turned it to be known as Wilsonian Policy. The US applied it
in Tinoco government of Costa Rica. The doctrine never worked outside Americas.
DOCTRINES FOR STATE RECOGNITION OF GOVERNMENT

• Estrada Doctrine:
• Named after Mexican Secretary of Foreign Affairs, Genaro Estrada, the doctrine states that;
Recognition of government should be based on its de facto existence rather than on its
legitimacy. This policy based on the principles of non-intervention and self-determination of all
nations does not allow the states to assess the legitimacy of governments of other each others.
 RECOGNITION OF BELLIGERENCY

• Belligerency exists when a portion of the States territory and population is under the de facto
control of the people who are fighting against the government to establish a separate State or to
overthrow the existing government.
• It is recognized by customary international law, and implies a more serious conflict than any
rebellion or insurgency.
• It is... “the acknowledgement of a legal fact that there exists a state of hostelities between the
two groups vying for power or authority; it is ... the recognition of the existence of war”.
 RECOGNITION OF BELLIGERENCY

• The Conditions for Recognition of belligerency are as follows:

1) There should exist within the state a status of armed conflict
E.g., In 1984, during the revolution in Brazil, the great powers refused to recognize the belligerency and
insurgent forces of Admiral de Mello on the ground, mainly, that they were limited to units of navy.
2) The insurgents must administer and occupy a major portion of national territory.
3) The hostelities 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.
 RECOGNITION OF INSURGENCY

• Insurgency means rebellion, riot or mutiny by portion of the citizens of a State against the established
government. It indicates armed struggle by dissident forces the established government in a state.
• The Conditions for recognition of insurgents are 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.
• Insurgents like I.R.A. in Northern Ireland, the JKLF in Kashmir, Hizbul Mujahideen in Afghanistan, the
L.T.T.E. in Sri Lanka.
 RECOGNITION OF INSURGENCY

• The instances of Insurgency

1. In the case of Chilean revolution in 1981, the British and the other governments, while
refusing recognition of belligerency, apparently acquiesced in the exercise of certain
belligerent rights by the insurgents.
2. During the revolution in brazil in 1893 the demand for the recognition of belligerency was
expressly refused by the United States and other states. Representatives of foreign powers,
including Great Britian and the United States informed rebel commander that any attempt to
bombard Rio de Janerio or to interfere with commercial operations in the port would be
resisted by force.