State

Recognition
Article:1 The state as a person of
international law should possess a. a permanent
the following qualifications: population;
• Montevideo Convention on the Rights
and Duties of States b. a defined territory;
c. government; and
d. capacity to enter
into relations with
the other states.
 Article 3

• The political existence of the state is independent of recognition by the other states.
Even before recognition the state has the right to defend its integrity and
independence, to provide for its conservation and prosperity, and consequently to
organize itself as it sees fit, to legislate upon its interests, administer its services, and to
define the jurisdiction and competence of its courts. The exercise of these rights has
no other limitation than the exercise of the rights of other states according to
international law.
 The significances of
recognition for a state

• 1. To obtain equality status with other members of the international community

• 2. To acquire international rights and contracting international obligations
• 3. To engage in international relations
 Types of recognition

• Recognition of States
• Recognition of Government
 The difference between
recognition of state and
government

• Analogy: The tree is the state. The leaves are various governments. While governments
(leaves) may come and go, the state (the tree remains)
• Once the recognition is given to a state, the recognition cannot be withdrawn.
• Recognition of a government may be lawfully withheld or withdrawn.
Saudi Arabia and the United Arab Emirates withdrew their recognition to Afghanistan
Taliban government when it refused to surrender Osama bin Laden in the aftermath of
the events of September 11, 2001.
 Types of Recognition of
States

• Expressed recognition
• Implicit recognition
• Collective recognition
 Expressed
Recognition
• Diplomatic letters/notes, statements,
telegrams Example: The statement of
French President to recognize the
independency of Algeria on 3 July 1963.
• International treaty Example: Japan
recognized Korea via article 12 of Peace
Treaty on 8 September 1951.
 Implicit
Recognition
• Sending a diplomatic agent
• Having a talk with an official or a head of state
• Making an agreement with the state Example: Prime Minister of Israel, Shimon Perez,
visited Morocco on 21 July 1986 and had a talk with King Hassan II to seek solutions for
Middle East problems.
 Collective
Recognition
• Via international treaty or multilateral conference
Example: 5 ASEAN countries on 18 April 1975 recognized Cambodia
Types of Recognition
of States
• As a general principle, States maintain a policy of non-
interference in the domestic affairs of another State.
• A stage may come when rebels are in effective
occupation of a large part of the territory and exercise
authority in that territory.
• In these circumstances, third States, without making a
formal pronouncement and without conceding to the
rebellion forces belligerent rights, refrain from treating
them as law-breakers, and consider them as the de facto
authority in the territory under their occupation.
• Such attitude is adopted by the third States to maintain
with rebels relations deemed necessary for the
protection of their nationals, their commercial interests,
Recognition
etc.
• When that happens, the rebels possess against third
States the status of insurgents.
of Insurgency
• Example: 'Welcoming' the Taliban Rule of Afghanistan by some coutries
 • A stage may come when civil war between
insurgent forces and parent government
assumes such dimensions that third States
are compelled to treat the civil war as a

Recognition
real war between rival powers.
• If such a situation occurs, third States
recognize insurgent forces as a

of
‘belligerent' power. As a result of
recognition of belligerency, the conflict is
internationalized.

Belligerency • The belligerent get some rights under

international law.
• Example: An example of the use of the term arose during
the American Civil War, when the Confederate
States of America, though not recognized as a sovereign
state, was recognized as a belligerent power; and, as a
consequence, Confederate warships were given the same
rights as US warships in foreign ports.
 Insurgency is a status of
potential belligerency. Bellig
erency is the final category
of a challenge to the
Difference established
between government, recognized by
recognition of customary international law,
and implies a more serious
belligerency and conflict than any rebellion
insurgency or insurgency.
Insurgency cannot be
recognized belligerency can
get a de facto status.
• This situation may arise when the State
is temporarily occupied by invaders or Government-in-
usurpers and the government has had
to flee, or there is a rebel community
exile
which has not yet succeeded in
establishing itself in the territory of
which it aspires to be the government.
• An example is Palestine Liberation
Organization (P.L.O.), recognized by
many States including India. In contrast
to de facto government, governments-
in-exile lack effective control over the
territory of a State and have been
accorded de jure recognition.
Modes of • De facto

Recognition
• de jure recognition
 • the provisionally grant; that is subject to

De Facto fulfillment of all the attributes of

statehood, of recognition to a new state
which has acquired sufficient territory and

Recognition control over the same, but the recognizing

states considers it not stable.
• The grant of recognition to a new born
state by an existing state, when it
De jure
considers that such new born state has
attained all the attributes of statehood
with stability and permanency.
Recognitio
n
 De facto Recognition De jure Recognition

It is absolute recognition granted to a state

De facto Recognition is provisional recognition which have attained all the attributes of
subject to fulfillment all attributes of statehood, possesses sufficient control with
statehood. permanency.

De facto Recognition creates few essential It creates absolute rights for the parties thereto.
rights and duties for recognized and recognizing
states.
Differences Between De facto and
De jure Recognition.
The full diplomatic immunities are not granted It creates full diplomatic intercourse between
in this De facto Recognition. the parties.

The full diplomatic immunities are not granted Here in full diplomatic relations are granted to
in this De facto Recognition. the recognized state.

In such a case the official visits and dealings In such a case limitations are not necessary.
may be subjected to limitations.
Theories of
Recognition
 • 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.
• It implies at other States constitute the
personality of a State by granting
recognition.
Constitutiv • This theory has been advocated by
Hegel, Anzilloti, Oppenheim, etc.

e Theory • 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.
 • 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/ • The act of recognition is merely declaratory or

evidence of an existing fact that a particular State
Evidentiary or government possesses the essential attributes
as required under international law.
Theory • Recognition is necessary only because it enables
new State to enter into official intercourse with
other States.
• This theory has been advocated by Hall, Wagner,
Brierly, Fisher, etc.
• There is no legal duty to recognize States even
after it has attained statehood.
 • The doctrine that recognition of a government
should be based on its de facto existence,
rather than on its legitimacy.
• It is named after Don Genero Estrada, the

Estrada Mexican Secretary of Foreign Affairs who in

1930 ordered that Mexican diplomats should
issue no declarations that amounted to a grant
Doctrine of recognition.
• He felt that this was an insulting practice and
offended against the sovereignty of other
nations.
• In 1980 the UK, USA, and many other states
adopted the Estrada doctrine.
 • Japan had been expanding its influence in
Manchuria for years, and after the Manchurian
attack in 1931, it formally controlled the
territory.
• After its successful conquest of Manchuria, the
Japanese attacked the city of Shanghai in 1932.

Stimpson • As Shanghai was home to the largest

international settlements in China, the sudden
invasion threatened foreign concessions as well.

Doctrine • The Stimson Doctrine was echoed in March

1932 by the Assembly of the League of Nations,
which unanimously adopted an anti-Japanese
resolution incorporating the Stimson Doctrine
of nonrecognition.
• The Stimson Doctrine is the policy of
nonrecognition of states created as a result of a
war of aggression.
• After the Second World War Germany was
divided into East and West.
• The Federal Republic of Germany (west)
claimed for the first 20 years of her
existence to internationally represent all
Germans because in contrast to German
Democratic Republic (east) her government
was freely elected. Hallstein
• In this context the Hallstein Doctrine was an
important instrument to secure the stronger
diplomatic influence of West Germany.
Doctrine
• Diplomatic relations with the East German
GDR were seen as an unfriendly act and
resulted in the termination of West
Germany's relations to the concerning
country.