Recognition

• Definition
– “In recognizing a State as a member of
International Community, the existing States
declare that in their opinion the new State fulfils
the conditions of Statehood as required by
international law.”
(Oppenheim)
 Requisites of Recognition
• Montevideo Convention 1933
ARTICLE 1
The state as a person of international law should
possess the following qualifications:
` a ) a permanent population;
b ) a defined territory;
c ) government; and
d) capacity to enter into relations with the other
states.
• ARTICLE 2
– The federal state shall constitute a sole person in the eyes
of international law.
• 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.
 Conditions of Statehood
• According to Hans Kelsen
– People
– Territory
– Government
– Sovereignty
 Theories of Recognition
• Constitutive Hegel, Anzilloti, Oppenheim
– Recognition clothes the recognized State with
right and duties under international law
– Recognition is a process through which a political
community acquires international personality by
becoming a member of family of nations
• Oppenheim
– A State is and becomes an international person
through recognition only and exclusively
• Criticism
– The practice indicates, however, that although
established States normally recognize new States and
new Governments that in fact exist; they have not
consented to law norms that obligate them to do so.
Edward Collins
– This theory suggests that if a State is not recognized
it can have neither duty nor rights under
international law which is a very absurd suggestion.
• Example: China
• Declaratory Theory
• Hall, Wagner, Brierly, Pitt Cobbet, Fisher
– 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
• Brierly
– The granting of recognition to a new State is not a
‘Constitutive’ but a Declaratory act.
• Criticism
– The view that recognition is only a declaratory of
an existing fact is not completely correct
Oppenheim
• Conclusion
– Probably the truth lies somewhere between these
two theories. The one or the other theory may be
applicable to different sets of facts
J.G. Starke
 Modes of Recognition

• De facto Recognition
“When a State wants to delay the de jure
recognition of any State, it may, in the first stage
grant de facto recognition”
Prof. G.
Schwargenberger
• De jure Recognition
– According to Prof. H.A. Smith
i. Reasonable assurance of stability and
Permanence
ii. The Govt should command the popular support
iii. Able and willing to fulfill its international
obligations
 Difference
– “De facto recognition is by nature provisional and
may be made dependent on conditions with which
the new entity has to comply. De jure recognition
is complete, implying full and normal diplomatic
relation”
Prof. G. Schwargenberger
– If at all there is a difference between de facto and
de jure recognition, it is chiefly political rather
than legal.
 Recognition of insurgency
– Insurgency denotes the state of political revolt
– Pre-supposed a civil war
– Acknowledgement of fact situation for practical
purposes
– Insurgency is an intermediate stage between
tranquility and belligerency.
 Essential conditions for recognizing
insurgents
1) Control over a considerable part of the
territory.
2) Considerable support to the insurgents from
the majority of the people living in the
territory.
3) Insurgents should have the capacity and will
to carry out the international obligations.
 Effects of recognition of Insurgency
1) The (i.e. insurgents) are not treated as
pirates.
2) The rebels of civil strife are treated as hostes
generis human (the public enemy) until they
are recognized as insurgents.
3) The international rules of war become
applicable to them.
 Recognition of belligerency
• “When the insurgents are well organized,
conduct hostilities according to laws of war
and have a determinate territory under their
control they may be recognized as belligerents
whether or not the parent State has already
recognized that status”
M.K. Nawaz
 Essential Conditions for recognition of
belligerents
1) The armed conflict is to be of general character.
2) The insurgents occupy and administer a considerable
portion of the national territory.
3) They conduct hostilities through armed forces under
a responsible authority. Moreover, they conduct
hostilities in accordance with the rules of war.
4) The hostilities are to be of such magnitude that the
foreign States may find it necessary to define their
attitude towards the belligerents and the established
Government.
 Effects of recognition of belligerents
1) From the date on which the recognition of
belligerency is accorded, international law rules
governing the conduct of hostilities apply.
2) The conflict is internationalized and the
belligerents get some rights under International
Law.
3) The relations between the recognized belligerent
authorities, established Government and the
recognizing State are governed by International
Law rather than municipal law.
• Recognition of State and Government
• Is there a duty to recognize?
– Such an obligation, however, desirable is not
stipulated by positive international law
Kelsen
• Facultative theory of Recognition
– Is recognition a political or discretionary act?
– Granting of recognition depends upon the
discretion of recognizing States
 Effects of Recognition
• Entitlement to sue in the Courts
• Legislation and executive orders to be
acknowledged
• De jure recognition entails the establishment of
Diplomatic relations
• Sovereign immunity in the Courts of recognizing
States
• Entitlement to succession and possession of
property in recognizing States
 Consequence of Non-Recognition
• Unrecognized State cannot sue in the Courts
of non-recognizing States
– USSR v. Cirbaria
– The New York Court observed that such a State
cannot sue, as matter of right, in American Courts
• Unrecognized State is not entitled to enter
into diplomatic relations with the non-
recognizing States
• The Diplomatic immunities are not offered to
such States
• Such States are also not entitled to get their
property situated in foreign States
• Is Withdrawal of Recognition possible?
– Different for de facto and de jure recognition
• Estrada Doctrine Mr Estrada FM of Mexico
– Free to determine diplomatic relations
• Stimson Doctrine US Secy of State
– Recognition in violation of international treaty is void
Thank You