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CHAPTER 5

RECOGNITION OF STATES AND GOVERNMENTS

Contents

Pages

5.1

Theories of Recognition

5.2

Recognition of Government

5.3

De facto and de jure recognition

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5.4

Legal Consequence of Recognition

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Recognition of States and Governments

5.1 Theories of Recognition

There are two theories of recognition, namely:
(a) the constitutive theory, and
(b) the declaratory or evidentiary theory.

()
()

Constitutive Theory

According to the constitutive theory, without recognition a

State does not exist, and only recognition constitutes a State as an
international person and gives it clear-cut rights and responsibilities.
Supporter of the constitutive theory are Oppenheim, Lauterpacht, Hans
Kelsen, ect. Oppenheim writes that "through recognition only and

exclusively a State becomes an international person and a subject of

international law, and that recognition is constitutive of the rights and
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duties pertaining to Statehood".

Oppenheim,

Lauterpacht, Hans Kelsen

Oppenheim

Many jurists do not agree with this theory. That is because there are
serious difficulties in it. For instance, the status of a State recognized by
States A but not recognized by State B, and therefore apparently both an
international person and not an international person at the same time,
would be a legal curiosity. Perhaps a more substantial difficulty is that
unrecognized State has neither rights nor duties at international law. For
example, an intervention, otherwise illegal would not have been illegal in
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. Oppenheim, International Law, pp. 125-127.

unrecognized State. Moreover, if the unrecognized State had been

involved in war, she would have been under no legal obligation to respect
the

rights

of neutrals. Non-recognition may certainly make

the

enformcement of rights and duties more difficult. The practice of States

does not support the view that they have no legal existence before
recognition.

'' ''

''''

J.L. Briery,The Law of Nation, pp.138-139.

A new State, being a subject of international law from its very
inception, enters into many kinds of relations with existing States even
prior to its recognition. The case of the Soviet Union is particularly
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instructive in this respect. Another striking example is the problem of non

recognition of the People's Republic of China by the United States of
America.

Declaratory Theory
2

Yevgeryev, in 'International Law', Moscoe, pp. 122-123.

According to the declaratory theory, Statehood exists prior to

recognition

and

the

act

of

recognition

is

merely

formal

acknowledgement of an already established fact.

The Montevideo Convention: 1933, is in accord with this theory. It

prescribes as follows:
"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 legislate upon its
interests, and to define the jurisdiction and competence of its courts".

Article 3 of the Montevideo Convention (the Inter American Convention on Rights and Duties of State,
December 26,1933)

The exponents of the declaratory theory are Hall, Fischer Williams,
J.L. Briery, Richard N. Swift, etc.
Hall, Fischer Williams, J.L. Briery, Richard N. Swift

According to Professor Brierly "the better view is that the granting
of recognition to a new State is not a constitutive but a declaratory act. It
does not bring into existence a State which did not exist before. A State
may exist without being recognized, and if it does exist in fact, then,
whether or not it has been formally recognized by other States, it has a
right to be treated by them as a State.

J.L, Birely, The Law of Nations, p. 139.

Richard N.Swift, a well known American Professor, is of the opinion

that "the declaratory theory, by contrast with the constitutive" corresponds

more closely to reality".

Comparatively speaking, the constitutive theory represents a

minority view among writers.

5.2 Recognition of Government

Logically the recognition of a new state automatically involves
recognition of the government of the State. However, although recognition
2
3

.
.

Richard N. Swift International Law: Current and Classic, 1968, p. 61.

Von Glahn, Law Among Nations, p. 91.f.n; H.W. Briggs, "Recognition of States:
Some reflections on Doctrine and Practice", 43 A.J.I.L (1949), PP, 113-121.

of government and State may be closely related, they are not necessarily
identical. The question of recognition of a government apart from the
question of recognition a new State arises in certain circumstances.

In fact, the granting or refusing of the recognition of a government
has nothing to do with recognition of the State itself. If a foreign State
refuses to recognize a new government of an old State the latter does not
thereby lose its recognition as an international person.

( )

In practice, when there is a change of government in a normal and

constitutional manner, recognition is granted as a matter of fact. For

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example, in the case of the accession of a new Head of a State, other States
usually recognize the new Head by some formal act such as a message of
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congratulation.

When, however, the new government comes into power not in a
constitutional manner but after a coup' etat, a revolution (which need not
involve bloodshed), the difficulty arises. Other State need to decide on the
question whether the new government can be properly regarded as
representing the State in question. In arriving at the decision they exercise
a discretion.

Oppenheim, op, cit, p. 129.

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The decision nevertheless has to arrive at with regard to the

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particular facts of each case and on the basis of certain tests. There seems
to be two tests to be applied in such cases.

(a)

Objective test

The objective test is regarded by some jurists as the "Principle

of Effectiveness".

According to Oppenheim, a government which enjoys the habitual
obedience of the bulk of the population with a reasonable expectancy of
permanence, can be said to represent the State in question and as such to

1
2

.
.

B.Sen, op. cit, p. 422.

Ibid.

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be entitled to recognition. The eminent jurist also maintains that the

preponderant practice of States in the matter of recognition of government
is based on the principle of effectiveness thus conceived.

The principle of effectiveness is the traditional theory and is
supported by many jurists.

Oppenheim, op. cit, p. 131.

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(b)

Subjective test

The second half of the nineteenth century witnessed the

emergence of a second test, applied by some States. This test is whether
the new government has willingness to carry out the international legal
obligations of its State. This is called the subjective test.

The United

States applied this test in the case of the Soviet (Russia) when she emerged
as a result of the revolution of 1917. However, Oppenheim is of the
opinion that this test cannot be regarded as satisfactory.

4
5

.
.

Von Glahn, Law Among Nations, p.99.

Oppenheim, op. cit, p.133.

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5.3 De facto and de jure recognition

There are two modes of recognition under international law

recognition de facto and de jure. This division, although effective to this
day, is relative, since there are no international treaty rules regarding this
matter.

States, in order to safeguard their position against granting of
premature recognition, have often resorted according to the practice of
recognition de facto before recognizing a State government de jure.

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De facto recognition of a State or government takes place when, in

the view of the recognizing State, the new authority, although actually
independent and having effective power in the territory under its control,
has not acquired sufficient stability or does not as yet offer prospects of
complying with other requirements of recognition such as willingness or
ability to fulfil international obligation.

( )


( )

Recognition de facto is, in essence, provisional and liable to be
withdrawn if the absent requirements of recognition fall to materialize.

3
4

.
.

Oppenheim, International Law, Vol. I, p.135.

Ibid, p.136.

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Consequently, recognition, de facto is incomplete. It is a transitional state

leading to de jure recognition this may follow much later.

As a rule, in the case of recognition de facto, there is not yet formal
exchange of diplomatic representatives.

De jure recognition implies that the recognized State or government

fulfils the test laid down by international law for effective participation in
international community.

( )

.
.
2
.
1

Yevgenyev, in International Law, Moscow, p.118.

Lauterpacht, Recognition in International Law, p.338.
Tandon, Public International Law, p.154.

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According to British practice three conditions are required as a

precedence to the grant of de jure recognition, namely:
(a) a reasonable assurance of stability and permanence.
(b) the government commands the general support of the
population; and
(c) it is able and willing to fulfil its international obligation.

()
()

()
()

Recognition de jure is full recognition, leading to the establishment
of extensive relations of many kinds. It is more stable in character than is

Smith, Great Britain and The Law of Nations, Vol: I, p.79.

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so in the case of de facto recognition. The most important results of de jure

recognition include.

(a) the establishment of full diplomatic and consular relations

with the State recognized.
(b)the participation of the State recognized in international
congress and conferences of a general character, and not only
those affecting its own interests;
(c)recognition and respect from the recognizing States for the
laws and decisions of the administrative and judicial organs of
the State recognized.

()

Yevgenyev, in International Law, Moscow, pp. 118-119.

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()

()

Recognition de jure is therefore the more complete form. It

contributes to the development of relations between states.

From the point of view of legal effects there is hardly any difference
between de jure and de facto recognition.

The legislative and other

internal measures of the authority recognized de facto are, before the

courts of the recognizing States, treated on the same footing as those of a
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State or government recognized de jure. Similarly, a Sates or government

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1

.
.

Lauterpacht. Recognition in International Law, p. 343.

Oppenheim, op. cit, p. 136.
Luther V. Sagor (1921) 3K. B. 532.

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recognized de facto enjoys jurisdictional immunity in the courts of the

recognizing State.

5.4 Legal Consequence of Recognition

Professor Oppenheim sums up the consequences which flow from
the recognition of a new government or State in these words:
Professor Oppenhein ()

(a) It thereby acquires the capacity to enter into diplomatic
relations with other States and to make treaties with them;

The Garara (1919), p. 95.

The Arantzazu Mendi, (1939), A. C. 216.

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()

(b) Within limitations, former treaty (if any) concluded

between the two States, assuming it to be an old State and
not a newly-born State, are automatically reviewed and
come into force;
()

(c) It thereby acquires the right of suing in the courts of law of
the recognizing States;
()

( )

(d) It thereby acquires for itself and its property immunity from
the jurisdiction of the courts of law of the recognizing
State;

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()

( )

(e) It also becomes entitled to demand and receive possession
of property situated within the jurisdiction of a recognizing
State

which

formerly

belonged

to

the

preceding

government at the time of its suppression; and

()

(f) Recognition being retroactive

and dating back to the

moment at which the newly recognized government

established itself in power, its effect is to preclude the
courts of the recognizing State from questioning the
legality or validity of such legislative and executive acts, of
past and future, of that government as are not contrary to
international law.

()
( )
1

Oppenheim, I.L. Vol: I, pp. 137-139.

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( )

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KEY TERMS

Constitutive theory

Declaratory (or) Evidentiary theory

Recognition

Integrity

Accession

Objective test

Subjective test

De facto recognition

De jure recognition

Consequences

Immunity

Legality

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Validity

Limitations

Competence

Montevideo Convention

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EXERCISE QUESTIONS
Assignment Questions
1. Explain theories of recognition and say which one corresponds more
closely to reality?
2. Briefly discuss the problem of recognition of governments.
3. What do you understand by de jure and de facto recognition?
4. Elaborate the legal consequences of recognition.
Short Questions
1. What kinds of recognition of theories are there? Write short notes
about the

recognition of theories.

2. Write short notes on the followings:

(a) Objective test
(b) Subjective test
3. Explain about the Montevideo Convention 1933 under the Declaratory
Theory.