RECOGNITION

1. Introduction

Recognition = Cognition+ Intention (legal consequences of Recognition Should

operate).

First and foremost, recognition is a political act whereby a subject of international law
(According to Lauterpacht- “there is probably no other subject in the field of international
relations in which law and politics appear to be more closely interwoven’.(brownlie)),
whether a state or any other entity with legal personality, expresses its unilateral
interpretation of a given factual situation, be it the birth of a new state, the coming to power
of a new government, the creation of a new intergovernmental organization, the status of an
insurgent, the outcome of an election, the continuation of a defunct state by another, a
specific territorial arrangement, and so on. Changes in international scenario may lead to new
states being created, old states being dead. Government may change democratically, through
revolution, rebellion, military conquest etc. The above changes puts question before the other
states as to how to engage, whether to engage or not to engage, to engage formally or
informally- these issues are hinged on the concept of recognition of states and government
because that will decide the interaction between states would happen or not, and the nature
of interaction(formal, informal, etc.).

Recognition is a formal expression by its author about how it perceives the situation to
which it extends recognition. Recognition simultaneously constitutes a means for its author
to make known its own view of a situation, including the legal consequences. With a few
exceptions, recognition remains discretionary.

Although a political act, recognition deeply affects the international legal system and bears
wide-ranging legal effects in both the international and the domestic legal orders.
International legal scholars have mostly focused on the international and domestic legal
effects of recognition as well as the forms and modes in which and whereby it is extended. It
is noteworthy that the forms, modes, and legal effects of recognition have been primarily
studied in connection with the birth or extinction of states as well as the coming to power or
overthrow governments. But, recognition can potentially be directed at many other situations
that states judge require a reaction.
definition- State Recognition- the free act by which one or more states acknowledges the
existence on a definite territory, of a human society politically organized, independent of any
other existing state and capable of observing the obligations of international law, and by
which they manifest therefore their intention to consider it a member of the international
community.

definition- Recognition of government- Recognized government is in the opinion of the

recognizing state, qualified to represent an existing state, but it does not necessarily signify of
approval of that government by the recognizing state.

Important aspects of Recognition

(1) Recognition is more a question of policy than a law. Policy of Recognition is
conditioned by the necessity of protecting one’s own interest(political consideration
also like trade, strategy), Therefore, tendency to use legal principal Recognition as a
convenient camouflage for political decisions.

(2) It is a political move with important legal consequences in International law. There
are two legal consequences- firstly, it has evidential value that an entity has now
fulfilled the requirements of statehood. therefore, according to Brownlie, ‘the
determination of statehood, a question of law: such individual determination may
have evidential value.
Secondly, Recognition leads to relationship between the recognised and the
recognising state, through mutual recognition of their laws, citizenship, diplomatic
relationships etc. Therefore according to Brownlie, ‘a condition of the establishment
of formal relations, including diplomatic relations and theconclusion of bilateral
treaties: it is this second function which has been described by some as ‘constitutive’,
but it is not a condition of statehood.’

Theories of Recognition

There are principally two theories as to nature, function and effect of recognition-

These two theories which apply also to newly recognized states are based principally on the
necessary consideration that there should be no gap of time during which a state or
government is out of existence. In other words, continuity is the essence of state sovereignty
or of governmental authority. Otherwise, many transactions, contracts, change of status etc.
would be null and void because of being made in a period when the laws of the particular
state or government under which they were effected were unrecognized.

Constitutive Theory-

Historically the constitutive theory was more important than one might suppose. During 19 th
century, international law was often regarded as applying mainly between states with
European civilisation. Other countries were admitted to the club only if they were elected by
the other members and the election took the form of recognition. There were also occasions
when some states tended to treat revolutionary governments as outlaws which were excluded
from the club until they were recognised.

According to this theory it is the act of recognition alone which creates statehood or which
clothes a new government with any authority or states in the international sphere. It is a
necessary condition for constitution of a state or government concerned at international level.
An entity is not a state or government in International law unless recognised. This is
especially relevant in case of new states/governments having come through extra
constitutional means.

Browline- “the political act of recognition is a precondition of the existence of legal rights: in
its extreme form this implies that the very personality of a state depends on the political
decision of other states. The most nuanced defence of this perspective is that of Lauterpacht,
who conceives of states as the gatekeepers of the international realm:

[T]he full international legal personality of rising communities…cannot be

automatic…[A]s its ascertainment requires the prior determination of difficult
circumstances of fact and law, there must be someone to perform the task. In the
absence of a preferable solution, such as the setting up of an impartial international
organ to perform that function, the latter must be fulfilled by States already existing.
The valid objection is not against the fact of their discharging it, but against their
carrying it out as a matter of arbitrary policy distinguished from legal duty.”

This theory is supported from the fact that upon recognition, the recognized state or
government acquires status, as such, in the municipal courts of the recognizing state . This
theory gives upper hand to International community over state sovereignty, for example,
 1. Right to sue and sued.
2. Immunity.
3. Validity Legislative and executive act.
4. Possession of property.

There are several other examples to show that recognition is constitutive. For example, for
many years, the western powers refused to recognise the existence of East Germany mainly
because they considered that its establishment was in breach of USSR’s obligation under
International treaties. The recognition of East Germany by west had constitutive effect as far
as western powers were concerned.

Critiques of constitutive theory

 Brownlie- “Taken to its logical conclusion, however, the constitutive view is as a

matter of principle impossible to accept: it is clearly established that states cannot by
their independent judgment remove or abrogate any competence of other states
established by international law (as distinct from agreement or concession).
Moreover, the constitutive theory of recognition leads to substantial difficulties in
terms of practical application. How many states must recognize? Can existence be
relative only to those states which recognize? Is existence dependent on recognition
only when this rests on an adequate knowledge of the facts? More vitally, does
nonrecognition by a state entitle it to treat an entity as a non-state for the purposes of
international law, for example, by intervening in its internal affairs or annexing its
territory?”
 Brierly: the status of a state recognized by state A but not represented by state B and
therefore, apparently both an International person and not an international person at
the same time, would be a legal curiosity.
 States do not refrain from bringing claims against unrecognized states or government
under international law.

Pueblo Case- US vessel was captured by North Korea (1968). it was Subsequently
released without trial upon US signing a document indicating that Pueblo was spying.

Tinoco Concession case- the Tinoco government took over power of the country Costa
Rica by force in February 1917, and remained in power till August 1919, when it was
ousted. The new government revived the earlier constitution and by passing a decree
 repudiated certain obligations undertaken by the Tinoco government, including those
towards British nationals.Tinoco government was not recognized by many nations,
including the UK. The UK brought a claim on behalf of its nationals against Costa Rica
which disputed the claim as inadmissible because of non-recognition of the Tinoco
government by the UK. The arbitrator, Justice Taft, while observing that UK can bring a
claim against Costa Rica, stated:

Recognition is an important evidential factor in establishing the proof of existence of

government. Non-recognition for any reason however cannot outweigh the evidence
as to the de facto character of Tinoco’s government, according to standards set by
international law.He however, recognized that non recognition is evidence that the
entity has not fullfilled requirementsof statehood. His understanding was that where
degree of authority asserted by the new admin is uncertain, recognition by otherstates
will be a vital factor.(here uncertain means not effectivecontrol). However,
recognition is irrelevant if government has effective control. Legal character of govt.
is stillthere.Therefore, according to Taft, recognition is Constitutive - where factual
condition-that is effective control is indispute. It is declaratory -if effective control
exists.
British airplane shot down over Egypt in 1949 by Israeli airmen. British
government had not recognised Israel and still demanded compensation
 In practice, many states/government were recognized after much delay by many states
(e.g- China, Bangladesh, Taiwan etc.) but it could not be stated that because they were
un recognised by many countries, they did not have any rights and duties under
international law.
 Further, recognition is a political act. Delay or refusal is done to further one’s national
interest.
 Recognition has retroactive effect to the date of inception of the state, when
requirement of statehood was in fact fulfilled ( note that Brownlie refers to
Oppenheim and says that there is no rule of retrospective application in International
law, and that with respect to recognition it has been applied merely out of
convenience)

Why constitutive theory is still relevant?

 - For new states or establishment of a new Government by unconstitutional means,
recognition plays a vital role. In any event and particularly where the facts are
unclear and open to different interpretations, recognition by a state will amount to a
declaration by that state of how it understands the situation, and that such an
evaluation will be binding upon it with all its legal consequences. It will not be able to
deny later the factual position it has recognised unless of course circumstances
radically alter in the meantime. In this sense, recognition can be constitutive.
Example- the Yugoslavia Arbitration Commission noted in opinion no. 8 that while
recognition of a state by other states has only declarative value, such recognition,
along with membership of international organisation bears witness to these states’
conviction that political entity so recognised is a reality and confers on it certain right
and obligations under international law. By way of contrast, the fact of non-
recognition of a new state by a vast majority of existing states will constitute tangible
evidence for the view that such an entity has not established its conformity with the
required criteria of statehood.
- Practice in many states whereby an unrecognised state or government cannot claim
the rights available to a recognised state or government before the municipal courts.
This implies that the act of recognition itself entails a distinct legal effect and that
after recognition, a state of government would have enforceable rights within the
domestic jurisdiction it would not have had prior to the recognition.

Declaratory theory-

Some theorists believe that recognition is merely an acknowledgement of a fact already

existing. Thereforenon recognition will not deprive that entity of rights and duties before
International Law. Unrecognised state may therefore deemed to be subject to international
law and not free from restraint. For example countries like Switzerland and Germany have
followed declaratory theory and have granted private citizens of unrecognised
states/governments, protection. However, many countries like US, UK have now begun to
adopt policy wherein courts apply the law of non recognised entity which the executive
confirm having no harmful effect on policy behind non recognition

According to the declaratory view, the legal effects of recognition are limited: recognition is
a declaration or acknowledgement of an existing state of law and fact, legal personality
having been conferred previously by operation of law. In a relatively objective forum such as
an international tribunal, it would be entirely proper to accept the existence of a state
although the other party to the dispute, or third states, do not recognize it. This perspective
appears to have been accepted (at least tacitly) by the International Court.

In Genocide (Bosnia and Herzegovina v Yugoslavia), it “was argued by the Socialist Federal
Republic of Yugoslavia (SFRY) that the allegations of the breach of the Genocide
Convention made by Bosnia-Herzegovina were not admissible as the parties to the dispute
had not recognized each other at the time of the events in question. The Court dismissed this
argument on the basis that, as recognition had been given subsequently in the Dayton Accord,
any defect was merely procedural and could be remedied by re-filing the claim to relate to
events of genocide occurring prior to 1995.”

“Substantial state practice supports the declaratory view. Unrecognized states are quite
commonly the object of international claims by the very states refusing recognition. An
example is Israel, long held accountable under international humanitarian and human rights
law by certain Arab states that persistently deny it recognition.

This, Statehood or the authority of new government exists as such prior to and independently
of recognition. The act of recognition is merely a formal acknowledgement of an established
situation of fact.

Arguments in favour of declaratory theory are many.

 Recognition has been frequently withheld for political reasons or until such time as it
could be given in exchange for same material diplomatic advantage to be conceded by
the newly recognized state or government- a clear indication that the latter already
possessed the requisite attribute of statehood or government authority.
 A mere refusal by a single state to recognize could not affect the situation if a great
number of other states had already given their recognition
 Nor have states in practice regarded non-recognition as conclusive evidence of the
absence of qualifications to be a state or government.Indeed, by asserting that
unrecognized states or governments must observe the rules of international law, they
have implicitly acknowledged that they possess same status as such.
 The rule that if a question arises in the courts of a new states as to the date at which
the state came into existence, it will be relevant to consider the date when treaties to
other states recognising it came into operation. The date when the requirements of
 statehood were in fact first fulfilled is the only material date- Rights of citizenship in
succession state case.
 The rule that recognition of a new state has retroactive effect, dating back to its actual
inception as an independent state- A M Luther v James Sagor& Co.(1921) 3 532.

Why declaratory?

 State which has for particular reasons refused to recognise other states, such as in the
Arab world and Israel and the US and certain communist nations, rarely contend that
the other party is devoid of power and obligations before International law and exists
in a legal vacuum. The stance is rather that rights and duties are binding upon them
and that recognition has not been accorded for primarily political reasons. If the
constitutive theory were accepted it would mean, for example, in the context of the
former Arab non- recognition of Israel, that the latter was not bound by International
law rules of non-aggression and non-intervention. This has not been adopted in any of
the stance of non-recognition of states.
 Of course, if an entity, while meeting the condition of international law as to
statehood went totally unrecognised this would undoubtedly hamper the exercise of
its rights and duties , especially in view of the absence of diplomatic relations , but it
would not seem in law to amount to a decisive argument against statehood itself. For
example- charter of the organisation of American states Bogota 1948.
 The political existence of the state is independent of recognition by other states. Even
before being recognised the state has the right to defend its integrity and
independence.
 Institutede droit international 1956- existence of the new state with all the legal
effects connected with that existence is not affected by the refusal of one or more
states to recognise.
 Similarly the courts of a new states European and central Europe, regarded their
states as coming into being upon the actual declaration of independence and not
simply as a result of the peace of treaties.Example- arbitration commission on
Yugoslavia- opinion no. 1 – the existence or disappearance of the states is a question
of fact and that the effect of recognition by other states are purely declaratory.

Declaratory vs. constitutive theory

Actual practice shows a mixture of both approaches. Recognition does reflect that state meets
the basic requirement of state under international law The UK practice of recognition of state
for instance is primarily based on test of effective control which is a legal test. However,
recognition is also a political act, done for political reason. For example- US statement in
1948 in SC regarding recognition was that it is “highly improper for one to admit that any
country on Earth can question the recognition of the US in the exercise of the high political
act of recognition of the de facto status of a state”.

Recent practices

US (1976) International law does not require a state to recognise another state. It is upon the
judgement of each state. Certain facts to be looked into before deciding to recognise

 Effective control over a body.

 Defined territory
 Population
 Organised govt.
 Capacity to act effectively to conduct foreign relation and to fulfil international
obligation.
 Recognition by other states.

UK

 Defined territory
 Population
 Govt able to exercise
 Effective control
 Independence in the external relation
 UN resolution

However, note that UK emphasises more on legal aspect of recognition and the US more
on its political aspect. With respect to recognition of government however, they have
discontinued with the practice of recognising governments (see below)

Other factors: eg – EC guideline on the recognition of new states in Eastern Europe and SU.

 Respect for UN Charter, charter of Paris

  Minority respect, respect for ethnic groups.
 Respect for frontiers
 Disarmament, nuclear non-proliferation.
 Peaceful settlement of disputes.

Lauterpacht – proposed assimilation of Constitutive and declaratory ( once condition of

statehood are fulfilled/met, there is a duty to recognise)

- But fails to recongise the political aspects of recognition

- Further if there is duty, there must also be rights (who will enforce the rights?)
- Not adopted and practice
Note- opinion no. 10 – Yugoslavia Arbitral Commission  recognition is a
declaratory act.

Different Kinds and Ways of Recognition

There are different kinds of Recognition like Recognition of new states, Recognition of
belligerency, Recognition of insurgency, Recognition of national liberation, De facto- De jure
Recognition, Recognition of states and Recognition of government. Brownlie says “There is
no such thing as a uniform type of recognition or non-recognition. The terminology of
official communications and declarations is not very consistent: there may be ‘de
iure recognition’, ‘de facto recognition’, ‘full diplomatic recognition’, ‘formal recognition’,
and so forth. The term ‘recognition’ may be absent, taking the form instead of agreement to
establish diplomatic relations or a congratulatory message on independence day.’

Manner of Recognition

Manner of Recognition is not material, provided that it unequivocally indicates the intention
of the recognising state. There are no rules of international law restrictive of the form or
manner in which recognition may be accorded.

 Recognition may be express or implied.The act of recognition of state or government

may be express (public statement, notification, diplomatic note, personnel message,
bilateral treaty or agreement for example in the case of Estonia, Latvia and Lithuania
where the Indian prime minister sent messages to the presidents of these countries) or
implied when it is a matter of inference from certain relations between the
 recognizing state and the new state or new government. The act must be such as to
clearly indicate that recognition was intended. The crucial question thus is of intention
(article 7 of the Montevideo Convention states that tacit or implied recognition results
from any act which implies the intention of recognising the new state).
In cases where there is a possibility of inferring recognition from conduct, states may
make express declarations that their act is no way an act to recognize.(eg.- Arab
countries with respect to Israel, or US, which was a party along with People’s
Republic of China to the Geneva Protocols on French Indo-China of 1954 and 1972,
declared at the time of signing that it was not to be construed as according diplomatic
recognition to the Red Chinese regime.) Unofficial contact is not recognition.

 The act of recognition may be bilateral or multilateral.

- Bilateral acts
1. Formal recognition by a bilateral treaty between the recognised and recognising
state.( 1928 treaty between China and US) as distinct from mere temporary
arrangements or agreements. Ratification is not necessary.
2. Formal initiation of diplomatic relations between the recognised and recognising
states.
3. The issue of a consular exchange by the admitting state for a consul of an
unrecognised state.
However, every bilateral act may not amount to recognition. Unless and until
recognition is express, intention to recognise needs to be clear in the bilateral act.
Therefore in implied recognition through bilateral act, circumstances may have to
be studied. no recognition can be implied from negotiations, unofficial
representation, admission to international organisation.

- Multilateral acts- Generally, multilateral act may not lead to recognition. In certain
exceptional circumstances, however, recognition has been inferred from the following
circumstances:
a) Common participation in a multilateral treaty. However, states such as great Britain
and the US has sometimes when signing a convention, declared that their signature
was not to be construed as the recognition of a signatory or adhering power not
recognised by them.
 b) Participation in an international conference.
c) admission to an international organisation (atleast in respect to those not supporting
admission)
However, what is required in all these cases is that the act must unequivocally reflect
intention to recognise.

Recognition is primarily a unilateral diplomatic act.

Recognition is primarily a unilateral act even though there have been instances of collective
recognition. There is no collective, organic procedure for granting recognition though
International law does not present or prohibit the grant of collective recognition nor does it
preclude derocognition. The provisions in the UN Charter (Article 3 (4)) directed to the
admission of states to membership of the organization may incidentally in most instances
amount to a certificate of statehood.

There are some instances of Collective recognition granted by states through same collective
international act like treaty or through the medium of international institutions. Examples are
the Berlin Congress of 1878 where recognition to Bulgaria, Serbia, Montenegro; EC
recognition of Baltic states of Estonia, Latvia, Lithuania in 1991.
(Note- the difference between collective recognition and recognition through
multilateral act- collective recognition refers to a situation where many states are granted
recognition by a single international act for example through a treaty. Recognition through
multilateral act refers to recognition of a state/government by several states through its
participation in a multilateral forum like international conference, treaty convention or
through membership of an international institution, etc.)

Collective Non –Recognition

This may happen through resolution or decision of an organ of the United Nations, based on a
determination that an illegal act has occurred. Support for the concept was provided by the
International Court in the Kosovo advisory opinion. Example (1)- The Security Council
resolutions of 1965 and 1966 characterized the Smith regime in Rhodesia as unlawful in
terms of the UN Charter and called upon all states not to recognize it.

Further, Article 41(2) of the ILC Articles on the Responsibility of States for Internationally
Wrongful Acts takes this further, providing that ‘no State shall recognize as lawful a situation
created by a serious breach’ of an obligation arising under a peremptory norm of international
law. In the present context, this obligation entails two central duties of abstention: (a) not to
recognize as lawful situations created by a serious breach of international law; and (b) not to
render aid or assistance in maintaining the situation. Thus there is a duty not to recognize the
illegal acquisition of territory, an obligation confirmed as customary international law in
the Wall opinion.

Example (2) obligation arose in relation to Israeli activities in the Occupied Territories as a
consequence of the Wall advisory opinion, where the Court said:

‘Given the character and the importance of the rights and obligations involved, the Court is of
the view that all states are under an obligation not to recognize the illegal situation resulting
from the construction of the wall in the Occupied Palestinian Territory, including in and
around East Jerusalem. They are also under an obligation not to render aid or assistance in
maintaining the situation created by such construction.’

The General Assembly subsequently called on all Members ‘to comply with their legal
obligations as mentioned in the Advisory Opinion’

However, the duty of non-recognition is not, absolute. As the International Court stated
in Namibia:

In general, the non-recognition of South Africa’s administration of the Territory should not
result in depriving the people of Namibia of any advantages derived from international
cooperation. In particular, while official acts performed by the Government of South Africa
on behalf of or concerning Namibia after the termination of the Mandate are illegal and
invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration
of Births, deaths and marriages, the effects of which can be ignored only to the detriment of
the inhabitants of the Territory.

Duty to grant Recognition?

Some countries (e.g.- Britain) and scholars (e.g.- Lauterpacht) propose that once an entity
fulfils the factual characteristics of statehood, a legal duty should be imposed to recognize it
as state. Britain stated in 1998 in observations on Draft Declaration on Rights and Duties of
States that it favoured a development of international law under which recognition would
become a matter of legal duty for all states fulfilling conditions of statehood.

Brownlie says “Lauterpacht and Guggenheim adopt the view that recognition is constitutive
but that there is a legal duty to recognize. According to Lauterpacht, to recognize a
community as a state is to declare that it fulfils conditions of statehood as required by
international law. If these conditions are present, existing states are under duty to grant
recognition. Although recognition is declaratory of an existing fact, such declaration made in
the impartial fulfilment of a legal duty, is constitutive as between the recognising sate and the
community so recognized.

In principle legal duty is proposed (1) because according to Lauterpacht and Guggenheim
that entity in question already bears the marks of statehood and therefore a duty would seem
to be owed to the entity concerned as the entity has legal personality on an objective basis. (2)
Further, in a deeper sense, duty is there because if any entity bears the marks of statehood,
other states put themselves at risk legally if they ignore the basic obligations of state
relations. In this context of state conduct there is a duty to accept and apply certain
fundamental rules of international law, a legal duty to ‘recognize’ for certain purposes at
least.

But because Recognition, as a public act of state, is an optional and political act, there is no
duty to make an express, public determination or to declare readiness to enter into diplomatic
relations by means of recognition: this remains political and discretionary. Non-recognition
(in this sense) is not a determinant of diplomatic relations, and theabsence of diplomatic
relations is not in itself non-recognition of the state.”

Criticism

1- Brownlie- This standpoint has been vigorously criticized as bearing no relation to

state practice and for its inconsistency,
2- providing as it does that state consent is determinative of statehood whilst in the same
breath narrowing its scope until only one option remains. A constitutive argument
dependent on a duty to recognize in order to reconcile theoretical inconsistency
becomes the declaratory theory viewed from a different perspective.
 3- If there were a legal duty to recognise, it is difficult to say by whom and in what
manner it could be enforced. Example- how would one define right correlative to the
duty to recognise and whose right it would be of the state ruling recognition on
international community. How would claim of such right be prevented?
4- No right to recognition is laid down in draft declaration on rights and duties of states.
5- Recognition is treated as an internal policy that each state is entitled to decide for
itself. Municipal courts have also ruled so. US state department observed that in its
perspective, international law does not require a state to recognise another entity as a
state.

Arguments in support of Lauterpacht-

1- Recognition of the validity of the law decreed or enacted by a particular entity does
not necessarily import recognition of the law making entity.Carl Zeiss Stifung vs.
Rayner and keeler Ltd. (1967)1 AC 853 at 961
2- Non recognition is not necessarily accompanied by non-intercourse
3- Recognition does not always manifest into intercourse between two
states/governments (eg: India and Israel)

Conditional Recognition

Conditional recognition is when granting of recognition is made dependent upon the

fulfilment by the recognised states of certain stipulations in addition to the normal
requirement. E.g. 1878- Berlin of Congress - condition that no religious disability should be
imposed.

limitations of conditions:

1) Non observance of the condition would not annul the recognition, since once
recognition given cannot be withdrawn.
2) Recognition is granted to a new entity if in the opinion of the recognising state, it
fulfils all the attributes of statehood and government authorities and this is not
affected by the subsequent non-observance of the conditions.
3) Recognition being a unilateral act of a state, the recognised state is not bound to
observe conditions imposed.
4) Conditions are generally expressed in political than legal terms
 Maximum fallout of non- fulfilment may be unfriendly relation between these states.
By way of exception however, conditional recognition of states or governments which
are just in the process of emerging is probably revocable.
Eg: recognition in 1919 by Great Britain of the Estonian National Council for the time being
professionally and with all necessary reservations for the future, was no doubt revocable in
the sense that it didn’t constitute an undertaking to continue the recognition if conditions
altered.

Recognition and Membership of the UN

Brownlie - “The functioning of international organizations of the type of the League of

Nations and United Nations provides a variety of occasions for recognition, of one sort or
another, of states. Recognition of other members, or of non-members, may occur in the
course of voting on admission to membership and consideration of complaints involving
threats to or breaches of the peace. Indeed, it has been argued that admission to the League
and the UN entails recognition by operation of law by all other members, whether or not they
voted for admission. But state practice does not reflect this.

A. Value of the UN membership:

1. Admission of a new entity to the UN is an acknowledgement by the organisation that the

new member is a state. Admission to membership is evidence of statehood, and non-
recognizing members are at risk if they ignore the basic rights of existence of an entity the
object of their non-recognition. After the decision has been taken to admit a state to the UN,
its statehood cannot be called in question with the effect of contesting the validity of mutual
rights and obligations arising from co-membership.

2. Admission to membership may not amount to collective recognition. This was clarified
also by the UN Secretary General in 1980: ‘Since recognition of either state or government is
an individual act, and either admission to membership or acceptance of representation in the
organisation are collective acts, It would appear to be legally inadmissible to condition the
latter acts by a requirement that they be preceded by individual recognition.’

3. Further, it was stated that ‘such a vote did not imply recognition or readiness to assume
diplomatic relations. Therefore Brownlie says there is nothing in the Charter, or customary
law, which requires a non-recognizing state to enter into optional bilateral relations with other
members.

However, admission to membership is evidence that the new entity has fulfilled conditions of
statehood. For individual state thus, admission to membership is of probative value about
existence of an entity as a state. This is true even if the decision to admit the state constituted
under the substantive law, a contravention of the prohibition of intervention enshrined in
Article 2(7). However, it must be noted that for membership to different specialised agencies
of the United Nation, test of statehood in general international law may not necessarily be
applicable, as demonstrated by the recent admission of Palestine to Unesco.

In conclusion, since the existence of a state under international law is independent of

individual acts of recognition, collective decisions taken or view expressed by the member
nation at the time of admission should not affect the attitude maintained by an individual
member on recognition.

Related question is can the UN and its organs (including the Secretariat), as such, accord
recognition? For the purposes of the Charter numerous determinations of statehood are called
for: thus, for example, the UN Secretary-General acts as depositary for important treaties.
Whether, and to what extent, such determinations provide evidence of statehood for general
purposes must depend on the relevance to general international law of the criteria employed
in a given case. Attitudes of non-recognition may depend on the political positions of
individual members and the view that in any case the special qualifications for membership
contained in Article 4 of the Charter are not fulfilled: statehood may be necessary but it is not
sufficient.

Dispute- on acceptance of credentials of Government of an existing member state where

the change of Government has happened through revolution.

The credentials of a new representative from an existing member state, following a change in
the Government are normally accepted but in the case of acceptance of the credentials of a
revolutionary Government the problem involved is whether accepting within the UN, the
credentials of a revolutionary Government of a member state invokes the same consideration
as the recognition of that Government.

In a memorandum circulated to the Security Council members on 8th march 1950, the
Secretary General adopted the view that the two matters rested on different considerations
and that UN representation must rest, inter alia, on plenitude of capacity to fulfil the
obligations of membership of the UN.

A stage may be reached where, unless the credential of the effective Government are
accepted in the same manner as it has been recognised, the member state for all practical
purpose be denied its due right of participating in the organisation.

Premature Recognition
Sometimes early recognition of a state/government may amount to premature recognition
amounting to interference in the internal affairs of a state. For example, early recognition of
Biafra in Nigeria was considered by many as breach of international law as it amounted to
interference in internal affairs of a state.
Yugoslavia arbitration commission in opinion 5 held that Croatia did not meet fully the
conditions for recognitionlaid down by E.C. in guidelines of 1991(human rights and
minorityrights).It was still recognized by the EC when it did not have control over one third
of its territory.Bosnia Herzegovina was also recognised by the EC and the US when it had
effective control on less than half the territory.

Recognition of Government

Recognition granted to a government signifies that the recognising state considers the
government in power as the sole representative of the state. While the recognition of state
affects its legal personality, recognition of government affects status of administrative
authority. Recognition granted to government of a state is independent of recognition granted
to that state. If one state refused to recognise the changed government or a new government
in a state, that does not affect the identity of a state (i.e. its recognition as a state). There is no
legal duty on states to grant recognition to new govt. is is discretionary act of state.

Brownlie says“The legal entity in international law is the state; the government is in normal
circumstances the representative of the state, entitled to act on its behalf. The consequences
of an entity not being considered a state are potentially greater. The absence of a (recognized)
state with respect to some area of the world raises the possibility of a legal vacuum, although
in practice this may be mitigated in various ways (eg “de facto control may continue while
issues of succession are resolved: e.g. the continued involvement in Kosovo of UNMIK:
S/2011/675, 31 October 2011, )
Absence of a (recognized) government does not lead to a loss of title, and may simply require
some form of curatorship. In short although recognition of government and state may be
closely related, they are not identical. Non-recognition of a particular regime is not
necessarily a determination that the community represented by that regime does not qualify
for statehood. Further, Non recognition of the government does not affect its obligations
towards other nations. Non-recognition of a government may mean that it is not regarded as a
government in terms of independence and effectiveness, or that the non-recognizing state is
unwilling to have normal intergovernmental relations with it.

Recognition in the context of voluntary relations may be made conditional on the democratic
character of the regime, the acceptance of particular claims, or the giving of undertakings, for
example on treatment of minorities. Here, the European Community’s Guidelines on the
Recognition of New States, adopted in response to the breakup of the USSR and Yugoslavia,
are instructive. The sphere of optional relations and voluntary obligations is one of discretion
and bargain. In terms of bilateral voluntary relations, an unrecognized government is little
better off than an unrecognized state.

Is recognition of Government necessary at all?

Questions have been raised whether Recognition of government is a necessary institution,

and if not, accordingly whether it ought to be discarded either generally or in most instances.
Views-

1. Prof. Richard Baxter- Recognition causes more problems than it solves and that its partial
withdrawal would facilitate the maintenance of relation with states in which extra-
constitutional states of government were taking place.
2. Brownlie “There is a school of thought supporting the automatic recognition of de
facto governments, exemplified by the ‘Estrada doctrine’ enunciated by the Mexican
Secretary of Foreign Relations in 1930. In 1930, Minister of foreign affairs of Mexico
Estrada announced that his government would no longer issue declarations in the name of
grants of new government in as much as such a course is an insulting practice and in
which, in addition to the fact it affects the sovereignty of other nations, implies that
judgement of some sort may be passed upon the internal affairs of those nations by other
government- Estrada Doctrine. This doctrine has been adopted by many countries like
the US, UK, France, Spain, Australia, Belgium, Canada, etc.
 However, many have criticised this discontinuance as unrealistic, something that has
reduced distinction between recognition and maintenance of diplomatic relations. For
example- in 1980, the British government adopted the practice of no longer according
recognition to governments. UK had earlier followed effective control test of
revolutionary government However, since 1980s, practice of only state recognition has
been followed. With respect to revolutionary govt., UK will decide their approach on the
basis of their ‘dealings’ with these governments. The statement of UK read as follows:

“Where an unconstitutional change of regime takes place in a

recognised State, Governments of other States must necessarily
consider what dealings, if any, they should have with the new
regime, and whether and to what extent it qualifies to be treated
as the Government of the State concerned. Many of our partners
and allies take the position that they do not recognise
Governments and that therefore no question of recognition arises
in such cases. By contrast, the policy of successive British
Governments has been that we should make and announce a
decision for “we should make and announce a decision formally
‘recognising’ the new Government.
This practice has sometimes been misunderstood, and, despite
explanations to the contrary, our ‘recognition’ interpreted as
implying approval…
We have therefore concluded that there are practical advantages
in following the policy of many other countries in not according
recognition to Governments. Like them, we shall continue to
decide the nature of our dealings with regimes which come to
power unconstitutionally in the light of our assessment of whether
they are able of themselves to exercise effective control of the
territory of the State concerned, and seem likely to continue to do
so.”

However, the fact remains that even dealings will have to depend on effective control, the
earliest theory of recognition.
Brownlie- for example, “clarification as to the legitimate government of Libya was provided
in the form of a certificate (apparently contrary to the announced policy) explicitly stating
that the government considered the National Transitional Council (NTC) to be the legitimate
government of Libya and did not recognize any other government in Libya, notably the
former Qaddafiregime. This certificate permitted the NTC to obtain access to English bank
accounts in Libya’s name formerly under the control of Qaddafiand his supporters.”

Similarly, even though US says that its policy is that establishment of relations does not
involve the approval or disapproval but mainly demonstrates the willingness to conduct its
relations with other governments and have diplomatic relations with them, but even then it
takes into consideration factual control, stability, etc. US used to earlier follow the Tobar
Doctrine- doctrine of legitimacy where the government which came into power through
unconstitutional means would not be recognised unless change was accepted by people.

Akehurst therefore holds that Estrada doctrine merely replaces express recognition with
implied recognition.

Recognition of government still remains relevant also because discontinuing the practice of
recognition of government has not eliminated the responsibility falling on other governments
of deciding in certain circumstances with which of two rival regimes relation would be
maintained.

Note – when a new regime is recognised officially, it is considered to be in continuity of the

old government even if there has been a gap in granting recognition because for international
law purpose, the states’ legal capacity is not affected, hence recognition is retroactive in
question. However, so long as the new regime is not recognised, the official intercourse
remains suspended.

De facto&Dejure Recognition

De facto and De jure recognition are essentially practised in recognition of governments and
rarely in recognition of states.
De facto recognition- When in the opinion of the recognising state, the new state or govt.
lacks stability and permanency, or does not possess all the essentials required under
international law for its effective participation in international affairs, but fulfils these
requirements in fact, it may grant recognition to the latter provisionally with all due
reservation for the future.

According to Brownlie, Defacto recognition involve a purely political judgment, involving a

reluctant or cautious acceptance of an effective government, lawfully established in terms of
international law and not imposed from without, or an unwarranted acceptance of an
unqualified agency. The statement may be intended as a determination of the existence of an
effective government, but with reservations as to its permanence and viability. No doubt the
legal and political reasons for caution may coincide, but they rarely affect courts, which, with
or without the epithet de facto, accord recognition the same effect.’ “In documents relating to
these matters ‘de facto recognition’ may be used to describe acceptance of facts with a
dubious legal origin:”

Recognition de facto means that in the opinion of the recognising state, provisionally and
temporarily and with all due reservations for the future, the state or govt. recognised fulfils
the above requirements in fact.De facto recognition reflects doubt on the long term stability
of the govt. It is a Wait and watch attitude followed by the recognising state.

If a constitutional govt. is replaced by a government through revolution then in 1 st stage- De

facto recognition would be given. such recognition is essentially, as discussed above, a non-
commital formulae whereby the recognising state acknowledges that there is a legal de jure
govt. which ought to possess the powers of sovereignty, though at the time may be deprived
of them but that there is a de facto govt. which is really in possession of them, although the
possession may be wrongful. Advantage of de facto recognition-- It enables the recognising
authority to protect its own economic interests and rights of its citizens in the recognised
territory without committing itself to condemning the illegalities and irregularities in the
emergence of the new regime and for this reason, it may be considered a necessary
concomitant.). Subsequently, the defacto government may or may not be given dejure
recognition.

De jure recognition- If the recognising authority considers that the new state or govt. fulfils
all the attributes essential for its effective participation in international community, the
former may grant recognition to the latter formally.Recognition de jure means that according
to the recognising state, the state or govt. recognised formally fulfils the requirements laid
down by international law for effective participation in international community. It reflects
that the government has effective control, govt. is permanent and it is firmly rooted.

Legal incidents of De facto and De jure recognition

1. Non-recognised government does not have any locus standi before municipal courts.
(Luther vs Sagor)
2. De facto recognition of a foreign government is as conclusively binding, while it lasts,
as de jure recognition. Court would give due recognition to all the legislative acts of
the de facto recognised regime (Luther vs Sagor)
3. Even de facto recognition has retrospective operation (Luther vs Sagor)
4. Transactions with the government of a foreign state which has received de facto
recognition are binding on that foreign state and cannot be repudiated by a subsequent
government which has overthrown its predecessor by force.
5. In case Conflict situation between newly de facto government and displaced de jure
govt.:
- So far as concerns matters in the territory ruled by the de facto govt, the rights and
status of de facto government prevails
- So far as concerns matters in the territory ruled by the dejure govt., the rights and
status of de jure government prevails. (Bank of Ethiopia Vs National Bank of
Egypt and Ligorie), ArantzazuMendi (HOL)
6. Where property is situated and recoverable outside the territory, the dejure sovereign
will have precedence (Haile Selassie vs cables and Wireless Ltd)
7. Both dejure and Defacto recognition will have retroactive effect. However,
- Retroactivity of recognition operates to validate acts of defacto government
which has subsequently become the new dejure government and not to
invalidate acts of previous dejure government.
- There will be retroactive operation of new dejure recognition
- But the recognition of old government (dejure or defacto) remained effective
down to the date when it was infact withdrawn (in case of dejure recognition,
extinguished).
- And therefore, prior to the actual date of new dejure recognition, one would
have to accept and put into effect the acts of the previous dejure government (
or previous de facto government for all acts which was under its control) )(
 see for conflict between two dejure recognitions of governments - Gdynia
AmerykaLinie Vs Bogulawski, Civil Air Transport vs Central Air Transport)
8. De facto recognition implies some degree of uncertainty as to future stability of
recognised entity, hence it may be withdrawn if there is any doubt about the new
regime’s ability as it ceases to exist.
9. De jure recognition whether granted to state or govt., cannot be withdrawn unless the
state has ceased to exist or the govt. has been replaced by another authority.
Note: de facto recognition may also be substituted with de jure recognition when
recognising govt. is satisfied about its stability.

Non recognised states have no locus standi

Historically, the British courts were rigid and un recognised states and governments were not
given any weight.

But courts in recent times have adopte devices to mitigate the situation,

- The first, which is virtually a legal fiction, operates on the basis of an imputed
agency: the acts of the unrecognized entity are considered to be performed
under powers delegated to it by the legitimate sovereign. Eg. in Carl
Zeiss case the House of Lords interpreted the acts of the unrecognized
government of the German Democratic Republic (GDR) as those of a
subordinate organ of the Soviet Union, the de iure government of the relevant
territory; the practical effect was that the acts of the GDR government could
give rise to rights and liabilities ordinarily seen to emanate from a de
iure government without offending the executive’s policy of non-recognition.
Similarly in the case of Gur Corporation, court of appeal found un recognised
Butsuntan of Ciskei to be subordinate body of South Africa.
- “A second device permits the recognition of private acts internal to the
unrecognized states. Put simply, the English courts have endeavoured to
recognize rights and obligations which are of a wholly private law character,
unconnected to the grounds for non-recognition. eg. hesperides hotel case.
though limitations on this has been recognised in some cases.

Non recognised Government and Defacto recognised Government (non recognised

governments’ act not to be recognised )
Case: A. M. Luther (Company for Mechanical Woodworking A. M. Luther) V. James Sagor
And Company (UK)

A claimed title to the wood on the ground that the wood had come from the A’s factory
which was confiscated under the 1919 decrees of the new government in Soviet Union
(communist government). A’s main argument was that since Soviet Union had not been
recognised by the British govt., the Soviet government’s decree should not be recognised.

When the case came up before the court of 1st instance, the Soviet govt. had not yet been
recognised by the British govt. and hence was not entitled to recognition of its sovereign acts.
The court gave judgement in favour of A.

But when the case came up in appeal, the new Soviet regime was recognised de facto by
Great Britain. The court gave judgement for the defendant by reversing the judgement of the
court below and observed-

‘The court of the country having recognised the Soviet court as the govt. really in possession
of the powers of sovereignty in Russia, the act of that govt. must be treated by the court of the
country with all the respect due to the acts of a duly recognised foreign sovereign state.’

Defacto Recognition Versus De jure Recognition (whose decree effective- whoever has
actual control)

Case: Bank of Ethiopia vs. National Bank of Egypt and Liguori

Italy conquered Ethiopia in 1936. UK recognised Italy’s de facto govt. However, De jure
recognition was with exiled emperor of Abyssinia. De facto govt. decreed for dissolving
Plaintiff’s bank and appointing liquidator. This was in conflict with exiled government’s
orders.

Clawson J held that British govt. had given de facto recognition to Italian govt. the de jure
authority was mere theoretical authority. Whereas Italian govt. was in actual control and de
facto recognised... Effect must be given to the laws of this govt.

DefactoversusDejure Recognition ( whose decree effective- one which has actual

control)
Case: ArantzazuMendi case

A private steamship AM was registered in Bilbao in Palque province of Spain. This region
was in control of General Franco, the Nationalist, the insurgent group.ThisInsurgent govt.
was in control of greater part of Spain and the UK government had granted De facto
recognition to it. The constitutional government which was confined only to a part of territory
of Spain, was the Republican government. The Republican government had
dejurerecognition from UK.

Both the governments passed decree for requisition of all ships registered in Bilbao. But
Republican decree was eight months earlier than Nationalist decree, but this decree was
issued only after Insurgents had already gained control over Bilbao. The HOL held that the
defacto government was entitled to be regarded as a sovereign and its claim was accepted as
it had control over the territory.

Debt recoverable outside the territory- Only dejure government entitled to receive

Case: Haile Selassie v Cable & Wireless Ltd

Emperor of Ethiopia sued a British company for money owing to him under an agreement.
When action was brought, Haile selasssie government enjoyed dejure recognition from. But
Britain had given de-facto recognition to the Italian government which had conquered
Ethiopia and was in control of its entire territory. Court held that in case of debt recoverable
in England and not with regard to persons and property in Ethiopia, de-jure govt. was
entitled to receive.

However, before appeal UK extended de- jure recognition to Italian authorities. BY this
recognition the recognition of Haile Selassie government got extinguished. Now only the
new government was held entitled to receive loan payment.

Where there are two Dejure Governments (act of previous dejure government remains
valid )

Where, interest of two recognised de-jure govt. of the same state are involved- the Issue is of
Retroactivity and how far the court will relate back actions of a de-jure govt., since
recognition is retroactive to the moment of inception of the particular state or govt.
Retroactivity was restricted to matters within effective control of new govt. Act of
withdrawal of de-jure recognition from previous government and retroactive effect of new
dejure recognition does not affect validity of old law.

Case: GydniaAmerykaLinie V. Boguslawski

Poland govt. in exile had de-jure recognition from Britain.However, Communist govt. took
control of Poland on 28th June. On 2nd of July the govt. in exile made an offer to Polish
seamen of compensation in the event of leaving the merchant navy ship.On 5th July midnight,
1945 UK recognised govt. Of communist regime having effective control in Poland as de-
jure. This had retroactive effect to the date this government actually came to power that is
28thjune.

Therefore there were now two dejure governments on 2nd of july- the date of agreement- the
actual dejure government- that is the polish government in exile which entered into
agreement and the new communist government which existed in fact on 2nd of july and was
validated retroactively from 28th of june.

The employer refused to pay compensation to seamen on the ground that UK de-jure
recognition had retroactive effect to the date of coming into existence of Communistthe govt
i.e., 28 June. Therefore by this retroactivity the agreement of the previous dejure government
(government in exile) was invalidated.

HOL held that recognition of govt. also has retroactive effect but courts had to give effect not
only to acts done by the new govt. after recognition but also act done before the recognition
in so far as theseacts related to matters under its control when the acts were done.

HoL held that (a) recognition of new govt. had retroactive effect.

(b)But the recognition of old govt. remained effective downto the date when it
was in fact withdrawn.

(c)where something outside the effective control of the new govt. is involved,
it would appear that recognition does not operate retroactively, and that

(d)prior to the actual date of recognition we would have to accept and put
into effect the act of the previous de-jure govt.
Difference bitweenDefactoAndDejure Recognition
DeFacto Dejure
Conditional Unconditional
Temporary Final
Can be withdrawn Cannot be withdrawn
Absence of diplomatic relations Possibility of full diplomatic relations and immunity
and immunity
Only this regime can claim to receive property located in
recognising state’s territory
Entitled to espouse cause of its citizens and exercise
diplomatic protection for injuries suffered by them out of
breach of international law
Only dejure government can represent old state for state
succession
Dejure state when grants independence, creates a new
dejure state.