Answer 1:

State Recognization is very important for any state to enjoy the rights, duties and
obligations of international law and be a member of the international community,
recognition of the entity as a state is a necessity. International community of
sovereign States faces the problem of recognition of a state when old States disappear
or unite with other States to form a new State, or disintegrate and split into several
new States, or former colonial or vassal territories may by a process of emancipation
themselves attain statehood. The problem of recognition of a government arises even
in the case of existing States as revolutions occur or military conquests are effected,
and the status of the new government becomes a matter of concern to other States,
which formerly had relations with the displaced governments.In addition to
recognition of States and government of States, international community of sovereign
States faces the problem of recognition of entities entitled to the rights of
belligerency, the  110 recognition of entities entitled to be considered as insurgent
governments, recognition of national liberation movements, recognition of territorial
changes, new treaties, etc.

Recognition of State:
Montevideo Convention stipulates that the States as a person of international law
should possess the following qualifications:
1) a permanent population
2) a defined territory
3) Government
4) capacity to enter into relations with other States.

Also the requirement of definiteness of territory is not generally insisted upon, for
example, in the case of recognition of Israel in 1949, its boundaries were not finally
determined and still US representative to the Security Council advocated for Israels
recognition. The requirement of permanent population is also debatable since their is
no minimum number assigned to it ,thus Nauru with 6500 people has been considered
a State as has Liechtenstein with 20,000 people.With regard to territory also no rule
prescribes a minimum. Monaco, for example, is only 1.5 square kilometer in
size.With regard to the requirement of government, its effectiveness is not generally
insisted upon. Since no one questioned that the former Belgian Congo (now Zaire)

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was a State when it became independent though, like Finland in 1971, it was in a state
of civil war and virtual anarchy. The same could  be said of Burundi and Rwanda,
both granted independence when they were without an effective government.
Article 4 of the Charter of the UN specified that membership in the UN is open to
peace-loving States which accept the obligations contained in the present Charter and,
in the judgment of the organisation, are able and willing to carry out these obligations.

The principle of sovereign equality of states:

The principle of sovereign equality of states is one of the five principles of peaceful
coexistence that was proposed in Asian-African Conference 1955 in Indonesia with
all third world governments and was approved by all members. Subsequently, the
Conference of Non-Aligned Members(NAM) member states Bandock has approved
this principle as one of the tenets of international law in the statutes of the
organization and as a basis for government relations with each other. The simple
meaning of principle of sovereign equality is that all states have equal sovereign
right and this right must be respected by governments. All states have equal duties
and rights and all, regardless of differences in economic, social, political,
demographic, geographic, etc. equal members of the international community. This
principle is reflected in various international pages. The principle of sovereign
equality above all is reflected in the Charter of the United Nations and is accepted by
the international community. In paragraph 1 of Article 2 of the Charter of the United
Nations it is stated that "organization, based on the principle of equality, has
sovereignty of its members.” Indeed, governments are members of the organization.
Sovereign equality is a fundamental principle.
Permanent existence of members of the UN Security Council and its veto in the
United Nations they represent inequality. Each of these five countries can struggles,
with their veto, any resolution that most other states would agree to it, while the 193
countries are member of this organization. In short, the content of the principle of
sovereign equality is as the following:
 All states have equal rights each state is benefited from special rules of sovereign.
 The government must respect each other's sovereign equality and properties.
They also shall ensure that all rights of other states to respect the sovereignty and
legal personality.

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 Each state has right to choose its political, social, economic and cultural system
grow it and to develop their own legal and administrative provisions of
legislation.
 Governments are obliged to respect each other on contact and stable relationships
with other governments.
 Each state is entitled to participate in international organizations and agreements.
 The government should implement their obligations under international law
(Hasanvand,2014).
These are the basic elements of equal sovereign. And governance is achieved only
when equal rights exist in the international system and equality in international
relations is the condition of implementation right of sovereignty.

Requirement of State Recognition after establishment of Principle of Sovereign

Equality :

A number of States indicated that they had abandoned traditional recognition policies
and substituted the Estrada Doctrine or some equivalent by which they accepted
whatever government was ineffective control without raising the issue of recognition.
The practice of States shows that States have frequently delayed, refused, or
eventually accorded recognition to newly formed States or governments for reasons
that lacked legal justification. In actual practice, recognition is much more a question
of policy than law. The policy of the recognizing State is conditioned principally by
the necessity of protecting its own interests, which lie in maintaining proper relations
with any new State or new government that is likely to be stable and permanent. In
fact, act of recognition is influenced by political, economic and strategic
considerations. Another perks of recognition by other states are as follows:
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 States may enter into diplomatic and treaty relationships with the
recognizing State.

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5. Recognizing State gives effect to past legislative and executive acts of recognized
State.
Therefore, the states have their own Policy for recognition of the states which it
totally based on political and extraneous considerations and the benefit which they
can derive from the strategic and trade developments. E.g. India has its own policy for
recognition which is in the lines with Strimson Doctrine of the United States.

Theories of State Recognition:

There are two main theories of recognition, constitutive and declaratory.

 Constitutive Theory:
According to Constitutive Theory ,an act of recognition alone confers international
personality on an entity purporting to be a State or clothes new government with an
authority to enter into international relations. In effect, political acts of recognition on
the part of other States constitute or create the new State or government. Thus,
constitutive theory looks at the acts of recognition to decide whether an entity is a
State. This amounts to saying that the very existence of a State may depend on the
political decisions of other States. Constitutivist theory is deemed unacceptable
because an entity which meets the condition of statehood cannot be denied its rights
or escape its obligation due to lack of recognition.Ships flying its flag cannot be
considered stateless. Nor can such a non-recognised entity evade the duties of States
in international law. The constitutivist approach, however, cannot be absolutely
discredited. The theory finds support in the fact that only upon recognition does the
recognised State or government acquire any status as such, in the municipal courts of
the recognising State.

 Declaratory Theory:
The declaratory theory holds the opposite position. According to it, a new State or
government exists prior to recognition and recognition is merely a declaration to that
effect. Recognition has evidentiary value inasmuch as it is an evidence of the fact
which already exists (i.e. prior to recognition). Accordingly, a State may exist without
being recognised. The primary function of recognition, according to declaratory
theory, is to acknowledge the fact of the new State’s political existence and to declare

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the recognising State’s willingness to treat the entity as an international person, with
the rights and obligations of States.In 1936, Institute de Droit International stated,
“The existence of a new State with all the legal consequences attaching to this
existence is not affected by the refusal of recognition by one or more States.”
The Tinoco Concessions case supports evidentiary theory. In this case, Tinoco
overthrew the Government of Costa Rica in January 1917, assumed power and after
holding elections promulgated a new Constitution. In August 1919, he left the country
and his government fell. The new administration restored the old Constitution. In
August 1922, the Government of Costa Rica enacted the Law of Nullities No. 41,
invalidating all contracts made by the executive power with private persons with or
without the approval of the legislative power during the period of the Tinoco regime.
The Tinoco government which had not been recognised by Great Britain had granted
a concession to a British company and was heavily indebted to the Royal Bank of
Canada, a British corporation. By Law No. 41, both these obligations were abrogated.
The arbitrator held that the Revolutionary Government of Costa Rica which came into
power in 1917 was a properly constituted government, although not recognised by
Great Britain and that Great Britain was not estopped (i.e. precluded in law) by such
prior non-recognition from later alleging that the government was in fact a duly and
properly constituted one. The principle of estoppel was not applicable in such a case.

The above mentioned award goes against the constitutive theory. It contains principle
of continuity which means notwithstanding internal alterations in the organisation of
government, or in the constitutional structure of a particular State, the State itself
continues to be bound by its rights and obligations under international law, including
treaty rights and obligations. Hence, each successive government is, as a rule, liable
for the acts of its predecessors.

Modes of Recognition:
There are two modes of recognition of State: De facto ,De Jure Recognition

 De facto Recognition :
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 government
recognised fulfils all the requirements in fact. This mode of recognition is granted

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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.
The English courts gave a high legal value to de facto recognition. In the
Arantzazu Mendi case ,the House of Lords finally decided that the nationalist
government -Franco’s regime during Spanish Civil War (1936–38) is recognised de
facto by Great Britain, was sovereign State and, therefore, entitled to immunity.
Also Bank of Ethiopia v. National Bank of Egypt and Ligouri, Italy
conquered Abyssinia in 1936. Italian government was recognised de facto by the UK.
It enacted certain laws which were in conflict with those issued by the exiled emperor
of Abyssinia the de jure ruler who had been forced to flee from his conquered
country. Clauson J held that as the authority of the de jure ruler was merely theoretical
and incapable of being enforced, whereas actually the Italian government was in
control of Abyssinian territory and de facto recognised, effect must be given to the
laws of de facto government over those of de jure ruler.

 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.

The terms de jure and de facto are fraught with ambiguities which stem from the
pseudo legal terminology they embody, de jure tends to mean without reservation and
on a definitive basis. It follows that the difference between de jure and de facto
recognition may be rather small, and principally a difference of the degree of political
approval and acceptance involved. De facto recognition would often signify a fairly
high degree of political acceptance and thus the term de facto would indicate a

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significant level of acceptance with legal implications, in spite of the provisionality
implied in the phrase
Also 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

Answer 4 :

Introduction
The term “extradition” denotes the process whereby under the treaty or upon a basis
of reciprocity, one State surrenders to another State at its request a person accused or
convicted of a criminal offence committed against the laws of the requesting State,
such requesting State is competent to try the alleged offender. There is no universal
rule of customary international law in existence which imposes duty of extradition.
Therefore, States started entering into bilateral extradition treaties. In the absence of
the extradition treaty between the States, the grant of extradition depended purely on
reciprocity or courtesy. Oppenheim defines Extradition as delivery of an accused or a
convicted individual to the State on whose territory he is alleged to have committed or
to have convicted of a crime, by the State on whose territory the alleged criminal
happens to be for the time and therefore No person may be extradited whose deed is
not a crime according to the criminal law of the State which is asked to extradite as
well as the state which demands extradition.
However, Extradition is a concept which by its very nature is not a matter regulated
by international law. It is municipal in that it falls within the domestic jurisdiction of
a state to decide on what occasion it will agree to surrender persons within its
borders and to determine procedurally how this will be done.

Domestic Law prevails over International Obligations

Extradition treaties and municipal legislations are the guiding factors for determining
extraditable crimes. Generally, extradition is granted only for serious crimes. As a

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general rule, political crimes, military offences and religious offences are not subject
to extradition. The Procedures that is outlined in accordance with domestic law.
The concept of overlapping of Domestic Law and International Obligations can be
analyzed by the following cases on Extradition.
In Abu Hamza v. Secy. of State for the Home Deptt, the court after denying the
request of the USA for extradition held that the process and procedure in the
requesting state(USA) is inconsistent with Article 3 of the European Convention on
Human Rights which prevents the torture or inhuman or degrading treatment which is
recognized as a domestic principle of the UK, therefore the extradition cannot be
allowed.
In the case of Minister for Home Affairs of the Commonwealth v. Zentai wherein,
Hungary requested for the extradition of the respondent, who was an Australian
citizen, for the war crimes committed by him and others in his unit of Hungarian
Royal Army, in Budapest in 1944. He was charged for murder as per the Hungarian
Criminal Code. However, the offence of war crimes was introduced later in 1945
under Section 165 of the code because Article 2(5) of the Bilateral Treaty between the
states provided Extradition may be granted pursuant to the provision of this Treaty
irrespective of when the offence in relation to which extradition is sought was
committed, provided that it was an offence in the Requesting State at the time of the
acts or omissions constituting the offence .
The respondent, countering the Home Affairs Ministers extradition request, contended
that he cannot be extradited since war crimes did not exist in the Hungarian law at the
time of the commission of the act, so Article 2(5) was not satisfied. Therefore, the
extradition was not ordered due to the absence of municipal law on the said subject
which was although recognized in the State of Austria.

Principles recognized by the States in ascertaining warrant for Extradition

Furthermore, States practice accepts the following two principles for ascertaining
Extradition:
Principle of Double Criminality: This rule states that it is a condition of extradition
that the crime is punishable according to the law both of the State of asylum and of
the requesting State. Therefore, Principle of Double Criminality is sufficient enough
to comment that the Municipal law is the guiding force in deciding the fate of
extradition by the requesting state.

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Principle of Speciality: According to this principle, the requesting State is under a
duty not to try or punish the offender for any other offence than that for which he was
extradited.

Position in India: Municipal Law prevails over Internationally accepted

obligations
The Extradition Act, 1962 governs the law relating to extradition in India. At the
outset, the Act makes it clear that extradition treaty is not the only basis for
extradition. In this regard, Section 2(i)(ii) is instructive. Extradition, under Indian law
is possible even in the absence of extradition treaty. In India the judgement of
Supreme Court in Sarabjit Singh v. UOI held that article 21 of the Constitution
prevails over the International Treaty entered between and therefore the rights and
procedure of Domestic cannot be overridden by the International obligations entered
between the states.
The Supreme Court of India in Mobarik Ali Ahmad v. State of Bombay held that
Indian Penal Code does apply to a foreigner who has committed an offence within
India notwithstanding that he was corporeally present outside. Thus, even on the
assumption that the appellant has ceased to be an Indian citizen and was a Pakistani
national at the time of the commission of the offence, he must be held guilty and
punished under the Indian Penal Code and therefore domestic law shall supersede
over the international obligations entered between the states.
Similarly, in Bhavesh Jayanti Lakhani v. the State of Maharashtra, the court held
that the Municipal law of a country reigns supreme in matters of extradition. Since no
request for extradition in accordance with the Extradition Act, 1962 had been
received, the Act “cannot be bypassed in red corner cases concerning Indian citizens.
Additionally, the objective of extradition in other states includes that a person, to be
extradited, may be arrested only the following to conditions:
1. The offence should be recognized by the municipal law.
2. The person concerned must be liable to be arrested in India, either under any law
relating to extradition or otherwise.
Therefore, the Supreme court in Manjit Singh v. CBI held wherein the accused, who
was extradited from Singapore, cannot be convicted under TADA since there was no
law in Singapore which corresponds to TADA and the Extradition Treaty between

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Singapore and India. Therefore, Municipal law decides the fate of extradition, not the
internationally accepted obligations.

Conclusion:
Therefore, thereby the principle of the sovereignty of States, the rule according to
which there can be no interference in a country’s domestic affairs, is at stake. That
principle can only be invoked by those States whose peace treaties have already been
drawn up. Therefore, it is a cooperative law enforcement process between the two
jurisdictions and depends on the arrangements made between them. Extradition
operates through bilateral agreements between countries Bilateral agreements
determine when a country must comply with another country's request to transfer
a person. If the request meets the terms of the treaty, international law obliges the
country to extradite the person. There is no obligation to extradite in the absence
of an agreement. Therefore law. It is municipal in that it falls within the domestic
jurisdiction of a state to decide on what occasion it will agree to surrender
persons within its borders and to determine procedurally how this will be done.

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