School of Law

Course Code: BALB4004 Course Name: Public International Law

Topic: Recognition

Faculty Name: Bishnanand Dubey Program Name:BALLB

 Recognition

• Recognition is process, where one state by means by express/ implies or de fatco / de jure recognize other state.
• New states are created, by division of two states ,or by means of merging two states. Recognition is one of the
important duty of states, the duty to recognize new state. Recognition is a political act, sometimes states which
are created are not well established or legal even though other states recognize them. Sometimes states have all
the attributes of a state even though it is not recognized.
• The International Law commission, after realizing the importance of the topic, in its first session held in 1949
included, recognition of states and government as one of the topics in the provisional list of fourteen topics
considered suitable for codification. Later law commission removed it from fourteen topic lists as recognition is of
political nature. In the absence of any codifies rules, the topic of recognition is governed by the state practice and
judicial decisions.
• Theories of Recognition:
• 1. Constitutive theory: According to this theory personality of a state is created not by fact but through
recognition by other states. An entity doesn’t become a state by possessing attributes of statehood. It becomes
so, when it is recognized buy other states. This theory has been advocated by Anzilotti and Holland. An entity
cannot become an state ipso facto.
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• Defects of Constitutive Theory:

• When a state comes into possession of all the attributes of statehood, it is not necessary that its existence is
recognized by other states simultaneously.
• Recognition is a political act of a state.
• Recognition is the acknowledgement of the existence of the attributes of statehood in a entity. It implies that a
state always exists prior to its recognition.
• Recognition has retrospective affect. When a new state is recognized by other states, the latter is regarded to
have recognized all the acts of former from the date of establishment.
• Declaratory Theory:
• According to this theory a state comes into existence in International law as soon as it acquires all the attributes
of statehood. This theory has been advocated by hall, Brierly and fisher.
• Hall Says “ State enters into the family of nations as aright when it has required the essential attributes of a
statehood.”
• This theory is better than constitutive theory. However, it still has a defect in the sense that a state although
would come into existence by having all the essentials attributes a statehood, it would not have legal relationship
with other states unless recognized.
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• Institute of international law in its resolution of April 23, 1936 had correctly stated under Article 1 para
3 that the existence of the new state is not affected by the refusal of one or more states to recognize.
The personality is conferred to a state by the rules of International law and whether or not a state or
government is actually recognized by other states. It is entitled to the rights and subject to the general
duties of the system.
• Declaratory provide rights, but for more specific rights constitutive is also important. Kelsen termed as
a modified constitutive theory, because the recognition constitutes one of type of statehood- i.e.
juridical statehood. Natural Statehood exists in a exists from the moment it comes into possession of
the essential elements of statehood.
• Forms of Recognition:
• Express recognition:
• When an existing state recognize new state by notification or declaration, announcing the intention of
recognition. It can be done by a treaty.
• Implied Recognition:
• When the existing states do not make only formal declarations as to recognition of a new state, but at
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• The same time they indicate their intention to recognize the new stste by some acts, it amounts to
recognition.
• (a) Unilateral acts-
• When a states enters into a bilateral treaty establishes diplomatic relations with a unrecognized state.
Sending representatives to ceremonial functions.
• Collective Acts- New state may be recognized collectively by the existing states. When a unrecognized state
participates in multilateral conference or in multilateral treaty, the other participants of the conference or
parties to the treaties are regarded to have recognized the new state if the intention has been indicated. In
the absence of an unequivocal intention to the contrary, no recognition is implied in participation in an
international conference in which the unrecognized authority takes part or in the conclusion of a multilateral
treaty to which that authority is a party.
• This principle is also applied in case of international organization. A new state may be a member of a
particular organization but it does not imply that other members states have granted recognition by virtue of
the membership of the former state. This is evident from the practice of states.
• On dec 14, 1950, by General assembly resolution no 396, entitled “ recognition by the UN of representations
of member state. Where in it was expressly declared that the attitude adopted by the general assembly
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• concerning the question of which of several authorities shall be regarded as the government entitled to
represent a member state shall not of itself affect the direct relation of individual member states with the
state concerned.
• Secretary general rule and memorandum on march 8 ,1950, it state that recognition of a state is essentially a
political act. Collection recognition rejected by UN. Recognition inside UN only for limited purpose-i.e. Quasi
recognition.
• Modes of Recognition:
• 1) De facto Recognition:
• When a existing state considers that the new state has not acquired sufficient stability, it may grant
recognition to the latter provisionally which is termed de facto recognition.
• Oppenheim says that de facto recognition takes place when, in the view of the recognizing state, the new
authority, although actually indepe4ndent and wielding effective power in the territory under its control, has
not acquired sufficient stability or doesn’t as yet offer prospects of complying with other requirement of
recognition.
• The de facto recognition may be regarded as preliminary step towards de jure recognition. The de facto
recognition once granted may be withdrawn by the recognizing state. When the latter considers that the
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• New state has ceased to possess the capability of administering the territory.
• If the existing states, after granting de facto recognition, later choose to recognize de jure, the effect of the
latter is given from the retrospective date i.e. from the date when the de facto recognition was granted.
• Normally diplomatic relations are not established with a de facto recognized state. Representatives of the de
facto recognized states do not enjoy diplomatic immunities within the territory of the recognizing state. US
does not follow this concept.
• 2) De jure recognition:
• When an existing state consider that the new state is capable of possessing all the essential attributes of
statehood with stability and permanency and it commands the general support of the population, the
recognition granted is known as de jure recognition.
• De jure recognition is final.
• De jure recognition may be given with or without prior to de facto recognition. When a new state comes into
existence peacefully and constitutionally, de jure recognition may be granted directly. When a new state is
formed through revolt, recognition may be granted after granting the de facto recognition.
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Distinction between de jure and De facto recognition

1. De facto recognition being provisional can be withdrawn on many grounds other than those justifying a
withdrawal of de jure recognition.
2. While full diplomatic relations cannot be established with a de facto recognized state, it can be done so
when a state is recognized de jure.
3. While full diplomatic immunities are not granted to the representative of the de facto recognized state,
the representative of the de jure recognized state are granted such immunities.
4. While the de jure recognized state can claim to receive the state property situated in the territory of
recognizing state, de facto recognized state cannot make such claim.
5. Where a certain property situated within the territory of another state has been claimed both by the de
facto and de jure govt, the claim of the de facto government may normally be ignored.
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Luther vs. Sagor (1921)

• In June 1918, Russian passed a decree for nationalizing mechanical Sawmills and wood establishment
belonging to private or limited companies. In the consequence to the above, in 1919, certain officials armed
with authority from the soviet govt. took possession of the plaintiff’s factory and of the manufactured goods
lying there. On august 14, 1920 , contract was made in London between L B Krassin ( representative of the
Russian commercial delegation in London) and the defendant whereby krassin sold the defendant whereby
Krassin sold the defendant a firm carrying on business in London, a quantity of birch, alder and aspen
plywood seized by the officials.
• The Plaintiff claimed title to those goods on the ground that the goods were their property and it had come
from a factory in the USSR that had owned by it before being nationalized. The plaintiff argued that the
decree should the soviet government had not been recognized by the United kingdom. The defendant
contended that republican government which had passed the decree nationalizing all factories was the de
facto government of Russia at that time and had been recognized by the this majesty government as such
and decree was one which the courts could not refuse recognition. The court decides in favor of defendant.
• Recognition of government in Exile:
• When an individual or group of individuals residing in foreign state claims supreme authority over a state
which is under the control of another national or foreign authority or a state and is recognized by some
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other state and has been performing some acts of a state on behalf of home state or the state tobe created is
government in exile.

Non-recognition does not means that the entity dies not qualify for statehood
Pre-mature recognition or Precipitate recognition:
Recognition is granted to a new state when it possesses all the attributes of statehood. However, since it is a
political act, sometimes it is granted to an entity even if it does not possess them. Such recognition is termed
as pre-mature recognition- Precipitate recognition.
• It is to be noted that pre mature recognition given to state amounts to an unwarranted and illegal
intervention in the affairs of existing state.
• Conditional recognition:
• The expression conditional recognition implies is that the recognition is granted subject to the fulfilment of
certain stipulation by the recognized state in addiction to the normal requirements of statehood. The
concept of Conditional recognition was introduced with the protocol of June 287, 1878 signed on behalf of
Great Britain, France , Italy and Germany for the recognition of Serbia. The protocol stated that they
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recognize Serbia under condition that it should not impose any religious inabilities on any of its subjects.
Consequences of recognition:
Recognition of a state has twofold consequences i.e. political and legal. Political consequence is concerned,
recognition of a state shows willingness of the recognizing state to initiate international interaction with the
new state.
When a state is recognized, it acquires certain rights in relation to a state which has granted recognition. They
are:
1. The recognized state may establish diplomatic and consular relations with the recognizing state.
2. The representative of the recognized state enjoy diplomatic immunities within the territory of the
recognizing state.
3. The Recognized state may enter into treaty relationships with the recognizing state.
4. The recognized state may sue in the courts of the recognizing state.
5. The recognized state may claim as receive property situated in the recognizing state.
Non-recognition does not provide abovementioned right to non-recognized state.
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Recognition a duty of State:

Lauterpacht is of the view that once a state has come into possession of all the legal attributes of statehood,
there is a duty on all other states to recognize the new state.
• But acceptance of this view would mean that the new state has right to be recognized by other states. Since
international law does not provide any such right to the new state, and therefore, the existing states do not
have any legal duty to recognize a state. Granting or withholding of recognition is a question of policy than of
law, and therefore, recognition of a state depends upon the discretion of a state.
• Withdrawal of Recognition
• Withdrawal for political reason from a state which is not overthrown. In oct, 1718, France withdraw the
recognition n granted in January of that year to the provisional govt of Finnish govt. This view of whith
Article 6 of the monte video convention of 1933 which declared that de jure recognition is “ unconditional
and irrevocable”. When Recognition is a political act, there seems to be no reason why recognition should
not be liable to withdrawal so long as that recognition is an act of policy.
• Withdrawal of recognition is sometimes accomplished by means of express recognition to the authority
from which it is withdrawn are by public statement. In case of extinction of state by annexation, when the
government of the conquered state is reduced to handful of person in exile.
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• If starts would start withdrawing recognition of a state on political grounds, they would find a number of
occasion for doing so.
• Recognition of Government:
• Change in the government in a state does not mean that it will loose its recognition as an International
person. Recognition of a state is totally different from the recognition of a government. Recognition of
government means that the recognizing state regard it as the sole representative of the given state in
International interaction.
• When the regime of a state is changed, it is required to recognized by other states. Change in the
government of state may take place either in the normal course of political life i.e. by constitutional means,
or when it is effected through a coup d'état. When a change a occurs in the regime by revolt or by coup
d'état , or to say in an unconstitutional way, some difficulty arises. In such cases, the regime is required to
be recognized by other states.
• 1. U K follow the principle of Effectiveness.
• 2. Some states like Australia, Us and UK, are taking policy of non recognition of new states. It depends on
when the circumstances demand.
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• Tobar Doctrine:
• The five central American democracy (Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua) conclude
treaties in 1907 and 1927 which embodied the ‘doctrine of legitimacy’ the so called Tobar doctrine propounded in
1907 by Tobar the foreign minister Ecuador in which they bound themselves not to grant recognition to any
government coming into existence by revolutionary means’ so long as freely elected representative of the
people…… have not a govt has been recognized by its own people in a constitutional manner.
• Estrada doctrine: ( Doctrine of Effectiveness)
• Estrada doctrine propounded by Estrada, the foreign minister of Mexico in 1930, according to which it is duty of
state to continue diplomatic relations with the states without regard to revolutionary change in a country.
Stability and capacity are more important feature to decide recognition.
• Recognition of Belligerency:
• When the rebels are recognized, it is known a recognition of belligerency. The recognition of belligerency shows
that the recognizing state considers that the rebels are in a position to exercise authority over the territory in
their possession. Before belligerency is recognized by other state, certain conditions must exist;
• 1. Hostilities should be of a general character. It should not be confined to only a part of the state.( Not of Local
Character)
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• 2. The rebels or insurgents must be in control of a substantial part of national authority.

• 3. Both parties must act in accordance with the law of war.
• 4. The rebels must be organized force under proper command.
• Recognition of Insurgency:
• When in a civil war, rebels or insurgent forces start operating in such a way that they occupy a large part of the
territory formerly governed by the parent govt and they constitute de facto authority of it, the rebels or insurgents
may claim some measure of International subjectivity.
• Before insurgency is recognised, recognising state is required to satisfy the following conditions:
• 1. insurgent have occupied control over a considerable part of the territory.
• 2. insurgents have support from the majority of the people inhabiting the territory.
• When the rebel forces do not act under the command of an organised authority in possession of considerable
territory or when they do not by their conduct the rebels are defeated.