RECOGNITION OF STATES

Introduction
• State is a political entity comprising of
population, defined territory and a
government which takes care of the internal
administration and must have the capacity to
enter into relations with other states and
obligations.
• Stability is also considered as an attribute of
a state for the purpose of recognition.
• Change is the order of earth and states may
come and go.
• The disintegration of states, dependencies
and colonies and mandated and trust
territories has resulted in the existence of a
new state.

• Governments keep changing as in US, India

and so on or through an armed revolution or
coup(illegal seizure of power from government).

• Such changes are recognized then only is it

possible to enter into new relations with
international community
 What is recognition?
• The Institute of International Law has
defined recognition as
– The free act by which one or more States
acknowledge 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
• Recognition gives an international personality
to a state.

• Recognition is a political act based on political

considerations with legal consequences.

• E.g.,: India recognized Israel in 1950 but

refrained from any diplomatic relations till
1992 as it had good relations with Arab
countries
 Definition
• Kelsen- Recognition of a state is an act by
which another state acknowledges that the
political entity recognized possess the
attributes of Statehood.

• Oppenheim– In recognizing a State as a

member of the international community, the
existing States declare that in their opinion
the new State fulfills the conditions of
Statehood as required by International law.
• Non-recognition of states also is a point to
be considered.

• E.g.,: People’s Republic of China was not

recognized for a long period by many
states including US.
 Theories of recognition
• There are basically two theories of
recognition:
– Constitutive theory

– Declaratory or evidentiary or confirmatory

theory
 Constitutive Theory
• Recognition confers international personality
on a State.
• According to this theory, a new entity
having the attributes of a State, by that fact
alone does not become a state, it has to be
recognized by other states to become an
international person.
• Proponents of this theory are Oppenheim,
Hegel, Holland, Anzilotti etc.
• State becomes an international person,
through recognition only.

• Recognition confers maturity upon the

State and until and unless a State is
recognized, it cannot acquire rights under
International law.
 Criticism of Constitutive Theory
• Even unrecognized state can be treated as a
state by International law.
• Under the present UN charter, an
unrecognized state is entitled to get
admission in the world organization.
• A state which is not recognized does not
have duty and rights under international
law.
• Some sates may recognize a state and other
may not E.g.,: China and Bangladesh
Declaratory, evidentiary or confirmatory
theory
• Recognition is a formal acknowledgement of
an existing fact.
• According to this theory, a new State or
government exists, independent of
recognition.
• Recognition is merely an evidence of the fact
that the new entity fulfills the essentials of a
statehood.
• Exponents of this theory are Brierly, Hall,
Wagner etc.
• The act of recognition is merely declaratory
of an existing fact that a particular state or
government possess the attributes required
as per international law.

• Hall’s view is that the act of recognition and

the fact of statehood are independent
concepts which cannot be co-related.

• Here granting of recognition is not a

compulsory formality.
 Criticism of Declaratory theory
• A state even after fulfilling all conditions of
statehood, does not get legal relations with
other states without recognition.
• It is the act of recognition which gives a state
and government legal status in municipal
laws.
• In this respect recognition is constitutive in
nature
 Correct View
• Recognition is neither purely constitutive nor
declaratory.

• Constitutive theory treats recognition as a

compulsory formality whereas declaratory
theory recognizes it as not compulsory.

• Both is required and hence, Starke suggests a

compromise wherein the truth lies
somewhere between these two theories.
Classification of Recognition

• Recognition can be classified into two

kinds:
– De facto recognition
– De jure recognition
 De facto recognition
• Recognition based on factual situation
found in state.
• De facto recognition means the state
recognized possesses the essential elements
of Statehood and is fit to be a subject of
international law.
• De facto recognition may be later converted
into recognition de jure or withdrawn
entirely as the case may be.
• De facto recognition means in the opinion
of the State granting recognition the new
State or government meets all
requirements but the recognition is given
with reservations provisionally and
temporarily.
• A state recognizing another means it
recognizes the state as independent and
effective but does not fulfill its
international responsibility.
• Oppenheim opines that de facto
recognition is provisional and liable to be
withdrawn if the missing requirement of
recognition fails to materialise
 De jure recognition
• De jure recognition is based on legal
situation.
• De jure recognition is granted when in the
opinion of the recognizing State, the
recognized state possesses all the essential
requirements of statehood and is capable of
being a member of the international
community.
• Recognition results from an expressed
declaration or from a positive act indicating
clearly the intention to grant recognition
like diplomatic relations.
• Conditions for de jure recognition
according to Prof. Smith
– Reasonable assurance of stability and
performance
– Government to command the general support
of the public
– It should be able and willing to fulfill its
international obligations
• De jure recognition is final and once given
cannot be withdrawn
 Difference between de facto
and de jure recognition
• De facto recognition is temporary while de
jure is more or less permanent
• De facto recognition is based on factual
situation and de jure on legal situation.
• De facto is granted first and de jure at a
later stage
• De facto granted on the basis of test of
effective control and de jure is based on
legal character
• De facto order will prevail but de jure will
not prevail
• In de facto recognition, diplomatic relations
are not formally recognized.
• The distinction between de facto and de
jure is more marked in the municipal law
 Luther v. James Sagor & Co

• The defendant purchased some wood from

the new government of the Soviet Union
which was established after the revolution of
1917.

• The plaintiff, a Russian company claimed title

to the wood on the ground that it had come
from its factory which was confiscated by the
1919 decree
• The plaintiff contended that since the soviet
government was not recognized by the
British government, the soviet government’s
decree should not be recognized.

• When the case came up in the first instance,

the soviet government was not recognized
and the court decided in favour of the
plaintiff.
• In appeal, the decision of the lower court
was reversed as the UK government had
recognized the new Soviet government.
• The court held “the soviet government must be
treated by the courts of this country with all the
respect due to the acts of a duly recognized
foreign sovereign state.”

• This shows that de facto recognition operates

retrospectively and a non-recognized
government has no legal standing before
municipal courts.

• Court will be guided by the executive whether

a government has been recognized or not.
• States also come across situations when a
state may be in actual control over the
territory of another state and the
government of the latter may be in exile.
• The government in exile will be
recognized as de jure and occupying
government will be given de facto
recognition.
• There can be conflict of de facto and de jure
governments also
 Haile Selassie v. Cable & Wireless Ltd
• Italy annexed Ethiopia and its ruler lived in
exile. UK granted de facto recognition to Italy
over Ethiopia but continued to recognize
Haile Selassie as the de jure sovereign of
Ethiopia.

• Haile Selassie filed a suit for recovery of

some amount from Cable and Wireless Ltd, a
British Company which it owned to the
government of Ethiopia.
• The court giving a wide meaning granted
de jure recognition and decided in favour
of Halie Selassie.

• In appeal this was reversed as the British

government had by then granted de jure
recognition to Italy over Ethopia. Hence
the claim of Haile Selassie was rejected.
 Bank of Ethiopia v. National
Bank of Egypt & Liguori
• In 1936, Italy annexed Abyssinia and the
british government recognized Italy as the
de facto government of Abyssinia.
• And the ruler of Abyssinia was
recognized as the de jure ruler. After
annexation, Italy enacted certain laws
which were contrary to the laws of former
government.
• Justice Clauson observed, the de jure ruler
was merely theoretical and it was not
capable of being enforced. While the Italian
government was in control of Abyssinia
and had received de facto recognition as
such, it had authority to frame laws and
not the de jure monarch.
• The law of the de facto recognized
government was held above the law of the
de jure monarch.
• The court held that de facto law should
prevail.
Modes or Kinds of Recognition
• Express Recognition
– Express recognition or formal
recognition is accorded by formal
declaration, i.e., recognition made
in an express manner like message.
– E.g., : Message of greeting sent by
the President to another country
• Implied recognition
– It is effected through acts which imply an
intention to grant recognition.
• Circumstances leading to an implied
recognition are as follows:
– Participation in a bilateral treaty
– Beginning of formal diplomatic relations
• Conditional Recognition
– Since recognition is said to be a political function
and depends much upon the discretion of the
recognizing State they often impose certain
conditions along with their grant of recognition.
– In 1878, while recognizing Bulgaria and
Rumania, Germany imposed a condition that the
states must not discriminate their citizens on the
basis of religion.
– This condition is meaningless in international
law. The State recognizing can sever, diplomatic
ties as a form of sanction
• Collective recognition
– Recognition granted by a number of states
collectively.
– Eg: A state admitted in the UN, when the
states who voted in favour of its admission in
the UN would mean collective recognition.
– Collective recognition does not mean that all
the members of the UN have recognized such
state. Recognition is the free act of each State
(Conditions of Membership in the UN)
 Legal Effects of Recognition
• Recognising state becomes entitled to sue in
the court of the recognized State and vice-
versa. Eg: India recognized Bangladesh, so
Indian government can file a suit at the
Court of Bangladesh and vice-versa
• Diplomatic relations are established
between two states, then privileges and
immunities will apply.
• Former treaties concluded between the
state will be revived
• It acquires for itself and its property
immunity from the jurisdiction of the
courts of law of the recognizing State.
• Entitled to demand and receive possession
of property situated within the jurisdiction
of a recognizing state which formerly
belonged to the prior government
• When a de facto government has been
recognized by the government of a foreign
state, a subject of such foreign state may
contract with that de facto government
• Recognition is retroactive and therefore
the recognizing State cannot question the
legality of the legislative and executive
acts past and future of the recognized
government
 Consequences of Non-recognition
• The following legal disabilities are the
consequences of non-recognition of a state:

– An unrecognized state cannot sue in the courts

of a state which has not given recognition

– In Russian Socialist Federated Soviet Republic v.

Cirbaria, the New York court observed that such a
state cannot sue as a matter of right in American
courts
• In Guarantee Trust company of New York v.
US, it was laid down that the court is not
competent to recognize such a state. It is
the function of the executive.
• In US v. Pink, the Supreme Court of
America laid down the principle that the
court shall decide the cases of only those
states which have been recognized by the
United States of America.
• Unrecognized state cannot enter into
diplomatic relations and cannot claim any
diplomatic privileges.

• The unrecognized states are not entitled to

get their property situated in foreign
states.
 Withdrawal of Recognition
• De jure recognition is final and once given
cannot be withdrawn
• If the recognizing state finds that the State
recognized de facto is not capable of
fulfilling its international obligations or
lack of the signs of stability it will not
grant de jure recognition to such a state.
• De facto recognition can be withdrawn
• By recognition it means that the state
recognized has attained statehood.
• Merely withdrawing of de jure recognition
of a state does not cease to make a
recognized state a state.
• Eg: India did not recognize South Africa
and Portugal because of its apartheid and
occupation of Goa. But now these states are
recognized.
• De jure recognition is unconditional and
irrevocable.
 Retroactive effects of recognition
• Recognition has retroactive effect
• Recognition has retrospective effect. It does
not relate to the time recognition is accorded.
• Luther v. Sagor, the Soviet government
assumed the position of a sovereign
government on December 1917. British
recognition of the soviet government was
backdated to 1917 and all administrative and
legislative acts of the government after the
date had to be recognized as valid
• When a state recognizes another state, it
often recognizes the past acts of such a
state with a view to establishing friendly
relations with such a state.
Civil Air Transport Incorporated v. Central Air
Transport Corporation

• The appellants were a registered

corporation in Delware State of the United
States of America and the respondent
corporation was an institution under
government of China.
• 40 Chinese governments aircraft was lying
on an airfield in Hong Kong, a British
possession.
• The central air transport corporation was
administering the State owned commercial
air force. Subsequently the Chinese
government declared the corporation to be
their property. The Chinese government
had sold the planes to Civil Air Transport
Corporation, an American firm.
• British after a short period recognized the
communist government as de jure
government.
•
• The question was whether the previous
transaction effected by the Nationalist
government in transferring the planes was
binding on the new government.

• It was held that the vested right in favour

of the American Company could not be
divested as the de jure recognition could
not invalidate the acts of the former
government.
• Retroactivity validates the acts of a de
facto government which has subsequently
become the new de jure government and
not to invalidate the acts of the previous
de jure government.
 Recognition of Insurgency
• Insurgency presupposes a civil war or
political revolt in a state.
• It is an intermediate stage between peace
and belligerency.
• It is used to denote the condition of
political revolt in a country where the
rebels have not attained the character of
belligerents.
Conditions of recognizing insurgents
• Insurgents have control over a
considerable part of the territory
• There is considerable support to the
insurgents from the majority of the people
living in the territory.
• Insurgents should be capable and willing
to carry out international obligations
 Recognition of belligerency
• When insurgents are well organized,
conduct hostilities according to the laws of
war and have a determinate territory under
their control, they may be recognized as
belligerents whether or not the parent state
recognizes that status.
• Recognition of belligerency is the
acknowledgment of the fact that there exist a
state of hostility between two fractions
contending for power
 Conditions for recognition of
belligerency
• Hostilities to be of general character
• Insurgents must be in control of a
substantial portion of the territory
• Both parties to act in accordance with the
laws of the war
• Insurgents to be under an organized
command
Recognition of State and Government
• Recognizing a state means the state
possess the essentials of a statehood.
• On recognition of a state it becomes a
member of the international community
• Recognition of government is slightly
different.
• If the government comes into force by
constitutional means then it will be
recognised
• If the change in government took place
through violent means then it has to be
checked whether the new government
commands respect of the people.

• If it commands the support of the majority

of the people then it will be recognized.
 Estrada Doctrine
• Estrada, the foreign minister of Mexico
declared as regards to diplomatic relations
with other states, the Mexican government
will be free to determine it in accordance
with the facts and circumstances of each
case.
• Here there is individual appraisal rather
than complying with the international law
 Stimson Doctrine
• Stimson, secretary of state of US propounded
this doctrine.
• Recognition granted to any state in violation
of the international treaty namely the Pact of
Paris or the Killog Briand Pact was deemed
to be invalid. (Not to use war to resolve disputes
or conflicts of what ever nature, arise among
them)
• States refuse to accept such obligation and
treat recognition as a discretionary matter
and as a political diplomatic function.
 Hallestein doctrine
• This was propounded in the context of
division of Germany into two parts, East
Germany and West Germany.
• No state should at the same time establish
diplomatic relations with East Germany and
West Germany.
• Now this doctrine does not apply since both
have merged
 Indian Practice
• India has also accorded recognition to
states mostly when the state has fulfilled
its condition of statehood.
• China
– India was one of the first state to recognize
China while most of the states in the world
were withholding recognition
• Israel – Recognised in 1950 but no
diplomatic relations till 1992.
• Spain – delayed recognition due to
political considerations
• Bangladesh – The first state to recognize
Bangladesh was India