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Indian Practice In Recognition

Recognition is a free will of a state to recognise the new state. Nowadays trade relation between the states are increasing day by day. Here in this paper recognition is special reference to the status of India in recognition other countries of the world. Is it important to recognize the state for making good trade relation and how this recognition make impact on the foreign policies of the country? is this recognition can be claim as a right or this is a duty of every states to recognize other?

Introduction
With the development and growth in society every country in the world started connected with each other. as we can see that no state wants to live in isolation in the present era. Every nation wants to develop and provide security to their people.

Which is only possible through exchanging the commodity and services? For which it is necessary that one states must be recognize by the other states of the world. Prior to 1919 recognition of the states is based on their date of independence and it has no meaning beyond the mutual recognition.[1]

Before the 1919 there was no international body to recognize statehood. For the first time with the formation of league of nation states were recognized in the international level by the member states. After dissolve of League of Nation, United Nation Organization play the important role in recognition in the international level.

The Montevideo Convention on the Rights and Duties of States (the Montevideo Convention) 1933 sets out some generally accepted benchmarks and provides a good starting point for discussion; Article 1 provides that:[2]

The state as a person of international law should possess the following qualifications:

  1. a permanent population;
  2. a defined territory;
  3. government; and
  4. capacity to enter into relations with the other states.


In the context of recognition of states, the observation of the professor Schwarzenberger is Noteworthy. He writes, “the growth of international law is best understood as an expanding process from a nucleus of entities which have accepted each other’s negative sovereignty and on the basis of consent, are prepared to maintain and possibly expand the scope of their legal relation. Like most clubs, the society of sovereign states is based on the principle of co-option. In exercising this prerogative, the existing subjects of international law employ the device of recognition."[3]

Recognition – Meaning

The word recognition is derived from the Latin word recognition which means know again, recall to mind here this term is used to denote the formal acknowledgement by a country thatanother political entity fulfils the conditions of statehood and is eligible to be dealt with as a member of the internal community.[4] (dictionary meaning oxford )

Theories of Recognition of States

Recognition of a State is more of a political concept than a legal concept because there are no specific rules for recognition of a State. There are two popular theories laid down for the purpose of understanding the nature of recognition:

  • Constitutive Theory
  • Declarative or Evidentiary Theory

Constitutive Theory

According to this theory personality of a state is created not by the fact but through recognition by other states. In other words, an entity does not become a state by possessing essential attributes of statehood. it became so, when it recognized by other states. It implies that other states constitute the personality of a state by granting recognition. This theory has been advocated by Anzilotti and Holland .[5]

Examples:

  • Poland and Czechoslovakia were recognized by the instrumentality of the Treaty of Versailles.
  • Germany was divided into two parts after the World War II by a treaty
  • Korea was divided into two parts[6]


Declarative Theory or Evidentiary Theory

This theory states that declaration is a mere formality and has no legal effect as the existence of a State is a mere question of fact. According to this theory a state comes into existence in international law as soon as it acquires all the attributes of statehood. By having all attributes, an entity exists in fact. recognition by other states supplies the evidence of this fact. the act of recognition is therefore declaration of an existing fact that an entity possess the essential attributes of statehood.

This theory has been advocated by Hall, Brierly, and Fisher.[7]
Every new state becomes a member of the family of nations ipso facto by its coming into existence. Recognition only provides the evidence to this fact. This theory says recognition is not important.[8]

Forms of Recognition

  • Express Recognition - An existing state recognizes another state by releasing a public statement by way of notification or a declaration announcing the intention of recognition. Grant is expressed in written words
  • Implied Recognition -Does not release a formal state but recognizes the state by some acts which imply that the state is being recognized.
    1. Unilateral Acts - State entering into bilateral treaty establishes diplomatic relations with an unrecognized state.
    2. Collective Acts - A new state is recognized collectively by the existing states.

    Modes of Recognition
    There are two important modes of recognition:
  1. De Facto Recognition - This is a provision recognition and not a permanent one. i.e. it can be withdrawn by other States at any time. It is the first step towards becoming a recognized country. Recognition is only by fact and not legal. State may have more than one Governments. No exchange of diplomatic representatives takes places. State succession might not happen. Mere de facto recognition is not sufficient to get UN membership.
    Example: Israel, Bangladesh, Taiwan, Sahawi Arab Republic etc.[9]
     
  2. De Jure Recognition - This is a permanent recognition which one granted cannot be taken back or withdrawn by other States. It is regal and rightful. State will have only one Governments. Exchange of diplomatic representatives takes places. State succession happens smoothly. de jure recognition by majority states his essential for UN membership.


India Status of Recognition
Like most of the countries India has also granted recognition to states and governments as a matter of course of routine. India has generally accorded recognition to state as soon as the condition of statehood were fulfilled. In some cases however India was also guided by certain other considerations.[10]

India and China
As a consequence of resolution the nationalist government of China was pushedout by the communist forces from main land China in 1949. India promptly recognised the new regime i.e. People’s Republic China. India was one of the first states to recognize people’s republic of china. (the first country, outside the communist block, to recognize china was Burma) India recognize china on 30th December, 1949. While many countries in the world were still waiting or were withholding recognition of china, India accorded recognition. Subsequently India’s example was followed by many other states[11].

Areas of Conflict
Border Dispute – Border dispute is one of the major issue between India and china. Which is also one of main reason behind the invasion of India by china in 1962. Since after that there is a tension between India and china related to the aksai chin and surrounding of Arunachal Pradesh. Both the countries lay claim to the aforementioned regions and their immense respective nuclear capabilities mean that maintaining the status quo is the only option that they have.[12]

The Masood Azhar Issue
Masood Azar is the founder of Jaish-e-Mohammed, an Islamic militant group that is highly active in Pakistan occupied Kashmir. The group has been listed as a terrorist entity in UN as well as in India where it has carried out 2008 Mumbai Attacks and 2016 Pathankot Attack, following which Azhar was taken into protective custody by Pakistan Government. India has tried to get Azhar blacklisted by UN but it has always encountered a roadblock in the shape of China[13].

NSG Issue
China has also been opposed to India’s entry in Nuclear Suppliers Groups (NSG) that contains 48 countries in all. In fact, China has stated clearly that it is opposed to the entry of any country like India that has not signed Nuclear Non-Proliferation Treaty (NPT) in said group. Beijing has stated that signing NPT should be a mandatory obligation in order for a country to become a part of a group like NSG. China, interestingly though, has asked Pakistan to apply and become as NSG member in spite of being a non-signatory to NPT[14].

Dalai Lama Issue

Dalai Lama is originally from Tibet, which is a part of China now. He escaped from there when Tibet was taken over by China, sought refuge in India, and was granted refuge as well. Ever since then, he has been running Tibetan Government-in-exile over here. As a country, China is highly sensitive about its territorial integrity and sovereignty and thus it can be understood as to how irritated it would be Dalai Lama’s government over here. In fact, a lot of people also say that this was what caused the first war between the countries[15].

Indian Ocean Issue

China wants to be a dominant force in Indian Ocean. China has adopted a strategy named ‘String of Pearls’ whereby it has setup bases all across the area, where India and the US maintain naval bases as well. In fact, a number of India’s bases in the area are surrounded by those of China and India is afraid that this is a major containment strategy by its northeastern neighbours. This is why the government has been spending a significant amount of energy in making sure that this can be prevented from happening. As part of that it is trying to pull SriLanka, Maldives, Myanmar, and Bangladesh within India’s sphere of influence[16].

Despite all these issues both the countries have very good trade relation with each other.

India And Afghanistan

on first 1st may 1971 Afghanistan was proclaimed a democratic republic with Mr. nur mohammad tarakkin as president of the newly constituted revolutionary council. This government was established after a coup replacing former president daoud. India recognized new government on 2nd may 1978. India was thus one of the first countries to accord recognition to the new government of Afghanistan. Soviet Union and Bulgaria also recognized the new government on said date[17].

The development partnership of India-Afghanistan is based on the principles of mutual sharing and solidarity which is branched into five founding modalities of development cooperation that includes capacity building, trade and investment, technology cooperation and others[18].

Transportation

he prominent one is the development of Chabahar port project connecting India, Iran and Afghanistan with Central Asian countries. The Chabahar port will promote connectivity through sea as well as improve the rail, road route bringing in investment and development in the region especially boosting railway, infrastructure and energy projects.

In a recent development Afghanistan will be sending its goods to India every two weeks via Chabahar port starting from February creating opportunities for increased trade removing the obstacle of Afghanistan being landlocked. Among India’s support effort is the Air Freight Corridor programed with Afghanistan in 2017 which has grown exponentially with Kabul- Delhi, Kabul-Mumbai, Kabul-Kolkata, and Kabul-Amritsar cargo flights exchanged every week.

There are more than 166 flights exchanged between India and Afghanistan. Last year Spice Jet has signed Memorandum of Understanding (MOU) for connecting Kabul with Indian metro cities. Connectivity via land, sea and air will help seize opportunities with new and emerging markets[19]

Energy Sector
Further the International Solar Alliance (ISA) an intergovernmental organisation to boost solar energy development with its headquarters in India aims to mobilize $ 1 trillion funds to achieve one terra watts of solar energy capacity by 2030. In the first General Assembly of International Solar Alliance (ISA) Afghanistan became the partner country last year will provide ample opportunity for solar rich country to build new ties by focusing on scientific collaborations under the ambit of neighbourliness.[20]

Education and Culture
India-Afghanistan Foundation promotes cultural and people to people contacts.

The Indian Council for Cultural Relations (ICCR) has been playing a prominent role in enhancing and building educational capacities of Afghanistan through its various scholarship programmes. The initiatives taken by ICCR spell impressive growth in mobilizing education system and helping the students to contribute in the work force and for the development of Afghanistan.

Education and cultural exchange programme has increased and it is believed that having received support from India will help Afghanistan in a big way. At present 1000 scholarship is provided to Afghan students and almost 16000 students are studying in various universities in India. Education has been the greatest single factor catalysing Afghanistan’s transformation. India’s cooperation in education and culture will help to achieve the great potential for development in Afghanistan.[21]

The New Development Partnership of Afghanistan and India under the Strategic Partnership Agreement (SPA) signed in 2017 to the tune of $1 billion, in which India took up hundreds of development projects in Afghanistan in areas including agriculture, water, education, health, etc.[22]

In Security
India’s security cooperation with Afghanistan has been strengthened by providing Mi-24 helicopters to Afghanistan which was announced last year. India delivered four Mi-25 (Mi-24D) helicopters and three HAL Cheetah light utility helicopters to the Afghan Air Force (AAF) in December 2016.[23]

In Women Empowerment

Women Empowerment is another important aspect in which India is extending tremendous support. India’s Self Employed Women’s Association (SEWA) imparting training on sustainable livelihood generation and to be the part of inclusive growth and to be self-reliant. India-Afghanistan relations are aimed at a comprehensive development strategy that will foster and establish bilateral and multilateral relations which is better equipped to deal tough situations and bring peace and prosperity in the country and across the region[24].

India And Bangladesh

India recognized Bangladesh on 6th December 1971.Where on the one hand India’s recognition of Bangladesh was widely welcomed inside the country on the other hand this action was subjected to criticism and was regarded as premature. Thus while recognition in respect of Israel, Spain, Vietnam and East Germany had been delayed, India was very quick to accord recognition to Bangladesh. This was obviously due to expedience and political considerations.[25]

In 1972 the two states signed a Treaty of Friendship and Peace for a term of 25 years, declaring that both sides would respect their mutual independence, sovereignty and territorial integrity while refraining from interfering in each other’s internal affairs. The relationship between India and Bangladesh is anchored in history, culture, language and shared values of secularism, democracy, and countless other commonalities between the two countries. It is based on sovereignty, equality, trust, understanding and win-win partnership that goes far beyond a strategic partnership. In the last couple of years, the relationship has been further strengthened including through cooperation in new and high-technology areas.[26]

Security & Border Management

India and Bangladesh share 4096.7 km. of border. A number of agreements related to security cooperation have been signed between both the countries. The Coordinated Border Management Plan (CBMP) signed in 2011 aims to synergize the efforts of both the Border Guarding Forces for checking cross border illegal activities and crimes as well as for maintenance of peace and tranquility along the India-Bangladesh border. The settlement of the maritime boundary arbitration between India and Bangladesh, as per UNCLOS award of July 7, 2014, has paved the way for the economic development of this part of the Bay of Bengal[27].

Sharing of River Waters

India and Bangladesh share 54 common rivers. A bilateral Joint Rivers Commission (JRC) is working since June 1972 to maintain liaison between the two countries to maximize benefits from common river systems. Besides the meetings of the JRC (37 meetings held so far), JRC Technical level meetings are also held regularly.

The Ganga Waters Treaty signed in 1996 for sharing of waters of river Ganga during lean season (January 1-May 31) is working satisfactorily. Regular meetings of the Joint Committee on Sharing of Ganga Waters are held to take stock of the implementation of the provisions of the treaty[28].

Bilateral Trade and Investment

The first Trade Agreement between India and Bangladesh was signed in 1972. In the five years, total trade between the two countries has grown by more than 17%. India’s exports to Bangladesh in the period July 2016 – March 2017 stood at US$ 4489.30 million and imports from Bangladesh during FY 2016-17 stood at US$ 672.40 million. India has provided duty free quota free access to Bangladesh on all tariff lines except tobacco and alcohol under South Asian Free Trade Area (SAFTA) since 2011.

Total Indian investment proposals in Bangladesh registered with the Bangladesh Investment Development Authority (BIDA) exceed US$ 3billion. Indian Foreign Direct Investment (FDI) in Bangladesh reached US$ 88.0million in 2015-16. During PM Sheikh Hasina’s visit in April 2017, 13 agreements worth around US$ 10 billion of mainly Indian investment in power and energy sectors in Bangladesh were signed[29].

Power and Energy Sector Cooperation

Cooperation in power sector has become one of the hallmarks of India Bangladesh relations. Bangladesh is currently importing about 660 MW of power from India. In March 2016, the two Prime Ministers inaugurated the export of power from Tripura to Bangladeshas well as export of Internet bandwidth to Tripura from Bangladesh. During Bangladesh PM’s visit in April 2017, agreements for generation/ supply/ financing of more than 3600 MW electricity were signed between Indian public /private companies and Bangladesh side.

Many Indian public sector units such as Indian Oil Corporation, Numaligarh Refinery Limited, Petronet LNG Ltd are working with their Bangladeshi counterparts in the oil and gas sector of Bangladesh. India has agreed to fund the construction of India-Bangladesh Friendship Pipeline from Siliguri to Parbatipur for supply of Diesel to Bangladesh from Numaligarh Refinery Limited. ONGC Videsh Ltd has acquired two shallow water blocks in consortium with Oil India Limited and is currently exploring these blocks[30].

Cultural Exchanges

The Indira Gandhi Cultural Centre (IGCC), High Commission of India, is a Cultural Centre of the Indian Council for Cultural Relations of India in Bangladesh. Inaugurated in 2010, IGCC regularly organizes programmes covering a wide-gamut of cultural activities. The IGCC also holds regular training courses in Yoga, Hindi, Hindustani Classical Music, Manipuri Dance, Kathak and Painting. The courses are very popular with the Bangladeshi students. IGCC Hindi teacher also teaches Hindi at Institute of Modern Languages in University. ICCR has initiated a Tagore Chair in University of Dhaka since 2011. A MoU was also signed in January 2017 for a ‘Hindi’ Chair in University of Dhaka. A 100-member Youth Delegation is visiting India annually since 2012.[31].

Indian community in Bangladesh

About 10,000 strong Indian communities is estimated to be living in Bangladesh. Indians in Bangladesh are well respected for their hard work and managerial skills and as a community are doing very well socially and economically. Most of the Indians are engaged in Ready Made Garment (RMG) sector or as top professionals in MNCs. Around 3000 Indian students are also pursuing medical courses in different Universities/colleges in Bangladesh[32].

The Effects of Recognition
Following are the main effect of the recognition

  1. The recognized state becomes entitled to sue in the courts of the recognized state.
  2. The courts of the recognizing state given effect to the past as well as present legislation and executive acts of the recognized state.
  3. In case of the de jure recognition, diplomatic relation is established and the rules of international law relating to privilege and immunity apply.
  4. A recognized state is entitled to sovereign immunity for itself as well as its property in the courts of recognized state.
  5. The recognized state is also entitled to the succession and possession of the property situated in the territory of the recognized state[33].

Is Recognition A Duty of A State?
Whether recognising a state is a duty of other states is a controversial question different jurist have different opinion regarding the same. 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 recognise the new state. Existing states have a duty to recognize because a new state cannot have legal rights and duties under International law unless it is recognized by other states.

Another view is that recognition is a political art. Recognition of a state depends upon the discretion of a state, and therefore is always optional. While in some cases, a state is not recognized even if it possesses all the attributes of statehood, in some other cases, pre- mature recognition is accorded to a state. Institute of International Law in 1936 therefore declared that recognition is a free art. And it is a matter of policy and not the law.[34]

Stark lays down recognition is granted by states according to “legal principles and precedents’. At the time of granting recognition, they generally make sure that the state to be recognized at least possesses the requisite legal qualifications. To this degree, Stark says , ‘states do treat recognition as a legal act’.[35]

Conclusion
After going through this research we find out that in modern era the recognition plays an important role while deciding the relations with the other states of the world. As it makes an impact on the trade relation, foreign policy, bilateral treaties and agreement, and many others.

On the basis of the above discussion, it may be concluded that while in many cases India has accorded recognition to states and government on the principle of de factoism and as matter of course or routine, in some cases however she has either delayed regnisation or accorded quickly being influenced by her national interest, expediency and political consideration.
It is the duty of every state to recognizing other states as without recognition one state does not have any rights and duties in the international level.

End-Notes
[1] List of Sovereign States by the Date of Formation, Wikipedia
accesses October 5, 2019
[2]K.P.Mishara, India’s policy of recognition of states and governments, The American Journal of International Law Vol. 55, No. 2 (Apr., 1961), pp. 398-424
[3] Kapoor, S.K., International Law & Human Rights 158 (21st ed. Central Law Agency 2017)
[4] Wikipedia,
https://www.google.com/search?ei=wUuYXe-PD5OS9QPIzoS4CA&q=recognition+meaning+&oq=recognition+meaning+&gs_l=psy-ab.3..0i67i70i255j0l9.24774.26001..26770...0.2..0.439.2331.2-5j2j1......0....1..gws-wiz.......0i71.tzTjhCpypYw&ved=0ahUKEwiv9LXP0YTlAhUTSX0KHUgnAYcQ4dUDCAs&uact=5)> accessed October 5, 2019
[5] Agarwal, H.O, International Law & Human Rights 62 (4th ed. Central Law Publication 2017)
[6] Recognition of State, Law Notes.in
accessed October 5, 2019
[7] Supra note 6 page no 63.
[8] Recognition of State, Law Notes.in
accessed October 5,2019
[9] Ibid.
[10] Supra note 3 at page 173
[11] Ibid
[12] Top 5 Reason Of Tension Between India And China, Mapsofindia.com , July 9,2017 accessed October 9, 2019
[13] Ibid at 12.
[14] Ibid.
[15] Ibid.
[16] Ibid.
[17] Supra note 3 at page 174
[18] India and Afghanistan Relations: Gaining Strategic Bonding, The Economic Times, (February 6, 2019)
accessed October 10, 2019.
[19] Ibid.
[20] Supra note 19.
[21] Ibid.
[22] Ibid.
[23] Ibid at
[24] Ibid.
[25] Supra note 3 at page 174.
[26] INDIA BANGLADESH Relations, mea.gov.in (September 2017) accessed October 10,2019
[27] Ibid at 27
[28] Ibid.
[29] Supra note 27
[30] Ibid.
[31] Ibid.
[32] Supra note 27.
[33] Supra note 3 at page 168
[34] Supra note 5 at page 71
[35] Ibid.

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