Meaning of Recognition:
According to Phillip Jessup
, recognition means that an
existing State acknowledges the political entity of another State, by overt or
covert act. It may be noted that recognition is neither a contractual
arrangement nor a political concession. It is a declaration of the existence of
As to recognition of State, the Montevideo Convention, 1933 has
said that the State should possess qualifications:
definite territory Government, and capacity to enter into relations with other
States. When possession of these attributes (of Statehood) in a State is
acknowledged by other existing States, it is known as recognition of a State.
Recognition may, therefore, be defined as a formal acknowledgement by the
existing members of the international community of the international personality
of a new State. Problem of recognition of a State arises when a State
disintegrates into several States; a former colonial territory gains Statehood,
or when two or more States merges to form a new State. Very often recognition is
said to be a political diplomatic function (Jessup).
Theories of RecognitionThe legal significance of recognition is controversial. The theories attempt to
explain the nature, basis and effect of the act of recognition:
Constitutive Theory:According to this theory, an entity does not become
a State by possessing essential attributes of Statehood; it becomes so, when
other States recognizes it. It implies at other States constitute the
personality of a State by granting recognition. This theory has been
advocated by Hegel, Anzilloti, Oppenheim, etc. The act of recognition is defined as, a clearly legal
act, with new States having the legal right to be recognized and established
States having the legal duty to recognize them.
The traditional constitutive theory is criticized on a number of grounds:
- Firstly, if this theory were accepted, it would mean that other States
would determine the fate of new State. It may be noted that recognition by
no means produces subjects of international law. The acceptance of this
theory would mean that a State exists for some States (which have granted
recognition) and does not exist for others (which have not granted
recognition). This situation shows that recognition is not a conclusive
proof for the existence of a State.
- Secondly, there is no legal duty on the part of the existing States to
recognize any community that has in fact acquired the characteristics of
- Thirdly, a State exists prior to its recognition.
- Fourthly, a State does have some rights and obligations under
international law, even without recognition.
However, in support of the constitutive theory, it must be admitted that once a
State is recognized it acquires status and is recognized as such by the
municipal courts of the recognizing States. Sometimes, existence alone is not
sufficient to create an international personality. Thus, in the case of Vatican
City recognition alone is conclusive proof of its existence and not its
automatic existence as a State.
Declaratory/Evidentiary Theory:According to this theory, Statehood or
the authority of the new government exists as such prior to and
independently of recognition. Recognition is merely a formal acknowledgement
through which established facts are accepted. The act of recognition is
merely declaratory or evidence of an existing fact that a particular State
or government possesses the essential attributes as required under
international law. Recognition is necessary only because it enables new
State to enter into official intercourse with other States. This theory has
been advocated by Hall, Wagner, Brierly, Fisher, etc. There is no legal duty
to recognize States even after it has attained statehood.
Thus, according to this theory, recognition depends upon the
discretion or sweet will of the recognizing States. In practice, most of the
States accept the declaratory theory. Recognition frequently been withheld for
political reasons. The theory also finds support in the fact that recognition
has retrospective effect.
The Tinocco Concessions Case seems to support this
theory. However, the view that recognition is only a declaratory act is not
completely correct. In fact when a State is recognized, it is a declaratory act.
But the moment it is recognized, there ensue some legal effects of recognition
which may be said to be of constitutive nature.
declaratory as well as constitutive act. Oppenheim said:
Recognition is declaratory of an existing fact but constitutive in its nature
at least so far as concerns relations with the recognizing States.
Further there is no settled view whether recognition is the only means
through which a State becomes part of the international community
According to Kelsen,
Statehood may be distinguished into natural statehood and juridical statehood.
The former exists in a State from the moment it comes into possession of the
essential elements of statehood. The latter can be acquired by a State only when
other States recognizes it.
Thus, recognition although is declaratory of the
existence of the natural statehood, it is constitutive of juridical Statehood.
The above view taken by Kelsen may be termed as modified constitutive theory
Act of Recognition: Legal or Political (State Practices)
According to facultative theory of recognition, recognition is a political or
discretionary act. It is determined by reason of expediency and high State
A.V. Levontin said:
Recognition constitutes the weakest link in international law.
In practice, India also considers recognition as a political
and discretionary act. The practice of States shows clearly that the act of
recognition is influenced by political, economic and strategic
considerations. Starke lays down that at the time of granting recognition,
States generally make sure that the State to be recognized at least possesses
the requisite legal qualifications.
To this degree, States do treat recognition
as a legal act. In general, today, admission into United Nations amounts to a
certificate of Statehood (collective recognition). However, as the act of
recognition is the free will of each State, even in the case of recognition by
U.N., the States, which did not vote in favour, are not deemed to have
recognized a new State.
Necessity of Recognition: Legal Effects
Non-recognition does not mean that the entity does not qualify for Statehood.
Recognition should however be granted because it has important legal
consequences. The recognized State acquires certain rights, privileges and
immunities under international law as well as municipal law. The typical act of
recognition has two legal functions: firstly, the determination of statehood, a
question of law, secondly, the act of recognition is a condition of the
establishment of formal, optional and bilateral relations, including diplomatic
relations and the conclusion of treaties.
Following are the main legal effects of recognition:
- Recognized State becomes entitled to sue in the courts of the
- Recognized State is entitled to sovereign immunity for itself as well as
its property in the courts of recognizing State.
- Recognized State is entitled succession and possession of property
situated in the territory of the recognizing State.
- Recognized State may enter into diplomatic and treaty relationships with
the recognizing State (de jure recognition).
- Recognizing State gives effect to past legislative and executive acts of
recognized State (retroactivity of recognition).
However, non-recognition of a State does not mean that the new entity will be
devoid of legal effects in relation to the non-recognizing States. General
international rules or treaties on the co-ordination of States such as the norms
on the high seas or respect for territorial or political sovereignty, etc. do
apply to the relationship between the new State and all other members of the
international community. Thus, a non-recognized State is immune from the
jurisdiction of the courts of the State which did not recognize it.
non-recognition has no effect before international courts or tribunals (Tinocco
Concessions Case). In Great Britain -Costa Rica Arbitration (Tinocco
) (1923 UN Rep (1)), evidence clearly disclosed that Tinocco
regime had in fact governed Costa Rica for two years. Non recognition cannot
outweigh the evidence as to de facto character of Tinocco government. In reply
to Costa Rica's contention that Tinocco government could not be considered a de
facto government since it was not established in accord with the Constitution of
Costa Rica, it was said that recognition was to be determined by enquiry into a
government's de facto sovereignty and complete governmental control and not into
its illegitimacy or irregularity of its origin.
Mere fact that a
State is not recognized (Britain did not recognize the Tinocco government), does
not mean that the State does not exist. Such (unrecognized) State continues to
be bound by its rights and obligations under international law. Hence successive
government (Costa Rica) is liable for the acts of its predecessors (unrecognized
Tinocco government). In international law, a successor government cannot
repudiate those contracts/acts of the predecessor which have international
ramifications (unless those contracts/acts were unconstitutional at the time of
their granting or making).
Stimson Doctrine (Non-recognition):
It was a statement of the United States
national policy. The doctrine imposed a duty of non-recognition of all
territorial acquisitions brought about in breach of international law. Thus, if
a State grants recognition to another State in violation of international treaty
(Paris Pact, 1928), such recognition would be invalid. Although this doctrine
has much to recommend itself, the States does not always follow it.
Distinction between Recognition of States and Government Recognition of a State
is entirely different from the recognition of a government. Recognition of a
government means that the recognizing State regards it as the sole
representative of the given State in international intercourse. When the regime
of a State is changed, it is required to be recognized by other States. Change
in the government of a State may take place either in the normal course of
political life or when it is affected through a revolt or revolution,
In the latter case, a new government usually receives
recognition only when the other States are satisfied that it commands the
support of the majority of the people and may become stable. Willingness and
capacity to carry out its international obligations is also considered relevant.
Since non-recognition of a new government has nothing to do with the recognition
of a State, official intercourse and treaties are not terminated but only
suspended; they revive when the old government comes in the power again or when
the new regime is recognized.
Forms of Recognition:
- Express recognition: When an existing State recognizes the new
State by a notification or declaration (public statement), announcing the
intention of recognition.
- Implied recognition: It results from any act which implies the
intention of recognizing the new State.
The intention may be indicated by the States
unilaterally or collectively. When a State enters into a bilateral treaty, or
establishes diplomatic relations with an unrecognized State, it may be inferred
that the former has granted recognition to the latter. The existing States may
recognize a new State collectively. It occurs when an unrecognized State
participates in a multilateral conference/treaty, the other participants or
parties are regarded to have recognized the new State if the intention has been
Does the admission of a new State to an international organization
such as the United Nations imply collective recognition?
Admission to the
organization certainly means that all Members must treat the new fellow Member
as an equal partner in law in all matters relating to the application of the
Charter. To this extent, common membership means that the newcomer is partially
recognized. But apart from that, all States are free to decide whether to
proceed to full recognition or limit their relations to the minimum.
which has become a member of U.N. is treated by other States as if it has been
recognized by other States in dealings inside the U.N. and not elsewhere, it is
sometimes called quasi-recognition. In its advisory opinion on Condition of
Admission of a State to the United Nations (ICJ, Rep. 1948), the ICJ opined that
if a State is admitted as a member of the U.N., it will amount to collective
recognition by those States only who voted in the favour of the admission of
such a State.
- Conditional recognition: It implies that the recognition is granted
subject to the fulfilment of certain stipulation by the recognized State in addition to
the normal requirements of Statehood. The conditional recognition has
disappeared from contemporary practice.
- Pre-mature or Precipitate recognition: It is granted even when a State
does not possess all the attributes of Statehood. Generally, when the
authorities organize a separatist movement and establish a provisional
government in a State for the prospective new State, recognition of such a
government is granted by other States.
Modes of Recognition: De facto and De jure Recognition
Recognition may be of two kinds: de facto recognition and de jure recognition.
In both, recognition is an act intended or calculated to give rise to legal
rights and obligations.
However, there are differences between the two:
- De facto recognition: It means that in the opinion of the recognizing
State, provisionally and temporarily and with all due reservations for the
future, the State or Government recognized, fulfils the requirements laid
down in international law for effective participation. While De jure recognition: It
means that according to the recognizing State, the State or Government
recognized formally (i.e. without reservation and on a definitive basis) fulfils
the requirements laid down in international law for effective participation.
- De facto recognition: It is a lesser degree of recognition, taking
account on a provisional basis of present realities. While De jure recognition: It is
the fullest kind of recognition.
- De facto recognition: It may be made dependent on conditions with which
the new State has to comply. If it fails to do so, the recognition may be
withdrawn. While De jure recognition: It is final, and once given cannot be withdrawn.
- De facto recognition: When the new State is formed through revolt,
recognition may be granted after granting the de facto recognition. While De jure recognition: When a new State comes into existence peacefully and
constitutionally, de jure recognition may be granted directly.
- De facto recognition: Full diplomatic relations cannot be established
with a de facto recognized State. While De jure recognition: It can be done so when a
State is recognized de jure.
- De facto recognition: Full diplomatic immunities are not granted to the
representatives of the de facto recognized State. However, in USA, such
immunities are granted. While De jure recognition: The representatives of the de
jure recognized State are granted such immunities.
- De facto recognized State cannot make a claim to property situated in
the territory of recognizing State. It lacks extra-territorial jurisdiction.
While De jure recognized State can claim so. The Soviet Government could get
possession of Tsarist Archives and other property in England only when the
latter accorded de jure recognition to the former.
- De facto recognition: Official visits to an official dealings with the
State in relation to its additional territory which has been recognized de
facto may be kept to a minimum and avoided altogether. While De jure recognition: This is
not so in case of a State recognized de jure. It is to be noted that by granting
de facto recognition to a State, the recognizing State secures certain
advantages especially economic. It enables it to protect the interests of its
citizens in the de facto recognized State.
Obliteration of Distinction: Municipal Law Effects
There are substantial similarities in legal incidents of de facto and de jure
recognition. Thus, the recognizing State treats the legislative and executive
acts of a de facto or de jure recognized State as having full legal effect.
Further, both de facto and de jure recognized States have jurisdictional
A number of cases support the contention that de facto
and de jure recognition is indistinguishable as far as legislative and other
measures (i.e. municipal law effects) are concerned: Luther v. Sagor
(1921) 3 KB
As soon as the de facto recognition is given, the Government acquires
sovereign immunity from being sued in the courts of a foreign State which so
recognizes it. It does not matter in such cases, whether de facto or de jure
recognition is given, because a de facto recognition dates back in the same
manner as a de jure recognition. This rule has been applied in a number of cases
viz. Bank of Ethiopia v. National Bank of Egypt & Ligouri
(1937) 3 All ER 8.
The Arantzanu Mendi (1939) 1 All ER 719. So far as conflict of authority takes
place between a displaced de jure government and a newly recognized de facto
government, concerning matters in the territory ruled by the de facto
government, the rights and status of de facto government will prevail.
Recognition of Insurgency, Belligerency and Government-in-Exile
As a general principle, States maintain a policy of non-interference in the
domestic affairs of another State. A stage may come when rebels are in effective
occupation of a large part of the territory and exercise authority in that
territory. In these circumstances, third States, without making a formal
pronouncement and without conceding to the rebellion forces belligerent rights,
refrain from treating them as law-breakers, and consider them as the de facto
authority in the territory under their occupation. Such attitude is adopted by
the third States to maintain with rebels relations deemed necessary for the
protection of their nationals, their commercial interests, etc.
happens, the rebels possess against third States the status of insurgents
a result of recognition, insurgents are not treated as pirates and international
rules of war become applicable to them. A stage may come when civil war between
insurgent forces and parent government assumes such dimensions that third States
are compelled to treat the civil war as a real war between rival powers. If such
a situation occurs, third States recognize insurgent forces as a ‘belligerent'
power. As a result of recognition of belligerency, the conflict is
internationalized and the belligerent get some rights under international law.
This situation may arise when the State is temporarily
occupied by invaders or usurpers and the government has had to flee, or there is
a rebel community which has not yet succeeded in establishing itself in the
territory of which it aspires to be the government.
An example is Palestine
Liberation Organization (P.L.O.), recognized by many States including India. In
contrast to de facto government, governments-in-exile lack effective control
over the territory of a State and have been accorded de jure recognition.
Is there a duty not to recognize illegal States?
The issue has been accorded treatment in the resolutions of General Assembly and
Security Council. In 1965 the Security Council passed a resolution calling upon
all States not to recognize illegal minority regime
in Southern Rhodesia which
violated the principle of self-determination.Estrada Doctrine (No Necessity of Recognition)
The Estrada doctrine is generally understood to mean that recognition of
government is unnecessary once the State has been recognized. Professor Richard
Baxter suggested recognition is an institution of law that causes more
problems than it solves it and therefore must be rejected
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 in effective control without raising the issue of recognition. However, the
doctrine has been criticized as it disregards the rules of international law and
encourages individual appraisal in this field.
Withdrawal of Recognition
Although the act of granting recognition is political, recognition de jure once
granted is, generally speaking, irrevocable. Art. 6 of the Montevideo
Convention, 1933, also declared that de jure recognition is ‘unconditional and
irrevocable'. If a State does not have cordial relations with another State it
may take other steps, including the rupture of diplomatic relations, which does
not result in withdrawal of recognition. Even recognition de facto cannot be
withdrawn so easily inspite of the fact that revocability is inherent in its
concept. However, recognition de jure ceases to have effect in case of a
definite disappearance of one of the essential elements of Statehood or
ineffectiveness of the government.
Retroactivity of Recognition
Recognition de facto as well as de jure has a ‘retroactive' effect in the sense
that all the acts of newly recognized State are treated valid dating back on the
commencement of the activities of the authority thus recognized. For instance,
if the communist China was recognized by the U.S.A. in 1979, the latter would
treat all the acts of the former from the date when it in fact comes into
Every act of recognition is not retroactive in its operation. It depends upon
the ‘intention' behind the individual act of recognition. In Luther v. Sapor,
held that de facto recognition dates back in the same manner as de jure
recognition. Another case, which furthers the ‘Intention test', is Civil Air
Transport Inc. v. Central Air Transport Corpn
. (1952) 2 All ER 733. In this
case, the court held:
- Retroactivity depends upon intention.
- Where there is a clear date mentioned, recognition takes effect from
that date (mentioned) Thus, it is an exception to the general rule of
- Acts of previous de jure government cannot be invalidated by subsequent de
jure recognition of new government.
- Prima facie, recognition operates retrospectively not to invalidate the
acts of a former government, but to validate the acts of a de facto
government, which has become the new de jure government. It may be noted that where a State
is granted de facto recognition initially and de jure recognition later on, the
effect of recognition starts from the date of de facto recognition. It may be
regarded as a prima facie rule (Starke).
Indian Practice on Recognition
India's practice is in conformity with the norms and principles of international
law as well as general practice of States. In recognizing States, India had
accorded recognition as soon as the conditions of Statehood had been fulfilled.
As a matter of general policy, India has attached primacy to de factoism and has
generally recognized the supremacy of de facto regimes. Another striking feature
of India's recognition policy is that it has adopted the broader version of Stimson doctrine and, as a matter of policy, has denounced illegal territorial
acquisitions and unlawful governments.
By recognizing Israel in 1950, though not
establishing diplomatic relation with her (till 1992), the Government of India
has clearly proved weighty reasons for thinking that it distinguishes between
recognition as a legal act and the establishment of diplomatic relations as a
purely political act. The recognition of Palestine Liberation Organization (PLO)
affirms India's strong commitment to the principle of self-determination and its
long-standing support to national liberation movements.Conclusions:
The difference between the two types of recognition is chiefly political (degree
of political approval and acceptance) rather than legal. In de jure recognition
formal diplomatic relations are established whereas in de facto recognition
diplomatic relations are not established. It may be pointed out that the dejure
and de facto recognition are out of fashion and the current practices of States
is to grant ‘full recognition or foil diplomatic recognition and there is no
half way between the two.