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Recognition Of States And Governments An Analysis

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 certain facts.

As to recognition of State, the Montevideo Convention, 1933 has said that the State should possess qualifications:

Permanent population, 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 Recognition

The legal significance of recognition is controversial. The theories attempt to explain the nature, basis and effect of the act of recognition:
  1. 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:
    1. 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.
       
    2. 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 Statehood.
       
    3. Thirdly, a State exists prior to its recognition.
       
    4. 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.

  2. 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.

Conclusions:

Recognition is 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 policy.

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:

  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 State may enter into diplomatic and treaty relationships with the recognizing State (de jure recognition).
  5. 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.

However, non-recognition has no effect before international courts or tribunals (Tinocco Concessions Case). In Great Britain -Costa Rica Arbitration (Tinocco Concessions Case) (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.

Held that:
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, unconstitutional means.

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:

  1. Express recognition: When an existing State recognizes the new State by a notification or declaration (public statement), announcing the intention of recognition.
     
  2. 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 indicated.

    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.

    A State 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.
     
  3. 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.
     
  4. 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:

  1. 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.
     
  2. 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.
     
  3. 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.
     
  4. 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.
     
  5. 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.
  6. 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.
     
  7. 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.
     
  8. 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 immunities (sovereignty).

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 532.

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.

When that happens, the rebels possess against third States the status of insurgents. As 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.

Government-in-exile: 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.

Illegal States

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 existence.

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:
  1. Retroactivity depends upon intention.
  2. Where there is a clear date mentioned, recognition takes effect from that date (mentioned) Thus, it is an exception to the general rule of retroactivity.
  3. Acts of previous de jure government cannot be invalidated by subsequent de jure recognition of new government.
  4. 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.

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