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“Law Master’s” Publication
“Recognition”
Prof. S.D. Bhosale
(..3..)
Recognition
QUESTION BANK
1.
2.
What is Recognition? Explain the kinds and significance of Recognition.
What do you mean by ‘Recognition of State’? Explain the kinds and theories of
Recognition of State.
Short Notes
1. State Recognition.
2. Insurgency and Belligerency.
SYNOPSIS
A. Recognition of State-
I. Meaning of ‘Recognition’-
II. Theories of Recognition-
1. Constitutive Theory-
Defects in theory-
i. Possessing attributes of Statehood is more important than Recognition-
ii. Existence of State on whims of other States-
iii. State exists prior to Recognition-
iv. Retrospective effect of Recognition-
2. Declaratory Theory-
i. Mere existence without Recognition is of no use-
ii. Having an element of Constitutive theory also-
III. Forms of Recognition-
1. Express Recognition-
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Prof. S.D. Bhosale
2. Implied Recognition-
(a) Unilateral-
(b) Collective-
IV. Kinds of Recognition-
1. De facto Recognition-
2. De Jure Recognition-
The distinction between De facto and De Jure Recognition-
1. Provisional / Permanent-
2. Full Diplomatic relations-
3. Full Diplomatic immunities-
4. Receive Property-
5. Official Dealings-
B. Recognition of Government-
Formatted: Tab stops: 11.07 cm, Left
I. Recognition of Insurgency-
II. . Recognition of Belligerency-
The distinction between Recognition of Insurgency and Belligerency-
1. Meaning-
2. Nature-
3. Stage-
4. Characteristics-
5. Purpose of Recognition-
6. Effect on status-
7. Effect of Recognition-
There may be Recognition of the State or Recognition of Government.
A. Recognition of State-
I. Meaning of ‘Recognition’-
As discussed earlier, to be called a state, an entity should possess four essentials:
population, territory, government, and capacity to enter into relations with other states.
When possession of these attributes is acknowledged by other States, it is called
‘Recognition’.
According to Fenwick, ‘Recognition’ is “a formal acknowledgement by the existing
members of the international community of the international personality of a new state”.
According to Jessup, “Recognition of State is an act by which another State
acknowledges that the political entity recognised possesses the attributes of Statehood”.
Thus, we may say that ‘Recognition’ endows international personality upon
a new State. The existing States grant Recognition upon political considerations. Therefore,
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“Recognition”
Prof. S.D. Bhosale
the law has the least role to play in this area. There is no codification as to Recognition.
II. Theories of Recognition-
There are following two theories of Recognition.
1. Constitutive Theory-
According to this theory, the state gets its personality by recognising other existing
states. In other words, possessing attributes of Statehood is not much more important than
the Recognition of the State by other States.
Anzilotti and Holland are the main exponents of this theory. Prof. Kelsen, P.E.
Corbett, and Oppenheim also uphold the theory. Oppenheim states, “A State becomes an
International person and a subject of International Law through recognition only and
exclusively.”
Defects in theory-
The theory has been criticised on several following grounds-
i. Possessing attributes of Statehood is more important than Recognition-
The theory stresses much Recognition by other States and not on possessing
Statehood by a new State. But in practice, when the State comes into possession of all
attributes of Statehood, it doesn't need to be recognised by other States.
The time of Recognition may differ, e.g. Communist China was recognised by India,
the U.S.S.R., etc., immediately. However, the U.S.A. recognised it very late in 1979.
Similarly, Bangladesh was recognised by India and other States immediately. However,
Pakistan recognised it very late.
ii. Existence of State on whims of other States-
According to this theory, the state comes into existence by recognising other states,
and existing states recognise new states based on their political consideration and gains. It
means if there is no recognition, a new State does not exist despite possessing all attributes.
However, in fact, the existence of a new state does not depend upon the whims of existing
states. In fact, the existence of a new State is the fact after acquiring attributes of Statehood.
A New ‘State’ cannot be created in –vain unless it acquires attributes of Statehood.
iii. State exists prior to Recognition-
As discussed earlier, Recognition is an acknowledgement of the existence of the
attributes of Statehood in an entity. It implies that the State always exists and possesses
attributes prior to its Recognition, and its existence does not depend upon Recognition by
other States
iv. Retrospective effect of Recognition-
Recognition has a retrospective effect. Thus, when a new State is recognised by
other States, they recognize all acts of the former State from the date of its establishment
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Prof. S.D. Bhosale
or existence. It means States accept that a new State exists even prior to their Recognition.
Thus, even though Pakistan recognised Bangladesh two years after its existence, the
Recognition has operated since its existence.
Thus, the above criticisms question the soundness of the constitution theory.
2. Declaratory Theory-
Hall, Brierly, and Fisher are exponents of this theory. According to the theory, a
State comes into existence as soon as it acquires attributes of Statehood. Recognition is just
a declaration of this fact of the state's existence.
According to Hall, a State enters the family of nations as a right when it acquires
essential attributes of Statehood. Recognition is necessary only to enter into official
intercourse with other States. Thus, recognition is necessary only to create a relationship
with the recognising State, not for its existence.
Institute of International Law, in its resolution of April 23, 1936, in Article 1, para
3, has stated that the existence of a new State with all its legal effects connected with the
existence is not affected by the refusal of one or more states to recognise it. The theory
seems stronger than the Constitutive theory. However, it has the following defects-
i. Mere existence without Recognition is of no use-
A State, even though it comes into existence by having all attributes of Statehood,
however, cannot enter into a legal relationship with other States unless recognised.
ii. Having an element of Constitutive theory also-
The theory is not purely declaratory but also has the characteristics of constitutive
theory. In fact, a new State acquires ‘natural statehood’ by possessing four attributes of
Statehood. Recognition grants judicial Statehood. In other words, although declaratory of
the existence of the natural Statehood, Recognition is constitutive of judicial Statehood. It
means Recognition grants more rights than just minimum rights.
III. Forms of Recognition-
The state may be recognised in any of the following ways, viz.
1. Express Recognition-
When an existing State recognises the new State by a notification or declaration
announcing the intention of Recognition, the Recognition is said to be expressed. Thus,
Recognition granted in express terms is called express Recognition.
In other words, ‘Express Recognition’ takes place when the State expressly declares
an entity with the status of Statehood. Such declaration may take place in the form of a
public Statement, diplomatic note, verbal note, personal massage through the head of the
State or by Parliamentary declaration.
India recognized Bangladesh, Lithuania, Estonia, and Latvia expressly by sending
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messages to the heads of these States through the Prime Minister of India.
2. Implied Recognition-
Recognition granted through an act is called ‘Implied Recognition’. According to
the Montevideo Convention of 1933, ‘Tacit’ or ‘Implied Recognition’ results from any act
which implies the intention of recognising the new State. Such Recognition may be in any
of the following ways-
(a) Unilateral-
When one existing State acts with another new State in such a way that Recognition
is implied, it is called ‘implied unilateral recognition’ from former to latter. Unilateral
Recognition may be granted to a new State by entering into a treaty with that State,
establishing diplomatic relations, sending representatives to attend ceremonies, etc.
Thus, the above acts of the existing State imply that it has recognised the new State.
(b) Collective-
Collative Recognition is implied from the act of a number of States when such States
accept the participation of a new State in any multilateral conference or treaty. However,
it has also been established that the new state cannot automatically get recognition because
it participates in a multilateral conference or treaty. The unequivocal intention of the State
is necessary for Recognition. Therefore, some States like the U.S.A. and the U.K. make it
clear while signing that mere participation in a conference or signing of a multilateral treaty
does not ipso facto amount to Recognition. Despite being party to the Geneva Protocol in
1954 and 1962, the U.S.A. did not recognise Communist China for long. Similarly, despite
being accepted by the Partial Test Ban Treaty by East Germany, the U.S.A. did not
recognise it.
The same principles apply to international organisations. Even if any State is a
member of the United Nations Organisation, it does not work ipso- facto amounts
Recognition of other states. However, such Member States may be said to have been
recognised by other states for the limited purpose of dealing with the United Nations.
IV. Kinds of Recognition-
Recognition may be of two types, viz.
1. De facto Recognition-
De facto Recognition is provisional Recognition. It is granted when the recognising
State considers that the new State, although it has a legitimate Government, its
effectiveness and continuance in governing the territory are doubtful.
The question of granting de facto Recognition to the Government arises when there
are two competing Governments. The Recognizing State may withdraw de facto
Recognition at any time. However, the Recognizing State usually does not establish
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diplomatic relations with a recognised State.
For example, India first recognized Israel de facto. Similarly, the U.S.A. recognised
Bangladesh de facto. Taiwan was recognised de facto by several States.
2. De Jure Recognition-
When an existing State considers that the new State is capable of possessing all the
essential attributes of Statehood with stability and permanency and commands the general
support of the population, the Recognition granted is called de jure Recognition. For
example, Israel was fully recognized by many States, including the U.S.A., immediately
after it came into existence.
De jure Recognition is final. The new State doesn't need to be first recognised
de facto; It may be recognised directly de jure. Once de jure recognition is granted, it cannot
be withdrawn.
The distinction between De facto and De Jure Recognition-
The distinction between De facto and De jure Recognition is as follows-
1. Provisional / Permanent-
De facto Recognition, being provisional, can be withdrawn at any time by the
Recognizing State, whereas De Jure recognition, once granted, cannot be withdrawn.
2. Full Diplomatic relations-
Full diplomatic relations cannot be established with a de facto recognised State,
whereas De jure recognition establishes full diplomatic relations between both States.
3. Full Diplomatic immunities-
Full diplomatic immunity cannot be granted to the representatives of the de facto
recognised State, whereas the representatives of the de jure recognised State are granted
such immunities.
4. Receive Property-
A de jure recognised State could claim to receive the State property situated in the
territory of the recognising State, but a de facto recognised State could not make such a
claim. E.g. the Soviet Government recovered its Property situated in England only when
England recognized the Soviet Government De facto.
5. Official Dealings-
Official dealings and visits are avoided or kept at a minimum level in a De facto
recognised State, whereas it is not so in a De jure recognised State.
B. Recognition of Government-
Recognition of Government is different from Recognition of the State. Once a State
is recognised, the way in which it governs itself is a matter of internal affairs of that State;
other States have nothing to do with it. A Parliamentary form of Government may be
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replaced by a dictatorship and vice-versa; it does not affect the Recognition of the State. It
is true that so long as the Government is changed in the normal course by the constitutional
or formal way, the question of Recognition of Government does not arise. Hoverer, when
a change in Government arises by revolt, coup, or unconstitutional, there comes the
question of recognizing Government. It is because it causes problems in relations between
governments, and there may be two Governments functioning on different territories in
that State, e.g. the People’s Republic of China took control of a major part of China and
the Nationalist Government was driven to a small part of Taiwan. However, many states
continued to recognise the Nationalist Government till 1971. Similar was the position of
the Barzan Government in Iran in 1979, the Pot Pol Government in Kampuchea, Amir
Government in Afghanistan in 1987.
If the new Government is not recognised, no official intercourse is possible. The
operation of treaties is suspended until the Recognition of the new Government. However,
it is to be noted that even though the new Government is not recognised by existing States,
it does not take away the international personality of the State. It also does not free such a
new State from treaty obligations. It is because Recognition of the State is different from
Recognition of Government. Once a state is recognized de jure, it cannot be derecognised
again.
Other existing states may recognize the new government de facto or de jure.
Moreover, there may be both de facto and de jure governments. However, where two
governments exist, i.e. de facto and de jure, the claim of a de jure Government prevails.
However, like the Recognition of the State, Recognition of the Government is also a policy
decision of existing States. States make decisions according to their interests involved with
the new Government.
Nowadays, many states do not follow the policy of formally recognizing
Governments but enter into relations with new sites when required. For example, the
U.S.A., the U.K., Australia, etc., do not formally recognise governments but deal with them
if needed.
I. Recognition of Insurgency-
‘Insurgency’ is a war of citizens against the State for the purposes of obtaining
power in whole or part of the State. It implies armed struggle or revolt by a group of citizens
against the established order. When such insurgents occupy a large part of the territory of
that State by defeating the previous Government, they need international Recognition.
When such insurgents or rebels are recognised by other States, it is known as the
Recognition of insurgents.
To get international Recognition, insurgents shall possess the following essentials-
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1. Insurgents should be in control of a considerable part of the territory.
2. Insurgents should get considerable support from a majority of people living in that
country.
3. International rules of war become applicable to insurgents.
II. Recognition of Belligerency-
When civil war takes place in a state in such a dimension that other States start
treating it as a real war between the rival powers, it is said that the State of belligerency
exists.
Recognition of belligerency is the acknowledgement of a judicial fact that a state of
hostilities exists between two fractions contending for power or authority within the State.
The Recognition of belligerency shows that the recognizing State considers that the
rebels are in a position to exercise authority over the territory in their position.
To be recognised, the belligerent must possess the following conditions-
1. Hostilities must be of a general nature and should not only be restricted in the local area.
2. The rebels should have occupied and administered considerable natural territory.
3. Both fighting groups must act in accordance with the international laws of war.
4. The rebels must have organised forces under a specific commander.
Thus, belligerency requires some additional conditions than insurgency. For
example, suppose the rebels are not following rules of international law in their hostility.
In that case, if they do not have any organized force under a commander or if hostility is
not general but localised, the State is an insurgency. Thus, belligerency is of a more serious
nature than just insurgency.
Recognition of belligerency follows the following effects-
a. The relations between recognized Governments of belligerent authority and recognised
states are governed by international law rather than municipal law.
b. As soon as a belligerent Government is recognised, the rules of international law apply
to the conflict and hostilities.
The distinction between Recognition of Insurgency and Belligerency-
1. Meaning-
Insurgency is rebelling against lawful Government, whereas belligerency is waging
war against the Government.
2. Nature-
Insurgency denotes the State of political revolt, whereas belligerency denotes civil
war within the State.
3. Stage-
Insurgency denotes the State of political revolt, whereas belligerency denotes civil
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Prof. S.D. Bhosale
war within the State.
4. Characteristics-
The stage is called insurgency when-
(i) Rebels do not follow rules of international law of hostility.
(ii) Rebels do not have any organized force under a commander.
(iii) Hostility is more localized than generalized nature.
Whereas, in belligerency-
(i) Belligerent follow rules of International law of hostility.
(ii) Belligerency has organized force under a specific commander.
(iii) In belligerency, the nature of hostility is general and not limited to a specific
area of territory.
5. Purpose of Recognition-
Recognition of insurgency is merely an assertion of fact that the rebels are in a
position to exercise authority over the territory in their possession. It is granted for practical
purposes. At the same time, Recognition of belligerency is the acknowledgement of a
judicial fact that a state of hostility exists between two factions contending for power or
authority.
6. Effect on status-
Insurgents are treated as a public enemy unless recognised as insurgents, whereas
belligerents are not treated, so they get some rights as per international law.
7. Effect of Recognition-
Recognition of insurgency confers de facto authority on insurgents within the
territory under their control, whereas Recognition of belligerency confers an international
status to the belligerents for the purpose of war.
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