Concept of Recognition under Public International Law

Prof. Oppenheim has defined the recognition as “In recognizing a State as a member of international community the existing State declares that in their opinion the new State fulfills the conditions of the Statehood as required by International Law”.

Conditions for recognition of a new State –

According to Kelsen, a community to be recognized as an international person must fulfill the four conditions –

  • The community must be politically organized;
  • It should have control over a definite territory;
  • This control should tend towards permanence; and
  • The community thus constituted must be independent.

International Law leaves the members of International community free to determine whether the States to be recognized contains essential conditions of statehood. It is because of this reason that recognition is very often said to be a political diplomatic function.

Theories of Recognition-

  • Constitutive theory – According to this theory, recognition clothes the recognized state with duties and rights under International law. Statehood and participation in the international legal order are attained by political groups only in so far as they are recognized by established States. This theory does not conform to the practice of States.

This theory has been criticized by many jurists. According to this theory, unrecognized State can have neither rights nor duties under International law which is a very absurd suggestion.  

  • Declaratory 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 the formal acknowledgement through which established facts are accepted. The act of recognition is merely declaratory or existing fact that a particular State or government possesses the essential attributes of the statehood as acquired under International law.

The view that recognition is only a declaratory of an existing fact is not completely correct. When a State is recognized, it is a declaratory act. But the moment it is recognized, there ensue legal effects which may be said to be of constitutive nature,

Modes of Recognition –

  • De facto recognition – de facto recognition means that the state recognized possesses the elements of statehood and is fit to be a subject of international law. It takes place when in the view of the recognizing state the new authority although actually independent and wielding effective powers in the territory under its control, has not acquired sufficient stability or does not yet offer prospects of complying their requirements of recognition such as willingness or ability to fulfill international obligations.
  • De jure recognition- de jure recognition is granted when in the opinion of the recognizing state the recognized or its government possesses all the essential requirements of statehood and is capable of being a member of international community.

Three conditions precedent are required for the grant of de jure recognition of a new State or a new government as per the British practice, pointed out by Prof. H.A. Smith-

  • A reasonable assurance of stability and permanence;
  • The government should command the general support of the population and;
  • It should be able and willing to fulfill its international obligation

As far as legislative and other internal act of the State recognized are concerned, there is hardly any difference between de jure and de facto recognition. Although in de facto recognition diplomatic relations are not well established.

In Luhter v. Sagor [1] it was held that there is no distinction between de jure and de facto recognition for the purpose of giving effect to the internal acts of the recognized State.

Is there any duty to recognize?

In view of Judge Lautherpacht, international law posits a duty on the existing States to recognize a community as and when it is possess the essential elements of statehood. In practice, States have not consented to any such obligation. Under International Law, there is no obligation of any State to recognize a State as and when it is attains statehood. For example, Bangladesh when it has emerged as a state, China and Pakistan did not recognize it for some time. But by doing so they did not violate any rule of International Law, because a recognition is a diplomatic function and depends upon the discretion of the recognizing State.

Legal effect of recognition

  • The recognized State becomes entitled to sue in the courts of recognizing State.
  • The courts of the recognizing State give effect to the past as well as present legislation and executive acts of the recognized State.
  • In regard to property and diplomatic relations, the recognized State can claim certain immunity;
  • The diplomatic envoys of the recognized state get a number of privileges and immunities in the recognizing State.

Consequences of non-recognition

  • A recognizing State cannot sue in the courts of the State which has not recognized. It has been held in number of cases such as Russian Socialist Federated Soviet Republic v. Cibraria[2], Guarntee Trust Company of New York v. U.S[3]. And U.S. v. Pink[4].
  • The unrecognized State can neither establish diplomatic relations nor enter into a treaty with the States which have not recognized it.
  • Diplomatic representatives of an unrecognized State do not possess privileges and immunities which are generally accorded to the recognized States.
  • An unrecognized State is also not entitled to claim its property situated in foreign country. Leading case law related to this point is Bank of China v. Wells Fargo Bank and Union Trust Co[5].

India’s policy on recognition-

India has, as a matter of routine, accorded recognition to the States as and when they attain Statehood. But in certain cases she is also influenced by certain other considerations. India gave de facto recognition to Israel in 1950 but did not establish diplomatic relations with it until 1992. By exercising her discretion, India did not violate any rules of International Law. India’s policy and practice in this connection conforms to the practice of States as well as the recognized norms of International law.

Implied recognition-

Implied recognition may be inferred when circumstances show that the State concerned has been accepted as a member of international community. In practice such an implied recognition may only be de jure recognition. But under the following circumstances such recognition may also be deemed to be de jure.

  • When the recognized State and the recognizing State enter into a bilateral treaty and formally sign it.
  • The beginning of the formal diplomatic relation and exchange of consuls.
  • Participation of the State concerned in a multilateral treaty.
  • Participation in an international conference.
  • The start of negotiations between the recognizing and recognized States.

Retroactive effects of Recognition-

De jure recognition is said to have retroactive recognition that is after the State is recognized, its act done prior to the date of the recognition are also recognized. This is done to establish friendly relations with the state recognized. In Civil Air Transport Incorporated v. Central Air Transport Corporation[6] it was held that the retrospectively of recognition operates to validate the acts of a de facto government which has subsequently become the new government and not invalidate the acts of previous de jure government.

References –

Dr. S. K. Kapoor, “International Law and Human Rights (Nutshell)” (Central Law Agency, 18th edn.) 18

[1] [1921] 3 K.B. 532

[2] 235, New York of Appeals,255

[3] [1938] 304 U.S. 126

[4] [1942] 315 U.S. 203

[5] [1952] 104 F. Suppl.59

[6] [1953] AC 70

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