RECOGNITION OF

STATES
Recognition?

■ International Community works on the principle of co-option- i.e. assimilation of new

members. For this purpose, one tool is recognition.
■ Institute of IL defined ‘recognition’ as “the free act by which one or more States acknowledge
the existence of a definite territory of human society political organised, independent of any
other existing States and capable of observing obligations of IL by which they manifest
through their intention to consider it a member of the international community.”
■ Therefore, recognition is the act by which a State acknowledges that the political entity
recognised possesses the attributes of statehood- people, territory, government, sovereignty.
■ However, IL does not provide how these essential conditions are to be determined. It leaves it
to the States themselves to decide. As a result, recognition has become more of a politico-
diplomatic function.
Theories of recognition
Constitutive Theory
■ According to this theory, it is only through recognition that political community
acquires international personality and becomes subject to rights and duties under IL.
■ Oppenheim- “In recognising a State as a member of the international community, the
existing States declare that in their opinion, the new State fulfils the conditions of
Statehood as required by IL. A State is and becomes an international person through
recognition only and exclusively.”
■ Holland- Recognition confers maturity upon State and until and unless a State is
recognised, it cannot acquire rights under IL.
■ Other proponents of the Constitutive Treaty are Hegel, Anzilotti
■ Criticism- Under this theory, if a State is not recognised, it can neither have duties or
rights under IL. This is absurd- results in a complicated situation esp. where a State is
recognised by a few and not recognised by others. China and Bangladesh
Declarative theory
Statehood or authority of the new Government exist prior to and independent of recognition.
Recognition is merely formal acknowledgment through which established facts are accepted; i.e.
it is merely declarative of an existing fact that the particular State possesses the essential
attributes of statehood as required by IL.
-Hall, Wagner, Brierly, Pitt Corbett, Fisher.
Hall- A State enters into the family of nations as of right when it has acquired the essential
attributes of statehood.
Pitt Corbett - The existence of a State is a matter of fact. So long as a political community
possesses the requisites of Statehood, formal recognition would not be a condition precedent to
acquisition of ordinary rights and obligations incident thereto.
Soviet view- birth of a State is a matter of internal law as opposed to international law.
Criticism- view that recognition is merely declaratory of an existing fact is incorrect. In fact,
when a State is recognised, certain legal effects follow- these legal effects maybe said to be
constitutive in nature.
Oppenheim- Recognition is declaratory of an existing fact but constitutive in nature. It is
declaratory of the simple fact of existence of a political community after functionally
ascertaining facts of statehood. It is also constitutive of certain legal consequences.
MODES OF RECOGNITION

There are two modes- de facto and de jure recognition.

a) De facto recognition-
A state that possesses the essential elements of Statehood is fit to be a subject of IL.
However, the sustainability of these essentials are doubted and therefore, it is granted de
facto recognition. As Oppenheim has mentioned, de facto recognition is provisional and is
liable to be withdrawn if an absent requirement fails to materialize or one of the existing
requirements ceases to exist. De facto recognition is recognition without resuming
diplomatic relations.
b) De jure recognition
Granted when in the opinion of the recognizing State, the recognised State possesses all the
essential requirements of Statehood and is capable of being a member of the international
community. Prof H A Smith noted that the Br practice showed that there were three
condition precedents for grant of de jure recognition- a) A reasonable assurance of stability
and permanence, b)Government commanding the general support of the population c)able
and willing to fulfil international obligations. De jure recognition is final- once given, it
cannot be withdrawn. It also involves establishment of diplomatic relations.
Difference between de facto and de jure
recognition
De jure recognition
■ Full and unconditional recognition
■ Once given, cannot be withdrawn
■ Because it is recognition of the fullest
degree, involves the establishment of
diplomatic relations
De facto recognition
■ Provisional, conditional recognition
■ Liable to be withdrawn if conditions are
fulfilled
■ Lesser degree and therefore, diplomatic
relations are not established; i.e., diplomatic
courtesies and representations are not
usually accorded to a de facto government
except in extraordinary situations like war
However, in terms of legal effects or consequences of recognition, there is no difference between de facto
and de jure recognition. Both of them entail the same legal consequences.
Luther v Sagor- There is no distinction between de facto and de jure recognition for the purpose of giving
effect to the internal acts of a recognised authority.
June 1918- Russia nationalised timber and other industries. Consequently, mill of the plaintiff was
acquired. August 1920, representatives of the Government entered into a contract with the defendant to sell
some timber. The plaintiff requested the Court to declare that all goods purchased by the defendant were
his property. The defendant contended that since the industries were nationalised under an act of a
sovereign government, the plaintiff could no longer claim ownership. Decided in favour of the defendant
and held that there was no difference in de facto and de jure recognition- in both cases, the recognised
State has the right to be treated by the recognising State as an independent Sovereign State. Its decision to
nationalise industries as a an independent Sovereign State cannot be invalidated by the Court.
Arantzazu Mendi case- After occupation of Bilbao by insurgents led by General Franco, republican
government of Spain passed a decree taking a ship named Arantzazu Mendi into its possession. When the
ship reached London, the owner of the ship filed a writ for taking possession. General Franco passed a
decree taking the said ship and another one into his possession. On the same day, the Republican
Government issued a writ but officers of Franco argued that the writ was ineffective as it was against a
foreign sovereign State that does not consent to be under the jurisdiction of the Republican Govt. The
Republican Govt was the recognised de jure by Britain and the Govt under Franco was recognised de
facto. HoL dismissed the writ saying the writ issued by the Republican Government was a writ of a foreign
Government that did not apply against the Sovereign State of Bilbao. Any Government exercising de facto
administrative control is exercising all the functions of a sovereign government. Awarding recognition
under such circumstances is to recognise that the said entity is sovereign and for the purposes of IL, a
State. Thereby, writ of one sovereign nation cannot be enforced against another sovereign nation.
LEGAL EFFECTS OF RECOGNITION

Recognition is a politico-diplomatic function but entails certain legal consequences. The

recognised State acquires certain rights, privileges, and immunities under IL and municipal law.
Once recognised, the following are the main effects:
■ The recognised State becomes entitled to sue in the courts of the recognising State;
■ The courts of the recognising State give effect to the past and present legislative and
executive acts of the recognised State
■ De jure recognition- Establishment of full diplomatic relations including application of rules
of IL regarding diplomatic privileges and immunities.
■ Sovereign immunity
■ Succession and possession of property situated in the recognising State
CONSEQUENCES OF NON-RECOGNITION

Non recognition has political and legal consequences.

■ A decision to withhold recognition can be a powerful political weapon depending upon
the power of the recognising and unrecognised State- diplomatic and consular relations,
prestige, access to foreign loans, aid, trade.
■ Unrecognised State cannot sue in the Courts of the non-recognising State
■ Absence of diplomatic relations
■ Diplomatic representatives of the unrecognised State do not possess immunities from
legal processes in foreign States.
■ Not entitled to have property situate in foreign States.
CONCLUSION

Therefore, recognition serves an important function of ensuring that only those regimes that clearly
deserve such status are accepted as government of States; assuring new Governments that others will
respect their status; informing courts and govt agencies of the recognising States of the other State.
However, as discussed earlier, IL does not prescribe how to ascertain if the essentials of statehood
have been satisfied. As a result, recognition remains to be a socio-political function- largely
determined by political expediency and self interest. Recognition has been recognised as the weakest
link in IL. Recognition is granted prematurely to sympathetic regimes and is protractedly withheld
from unsympathetic regimes.
For the proper functioning of the doctrine, recognition decisions must be based solely on whether the
new government is in control of that State. Phillip Jessup has suggested the matter be subjected to a
collective decision. He viewed that the decision be made by a declaration of the UNGA- i.e. make
recognition a matter under international collective control.