CHAPTER 3

STATE RECOGNITION

Recognition of States

Qualifications of a STATE:

An entity in order to be called a State should possess essential attributes of statehood such as population, territory, a government and the capacity to enter into relations with other States. This is as per the MONTEVIDEO convention of 1933.

When possession of these attributes in a State is acknowledged by other existing States, it is known as recognition of a State.

 Recognition may therefore be defined as formal acknowledgement by the existing members of the international community of the international personality of a new State. The grant of recognition establishes that the new State, in the opinion of existing recognizing States, fulfils the conditions of statehood required by International Law, so that the new State can be regarded, by the recognizing States, as an International person possessing the rights and duties which International Law attributes to States.

 Practice of States suggests that on many occasions, a new State is not recognized by other States even if the former fulfils the essential conditions of statehood and on some occasions, recognition is granted even if the new State does not possess all the attributes of statehood.

 It is said, therefore, that the acknowledgement of the possession of the attributes of statehood in a State depends upon the discretion of the existing States.

The discretionary and unilateral power is exercised in accordance with the policy of a State. For instance, although Israel was established in 1948, some Arab States have withheld recognition of Israel. The United States refused to recognize People’s Republic of China for many years despite the fact that it was a State. The discretionary power implies therefore that recognition of States is a political act of a State. It is not an additional attribute of statehood. Consequently, withholding of recognition is not to be taken necessarily as the denial of the existence of a State. Recognition therefore is not the existence of a State.

Attempting a Law on Recognition of States:

Recognition is granted to a State mainly on political considerations. It was therefore thought that regulation of this topic by means of international convention is neither desirable nor feasible. However, Harvard Research began a study of the question of recognition but did not make sufficient progress to be able to prepare a draft convention.

The International Law Commission, after realizing the importance of the topic, in its first session held in 1949 included ‘Recognition of States and Government’ as one of the topics in the provisional list of fourteen topics considered suitable for codification.

 Later on, the topic was removed from the programme of the Commission on the ground that the ‘questions of recognition pertain to the province of politics rather than of law’. Thus, at present, rules regarding recognition are not well settled. In the absence of any codified rules, the topic of recognition is governed by the State practice and judicial decisions.

Theories of Recognition:

The legal significance of recognition is controversial. This has led to the emergence of different theories which are as follows: -

1. Constitutive Theory: - According to this theory, personality of a State is created not by the fact that it exists as a matter of fact or not, but through recognition by other States. In other words, an entity does not become a State by possession of essential attributes of statehood. It becomes so, when it is recognized by other States.

It implies that other States constitute the personality of a State by granting recognition. This theory has been advocated by Anzilotti and Holland. According to them a new entity cannot become a State ipso facto. It has to be recognized by other States so as to become an international person. The theory attaches great importance to the act of recognition.

            CRITICISM:  The constitutive theory suffers from a number of defects which are as follows:

            (1)        When a State comes into possession of all the attributes of statehood, it is   not necessary that its existence is recognized by other States simultaneously. The timing of recognition may be different from one State         to another. It therefore always happens that at a particular time, a State has been recognized by some States only. For instance, while China was recognized by the United States in the year 1979, many other States had granted recognition earlier.

 Similarly, Bangladesh was recognized by Pakistan much after the recognition granted by India and some other States. In practice, this situation always arises when a new State comes       into existence. The acceptance of the constitutive theory would mean that a State exists for some States (which have granted recognition) and does not exist as such when it comes to other states. This situation shows that recognition is not a conclusive proof for the existence of a State.

(2)        Recognition is a political act of a State. If this theory is accepted, it would mean that the fate of the new State would be determined by other States. It may be noted that recognition by no means produces subjects of International Law. It is not desirable to give discretionary rights to the existing States, whose acts are guided not by any legal norms, to decide the status of the new entity. 

(3)        Recognition is the acknowledgement of the existence of the attributes of statehood in an entity. It implies that a State always exists prior to its recognition. Recognition follows after recognition of facts. Unless and until a State exists, the question of recognition would never arise.  It means that recognition is granted to an entity because it is a state.

(4)        Recognition has a retrospective effect. In other words, when a new State is recognized by other States, the latter is regarded to have recognized all the acts of the former from the date of its establishment. It follows that a State at the time of granting recognition to a new State accepts that it has come into existence prior to its recognition. For instance, although Bangladesh was recognized by Pakistan two years after it came into existence, it recognized all the State acts prior to its recognition.          

(2)        Declaratory Theory: - According to this theory a State comes into existence in International Law as soon as it acquires all the attributes of statehood. By having all the attributes, an entity exists in fact. Recognition by other States supplies the evidence of this fact. The act of recognition is therefore declaration of an existing fact that an entity possesses the essential attributes of statehood.

This theory has been advocated by Hall, Brierly and Fisher. According to Hall ,a State enters into the family of nations as a matter of right when it has acquired the essential attributes of statehood.

 Brierly has stated. “A State may exist without being recognized, and if it does exist in fact, then, whether or not it has been formally recognized by other States, it has a right to be treated by them as a State.”

The advocates of this theory have therefore reduced the importance of recognition by saying that recognition is necessary only because it enables new State to enter into official intercourse with other States. The effect of recognition of a new State by the recognizing State according to this theory is to create a relationship between them. The theory appears to be better than the constitutive theory. However, it still has a defect in the sense that a State although would come into existence by having all the essential attributes of statehood, it would not have legal relationship with other States unless recognized. The theory therefore is not strictly declaratory. It has elements of constitutive theory.

A question arises as to which of the above two theories is correct. It is submitted that neither of them alone is correct.

The practice of States shows that recognition has elements of constitutive theory as well as that of declaratory theory. In order to answer the above question, statehood may be distinguished into natural statehood and juridical statehood.    

 

1. Natural statehood: A State in International Law, comes into existence by possession of all the essential attributes of statehood. At this moment, it acquires natural statehood in the sense that it acquires an international personality, and possesses minimum rights of existence. For instance, its territory cannot be considered to be no man’s land i.e., its territory cannot be evaded or occupied; other States do not have a right to overfly without permission; they must also refrain from subverting its domestic political system. They must also respect the rights of a new State over the high seas and ships flying its flag; its citizens cannot be considered stateless.

 Institute of International Law in its resolution of April 23, 1986 had correctly stated under Article 1 para 3 that the existence of the new State with all the legal effects connected with that existence is not affected by the refusal of one or more States to recognize.

 Thus, a new State possesses natural statehood even if it has not been recognized by any State. It may mean that international legal personality of a State does not depend on its recognition as such by other States.

 The personality is conferred to a State by the rules of International Law and whether or not, a State or government is actually recognized by other States, it is entitled to the rights and subject to the general duties of the international system.

 

1. Juridical statehood: A State acquires juridical statehood when it possesses more specific rights. This statehood can be acquired by a State only when it is recognized by other States. Thus, recognition although is declaratory of the existence of the natural statehood, it is constitutive of judicial statehood. It has been rightly stated that recognition, while declaratory of an existing fact, is constitutive in its nature at least so far as concerns relations with the recognizing State.

It marks the beginning of the effective enjoyment of the international rights and duties of the recognized community. It follows that recognition is constitutive only of more specific rights and not of the minimum rights of existence. The above view taken by Kelsen may be termed as modified constitutive theory, because the recognition constitutes one type of statehood, i.e., ‘juridical’ statehood.

 Natural statehood exists in a State from the moment it comes into possession of the essential elements of statehood. However, juridical statehood comes into being only once it is recognized by other states of the international community.

Forms of Recognition:

A State may be recognized in two ways. They are: express recognition and implied recognition.

(1)        Express Recognition:

When an existing State recognizes the new State by a notification or declaration, announcing the intention of recognition, the recognition is said to be express. In other words, it is granted in express terms. The formal declaration may take the form of public statement, the text of which is sent to the party recognized as a State. A State may be recognized also by sending diplomatic note, note verbale, personal message from the head of State or Minister of Foreign Affairs, or by a parliamentary declaration. The minister concerned may also, by a press statement, expressly declare that an otherwise ambiguous Note or Note verbale constitutes formal recognition. Express recognition may also be granted by the conclusion of a treaty.

Recognition of Bangla Desh by India on December 6, 1971 is an example of express recognition. Similarly, recognition accorded to the three Baltic republics, i.e., Lithuania. Estonia and Lativa as sovereign and independent States by India on September 7, 1991 was also an example of express recognition. The Indian Prime Minister sent the messages to this effect to the Presidents of the three States.

(2)        Implied Recognition:

            When the existing States do not make any formal declaration as to recognition of a new State, but at the same time they indicate their intention to recognize the new State by some acts, it amounts to so called as implied recognition.

Montevideo Convention of 1933 under Article 7 states that the tacit or implied recognition ‘results from any act which implies the intention of recognizing the new State’. The intention may be indicated by the States unilaterally or collectively.

(a)        Unilateral Acts: - 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. There cannot be exchange of diplomatic representative without the presumption that the foreign State exists independently. Similarly, intention may also be inferred by sending representatives to attend ceremonial functions in an unrecognized State. The exchange of consuls, i.e., dispatch and reception of consuls with an unrecognized State also indicates an intention to recognize the new State.

(b)       Collective Acts: - It is said that a new State may be recognized collectively by the existing States. It occurs when an unrecognized State participates in a multilateral conferences or in a multilateral treaty, the other participants of the conference or parties to the treaty are regarded to have recognized the new State if the intention has been indicated. In the absence of an unequivocal intention to the contrary, no recognition is implied in participation in an international conference in which the unrecognized authority takes part or in the conclusion of a multilateral treaty to which that authority is a party. Indication of the intention is therefore the determining point in granting recognition in the above cases. Sometimes, States expressly state that the participation in a conference or signing of a multilateral treaty does not mean that they shall recognize those States which have not been recognized. For instance, U.S.A. and U.K. while signing a convention make a reservation that the signing of a convention does not mean the recognition of those States which have not been recognized by them. Even when a reservation is not made, it cannot be said that participation in a treaty itself is sufficient to regard as a presumption of recognition. However, it is an evidence that the entity in question has achieved some measure of international personality.

            This principle is also applied in the case of international organizations. A new State may be a member of a particular organization but it does not imply that other members States have granted recognition by virtue of the membership of the former State. This is evidence from the practice of States. In the League of Nations, Colombia in 1920 announced that its acceptance recognition of Panama. Some States also refused to recognize the Soviet Union. After the establishment of the United Nations, it appears that it has become a rule that when a State becomes a member of the United Nations it does not involve a collective act of recognition by other members. On December 14, 1950 the General Assembly adopted a resolution entitled ‘Recognition by the United Nations of the Representation of a Member State’ wherein it was expressly declared that the attitude adopted by the General Assembly concerning the question of which of several authorities shall be regarded as the Government entitled to represent a member State “shall not of itself affect the direct relations of individual member States with the State concerned. A State which has become a member of the United Nations is treated by other States as if it has been recognized by other States in dealings inside the United Nations and not elsewhere. This view has been taken by the Secretary General of the United Nations in a Memorandum released on March 8, 1950.

        The Memorandum stated that recognition of a State is essentially a political act. It rejected the view of collective recognition by the membership of the United Nations. Thus, the membership of a new State in the United Nations does not indicate an intention of other States to grant recognition. However, it cannot be denied that if a new State becomes a member, it is regarded to have been recognized by other members for a limited purposes, i.e., in dealing only within the United Nations. This position can at most be said as to what is quasi recognition.

Modes of Recognition:

Recognition may be of two kinds: de facto recognition and de jure recognition. 

 

(1)        De facto Recognition

            When an existing State considers that the new State has not acquired sufficient stability, it may grant recognition to the latter provisionally which is termed de factor recognition. De facto recognition is granted normally when the recognizing State considers that the new State although has a legitimate government, its effectiveness and continuance to govern the territory is doubtful.

 Oppenheim says that de facto recognition takes place when in the view of the recognizing State, the new authority, although actually independent and wielding effective power in the territory under its control, has not acquired sufficient stability or does not as yet offer prospects of complying with other requirements of recognition. The grant of de facto recognition shows willingness on the part of the recognizing State to establish relationship with the new State, but the willingness is given provisionally, i.e., subject to the fulfillment of all the attributes of statehood with sufficient stability. It follows that the true purpose of de facto recognition is a declaration that the body claiming to be the Government of an established or a new State actually wields effective authority, without, however, satisfying other conditions of full de jure recognition. Should these remaining conditions be forthcoming, full recognition that is de jure will become a matter of course; should they remain permanently absent, recognition will lapse automatically or will be finally or expressly withdrawn.

            Thus, de facto recognition may be regarded as a preliminary step towards de jure recognition. The Soviet Union was recognized by Great Britain de facto on March 16, 1921 and later de jure on February 1, 1924.

Similarly, Italian conquest of Abyssinia was recognized de facto by Great Britain in 1936 and de jure in 1938. In these cases, de facto recognition was granted owing to the uncertainty of the situation pending the absence of a definite settlement. Government in these cases were effective for the time being in their territories; but there was no guarantee of the permanence of their rule. The de facto recognition once granted may be withdrawn by the recognizing State when the latter considers that the new State has ceased to possess the capability of administering the territory.

            If the existing States, after granting de facto recognition, later choose to recognize de jure, the effect of the latter is given from the retrospective date, i.e., from the date when the de facto recognition was granted. It is to be noted that by granting de facto recognition to a State, the recognizing Sate secures certain advantages especially economic. It enables it to protect the interest of its citizens in the de facto recognized State. Further, it also enables the recognizing State to acknowledge the external facts of political power, and protect its interest and trade in the de facto recognized State. However, the effect of the de facto recognition is not the same as that of de jure recognition. Normally diplomatic relations are not established with a de facto recognized State. Further, representatives of the de facto recognized State do not enjoy diplomatic immunities within the territory of the recognizing State. However, practice of the State in this regard is not uniform. According to the practice of the United States, representatives of a government recognized de facto enjoy diplomatic immunities.

(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 it commands the general support of the population, the recognition granted is known as de jure recognition. For instance, when Israel came into existence, ‘full’ recognition was expressly granted by many States including the United States of America. Of course, this meant the same as de jure recognition. Thus, de jure recognition is final. De jure recognition may be given, with or without prior to de facto recognition. When a new State comes into existence peacefully and constitutionally, de jure recognition may be granted directly. However, when it is not so, to say when the new State is formed through revolt, recognition may be granted after granting the de facto recognition.

 

Differences between De facto and De Jure Recognition:

It is to be noted that de facto and de jure recognition is an act intended or calculated to give rise to legal rights and obligation. However, there are differences between the two. As far as the internal acts of the recognized authority is concerned, there is no difference between de facto and de jure recognition.

Oppenheim says that ‘recognition de facto is indistinguishable from de jure recognition inasmuch as the legislative and other internal measures of the authority recognized de facto are, before the courts of the recognizing State, treated on the same footing as those of a State or Government recognized ‘de jure’.

 In Luther v. Sugar it was laid down that there is no distinction between de facto and de jure recognition for the purpose of giving effect to the internal acts of the recognized authority. This rule has been applied in numerous cases. For instance, in Bank of Ethiopia v. National Bank of Egypt and Liguori, the Court held that in view of fact that the British Government recognized the Italian Government as being the de facto government of the area of Abyssinia then under Italian Control, effect must be given to an Italian decree in Abyssinia dissolving the plaintiff bank and appointing a liquidator. Further, immunity in the Courts of recognizing State, and a State’s international responsibility for wrongful acts remain the same whether it is ruled by a de facto or a de jure government. In Arantzatzu Mendi case it was held that the Nationalist Government of Spain which was recognized as a de facto government of the part of Spain under its control, was entitled to jurisdictional immunity in an action brought it by the de jure Government of Spain.

Recognition of Government-in-exile:

When an individual or group of individuals residing in a foreign State claims supreme authority over a State which is under the control of another national or foreign authority or a State, and is recognized by some other States and has been performing some acts of a State on behalf of the home State or the State to be created is called government-in-exile. In contemporary international law, the government in-exile may be recognized by other States despite the fact that a government is not an effective government.

            This situation may arise normally in cases of those territories where the State is temporarily occupied by invaders or by usurpers and the government has had to flee to a friendly State pending its return to its own State, or because it represents a rebel community which has not yet succeeded in establishing itself in the territory of which it aspires to be the government. The former situation often occurs in time of war. Where the rebel government is established outside the territory over which it claims authority and before it has acquired sufficient control in the territory may be recognized by other States. It is to be noted that International Law traditionally required a stable and effective government as an element of statehood. This implies that there has to be the factual control of the organs of government and a sufficient degree of international stability, and in its absence, a State cannot be recognized. It is submitted that the traditional requirements of effective government for an entity in order to call a State has become obsolete because of its rigidity. After the creation of the United Nations, the right of self-determination has become a recognized principle of International Law. Since the concept of effective government is against the above principle, it has ceased to be an attribute of statehood. This conclusion would appear to be imperative where the local population is forcibly prevented from exercising the right of self-determination by the belligerent occupation of its territory by a foreign state. An entity without having an effective government may be termed as a State, and therefore be recognized. Its recognition or non-recognition is largely dependent upon the intention of the recognizing State; Non-recognition does not mean that the entity does not qualify for statehood.

            National Front of Liberation in Algeria proclaimed the establishment of the provisional Government of the Algerian Republic on September 19, 1958 in Cairo, Tunis and Rabat. The Algerian Republic achieved recognition by a substantial number of States prior to formal independence granted by France in 1962. Similarly, on November 15, 1988, Palestine Liberation Organisation (PLO) declared the establishment of the independent State of Palestine during an extraordinary session of the Palestine National Council or Parliament-in-exile. The government-in-exile of Palestine was based in Tunisia. Independence of Palestine was recognized by a number of States including India despite the fact that its territory had remained under the occupation of Israel.

Pre-mature or Precipitate Recognition:

Recognition is granted to a new State when it possesses all the attributes of statehood. However, since it is a political act, sometimes, it is granted to an entity even if it does not possess them. Such recognition is termed as pre-mature recognition or precipitate recognition.

 Generally, when the authorities organize a secessionist movement and establish a provisional government in a State for the prospective new State. Recognition of such a Government is granted by other States. It is to be noted that premature recognition given to a State amounts to an unwarranted and illegal intervention in the affairs of the existing State. When some of the African States recognized Biafra as a new State, it amounted to illegal intervention in the internal affairs of Nigeria. Later, when Biafra was defeated, Nigeria might claim damages from those States for having granted premature recognition. Similarly, the recognition of Israel by the United States on May 14, 1948 has been regarded as precipitate recognition. It was granted on the same day the Israeli Act of Independence became effective, notwithstanding same day the Israeli was not by then firmly established.

Conditional Recognition:

The expression conditional recognition implies that the recognition is granted subject to the fulfillment of certain stipulation by the recognized State in addition to the normal requirements of statehood. The concept of conditional recognition was introduced with the Protocol of June 28, 1878 signed on behalf of Great Britain, France, Italy and Germany for the recognition of Serbia. The Protocol stated that they recognize Serbia under the condition that it should not impose any religious inabilities on any of its subjects.

            Conditions are imposed wherein the recognizing State obtains, as the price of recognition, promises and undertakings given for its particular advantages. Oppenheim rightly says that recognition, in its various aspects, is neither a contractual arrangement nor a political concession. It is a declaration of the existence of certain facts. This being so, it is improper to make it subject to conditions other than the existence – including the continued existence – of the requirements which qualify a community for recognition as an independent State. Thus, any condition attached at the time of granting recognition is contrary to the true function of recognition. Once a State has granted recognition is to a new State, It implies that in the opinion of the former, latter possesses all the attributes of statehood. Recognition of the possession of attributes of statehood therefore cannot be conditional. Baty has pointed out that any entry into relations with the new State, as a governing authority, implies recognition of its statehood….. It follows….. that recognition cannot be conditions….. either it is a fact or it is declared that it has satisfied itself that the recognized authority possess the distinguishing marks of a State. It implies that laying down a condition for the recognition is meaningless. If the condition is not fulfilled by the recognized State, it will not annual the recognition, though the relationship between the recognized and recognizing State is likely to become unfriendly.

Consequences of Recognition:

Recognition of a State has two fold consequences i.e., political and legal.

1.  As far as political consequence, recognition of a State shows willingness of the recognizing State to initiate interaction with the new State.

 Recognition is legally relevant for it proves that the recognizing State considers that in its view the new entity fulfils all the required conditions for becoming an international subject. It implies that non-recognition of a State reveals a mode of disapproval of the existence of the conditions of statehood.

1. When a State is recognized, it acquires certain rights in relation to a State which has granted recognition. They are:
2. Firstly, the recognized State may establish diplomatic and consular relations with the recognizing State.
3.  Secondly, the representatives of the recognized State enjoy diplomatic immunities within the territory of the recognizing State.
4. Thirdly, the recognized State may enter into treaty relationship with the recognizing State. The conclusion of bilateral treaties by States is regarded as an evidence of their official recognition of each other.
5.  Fourthly, the recognized State may sue in the courts of the recognizing State, and
6.  Fifthly, the recognized State may claim or receive property situated in the recognizing State. The above consequences led to the existing States to recognize as many States as its policies allow to do so.

Consequences of non-recognition: If a State is not recognized, it does not enjoy the above consequences of recognition. They, in turn, become the disabilities of non-recognition. Thus, the new State will not be able to enter into active relations with those States; treaties will not be concluded and there shall not be exchange of diplomatic agents and so on.

However, non-recognition of a State does not mean that the new entity will be devoid of legal entity in relation to the non-recognizing States. General international rules on the co-ordination of States such as the norms on the high seas or respect for territorial or political sovereignty shall apply to the relationships between the new State and all other members of the international community.

 It is desirable that in order to fulfill one of the purpose of the United Nations i.e., to develop friendly relations amongst the States’, as envisaged under Article 1 para 2 of the Charter, recognition must be granted to a maximum number of States.

Is Recognition a Duty of a State?

Whether States have a duty to recognize a new State is a controversial question. Views of international jurists are different on this issue. Lauterpacht is of the view that once a State has come into possession of all the legal attributes of statehood, there is a duty on all other States to recognize the new State.

 Existing States have a duty to recognize because a new State cannot have legal rights and duties under International Law unless it is recognized by other States.

 Some writers have extended this approach further by asserting that since recognition is precisely the legal means of creating a new international person, it should be a collective function, preferably carried out by the United Nations as a representative of the international legal community, rather than by the variable and arbitrary decisions of many individual States.

            But acceptance of this view would mean that the new State has a right to be recognized by other States. Since International Law does not provide any such right to the new State, and therefore, the existing States do not have any legal duty to recognize a State.

Granting or withholding of recognition is a question of policy than of law, and therefore, recognition of a State depends upon the discretion of a State. The discretionary right is a sovereign act and that cannot be questioned. They deny that in the realm of recognition, a sovereign independent State is under any legal duty to recognize the new State.

            Another view is that recognition is a political act. Recognition of a State depends upon the discretion of a State, and therefore, it is always optional. While in some cases, a State is not recognized even if it possesses all the attributes of statehood, in some other cases, pre-mature recognition is accorded to a State. Institute of International Law in 1936 therefore declared that recognition is a ‘free act’. Whether States have granted recognition or withhold recognition is a matter of policy and not of law. The practice of recognition of a new State is uniform in those cases where the new State comes into existence peacefully and constitutionally.

 Starke lays down that recognition is granted by States according to ‘legal principles and precedents’. At the time of granting recognition, they generally make sure that the State to be recognized at least possesses the requisite legal qualifications. To this degree, Starke says, ‘States do treat recognition as a legal act’. But, in practice, sometimes recognition is withheld for certain political motives and therefore it is a political act in some cases.

If this aspect of recognition is viewed after taking into consideration of the provisions of the Charter of the United Nations, the conclusion may be different. It is to be noted that ‘to develop friendly relations among nations and to take other appropriate measures to strengthen universal peace, as provided under Para 2 of Article 1 and ‘to achieve international cooperation in solving international problems’ as provided under Para 3 of Article 1 are the purposes for the creation of the United Nations. If States do not grant recognition to other States, the above purposes of the United Nations are likely to be defeated because it is difficult to maintain ‘friendly relations’ with an unrecognized State, and consequently, ‘international co-operation’ in solving international problems cannot be achieved.

            It may, therefore, be concluded that States are under a legal duty to recognize a new State if the latter possesses all the essential attributes of statehood. Non-recognition of a new State is unlawful. It is incompatible has been imposed by the World Organization. If it is withheld for certain political motivation, it amounts to a violation of the provisions of the Charter. The World body is required to take necessary steps against such States as it takes in cases of violations of other provisions of the Charter. It may exert its influence for the grant of recognition where it has been withheld by an existing State so that friendly relations may be maintained between them.

Withdrawal of Recognition:

Whether recognition once given by a State may be withdrawn is a question on which there is a difference of opinion amongst the jurists. Before examining the question, it is to be noted that withdrawal of recognition does not mean that in the opinion of a State, other State has ceased to exist. Withdrawal of recognition may mean withdrawal for political reasons from a State which is not overthrown.

One view is that de facto recognition, being provisional in its nature is liable to be withdrawn as soon as it becomes clear that there is no prospect of the requisite conditions of recognition being fulfilled. In October 1918, France withdrew the recognition granted in January of that year to the provisional Government of the Finnish Republic. According to this view recognition is ‘unconditional and irrevocable’. Institute of International Law in a resolution adopted in 1936 also provided that recognition once given is irrevocable. Another view is that recognition is a political act, and therefore, there would seem to be no reason why recognition should not be liable to withdrawal so long as that act like that of granting recognition is an act of policy. If the recognizing State considers that a State has lost its effective control it may withdraw the recognition granted to latter State.

            It is significant to note that if States would start withdrawing recognition of a State on political grounds, they would find a number of occasions for doing so. And if this practice is continued by them the situation would be quite haphazard. Such acts of States are likely to affect friendly relations of the States which, in turn, may affect ‘international peace and co-operation amongst the States. It is desirable that recognition once given by a State is not withdrawn even on political grounds. 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.   

Retroactive Effects 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 USA in 1979, the latter would treat valid all the acts of the former from the date when it in fact came into existence. British and American Courts have adopted this practice. But the practice followed by them cannot be regarded as a principles of International Law. How a State Can legally be bound for those acts of a State when in its opinion it had not possessed the essential attributes of statehood, or in other words, when it was a mere instrumentality of power. If any State does so, it is because of convenience and for maintaining the friendly relations and good understanding. Thus, to give retroactive effect of recognition is a matter of convenience rather than of any principle of International Law. However, in those cases 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.

Recognition of Governments:

After a State has come into existence, its obligations in relation to other States are not affected in consequence “of internal changes” which may take place. Change in the form of the government, or overthrow of a government by an opposing political party are in a sense matters of domestic concern. Change of the government in a State does not mean that it will lose its recognition as an international person. And therefore, recognition of a State is entirely different from the recognition of a government. Recognition of a government means that the recognizing State regard 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 with in the normal course of political life i.e., by constitutional means, or when it is effected through a coup d’etat’. In the former case, i.e., when the change proceeds in a formal and constitutional way, the question of recognition does not arise, or to say, it is purely a matter of formality. Question of withholding recognition of the new government after a change in the government following elections does not arise. In such cases recognition causes no continuation of normal bilateral diplomatic dealings in such a way as to leave no doubt as to the intention to continue recognition. For instance, in India, when Congress regime was replaced by Janata in 1977, or when the former again came in power in 1980, or when Congress was replaced by the National Front Government in 1989 or when Congress again came in power in 1991, the recognition of the regime by other States was not at all a matter of importance.

            However, when change occurs in the regime by revolt or by coup d’etat, or to say in an unconstitutional way, some difficulty arises. The instances of such a change are the People’s Republic of China (1949); Bazaran Government in Iran (1979), Pot Pol Government in Kampuchea and Amir Government in Afghanistan (1979-80) and Rabuka Government in Fiji (1987). In such cases the new regime is required to be recognized by other States. Recognition is normally granted when other States are satisfied as to its stability and also its capacity to control over the people of the territory. Willingness and capacity to carry out its international obligations are also considered relevant before granting recognition to the new government. If the new Government of a State is not recognized either expressly or impliedly no formal official intercourse is possible. The operation of treaties are suspended as long as the new government is not recognized.

The new Government of a State may be recognized de facto or de jure by other existing States. De facto recognition is granted to the new government where the recognition State considers that the (a) new government lacks stability or (b) where the new government is not willing to abide by the rules of principles of International Law or (c) where it is unwilling to settle certain outstanding issues. Thus de factor recognition is granted to the government as a test of control. When the existing States get themselves satisfied that the effective control is likely to continue, they may later on, grant de jure recognition.

            It is to be noted that recognition of a new government, like new State, also depends upon the discretion of existing States. Some States follow the traditional course of recognition or withholding recognition of new governments, whereas other States do not favour this course. The new latter have followed a policy wherein they enter into relations with new regimes, as the circumstances may require or abstain from such relations, regardless of formal recognition or of formal withholding of recognition.

Tobar Doctrine and Estrada Doctrine:

TOBAR DOCTRINE:

On many occasions States have refused to recognize a revolutionary government on the ground that such a government has come into existence after applying force. The five Central American Republics concluded treaties in 1907 and 1923 which embodied the ‘doctrine of legitimacy’ the so-called Tobar doctrine propounded in 1907 by Tobar, the Foreign Minister of Equador in which they bound themselves not to grant recognition to any Government coming into existence by revolutionary means ‘so long as the freely elected representative of the people… have not constitutionally recognized the country, i.e., until such a government has been recognized by its own people in a constitutional manner.

The Estrada Doctrine: The view that non-recognition because of the unconstitutional origins of a government was an interference in its domestic affairs led to the introduction of the so-called Estrada doctrine, propounded by Estrada, the Foreign Minister of Mexico, in 1930, according to which it is a duty of States to continue diplomatic relations with the States without regard to revolutionary change in a country. Estrada doctrine is also sometimes called ‘doctrine of effectiveness’.

            But neither of the above doctrine can be regarded as to have laid down a general rule in International Law. The consideration of effectiveness, i.e., the consideration of stability and the capacity of control over the people of the territory should be taken into account while granting recognition. It is also required to be seen that their emergence to the international field does not violate the basic principles of International Law. In order to maintain friendly relations with the new regime it is desirable to recognize it if these conditions are satisfied. Political considerations which usually dominate in such occasions should not be given much weightage as if a new regime is not recognized, international peace is likely to be affected.

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. When the rebels are recognized, it is known as recognition of belligerency. 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 possession.

 Starke says that before belligerency is recognized by other States, certain conditions must exist. They are: (1) Hostilities should be of a general character. It should not be confined to only a part of a State. In other words, it should not be of a purely local nature. (2) The rebels or insurgents must be in control of a substantial part of national territory. This would justify the inference that they represent a rival power of some magnitude. (3) Both parties must act in accordance with the laws of war. (4) The rebels must have organized force under a proper command. If these conditions are present in the rebels, they may be recognized by other States which in International Law is called recognition of belligerency.

            As to modes of according to recognition of belligerency, a formal proclamation of neutrality involve unequivocal acts of recognition. The result of recognition of belligerency is that both the rebels and the parent government are entitled to exercise belligerent rights are subject to the obligations imposed on belligerent.

            Once the belligerency is recognized by other States, certain consequences follow. Recognizing State can declare its attitude of impartiality in the conflict i.e., it may opt for the attitude of neutrality. This attitude would enable the recognizing State to possess all the rights which the neutral States are normally granted in International Law. Such rights are required to be respected by rival parties involved in a conflict. Likewise, recognizing State is also bound to accord the rights of belligerents to the warring parties such as right of admission of their ships into its port, the right to visit and search at sea.

            It may be concluded that the consequence of recognition of belligerency is that the rules of warfare apply to such hostilities. The civil conflict is transformed into a war governed by International law in all respects. It may be noted that the Geneva Conventions of 1949, wherein many rules have been made which are required to be observed by the warring parties, are applied by the belligerents in time of war and by the parties engaged in a civil war.

Recognition of Insurgency:

When in a civil war, rebels or insurgent forces start operating in such a way that they occupy a large part of the territory formerly governed by a parent government, and they constitute de facto authority over it, the rebels or insurgents may claim some measure of international subjectivity. After the Second World War, a number of cases of internal conflicts occurred. Instance of some of them are: in Greece (1946-49); in Northern Ireland and in Hungry (1956); in Czechoslovakia (1968), in the Congo (1960-61); Yemen (1962-69); Nigeria (1967-70); Nicaragua (1978-79) and the El Salvadir (1979-83).

When the insurgents or rebels are recognized by other existing States, it is known as recognition of insurgency.

Before insurgency is recognized, recognizing State is required to satisfy the following conditions.

 Firstly, insurgents have occupied control over a considerable party of the territory.

Secondly, insurgents have a support from the majority of the people inhabitating the territory. Thirdly, when the rebel forces do not act under the command of an organised authority in possession of considerable territory or when they do not by their conduct offer the necessary guarantees of complying with the accepted rules of war. If the rebels are defeated, or to say, if they fail in their attempt to secede or in the seizure of power, recognition granted to them falls to the ground. However, if the rebels aim at accession, come out successfully in the civil war, the recognition of insurgency is deemed as the first step on the road to recognizing them as a new State.

            As a general rule, when a civil war takes place in a country, other States are not required to interfere in it as it is a domestic affair of a State. Any interference from the international community is bound to bolster insurgents and make them even more dangerous. Oppenheim has rightly stated that for an untimely and precipitate recognition as a new State is more than a violation of the dignity of the parent State. It is an unlawful act, and it is frequently maintained that such untimely recognition amounts to intervention. However, in some cases, it becomes impossible to remain aloof in such a state of affair, and therefore, recognition is granted so as to protect the interest of nationals, property and also for securing commercial intercourse. Further, some States may be inclined to recognize the insurgents on account of political, religious or ideological affinities or because of military or strategic considerations. When the insurgency is recognized by a State, latter protects the insurgents from being treated by it as pirates. It is to be noted that the recognizing State itself acquires no new rights so far as its relations with the insurgents are concerned. De facto recognition of insurgents by the Great Britain in the Spanish Civil War, (1936-39) in regard to the territory under their control is an example of recognition of insurgency.

Distinction between Recognition of Insurgency and Belligerency:            

The State of insurgency and belligerency have certain distinguishing features. If certain conditions are present in the group of rebels it would be known as belligerence otherwise the state would be called insurgency. Thus, if the rebels are not following the rules of International Law in the hostility, or if they do not have any organised force under a commander, or if the hostility is not of general nature but it is localized, the State is known as insurgency. Thus, they differ in degrees despite of having some common factors which one may find in both the cases as that of control over a large part of the territory. It is to be noted that apart from such specific recognition of rebels are belligerents or insurgents they may have some international rights and obligations and thus a degree of personality, under treaties on the laws of war. Thus by Article 3 of each of the 1949 Geneva in 1977, certain basic provisions apply to armed conflicts not of an international character.

A question arises whether a state of insurgency where rebels are fighting without an organised force and without a commander and without following the rules of warfare and where the nature of hostility is almost localized can justifiably be recognized by other States. It has been stated that such an affair should not be recognized. If the insurgents are having control over some territory, and they form an organized authority, and are ready to observe rules of warfare, state of belligerency exists and could be recognized by other States. But if the rebels do not have all these elements, they do not acquire any privileged status should not be recognized. If other States maintain some contacts with insurgents in order to protect their nationals and their property it does not mean that the former has granted recognition to the latter. A State may reasonably demand of unrecognized insurgents protection of the lives and property of nationals within an area subject to their control without according recognition. It is significant to note that the political situation in the state of insurgency remains uncertain and confusing, and if this would begin to be recognized by other States, it would lead to greater tension and conflict in the international relations. The recognition of the state of insurgency should be discouraged also because sometimes it may amount to intervention which is illegal and contrary to the principle of the Charter of the United Nations.