An Overview on Recognition of State in International Law

(Special Project Report)

Submitted To:
Mr. Md. Atif Khan
Faculty Member in Public International Law

Submitted By:
Puneet Sameeksha Xalxo
B.A. LL.B (HONOURS) Student
Semester IV, Section –C, Roll No: 118

HIDAYATULLAH NATIONAL LAW

UNIVERSITY
Atal Nagar, New Raipur – 492002 (C.G.)

Date of submission: 03-12-18

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 ACKNOWLEDGEMENTS

This research paper could not have been completed without the help of my Public
International Law Faculty Guide, Mr. Md. Atif Khan. His constant guidance and suggestions
regarding the format and subject matter regarding the project has been very helpful. I take
this opportunity to also thank the University and the Vice Chancellor for providing extensive
database resources in the Library and through Internet.

Lastly, I thank my dear parents, brother for their constant encouragement without whom this
work would not have been possible.

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 CONTENTS

ACKNOWLEDGEMENTS .............................................................................................................. 2
CONTENTS .................................................................................................................................. 3
INTRODUCTION .......................................................................................................................... 4
RESEARCH OBJECTIVE ................................................................................................................ 6
LITERATURE BOOKS AND ARTICLES ........................................................................................... 6
REASEARCH METHODOLOGY ..................................................................................................... 6
SOURCES OF DATA ..................................................................................................................... 7
RESEARCH QUESTION ................................................................................................................ 7
HYPOTHESIS ............................................................................................................................... 7
MODE OF CITATION ................................................................................................................... 7
SCOPE AND LIMITATION ............................................................................................................ 7
STATE RECOGNITION ................................................................................................................. 8
THEORIES OF RECOGNITION .................................................................................................... 10
FORMS OF RECOGNITION ........................................................................................................ 13
MODES OF RECOGNITION ........................................................................................................ 14
LEGAL CONSEQUENCES OF STATE RECOGNITION ................................................................... 17
RECOGNITION OF INSURGENCY ............................................................................................... 19
RECOGNITION OF BELLIGERENCY ............................................................................................ 19
BIBLIOGRAPHY ......................................................................................................................... 21

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 INTRODUCTION

Meaning and Definition of the term “RECOGNITION”

According to International Law, Recognition is the formal acknowledgment of the status of
an independent State by other existing states.

According to Prof. L. Oppenheim, “In recognising a State as member of international

community, the existing States declare that in their opinion the new State fulfils the
conditions of statehood as required by international law."1 Fenwick also subscribes to the
view that through recognition the members of the international community formally
acknowledge that the new State has acquired international personality. The Institute of

International Law has defined the term 'recognition' in the following words : it is “The
free act by which one or more States acknowledge the existence of a definite territory of a
human society politically organized independent of any other existing States and capable of
observing obligations of international law by which they manifest through their intention to
consider it a member of international community.” 2According to Kelsen, a community to be
recognised as an international person must fulfill the following conditions : (1) The
community must be politically organised ; (2) It should have control over a definite territory ;
(3) This definite control should tend towards permanence ; and (4) The community thus
constituted must be independent.3 Thus the conditions of a Statehood are (a) People ; (b) a
territory ; (c) a government ; and (d) sovereignty. “Recognition of a State is an act by which
another State acknowledges that the political entity recognized possesses the attributes of
statehood.” 4In short, we may say that through recognition, the recognising State
acknowledges that the recognised State possesses the essential conditions of statehood.
However, international law does not provide as to how these essential conditions are to be
determined. In fact, international law leaves members of international community free to
determine by themselves whether the recognised States contain the essential condtions of

1
L. Oppenhiem, International Law, vol.1Eighth Edition, p.127. See also Oppenhiem’s International Law Ninth
Edition, Longman Group UK Ltd. and Mrs. Tomoko Hudson,1992,pp.127,128 and p.132
2
Charles G. Fenwick International Law(1971), p.156
3
see A.J.I.L (1936), Vol.30 supplement, at p.185
4
Hens Kelsen” Recognition in International Law”, A.J.I.L. Vol.55(1941), p.605 at pp.607-8.

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statehood. It is because of this reason that very often recognition is said to be a political
diplomatic function.5

 Every State has to have some essential features, called attributes of statehood, in order for
other States to recognize the State as independent.
 States are considered as the principal persons in International Law.
 The recognition of a state is often a political act of a state.
 Recognition is not a conclusive proof of the existence of the state.

5
Philip c. Jessup, A Modern Law of Nations(1948),p.63.

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 RESEARCH OBJECTIVE
 To study the ‘Recognition of State in Public International Law”.
 To study the legal consequences of State recognition
 To study theories and modes of State recognition in Public International Law.

LITERATURE BOOKS AND ARTICLES

 DR.S.K.KAPOOR, INTERNATIONAL LAW AND HUMAN RIGHTS6- The Chapter

XIX of this book deals with subject of the research project, i.e. STATE
RECOGNITION.
 DR.H.O.AGARWAL, INTERNATIONAL LAW AND HUMAN RIGHTS7- The Chapter
VIII of this book deals with the subject of STATE RECOGNITION AND ITS
LEGAL CONSEQUENCES

REASEARCH METHODOLOGY

This research is descriptive and analytical in nature. Secondary sources have been largely
used to gather information and data about topic. Other references as guided by Faculty
have been primarily helpful in giving this project a firm structure. Help has also been
taken from web site, reference books etc.

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(19TH Edition,Central Law Agency)(2014)
7
(19TH Edition , Central Law Publications)(2013)

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 SOURCES OF DATA
Secondary sources have been mainly used for making this project such as books, articles, and
internet websites.

RESEARCH QUESTION
Q.1. What is State Recognition (Public International Law Concept) and what are its legal
consequences?
Q.2 What are the different theories of State recognition in International Law?
Q.3 What are the different types of modes with regard to State recognition in Public
International law?

HYPOTHESIS

The problem of ‘Recognition of States and Governments’ has neither in theory nor in
practice been satisfactorily solved as the term ‘Recognition’ points to two entirely different
acts, not clearly separated either in theory or in practice. The solution to this Problem is that it
must above all furnish a clear distinction between the two functions known as ‘Recognition.’

MODE OF CITATION
The 19th edition of the Bluebook has been used for standard formatting uniformly throughout
the project.

SCOPE AND LIMITATION

This project concerns itself to the in-depth analysis of ‘State Recognition.’ This project traces
the origin, different theories and also modes of Recognition. Then it concerns itself with the
Legal consequences in Judicial Proceedings.

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 STATE RECOGNITION
To recognize a community as a State is to declare that it fulfills the conditions of statehood as
required by international law. If these conditions are present, existing States are under the
duty to grant recognition. In the absence of an international organ competent to ascertain and
authoritatively to declare the presence of requirements of full international personality, States
already established fulfill that function in their capacity as organs of international law. In thus
acting they administer the law of nations. This rule of law signifies that in granting or
withholding recognition States do not claim and are not entitled to serve exclusively the
interests of their national policy and convenience regardless of the principles of international
law in the matter. Although recognition is thus declaratory of an existing fact, such
declaration, made in the impartial fulfillment of a legal duty, is constitutive, as between the
recognizing State and the new community, of international rights and duties associated with
full statehood. Prior to recognition such rights and obligations exist only to the extent to
which they have been expressly conceded or legitimately asserted by reference to compelling
rules of humanity and justice, either by the existing members of international society or by
the community claiming recognition., These principles are believed to have been accepted by
the preponderant practice of States. They are also considered to represent rules of conduct
most consistent with the fundamental requirements of international law conceived as a system
of law. However, while followed in practice with some regularity, they cannot be regarded as
having been uniformly acted upon or clearly perceived by governments. Neither have they
secured the assent of the majority of writers on the subject.8

After the break-up of the former Soviet Union and the former Socialist Federal Republic of
Yugoslavia in the early 1990s the topic of recognition in international law lay dormant for
several years until in February 2008 it was revived, perhaps not unexpectedly, with the
unilateral declaration of independence of Kosovo and the controversy about its recognition as
a sovereign and independent State by some 51 States (as of 15 October 2008). The topic
recently gained further prominence when in August 2008 the Russian Federation recognized
the statehood of Georgia’s breakaway regions of South Ossetia and Abkhazia; a move
followed so far only by Nicaragua.

8
H. Lauterpatch, Recognition of State in International Law, 53Yale L.J.(1944)

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These developments have again raised interest in the question of a possible recognition of the
“Nagorno-Karabakh Republic” and its government by foreign States. This article briefly sets
out some of the general principles of recognition of States and governments in international
law.

The term “recognition,” when used in the context of recognition of States and governments in
international law, may have several different meanings. It may indicate the recognizing
State’s willingness to enter into official relations with a new State or government, or manifest
its opinion on the legal status of a new entity or authority, or both. The subject has been
complicated by the introduction of several variants of the term. Distinctions between “de
facto recognition,” “diplomatic recognition” and “de jure recognition” may be traced back to
the secession of the Spanish provinces in South America in early 19th century. Like
“recognition,” these terms can be given meaning only by establishing the intention of the
authority using them within the factual and legal context of each case. Recognition is a
unilateral act performed by the recognizing State’s government. It may be express or
implicit. There is probably no other subject in the field of international law in which law and
politics are more closely interwoven. However, that does not mean that recognition, in the
sense of expressing an opinion on the legal status of an entity or authority, is a purely
political act that is within the discretion of the recognizing State. Recognition, if unfounded
in law (such as premature recognition) and backed by State activity, may constitute an
internationally wrongful act which gives rise to State responsibility. Recognition of States
must be distinguished from recognition of governments, each form having its own theories
and practices.

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 THEORIES OF RECOGNITION
Recognition of a State is more of a political concept than a legal concept because there are no
specific rules for recognition of a State.

There are two popular theories laid down for the purpose of understanding the nature of
recognition:

 Constitutive Theory
 Declarative or Evidentiary Theory

3.1 Constitutive Theory

According to this theory, recognition clothes the recognized State with rights and duties
under International law. Recognition is a process through which a political community
acquires international personality by becoming a member of family of nations. Hegel,
Anzilloti, Oppenheim, etc. are the chief exponents of constitutive theory. In the words of
Professor Oppenheim, 9"A State is, and becomes, an international person, through,
recognition only and exclusively." "According to the constitutive theory, statehood and
participation in the International legal order are attained by political group only in so far as
they are recognised by established State10. Holland also supports the Constitutive theory. In
his view, recognition, confers maturity upon State and until and unless a State is recognised,
it cannot acquire rights under International law. In the view of Judge Lauterpacht,
Constitutive theory is the practices of the State and is based on sound legal principles. The
practice of most of the States, however, indicates the contrary. In practice most of the States
accept the declaratory theory. In this connection, Judge Lauterpacht has remarked that the
wide acceptance of Declaratory theory is due to the reaction against the traditional conception
of recognition as a political act purely and simply. In his view, there is a legal duty on the
part of the State to recognize any community that has in fact acquired the characteristics of
the statehood.

According to this theory, recognition is a necessary condition for statehood and personality. It
is a process by which a political community acquires personality and becomes a member of
the family of nations. A State comes into existence through recognition only and exclusively.

9
Oppenhiem: see supra note 1,at p.125
10
P.E. Corbett, The Growth of World Law (1971), p.62

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Examples:

 Poland and Czechoslovakia were recognized by the instrumentality of the Treaty of

Versailles.
 Germany was divided into two parts after the World War II by a treaty
 Korea was divided into two parts

3.1.1 Criticism
Jurists have criticized the Constitutive theory. The view of Judge Lauterpacht that there is
legal duty on the part of the existing States to recognize any Immunity that has in fact
acquired the characteristics of statehood, does not seem to be correct. In practice, State do not
accept any such obligation. “The practice indicates, however, that although established States
normally recognize new States and new governments that in fact exist, they have not
consented to law norms that obligate them to do so11. Besides this, the Constitutive theory
presents several other serious difficulties. According to this theory, if a State is not
recognized it can have neither duty r rights under international law. This is a very absurd
suggestion. If we accept this proposition, it will create difficulties in the case of new State
which is recognized by some Sates but not recognized by others. The examples of China and
Bangladesh can be cited in this connection. China was not recognized by America and other
Western countries for a number of years although China possessed all the essential attributes
of State. But to assert that China, therefore, did not have rights and duties under international
law would be an absurd proposition. Similarly, Bangladesh was not recognised for sometime
by China, Pakistan, Albania, etc.
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
recognising state.

3.1.2 Disadvantages of the theory

 Recognition is political and diplomatic but not legal. This theory imposes an obligation
on all member states to recognize a State. Practically, no states wants to do something on
obligation.
 There is no law the obliges established states to recognize new States.

11
Edward Collins, International Law in changing World(1969),p.88

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 Recognition of a State can be done by few States and others might refuse. According to
this theory, the recognition should be done by all the States.
 Palestine is recognized as country by 80 nations thought it does not have a definite
territory, population and a definite Government.
 Israel is formed in 1947 by the United Nations Organization. Within few hours, many
countries too recognized it. However, India recognized it in 1992.


Declarative Theory or 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 acknowledgment
through which established facts are accepted. The act of recognition is merely declaratory of
an existing fact that a particular State or government possesses the essential attributes as
required under international law. The chief exponents of this theory are Hall, Wagner,
Brierly, Pitt Corbett and Fisher. According to Prof. Hall, a State enters into the family of
nations as of right when it has acquired the essential attributes of statehood. Pitt Corbett has
expressed the view that existence of a State is a matter of fact. In his words, “So long as a
political community possesses in fact the requisites of a statehood, formal recognition would
not appear to be a condition precedent to acquisition of the ordinary rights and obligaitons
incident thereto.” Brierly has also remarked, “the granting of recognition to a new State is not
a 'Constitutive' but a 'Declaratory' act. A State may exist without being recognized and if it
exists 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 State12." The Soviet view and practice are also in favour of the
declaratory theory of recognition.
According to the Soviet view, birth of a State is the act of internal law rather than that of
international law13. In modern times international personality does not depend upon
recognition.14

This theory states that declaration is a mere formality and has no legal effect as the existence
of a State is a mere question of fact.

12
J.L. Brierly. The Law of Nations, Sixth Edition (1946),p.139
13
see Kazimierz Grozybowski Soviet public International Law(A.W. Sijthoff, Leyden(1970), p.69.
14
Ibid at p.70 M. Lach has also observed : “We face today the waning legal importance of recognition. Non-
recognition based on political considerations has lost most of its meaning. it no longer produces all effects it
was meant to in the past.” “ Recognition and modern Methods of International Cooperation. “BYBIL, Vol.XXXV
,(1959),p.252 at p.259

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Every new state becomes a member of the family of nations ipso facto by its coming into
existence. Recognition only provides the evidence to this fact. This theory says recognition is
not important.

3.2.1 Criticism
This theory has also been subject to criticism. The view that recognition is only a declaratory
of an existing fact is not completely correct15. 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.

3.2.2 Disadvantages
The theory fails to explain legal rights and consequent of a recognized state.

Example: Taiwan is a democratic country and is adjoining areas where Chinese territory.
Only few countries recognize Taiwan yet it had business dealings with almost every country.

FORMS OF RECOGNITION
Express Recognition

 An existing state recognizes another state by releasing a public statement by way of

notification or a declaration announcing the intention of recognition
 Grant is expressed in written words

Implied Recognition

 Does not release a formal state but recognizes the state by some acts which imply that
the state is being recognized.
 Unilateral Acts
 State entering into bilateral treaty establishes diplomatic relations with an
unrecognized state.
 Collective Acts
 A new state is recognized collectively by the existing states.

15
See Oppenheim supra note 1 at p.128

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 MODES OF RECOGNITION
Recognition may be of two kinds—De facto and de jure recognition. The practice of States
shows that in first stage the State generally give de facto recognition. Later on, when they are
satisfied that the recognized State is capable of fulfilling international obligations, they confer
de Jure recognition on it. That is why, it is sometimes said, de facto recognition of State is a
step towards de jure recognition.

5.1 De Facto Recognition

According to Prof. G. Schwarzenberger, “When a State wants to delay the de jure recognition
of any State, it may, in the first stage grant de facto recognition.” The reason for granting de
facto recognition is that it is doubted that the State recognized may be stable or it may be able
and willing to fulfill its obligations under international law. Besides this, it is also possible
that the State recognized may refuse to solve its main problems. De facto recognition means
that the State recognized possesses the essential elements of statehood and is fit to be a
subject of international law.

It is extended where a govt. has not acquired sufficient stability. It is provisional (temporary
or conditional recognition. It is not legal recognition. However, it is recognition in principle.
Three conditions for giving de-facto recognition. (i) permanence (ii) the govt. commands
popular support (iii) the govt. fulfills international obligations.

However, the effects of de jure recognition are more far-reaching. In the words of
Oppenheim, “The de facto recognition of a State or government takes place when, in the view
of the recognising 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 yet offer prospects of complying other requirements of recognition such as, willingness or
ability to fulfill international obligations16."In the view of Judge Lauterpacht, de facto
recognition shows that the recognizing State wants to establish its relations with the
recognised State without establishing diplomatic relations. As remarked by Prof. Oppenheim,
De facto recognition is, in a sense, provisional and liable to be withdrawn if the absent
requirement of recognition fails to materialize17.”In the view of Judge Philip C. Jessup, “De
facto recognition is a term which has been used without precision when properly used to
mean the recognition of the de facto character of a government, it is objectionable and indeed

16
see Oppenheim, see supra note 14,at pp.134-135
17
Ibid at p.136

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could be identical with the practice suggested of extended recognition without resuming
diplomatic relations.18”

5.2 De Jure Recognition

De jure recognition is granted when in the opinion of recognizing State, the recognized State
or its Government possesses all the essential requirements of statehood, and it is capable of
being a member of the international community. As pointed out by Prof. H.A. Smith, the
British practice shows that three conditions precedent are required for the grant of de jure
recognition of a new State or a new Government The three conditions are as (i) A reasonable
assurance of stability and permanence ; (ii) The Government should command the general
support of the population; and (iii) It should be able and willing to fulfill its international
obligations19. Further, “Recognition de jure results from an expressed declaration or from a
positive act indicating clearly the intention to grant this recognition such as the establishment
of diplomatic relations20." De jure recognition is final, and once given cannot be withdrawn.
As pointed out earlier, for de jure recognition and the intention to establish diplomatic
relaitons are necessary.

This is a permanent recognition which one granted cannot be taken back or withdrawn by
other States. It is regal and rightful. State will have only one Governments. Exchange of
diplomatic representatives takes places. State succession happens smoothly. de jure
recognition by majority states his essential for UN membership.

It is legal recognition. It means that the govt. recognized formally fulfills the requirement
laid down by International law. De-jure recognition is complete and full and normal relations
can be maintained.
De-facto recognition of a state is a step towards de-jure recognition. Normally the existing
states extend de-facto recognition to the new states or govts. It is after a long lapse of time
when they find that there is stability in it that they grant de-jure recognition. Such practice is
common among the states. The essential feature of de-facto recognition is that it is
provisional and liable to be withdrawn.

18
Philip C. Jessup. A Modern Law of Nations, p.57.
19
H.A. Smith, Great Britain and the Law of Nations, Vol.1 p.79
20
Phillip Marshall Brown” Legal Effects of Recognition”, A.J.I.L., (1950) , P.617 at p.639.

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5.3 Distinction between De facto and De jure Recognition
As observed by Prof. G. Schwarzenberger, "De jure recognition is by nature provisional and
may be made dependent on conditions with which the new entity has to comply. It differs
from de jure recognition in that there is not yet a formal exchange of diplomatic
representatives. De jure recognition is complete, implying full and normal diplomatic
relaiton."In the words of Kelsen de jure recognition is final, whereas de facto recognition is
only provisional and thus may be withdrawn21."According to Prof. Oppenheim, so far as the
legislative and other internal acts of the State recognized are concerned, there is hardly any
difference between de facto and de jure recognition22. Following are the differences:
(a) De-facto recognition is provisional while de-jure recognition is final,

(b) De-facto recognition may be made dependent on conditions with which new states have to
comply; de jure recognition does not leave scope for further conditions being final and
conclusive in itself.

(c) Diplomatic exercise and representations are usually not accorded to de-facto governments.
Dejure recognition implies full and normal diplomatic relations.23

This rule has been applied in a number of cases. For example in Bank of Ethopia v. National
Bank of Egypt, and Liquori,24 the court ruled that in view of the fact that the British
Government granted recognition to the Italian Government as being the de facto Government
of the area of Abyssinia, which was under Italian control, effect must be given to an Italian
decree in Abyssinia dissolving the plaintiff bank appointing liquidator.
Another leading case on the point is The Arantzazu Mendi.25 The facts of the Arantzazu
Mendi case are as follows :
The Arantzazu Mendi was a Spanish ship registered at Bilbao, After the occupation of Bilbao
by insurgents led by General Franco, the republican Government of Spain passed a decree
taking the Arantzazu Mendi in its possession. At this, the ship was in the High Sea i. When
the ship reached London on August 11,1937, the onwer of the ship held a writ for taking
possession of the ship. The ship was arrested by the Admiralty-Marshall The Republican
Government made a conditional appearance as the defendant. In March, 1938, General

21
“Recognition in International Law”, AJIL, vol.35 (1941), p.605 at p.612.
22
Oppenheim see supra note 14 at p.136
23
Jaiprakash Kakada, Point out the difference between Defacto & Dejure recognition
24
(1937) Ch. 517
25
(1939) A.C. 256

16
Franco passed a decree taking the said ship and other ship in his possession. Till April, 13,
the owners of the ship consented to the decree in General Franco and declared the ship to be
under him. On the same day, the Republican Government issued a writ but the officers of the
Government of Franco argued that the same was ineffective because it was against a foregin
Sovereign State which does not consent to be under its jurisdiction. The Republican
Government of Spain was a Government recognised de jure by Britain while the National
Government under General Franco was a Government recognised de facto by Britain. The
House of Lords dismissed the writ and declared the warrant of arrest as invalid. Lord Atkin
observed : “By 'exercising de facto administrative control' or 'exercising effective
administrative control' I understand exercisng all the functions of a Sovereign Government. It
necessarily implies the ownership and control of property whether for military or civil
purposes, including vessels whether warship or merchant ships. In those cirumstances, it
seems to me that recognition of a Government as possessing all those attributes in a territory
while not subordinate to any other Government in that terrtory is to recognise it as sovereign,
and for the purposes of international law as a foreign State." He further observed: There is
ample authority for the proposition that there is no difference for the present purpose between
a recognition of a State de facto as opposed to de jure. For these reasons I think it was
established by the foregin office letter that the National Government of Spain at the date of
writ was a foreign State and could not be impleaded.”

LEGAL CONSEQUENCES OF STATE

RECOGNITION

Legal effects of recognition in judicial proceedings

The recognized state or Govt. acquires the capacity to enter into diplomatic relations and
treaties. She acquires the right to suing in the courts of the recognizing state. The state can
claim immunity od diploatic representatives.
The legal effects of recognition differ depending on the forum. While in international and
continental European courts recognition has only probative value, in English and American
courts an official statement of recognition or non-recognition by the forum government is
conclusive evidence as to the legal status of a foreign authority or entity as, according to the

17
“one voice doctrine,” in matters of foreign affairs the judiciary and the executive are to speak
with one voice. The forum government’s position may be introduced in the judicial process
by way of a Foreign Office certificate, amicus curiae brief or statement of interest. 26 The
question of recognition may determine access to the courts (locus standi), privileges and
immunities, the legal status of individuals, the right to recover State property in the forum,
and the judicial cognizance of foreign legal acts. The traditional (English) common law rule
of “non-recognition, non-cognizance,” according to which a State or government that is not
recognized as such does not exist in the eyes of the law, has been mitigated by the
courts, inter alia, by giving retroactive effect to recognition, treating an unrecognized
authority as the “subordinate body” of a recognized State, and by giving effect to the laws
and legal acts that regulate the day-to-day affairs of the people in an unrecognized State or
government.
Recognition in contemporary international law is generally seen as a declaratory act. This is
indeed the only plausible explanation in situations where a new state emerges consensually
and in the absence of territorial illegality. Unilateral secession and territorial illegality,
however, create different legal circumstances in which the applicable rules of international
law imply and even presuppose that (collective) recognition could have constitutive effects.
The article thus suggests that the interpretation of the legal nature of recognition and non-
recognition should not start on the premise that recognition always merely acknowledges the
fact of the emergence of a new state. This is not to say that states cannot exist without being
recognised. Rather, the legal effects of recognition may depend on the mode of a certain
(attempt at) state creation.

Legal effects of recognition:

(i) Right to sue:
The recognized state becomes entitled to sue in the court of recognized state.
(ii) Establishment of diplomatic relation:
In case of de jure recognition diplomatic relation are established.
(iii) Application of the rules of international law:
The rule of international law apply to the recognizes state.
(iv) Right of succession:
The recognized states become entitled to get property situated in the foreign state.

26
Khabakh.org, Recognition of State and International Law, Nov. 2008

18
(v) Sovereign immunity:
The recognized state become entitled to sovereign immunity for itself its property in the court
of recognizing states.

RECOGNITION OF INSURGENCY
Insurgency denotes the state of political revolt in state. Insurgency, presupposes civil war.27
Insurgency is condition to show the political revolt in a country where the rebels have not
attached the character of belligerents. In fact, Insurgency is an intermediate stage between
tranquility and belligerency. The effect of insurgency is that it partially internationalizes the
conflict. In the view of Judge Lautherpatch, it is not against International Law to recognize
insurgent as a de facto government over the territory under their conduct. Following are the
essentials of Insurgency:
 Control over a considerable part of the country.
 Considerable support to the insurgents from the people living there in.
 Insurgents should have capacity to carry out International obligation.

RECOGNITION OF BELLIGERENCY
When the insurgents are well organised, conduct hostilities according to laws of war and have
a determinate territory under their control they may be recognized as belligerents whether or
not the parent state has recognized it as state. The belligerence is in fact the final status of
three stages of the ascending intents of the conflict which presents a ‘violent challenge to the
sovereign authority within a state’. “Recognition of belligerency is the acknowledgement of a
juridical fact that there exists a state of hostilities between factions contending for powers of
authority. Following are the conditions for recognition of belligerency:
 The armed character is to be of general character.
 The insurgents occupy and administer a considerable portion of their nation
territory.
 They create hostilities through armed forces.

27
Kelsen “Recognition in International Law”, AJIL, Vol 11(1971),p.605 at616

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 CONCLUSION

To conclude it can be said that recognition is a process through which a political community
acquires international personality by becoming member of the nations. De facto and de jure
are two important modes of acquiring recognition. De facto recognition is step toward de jure
recognition.
It would appear that the support for the declaratory theory is partly legal and partly the more
politically correct position. The constitutive theory does still attract some legitimacy, possibly
partly due to the way it appears to be applied surreptitiously by tribunals. The difficulty with
the either/or approach is that there is an interrelation of the two sides of the question. The
declaratory theory concentrates on the internal factual situation and the constitutive theory
concentrates on the external legal rights and duties. They both miss a portion of the analysis.
Furthermore, the two sides of the issue interact between themselves. By having rights a
collective group may become more cohesive and may begin to have an internal political
dialogue. Recognition alone does not create the internal factual situation of statehood, but
may help to inspire such coalescence. Nationalism is not unknown in many apparently highly
artificial states. However, recognition of the factual situation merely acknowledges facts and
does not mean there are necessarily international rights, although it can lead to it.
Every act of recognition must necessarily contemplate both aspects, but generally one will be
the predominant legitimizing force (though it could conceivably change retrospectively).
When we choose between the recognition theories proposing the existence of the state prior
to or only following recognition, we are choosing to concentrate our definition of the state on
one of these two aspects of the state and, from that source, derive the other. It is to this
conclusion that the re-emergence of the constitutive theory leads us.

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 BIBLIOGRAPHY

BOOKS

1. Dr.H.O.Agarwal, International law and Human Right, 19th ed.2013 Central law pub.

2. Dr. S.K. Kapoor, International Law and Human Rights, 19thed. 2014

WEBSITE
 http://www.lawnotes.in/Recognition_of_a_State
 http://karabakh.org/articles/recognition-of-states-and-governments-in-international-
law/
 http://internationallawu.blogspot.in/2012/11/recognition-de-facto-and-de-jure.html
 http://www.preservearticles.com/2012011020478/point-out-the-differences-between-
defacto-and-dejure-recognition.html

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