Recognition
Recognition of States
• Recognition may be defined as formal acknowledgement by an existing and recognized sovereign state of a newly emerged state.
• Article 3 of the Montevideo Convention on the rights and duties of the states of 1933 stated that,
“The political existence of the state is independent of recognition by the other states.”
Even before recognition the state has the right
✓to defend its integrity and independence, to provide for its conservation and prosperity, and
✓consequently to organize itself as it sees fit, ✓to
legislate upon its interests, administer its services, and
✓to define the jurisdiction and competence of its courts.
The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law
Questions may be raised
What will happen, if the "state" got recognition by some others except the existing states?
• e.g., recognition by United Nations
Article 4 of the UN Charter) Article 4. Membership in the United Nation
open to all other peace-loving states al accept the obligations contained in the present Charter...
What will happen, if an "unrecognized state" does not follow the
international obligations and consider itself as free from such restrains?
Although Israel and many Arab countries are UN members, this did not affect Arab non-recognition of the Israeli state.
Theories
• 1. The Constitutive theory
• The constitutive theory states that recognition of an entity as a state is not automatic. A
state is only a state when it is recognized as such and other states have a considerable discretion to recognize or not. Moreover, only upon recognition by those other states does the new state exist, at least in a legal sense.
The Declaratory Theory
According to this theory:
Recognition is merely an acceptance by states of an already existing situation.
• A new state will acquire capacity in international law not by virtue of the consent of others but by virtue of its own efforts.
• Actual practice leads to a middle position between these two perceptions.
• The act of recognition by one state of another indicates that the former regards the latter as having conformed with the basic requirements of international law as to the creation of a state.
Recognition of Governments:
Recognition of a new government is quite different from the recognition of a new state.
• Recognition of an entity as the government of a state implies not only that this government is deemed to have satisfied the required conditions, but also that, the state will accept usual legal consequence of all its activities and will enjoy all international rights and obligations with such governing authority.
Recognition of Government:
• Doctrine of Effective Control:
• Where recognition has bee refused because of the illegitimacy or irregularity of origin of the government in question, rather than because of the lack of effectiveness of its control in the country, such non recognition loses some of its evidential value.
Example of Effective Control Theory:
• Tinoco Arbitration Case (UK Vs. Costa Rica, 1923)
• Fact: In 1919, the government of Tinoco in Costa Rica was overthrown and the new authorities
repudiated certain obligations entered into by Tinoco with regard to British nationals.
• Held: Since Tinoco administration was in effective control of the country, it was the valid
government irrespective of the fact that a number of states, including the UK, had not recognised it.
De Facto and De Jure Recognition:
De facto recognition implies that, there is some doubt as to the long term validity of the
Government in a question.
• De jure recognition usually follows where the recognising state accepts that the effective
control displayed by the government is permanent and firmly rooted and that there are no legal
reasons detracting from this.
• Example: UK recognised the Soviet government de facto in 1921 and de jure in 1924.
De facto recognition:
• Recognition itself need not to be expressed in the form of an open, unambiguous and formal communication but may be implied in certain circumstances.
• Recognition is founded upon the will and intent of the recognising state. Example:
• A message of congratulations to a new state upon attaining sovereignty • Bilateral treaty between the recognising and the unrecognised state.
