LEGAL CONCEPT OF RECOGNITION OF STATES IN

INTERNATIONAL ARENA
-----Aditi Indrani
INTRODUCTION
Recognition of a new State is often described as a political diplomatic function." "Recognition
or the withholding of recognition is often used as a political instrument to express approval or
disapproval of a new State Government or a territorial change." It may, however, be noted that
"In the practice of States, the birth of a new State, the establishment of a new Government, or a
territorial change, is frequently recognized by states." This is true of India also. Like most other
countries, India has also granted recognition to States and governments as a matter of course or
routine. India has generally accorded recognition to State as soon as the conditions of statehood
were fulfilled." In some cases, however India was also guided by certain other considerations.
There are even some cases in which recognition was not granted by India as a matter of course
or routine.
HISTORY OF CONCEPT OF RECOGNITION:
The concept of recognition is not of the recent origin and dates back in history. It is an institution
that has existed since long time. Its earliest use appeared to be in the Middle Ages when a
political entity in order to become an Independent member of the family of Christian nations
required papal recognition. Tracing from the time of League of Nations, it was believed by many
states that the membership in League of Nations is an automatic passport to gain their
International Recognition.
Two trends could be identified from that era. First, the collectivization of recognition through the
League substantially undercut the pre-existing law of recognition according to which each state
had absolute discretion to grant or withhold recognition to an aspirant state. Second, the
emergence and rise of the principles of self-determination and respect for minority rights
suggested to a would-be state that its human rights behavior would be a factor considered by the
international community in deciding whether to recognize it. Recognition during the period of
League of Nations was a branch of international law rather than an exercise in international
politics. After the First World War, when League of Nations failed to stop the Second World
War, one more body came into existence in 1945 which is known as United Nations. And under
the reign of United Nations, Recognition certifies the legal existence of an entity as State
subject to the benefit and burden of International Law. But, such recognition by the organization
does not require a member state to enter into bilateral relations, or to exchange diplomatic
relations with an obnoxious fellow member

Also the parameters under Article 1 of the Montevideo Convention, which attempts to provide
quintessential of states, could not be considered sufficient for the recognition. Rather to gain
existence as a State, such entities must avoid violating any peremptory norm of International
Law. Also the pretext of collective recognition should be considered as the legal recognition for
any state to be termed as Sovereign.
PRESENT DAY RECOGNITION:
The Law of Recognition is not yet fully developed and majorly remains uncodified in terms of
technicalities and modalities of its operation. As remarked by one writer:
Recognition has been the football of diplomats who have made it mean anything that suited
their purpose. It has certainly been grossly abused as a weapon of diplomatic pressure and
intervention... It has in many cases proved to be an insoluble puzzle to the courts whose
decisions have been sometimes conflicting and confusing.
The law of recognition has escaped strict legal criteria or controls. Recognition per se is a
political act; since its consequences are within the ambit of international law, it may be said that
it is a legal act. In practice, recognition constitutes a political determination, frequently according
to considerations of policy, of questions of mixed international law and fact. And this recognition
is many times delayed because of the reason of national interest of a country or group of
countries. The legal act of recognition determines whether international law is applicable to the
new entity in its relation to other States. The answer to this question - whether the establishment
of the fact that in a given situation 'States in the sense of international law' exist - is within the
jurisdiction of the States concerned. And conventionally this is considered as the unilateral act of
the State.
In the modem world system, along with the rapid growth of a large number of independent
nation States with diverse political, social and economic backgrounds, the subject of recognition
is bound to be of major importance. The importance will continue to be enhanced along with the
marked transition of international law from the traditional system of formal rules of mutual
respect and abstention to an incipient system of formal rules of joint efforts and cooperation.
ESSENTIALS NEEDED TO BE RECOGNIZED AS STATE:
International law states that, an entity which meets the international legal criteria of statehood is
able to be a State. And the Article 1 of the Montevideo Convention on Rights and Duties of
States provides the criteria of the statehood. According the Convention a state should have the
following:
a) A Permanent Population: there must be some people to establish the existence of a State but
there is not a specification of a minimum number of people and again there is not a requirement
that all of the people be national of the state.

b) Territory: the second qualification is territory where the permanent population live on.
However, there is not a necessity of having well- established boundaries as the international
Court of Justice said in the North Sea Continental Shelf cases, ... there is... no rule that the land
frontiers of a state must be fully delimited and defined.
c) Government: A State requires a government that functions as a political body within the law
of the land. But it is not a condition precedent for recognition as an independent State.
d) Capacity: to enter into relations with other states; the fourth and last qualification is about
independency.
RIGHTS GRANTED TO A RECOGNIZED STATE:
1. States have plenary competence to perform acts in the international sphere-make treaties
and so on.
2. States are exclusively competent with respect to their internal affairs-exclusive means
plenary and not subject to control by other States.
3. States are not subject to international process without their consent.
4. States are regarded in international law as equal, it is a formal, not a moral or political
principle.
5. States entitled to benefit from the Lotus presumption, especially that any derogation from
the previous principles must be clearly established.
The states which are not recognized by the countries in the International sphere, could not
exercise these abovementioned rights.
DE FACTO AND DE JURE RECOGNITION:
De-facto Recognition
It is extended where a govt. has not acquired sufficient stability. It is provisional (temporary or
conditional0 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.
De-Jure Recognition.
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.
De jure recognition is of course stronger, while de facto recognition is more tentative and more
connected with effective control of the recognized state over its territory, as when the United
Kingdom recognized the Soviet Union de facto in 1921, but de jure only in 1924. The
assessments or the definitions of the both concepts can be change in different situations but it is
the fact that everything is relevant to the intention of the government concerned and the general
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context of fact and law. De facto recognition can be thought as an attitude of wait and see, since
it includes ambiguity. This method gives the recognizing state the opportunity of acting in
accordance with the political facts and its interests.
Effects of Recognition
Recognition testifies to the will of recognizing states to undertake international dealings with the
new state, it shows that the recognizing states consider the conditions of statehood met colcluded
from Tinoco Concessions v. Costa Rica.1 The recognition or non-recognition by one state is not
binding on other states, but has a certain amount of weight. Recognition is also legally relevant
because it creates estoppel, which prevents the recognizing party from later contesting or
denying the legal personality of the new state.
LEGAL CONSEQUENCES OF RECOGNITION:
Recognition is a unilateral act of a State and one that has international legal consequences, for
instance where State grant recognition to an entity, it accepts that they will have relations subject
to international law on basis of State/State. In practice, like claimed by declaratory theory, the
political existence of a State is not bound to the recognition of other States, therefore an
unrecognized State has to act comply with the international law rules. It means that, when the
States sign an international agreement which is signed by a State they have not recognized, they
will have the right to ask from that state to fulfill the responsibilities grow out of the agreement.
After recognition, the recognizing States would respect to the rights of the new State which
indicated in the International Law Commission Draft Declaration on Rights and Duties of States,
1949, such as right to independence and hence to exercise freely, right to exercise jurisdiction
over its territory and over all persons, right to equality in law with every other State, right of
individual or collective self-defense against armed attack
The participation in the international process is not the only result of recognition, at the same
time the recognised State will be able to enjoy usual legal consequences of recognition such as
privileges and immunities within the domestic legal order. As an example, Plessis lists some
privileges and immunities within the municipal law of United Kingdom as follows:
Only a recognized state or government has locus standi in the UK courts.
Only a recognized state or government (or its agents), may plead immunity from suit. It cannot
be sued without its consent.
Only the legislative, executive or judicial acts of a recognized state or government will be given
legal effect within the United Kingdom

1 (1923) 1 R.I.A.A. 369.

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MODERN TRENDS IN THE RECOGNITION OF STATES:

The dissolution of the USSR is an example of recognition practice and an illustration of modern
trends.
While almost all other states recognized the independence of the former soviet republics, the
European Community has made the recognition contingent on additional requirements relating to
more modern notions of human rights and democracy. The EC adopted a Declaration on the
Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, which
sets down general conditions, requiring a new state:
Respect UN Charter, the Helsinki Final Act, the Charter of Paris, especially with regard to the
rule of law, democracy and human rights
Guarantee the rights of ethnic and national groups and minorities
respect existing borders
Accept relevant arms control commitments; and
To commit to settle through negotiation and by agreement all questions regarding state
succession and regional disputes
Declaration stated that the Community and its members will withhold recognition in cases of
aggression. There are situations where all the requirements for statehood a met, but a state is
not recognized as such by the majority of states. This happens when there is a conflict between
the traditional principle of effectiveness and the modern international law trend of withholding
legitimacy when a situation, albeit effective, contravenes general values of the world community.

LEGAL CONSEQUENCE OF RECOGNITION:

When states are recognizing a situation, e.g. a claim to statehood, which directly implicates
issues of sovereignty-as-title, the legal position depends in part on a distinction between matters
which are mandatory in international law, and those which are left to the states discretion. States
are bound to respect the sovereignty of other states, which includes their territorial integrity and
political independence. If, then, an entity is a state as a matter of international law, all other states
are bound to recognize this, even if they object in some way to that states legitimacy or some
aspects of its policy. Equally, if an entity claims to be a state, but is not, and is formed of the
territory that forms part of an existing state, then other states are bound not to recognize this
because of their obligations owed to the existing state.
Certain other core obligations also operate on this basis, including, most obviously, the
international law relating to the use of force. But in many areas of international relations, states
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remain free to limit their mutual relations. In these areas, then, states can, in effect, choose not to
recognize another entity as a state, even if, as a matter of the basic contours of their
relationship, they are actually bound to do so. Sometimes such a policy is concerned with a
political objection to what may ultimately be a lawful arrangement.
When, however, states in their recognition or non-recognition practice are taking a clear stand on
the question of status itself, this has to be in conformity to the legal position of the entity in
question in order to be lawful. Given the constitutive role that recognition can play, the
possibility arises whereby, in effect, states are seeking through recognition to render lawful
something that would otherwise be unlawful. It is doubtful that states can through recognition
alone render lawful something that would be unlawful as a matter of the law of selfdetermination, because of the jus cogens nature of that law. Just as, and indeed because, the
recognition would not itself alter the illegality of the situation, so the recognition would itself be
unlawful. So, for example, those states who recognized Indonesias occupation of East
Timor between 1975 and 1999 not only failed to alter the illegality of Indonesias claim to title
over East Timor, they also themselves violated their obligations to the people of East Timor
through this process of recognition.

RECOGNITION AND INDIA:

Like most other countries, India has also granted recognition to States and governments as a
matter of course or routine. India has generally accorded recognition to State as soon as the
conditions of statehood were fulfilled." In some cases, however India was also guided by certain
other considerations. Some of such cases in which recognition was not granted by India as a
matter of course or routine are:

CHINA:

Soon after the establishment of the People's Republic of China, the new regime addressed a
communication to all important governments, including India, expressing their desireto enter into
diplomatic relations on the basis of the principles of equality, mutual interest and mutual respect
for sovereign and territorial rights.
The position of the Government of India, though obviously embarrassing, was unmistakably
clear: embarrassing because the leaders of the Government of India had personal relations with
the Chinese Nationalist leaders, in addition, of course, to having the usual formal relations with
the Nationalist Government.
In October last, the Government of India received a communication from the Foreign Minister of
the People's Republic of China, expressing their desire to enter into diplomatic relations with
India on the basis of the principles of equality, mutual interest and mutual respect for sovereign
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and territorial rights. Having considered this communication and taken note of the subsequent
developments, the Government of India has intimated to the new Government of China their
willingness to establish diplomatic relations with them.
When it was clear that the new Chinese Government was in possession of practically the entire
mainland of China, when it was quite clear that this Government was stable, and that there was
no force which was likely to supplant it or push it away, we offered recognition to this new
Government and suggested that we might exchange diplomatic missions. The Chinese
Government had desired to have relations on the basis of "equality, mutual interests and mutual
respect for sovereign and territorial rights."' The basis was accepted at its face value and thought
of as "broad enough," requiring no further "undertakings or assurances."" The Indian recognition
policy toward the new regime of China has a striking similarity to the policy adopted by
Jefferson in the early years of the American Republic.

ISRAEL

Soon after the inauguration of the state of Israel on May 14, 1948, a communication was
addressed by her Provisional Government to foreign governments expressing the hope that they
"will recognize and will welcome Israel into the community of nations." Like most other
governments, the Government of India was also approached by Israel for recognition.
The Government of India's recognition policy toward Israel attracted considerable attention in
the Parliament of India as well as the press of the country. It may be pointed out that the reasons
which prompted the Government of the United Kingdom to withhold every kind of recognition
for about eight months and de jure recognition for as long a time as India took in extending
recognition to Israel were not the same.
The four statements made by the Prime Minister between the formation of Israel in May, 1948,
and India's formal announcement of recognition in September, 1950, clearly indicate the different
stages of the growth of the Indian attitude -which culminated in recognition. India's policy in
relation to Israel was a case where the recognizing country was sure that she had to grant
recognition, the only consideration being the time of the announcement of such a decision.
Therefore, on September 17, 1950, the following one-line announcement was made by the
Government of India: "The Government of India has decided to accord recognition to the
Government of Israel."
Finally, it was stated that "continuing non-recognition is not only inconsistent with the overall
relationship but even limits the effectiveness of the Government of India's role as a possible
intermediary between Israel and Arab states It was also disclosed by the spokesman that a
memorandum had been received by the Government of India from the Government of Egypt
suggesting that recognition should not be granted to Israel. As has been mentioned, the
Governments of the United States and the United Kingdom granted recognition to the
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Government of Israel.68 Similarly, the announcement of the Government of India referred to the
Government of Israel only, without making any mention of the state of Israel.
Further, by recognizing Israel, though not establishing diplomatic relations with her to this date,
the Government of India has clearly provided weighty reason for thinking that it distinguishes
between recognition as a legal act and the establishment of diplomatic relations as a purely
political act, a view confirmed by the state practice of most countries."

BANGLADESH:

Another important case which deserves mention is that of Bangladesh which also evoked
criticisms from certain countries. India recognised Bangladesh on 6th December, 1971. India's
recognition of Bangladesh was widely welcomed inside the country and Indian jurists justified it.
Some Indian writers even expressed the view that the elements of statehood were present in
Bangladesh long before 6th December, 1971.82 On the other hand, India's action was subjected
to criticism and was regarded as premature. Thus while recognition in respect of Israel, Spain,
Vietnam and East Germany had been delayed, India was very quick to accord recognition to
Bangladesh. India was the first country to recognise Bangladesh. This was obviously due to
expedience and political considerations.

COMBODIA:

So is also the case of India's recognition of Royal Cambodian Government headed by Prince
Sinhanouk. On April 1, 1975, India accorded full diplomatic recognition to the Royal
Cambodian Government headed by Prince Sinhanouk in a joint communique issued at the end of
the visit of the Foreign Minister of the Royal Government Mr. SarinChhal who claimed 97 per
cent of the Cambodian territory under control of his government.
IN RELATION TO MODERN CASES:
The modern case law has indicated a shift from the principle that the UK courts may not take
cognizance of acts of an unrecognized state/entity, in as much as a strict enforcement of the no
recognition, no existence rule could lead to much hardship and inconvenience at a private law
level. The first hint of judicial awareness of this came in the 1966 case of Carl Zeiss Stiftung v
Rayner & Keeler (No.2).2 The defendants alleged that Carl Zeiss had no standing to sue, since
the administrative act under which Carl Zeiss had been constituted was an act of East Germany
(the German Democratic Republic, GDR) and the GDR was not recognized by the UK: the
Foreign

2 [1966] 2 All E.R. 536.

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Office had certified that the USSR was recognized as sovereign over the GDR. While the Court
of Appeal saw this as determinative, the House of Lords, in what has been described as an
elaborate fiction, decided that it could give effect to the acts of the GDR on the basis that they
had been lawfully delegated to the GDR by the recognized sovereign, the USSR. This neatly
allowed the courts to circumvent the traditional doctrine of non-recognition to avoid an injustice.
The fiction was that of course the USSR itself recognized the GDR as an independent state.

The next development came from the legislature. Since Lord Wilberforces comments had still
not been approved in the ratio of a case, the traditional doctrine remained that none of the
legislative, executive, judicial or administrative acts of an unrecognized state would be accepted
as valid by a UK court. Thus, a company incorporated in an unrecognized state would have no
legal personality as far as the UK was concerned and could not sue or be sued in the UK courts.
But there was concern that such a position would cause unwarranted hardship to individuals and
damage commercial confidence, so the legislature passed the Foreign Corporations Act 1991
(FCA), which gave companies incorporated under the laws of unrecognized territories legal
personality within the UK legal system. It provided that the consequences of UK non-recognition
of the companys territory of incorporation would not apply to the corporation in question
provided that the territory concerned had a settled legal system. It is clear from the
parliamentary reports that this bill was passed in direct response to the position taken by the
courts following Lord Wilberforce. Emin vs. Yeldag3 appears to be the only case (not governed
by the FCA) where this doctrine is upheld as the ratio of the case, and Lord Wilberforces open
question is finally answered, in which Sumner J. reviewed all of the authorities above and
overturned two previous authorities in deciding to recognize a divorce granted in northern
Cyprus.
RECENT CASE LAW:
The latest case on this issue is the judgment of Mr. Justice Wyn Williams issued in July 2009 in
Kibris Turk Hava Yollari and CTA Holidays v Secretary of State for Transport.4
The case was a judicial review, brought by an airline incorporated in Turkey (and a travel
company) that wished to operate direct flights between the UK and northern Cyprus. The
Secretary of State had refused the grant of an operating permit for such flights on the basis that to
do so would be unlawful, and the applicants sought review of this decision, which was upheld,
the judge agreeing that the authorization of direct flights would have been unlawful. The
judgment contains a fairly detailed consideration of the private acts exception, including the
3 [2000] 2 FLR 707.
4 [2009] All ER (D) 295 (Jul).
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comments of Lord Denning in Hesperides Hotels,5 and the judgment in Emin v Yeldag.6
However, Wyn Williams J states:
I cannot accept that I am entitled to give validity to the acts of the TRNC (as they relate to
international aviation) by virtue of the principles set out in the preceding paragraphs. I accept
without hesitation that many of the acts of the Government of the TRNC as they relate to aviation
are public and international in character. They are not properly described as laws which
regulate the day to day affairs of the people who reside in the TRNC either as described by Lord
Denning or Sumner J This court is obliged to refuse to give effect to the validity of acts carried
out in a territory which is unrecognized unless the acts in question can properly be regarded as
regulating the day to day affairs of the people within the territory in question and can properly
be regarded as essentially private in character.

CONCLUSION & SUGGESTIONS:

The concept of Recognition is of the pivotal importance in International Law. It helps in
understanding the exigencies related to the functioning of a State under various circumstances
and it also outlines the Rights and Liabilities against other States. It provides the basis for the
State to act and comply with certain factors which could be both internal as well as external. De
facto Recognition assumes the importance because it attracts the provisions of International
Humanitarian Law, International Criminal Law and also Domestic Laws, which are concomitant
for the peaceful, orderly and stable functioning of State. But it is followed by a drawback that it
does not provide the exhaustive option to the State in instances of breach of inviolability of the
State. This conclusion is premised upon recent breach of international principle of Recognition.
For instance, the Crimean annexation by Russia, Egyptian turmoil leading to dilapidation of
national economy, Libya catastrophe etc. These are the apt incidents where there was prima facie
breach of international law and no adequate steps were taken in this regard.
India, like most other countries, has accorded recognition to states and governments as a matter
of course or routine. In such cases there is no cleavage between the principles of international
law and the state practice of India. The difficulty arises when recognition of a new state or
government does not serve the interests of the recognizing country. In such cases policy
considerations come to exercise considerable, and sometimes even decisive, influence. The
recognition policy of a country is put to a real test in this situation. In the foregoing pages only
5 ER 1168, [197813.
6 [2000] 2 FLR 707.
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those few cases have been examined in which either the foreign policy of the Government of
India or of an important foreign Power have influenced recognition.
In cases where the situation was doubtful in the initial stages, she preferred to wait and take the
decision in favor of the country when conditions became reasonably stable. In doing so she even
risked misunderstanding by some of her best friends. Policy considerations did exercise a fair
degree of influence in cases where countries had been divided by the big Powers after the second
"World War. So far she has refused to recognize any such divided state.
A substantial measure of effectiveness has been the guiding principle of the Government of India
in recognizing governments. The principle of legitimacy, which has long been discarded by other
countries, has found no sympathy in India.
In India the decision to recognize a particular state or government has always been taken by the
Cabinet at the federal level. The President of India, largely because of Prime Minister Nehru's
personality, is not known to have played any role in these matters. Generally, the Parliament of
India has not exercised any appreciable influence on the recognition policy of the Government,
although in certain controversial cases individual M.Ps have given vent to their feelings on
recognition. As a responsible executive, the Cabinet must have given due weight to them. But in
exceptional cases, as for example the recognition of the state of Israel, Parliament played a role
which was not of inconsiderable importance.
Finally, it may be stated that the Government of India, broadly speaking, falls in line with all
other governments, whose recognition policies have, at times, been influenced by factors other
than those prescribed by international law. But the reasons, in the case of India, have been
unique. Leading nations have given much importance to their security and economic interests in
recognition policies at times, in utter disregard of the generally accepted principles of
international law. India, on the other hand, cannot be accused of being guilty of any such bias. If,
at times, she has attached any importance to them, it has been very short-lived and followed by
the decision to recognize. Whenever extra-legal factors have influenced her recognition policy,
they have been motivated by the desire to save a region from being territorially and politically
dismembered, to help a region obtain its political freedom, and to establish democratic values in
the country in question. These considerations may be of no legal importance, but politically their
importance cannot be exaggerated.

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