STATE RECOGNITION AND ITS LEGAL CONSEQUENCES:

AN ANALYSIS
(Project Report)

Submitted to:
Mr. Mohd. Atif Khan
(Faculty, Public International Law)

Submitted By:
Bhavana khatwani
B.A. LLB (Hons.)
Semester-IV, Sec-A, Roll No. 43

Submitted on: 06.03.2018

Hidayatullah National Law University

Uparwara post, Abhanpur, New Raipur (C.G)
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 ACKNOWLEDGMENTS

I feel highly elated to work on the project “STATE RECOGNITION AND ITS LEGAL
CONSEQUENCES: AN ANALYSIS”. The practical realization of the project has obligated
the assistance of many persons. Firstly I express my deepest gratitude towards Mr. Mohd.
Atif Khan, Faculty of Public International Law, to provide me with the opportunity to work
on this project. His able guidance ship and supervision in terms of his lectures were of
extreme help in understanding and carrying out the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing extensive
database resources in the library and for the internet facilities provided by the University.

Some typography or printing errors might have crept in, which are deeply regretted. I would
be grateful to receive comments and suggestions to further improve this project.

Bhavana Khatwani

Semester-4th

Roll No. 43

Section A

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 TABLE OF CONTENTS

Subject Matter Page number

Acknowledgement 2
Research Methodology 4
Introduction 5
State Recognition 6
Theories of Recognition 7
Modes of Recognition 9
Legal Consequences of State 10
Recognition
Conclusion 14
References 15

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Objective
 To analyze state recognition and its theories.
 To observe the legal consequences of State recognition.

Methodology

The nature of the study in this project is doctrinal and is primarily descriptive and analytical.
This project is largely based on secondary & electronic sources of data. Books & other
reference as guided by faculty of Public International Law are primarily helpful for the
completion of this project

Research Questions

 What is state recognition?

 What are different theories and modes of recognition?
 What are the legal consequences of recognition?

Chapterisation

Chapter 1 has introduced the research project by talking about state recognition.

Chapter 2 has focused on the theories and modes of recognition.

Chapter 3 has focused on legal consequences of recognition.

Mode of Citation

19th edition blue book form of citation is used in this research project.

Scope of Study

This research paper deals with concept of State recognition and its legal consequences.

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 INTRODUCTION

International society is not an unchanging entity, but is subject to the flow of political life.
New states are created and old units fall away. The international community witnesses
territorial changes in the political map of the world. New States are born out of the existing
States, or old States disappear by merging with other States, or splitting into many new
States. Revolutions occur and new governments take over. For example, after disintegration
of the Socialist Federal Republic of Yugoslavia, starting in 1991, many new states have
emerged, viz. Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Slovenia, Serbia
and Kosovo. A new state of South Sudan has emerged from Sudan in July 2011. The
members of the international community cannot remain indifferent to these developments. It
is for them to approve or disapprove these changes. It is through recognition; a state
expresses its approval of the change in the State or the government that has occurred.
Recognition is concerned with the status of the new entity (a) on the international scene and
(b) within the municipal legal system of the recognizing State. Through recognition, a State
manifests its willingness to maintain necessary international intercourse with the new entity
or the government. Recognition is a unilateral act of cognitive nature of a recognizing State,
which is followed by certain legal consequences.

The act of recognition bestows on the new State a status under international law and
municipal law vis-a-vis the recognizing State. It indicates the willingness of the recognizing
State to initiate international intercourse with the new territory. It is legally relevant because
it provides an evidence of the Statehood of the new entity, i.e., the new entity fulfils all the
required conditions. Once the state is recognized, it carries with it all the appended privileges
of membership of the society of States. It entitles the new entity to conclude treaties and
establish diplomatic relation with other nations, and creates corresponding obligations for
those nations under international law. It also bestows upon the new entity certain rights and
privileges as a sovereign State under the municipal law of the recognizing State. The act of
recognition itself entails a distinct legal effect and that after recognition a state or government
would have enforceable rights within the domestic jurisdiction that it would not have had
prior to the recognition.

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 STATE RECOGNITION

In the opinion of Schwarzenberger, “Recognition is a means by which States express their

willingness to acknowledge vis-a-vis themselves the existence, and legal effect, of a situation
or transaction which, in absence of such recognition, would not be opposable to
them.”1Oppenheim states that through recognition, the recognizing State declares that “a
foreign community or authority is in possession of necessary qualifications of Statehood, of
governmental capacity, or of belligerency.2 Different criteria are applied in the recognition of
a State. Before a new entity is recognized as a State, it should fulfill the essential attributes of
Statehood as mentioned in the Montevideo Convention,3i.e., population, defined territory, a
government and the capacity to conduct its international relations independently.

According to the Institute of International Law, the recognition of a new State is the free act
by which one or more States acknowledge the existence on a definite territory of a human
society politically organized, independent of any other existing State and capable of
observing the obligations of international law, and by which they manifest therefore, their
intention to consider it a member of the international community.4

In State practice, definiteness of territory is not held as a sine qua non for recognition of a
new entity, as is evident in the case of Israel which was recognized immediately upon its
independence on May 14, 1948, by the United States and many other nations. Similarly, the
requirement of a stable and effective government for Statehood has not been applied
rigidly.5When a State comes into existence, its recognition also covers the recognition of its
government.

But in spite of possessing the essential attributes of Statehood by a community or a

government endowed with special qualifications, it may be denied recognition for the simple
reason that recognition is more a political act than the legal obligation which makes the
subject of recognition very difficult. International law does not provide any machinery for an
authoritative declaration; neither does it provide any precise rules or principles on the issue.

1
G. Schwarzenberger, A Manual of International Law, 5 th ed. (Steven & Sons Ltd., London), 1967, p.67
2
L.Oppenheim, International Law, Vol. 1, 9 th ed., 1952, p.127
3
Article 1 of the Convention.
4
Article 1 of the Resolution adopted at Brussels on April 23, 1936, in 30 AJIL Supp., p. 185 (1936)
5
The former Belgian Congo (later Zaire, and now from June 1997 as Republic of Congo), Burundi and Ruanda
were granted independence when they were without effective government; R. Higgins, Development of
International Law through the Political Organs of the United Nations, 1963, pp. 21-23

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 THEORIES OF RECOGNITION

There are basically two theories as to the nature of recognition. The constitutive theory
maintains that it is the act of recognition by other states that creates a new state and endows it
with legal personality and not the process by which it actually obtained independence. Thus,
new states are established in the international community as fully fledged subjects of
international law by virtue of the will and consent of already existing states.6

One of the major criticisms of this law is the confusion caused when some states recognize a
new entity, but other states do not. Hersch Lauterpacht, one of the theory's main proponents,
suggested that it is a state's duty to grant recognition as a possible solution. However, a state
may use any criteria when judging if they should give recognition and they have no
obligation to use such criteria. Many states may only recognize another state if it is to their
advantage.

In 1912,. L. Oppenheim had the following to say on constitutive theory: International Law
does not say that a State is not in existence as long as it is not recognized, but it takes no
notice of it before its recognition. Through recognition only and exclusively a State becomes
an International Person and a subject of International Law.7

Disadvantage of this approach is that an unrecognized ‘state’ may not be subject to the
obligations imposed by international law and may accordingly be free from such restraints as,
for instance, the prohibition on aggression. A further complication would arise if a ‘state’
were recognized by some but not other states.

The second theory, the Declaratory theory or Evidentiary theory, adopts the opposite
approach and is a little more in accord with practical realities.8 It maintains that 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 a particular
factual situation. It will be legally constituted by its own efforts and circumstances and will
not have to await the procedure of recognition by other states. This doctrine owes a lot to

6
Crawford, Creation of States, pp. 19 ff. and J. Salmon, La Reconnaissance d’Etat ´ , Paris, 1971. See also R.
Rich and D. Turk, ‘Symposium: Recent Developments in the Practice of State Recognition’, 4 EJIL, 1993, p.
36.
7
Lassa Oppenheim, Ronald Roxburgh (2005). International Law: A Treatise. The Law book Exchange, Ltd.
p. 135.
8
. J. L. Brierly,The Law of Nations, 6th edn, Oxford, 1963, p. 138; I. Brownlie, Principles of Public
International Law, 6th edn, Oxford, 2003, p. 87.

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traditional positivist thought on the supremacy of the state and the concomitant weakness or
non-existence of any central guidance in the international community.

According to declarative theory, an entity's statehood is independent of its recognition by

other states. The declarative model was most famously expressed in the 1933 Montevideo
Convention.

Article 3 of the Convention declares that statehood is independent of recognition by other

states. In contrast, recognition is considered a requirement for statehood by the constitutive
theory of Statehood. The Badinter Arbitration Committee was of the opinion that a state was
defined by having a territory, a population, and a political authority.

For the constitutive theorist, the heart of the matter is that fundamentally an unrecognized
‘state’ can have no rights or obligations in international law. The opposite stance is adopted
by the declaratory approach that emphasizes the factual situation and minimizes the power of
states to confer legal personality.

The act of recognition by one state of another indicates that the former regards the latter as
having conformed to the basic requirements of international law as to the creation of a state.
Of course, recognition is highly political and is given in a number of cases for purely political
reasons.

Practice over the last century or so is not unambiguous but does point to the declaratory
approach as the better of the two theories. States which for particular reasons have refused to
recognize other states, such as in the Arab world and Israel and the USA and certain
communist nations,9 rarely contend that the other party is devoid of powers and obligations
before international law and exists in a legal vacuum. The stance is rather that rights and
duties are binding upon them, and that recognition has not been accorded for primarily
political reasons. If the constitutive theory were accepted it would mean, for example, in the
context of the former Arab non-recognition of Israel, that the latter was not bound by
international law rules of non-aggression and non-intervention.

Probably the truth lies somewhere between these two theories. The one or other theory may
be applicable to different set of facts.10

9
39 Bulletin of the US Department of State, 1958, p. 385.
10
J.G Starke, Introduction to International Law, Tenth Edition, 1989, p.133

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 MODES OF RECOGNITION

Recognition may be of different forms but basically are of two kinds- De facto and de jure
recognition. The practice of States shows that in the 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 on it. That is why, it is sometimes said,
de facto recognition of State is a step towards de jure recognition.

 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. However, the effects of de jure
recognition are more far-reaching. In the words of Oppenheim, “The de facto recognition of a
State 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 yet offer prospects of complying other requirements
of recognition such as, willingness or ability to fulfill international obligations.”11

In the view of Judge Lauterpacht, de facto recognition shows that the recognizing State
wants to establish its relations with the recognized 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 materialize.”12

11
L. Oppenheim. International Law, Vol. 1, Eighth Edition, pp. 134-135
12
L. Oppenheim. International Law, Vol. 1, Eighth Edition, pp. 136

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  De Jure Recognition

De jure recognition is granted when in the opinion of recognizing State, the recognized State
possesses all the essential requirements of statehood, and it is applicable 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. 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 obligations.13Further, “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 relations.”14De jure recognition is
final, and once given cannot be withdrawn. As pointed out earlier, for de jure recognition and
the intention to establish diplomatic relations are necessary.

Differences between two Recognitions

In Defacto recognition diplomatic relations are not established formally. They are established
only by granting dejure recognition. According to jurists there is hardly any difference
between the two and if at all there is any difference it is political rather than legal. Prof.
Keelson states that the distinction between two recognitions is not important .Any
codification of international law relating to recognition can ignore it.
But according to Lauterpatch there are certain differences between the two, they have pointed
out that in case of succession only the state, which has been granted dejure recognition will
be deemed to be the successor state.
Defacto recognition is provisional and Dejure is final recognition. Defacto government
enjoys same immunities as a dejure state does. However diplomatic courtesies and
representation are usually not accorded to Defacto government except in extraordinary
circumstances occurring in times of war.
There is no difference for the present purpose between a government recognized as dejure
and one recognized as Defacto.

13
H.A Smith, Great Britain and the Law of Nations, Vol 1, p.79
14
Philip Marshal Brown “Legal Effects of Recognition”, A.J.I.L., (1950), p. 617 at p.639

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 LEGAL CONSEQUENCES OF RECOGNITION

Recognition has international legal consequences attached to it, recognition of state is

basically, for instance where State grant recognition to an entity, it accepts that they will have
relations, subject to international law on basis of 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 in compliance 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”15

In the majority of cases, it can be accepted that recognition of a state or government is a legal
acknowledgement of a factual state of affairs. Nevertheless, it should not be assumed that
non-recognition of, for example, a state will deprive that entity of rights and duties before
international law, excepting, of course, those situations where it may be possible to say that
recognition is constitutive of the legal entity. In general, the political existence of a state is
independent of recognition by other states, and thus an unrecognized state must be deemed
subject to the rules of international law. It cannot consider itself free from restraints as to
aggressive behavior, nor can its territory be regarded as terra nullius.

States which have signed international agreements are entitled to assume that states which
they have not recognized but which have similarly signed the agreement are bound by that
agreement. For example, the United Kingdom treated the German Democratic Republic as
bound by its signature of the 1963 Nuclear Test Ban Treaty even when the state was not
recognized by the UK. Non-recognition, with its consequent absence of diplomatic relations,
may affect the unrecognized state in asserting its rights or other states in asserting its duties
under international law, but will not affect the existence of such rights and duties. The
position is, however, different under municipal law.

15
Text adopted by the International Law Commission at its first session, in 1949

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Because recognition is fundamentally a political act, it is reserved to the executive branch of
government. This means that the judiciary must as a general principle accept the discretion of
the executive and give effect to its decisions. The courts cannot recognize a state or
government. They can only accept and enforce the legal consequences which flow from the
executive’s political decision, although this situation has become more complex with the
change in policy from express recognition of governments to acceptance of dealings with
such entities. Recognition gives certain rights, privileges and immunities. These include:

 Diplomatic relations with other states can be formed.

 Treaties between States can be formed. Former treaties before recognition come to an
end unless renewed.
 State gets the right to sue and to be sued.
 Bring immunities and privileges from the recognized states.
 State Succession is possible.
 De Jure recognition by majority of nations makes way for membership in the United
Nations Organization

Although recognition is essentially a political act, it is one that entails important legal
consequences. Recognition involves legal effects both in the international level and in the
domestic level. If an entity is recognized as a State, it will be entitled to rights and subjected
to duties that would not be relevant otherwise, and it will enjoy privileges and immunities of
a foreign State before the national courts of other States, which would not be allowed to other
entities.

(A) International effects of recognition

Apart of all the theoretical arguments involving the constitutive and declaratory theories, it is
accepted that recognition of a State or government is a legal acknowledgement of factual
situations.16 Recognition entails the recognized State the enjoyment of rights and the
subjecting to duties prescribed in International Law for States.

Recognition of a State by another State does not lead to any obligation to establish diplomatic
relations or any other specific links between them. Nor does the termination of diplomatic
relations automatically lead to withdrawal of recognition. These remain a matter of political
discretion.

16
H. Lauterpacht, Recognition in International Law, Cambridge (1947)

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It should not be assumed that non-recognition of a State or government would deprive that
entity rights and duties under International law. It is well established in International Law that
the political existence of a State is independent of recognition by other States, and thus an
unrecognized State must be deemed subject to the rules of International Law. Unrecognized
State is entitled to enjoy certain rights and be subject to many duties. It has the rights to
defend its integrity and independence, to provide for its conservation and prosperity and
consequently to organize itself as it sees fit. The exercise of these rights by unrecognized
State has no other limitation than the exercise of the rights of other States according to
International Law. Moreover, unrecognized State is subject to most of the rules of
International Law, such as those related to the law of wars, and is bound by its agreements.

Non-recognition, with its consequent absence of diplomatic relations, may affect the
unrecognized State in asserting its rights against unrecognizing States, or before their national
courts. However, non-recognition will not affect the existence of such rights, nor its duties,
under International Law.

(B) Internal Effects of Recognition

Recognition entails the recognized State the rights to enjoy privileges and immunities of a
foreign State before the national courts, which would not be allowed to other
entities. However, because recognition is essentially a political act reserved to the executive
branch of government, the judiciary branch must accept the discretion of the executive branch
and give effect to its decisions. The national courts can only accept and enforce the legal
consequences that flow from the act of recognition. They can accept the rights of a foreign
government to sue, to be granted immunities or to claim other rights of a governmental
nature. They can give effect to the legislative and executive acts of the recognized State. In
the case of non-recognition, national courts will not accept such rights. In this context,
recognition is constitutive, because the act of recognition itself creates the legal effects within
the domestic jurisdiction of a State.

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 CONCLUSION

There is no such thing as a uniform type of recognition. Recognition is one of the most
uncertain aspect of Public International law. There is no hard fast set rule for recognition in
the International sphere. There are many different ways of recognition like ‘de jure
recognition’, ‘de facto recognition’, ‘formal recognition’ etc. As per my findings, I conclude
that the recognition of a State by any other recognized States is more or less a politically
motivated act on the part of the recognizing State. I believe that due to absence of any
concrete procedure, the recognizing State will of course take into consideration the
advantages and disadvantages to it as a result of recognizing a State. In my point of view,
recognition for a State means merely to decide that, whether it is suitable for its needs or not.
Constitutive theory and Declaratory theory are two theories of recognition of states. As per
my research, I have come to conclude that recognition is declaratory as well as constitutive
act. It is declaratory of a simple fact of existence of political community after ascertaining
facts of Statehood in the functioning way. On such declaration of statements, recognition is
constitutive of certain legal consequences. Once recognition is accorded, there ensue certain
legal effects. By the grant of recognition, legal recognitions are established between
recognizing and recognized States and their relations are governed by the rules of
international law. As per my findings in the project, an unrecognized State also needs to act
in compliance with the International rules, and the recognition is just a criteria to politically
bring the entities under a common head. Legal effects of recognition should apply to states
which are not recognized by some States but recognized by others, because more or less
personal benefits plays a role in the recognition by these states and hence, this cannot be an
important ground for providing certain legal rights.

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 REFERENCES

 Dr. S.K. Kapoor, International Law and Human Rights, 18th Ed., Central Law Agency
 S.K. Verma, An Introduction to Public International Life, 2nd Ed., Satyam Law
International
 Ian Brownlie, Principles of Public International Law, 7th Ed., Oxford University Press
 Malcolm N. Shaw, International Law, 6th Ed., Cambridge University Press

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