Recognition of States

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States
No definition as such
Statehood is a question of fact and not law
Article 1 of the Montevideo Convention on Rights and
Duties of States provides: State under international
law should possess the following qualifications.
1. a permanent population
2. a definite territory
3. government
4. capacity to enter into relations with the other states.

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Montevideo Convention
1933 – On the rights and Duties of States – signed by
the United States and certain Latin American
countries.
Fixed territory is not essential.
Consistency in the nature of territory
State must have a capacity to enter into relations with
the other states.
Kelsen: it is purely a technical notion expressing the
fact that a certain body of legal rules bids a certain
group of individuals living within a defined territorial
area. KDR/IIT KGP/RGSOIPL-2008 3
Law
Requirement of a legal system is a primary condition
of statehood.
Legal system juridically valid
Madzimbamuto v. Lardner – Bruke, [1969] 1 AC 645.
PC held that unilateral declaration of independence of
11 November 1965 and subsequent legislation was
illegal.
UN role in declaring a statehood.
State as a creation of natural law.

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Basic rights
Sovereignty over its subjects and affairs.
Independence and equality of states.
Territorial jurisdiction
Self-defence
Duties:
Not resorting to war.
Carrying out treaty obligation in good faith.
Not intervening in affairs of other states

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Powers
Power to control its own domestic affairs
Power to admit and expel aliens
Privileges of its diplomatic envoys
Exclusive jurisdiction over crimes committed within
its territory.
Savarkar case – 1911
Corfu Channel case - 1949
Eichmann case - 1961
Rainbow warrior - 1986

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Statehood
Sovereignty
Membership of international organisations
Identity and continuity of States

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Recognition of States
It is a mere declaration or acknowledgement of an
existing state of law and fact.
Question of policy rather than law
Unilateral diplomatic act on the part of one or more
states.
Recognition of states and recognition of governments.
Estarda doctrine - 1930-Foreign Minister of Mexico
No definite definition.

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Definition
Institute of International Law:
The free act by witch one or more states acknowledge
the existence on a definite territory of a human society
politically organised,
independent of any other existing states,
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.
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Definitions
Oppenheim: “if the new state fulfils the conditions of
Statehood required by International law.
New states: the nascent community possesses the
requirement of statehood.

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Theories
Constitutive theory – act of recognition alone which
creates statehood.
Declaratory theory or evidentiary theory– act of
recognition is merely a forma acknowledgement of an
established situation of fact.
1949-80 recognition of China
No right of recognition in the Draft Declaration on the
rights and Duties of States – ILC- 1949.

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Constitutive theory (Hegel)
The act of recognition alone which creates statehood
or which clothes a new government become an
authority or status in the international sphere.
Mere act of recognition is sufficient to create
statehood.
Openheim, Kelsen, Lauterpacht and Holand:
“Recognition is indispensable to the full enjoyment of
rights which it connotes.”

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Declaratory theory
The authority of government exist even before
recognition.
Recognition is merely a formal acknowledgement of
an already existing fact.
Formal declaration of an existing fact.
Hall, Wagner, Pitt Cobbet are the exponents of
declaratory theory of recognition.
The purpose of recognition is declaratory not of
constitutive?

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Implied recognition
Intention to establish formal relations with the new
state or new governments.
Occasions for conclusively implying recognition:
Formal signature of a bilateral treaty between states.
Formal initiation of diplomatic relations
Issue of a consular facility
Common participation in a multilateral treaty
Participation in an international conference
Initiation of negotiations between recognizing and
recognised states.
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Conditional recognition
The Berlin Congress – 1878
Failure to fulfill – does not annul the recognition.
The recognised state may guilty of a breach of
international law.
Sever diplomatic relations
Sanctions
Recognition cannot be withdrawn.

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Collective recognition
Membership in the UN – A.3-4 of UN Charter.
Conditions of Membership in the United Nations, ICJ
1948, 57.
Statehood as a primary qualification for the admission
to the UN.
1991-EU Guidelines for the recognition of states.
Respect for the provisions of UN
Guarantees for the rights of ethnic and national
groups and minorities.

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EC treaty
Respect for frontiers
Acceptance of commitments with regard to
disarmament and nuclear non-proliferation as well as
security and regional stability.
Regional disputes should be resolved by arbitration.

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Recognition of governments
1977 – US – avoiding recognition of governments.
1980 – UK- Secretary of State for Foreign Affairs – UK
is no longer going to recognise governments
1988 – Australia – no recognition to governments

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Withdrawal of recognition
The de jure recognition once granted is irrevocable.
The withdrawal of diplomatic relations does not mean
withdrawal of recognition.

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Types of recognition
De jure recognition – the state formally recognised
fulfils the requirements laid down by international law
for effective participation in international community.
De facto – provisionally and temporally and with all
due reservations for the future.
Soviet Government was recognised de facto in 1921 and
de jure recognition was given by Britain in 1924.

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De facto De jure

Doubt about the long term Recognizing fully the

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De facto recognition
A "de facto" recognition is derived from actions and
contacts between two states if they enter into a relationship
on a political level. The following acts shall inter alia be
considered acts of this nature:
a) diplomatic activities by representatives of the states
involved in connection with tasks between states,
relationships etc.;
b) statements of a state on politically relevant issues and
problems of the other state such as statement on mutual
delimitation;
c) recognition and official endorsement with a visa of
passports issued by the other state as traveling documents.
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De jure v. De facto
If there is a conflict between the interests of de jure
government and de facto government – the rights of de
facto government will prevail.
Bank of Ethiopia v. National Bank of Egypt and
Liguori.
Arantazu Mendi case

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RGSOIPL, IIT Kharagpur

Thank you

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