Recognition of State and Government


Recognition of State
 Institute of International Law
• ‘… 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’.
• Brownlie
– Recognition is used to refer to two related categories of state acts :
• First, the recognition of another entity as a state
• And second, the recognition of that entity’s
government as established, lawful or legitimate (that are entitled to represent the state for all international purpose)
– Recognizing state – implies that it will treat the
entity in question as a state
Montevideo Convention on Rights and Duties of States 1933
– Article 6
• The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law.
• Kelsen – a community to be recognized (as international person) must fulfill following condition :
– Community must be politically organized
– Should have control over a definite territory
– Definite control should tend towards permanence
– Community
Expression of Recognition
• Declaration
• Entering into treaty
• Establish Diplomatic relation
• Congratulatory message on independence day

 

Acts of protest or recognition are important aspect of international relations. They can have important implications.

Recognition, generally, refers to act of a state recognising or acknowledging existence of another state or state of affairs.

Recognition of states under international law is a combination of law and politics.



Two theories of state recognition:

  1. “Declaratory” theory of state recognition
  2. Constitutive theory of state recognition

 

  1. Declaratory theory of state recognition: The legal effects of recognition are limited. “Recognition is a declaration or acknowledgement of an existing state of law and fact, legal personality having been conferred previously by operation of law.” It seems the ICJ has, albeit indirectly, accepted this theory in Genocide (Bosnia and Herzegovina v. Yugoslavia (1996).

Because of this theory even the states that are not recognised have been made object of international claims by the states that do not recognise the states.

 

  1. Constitutive theory of state recognition: According to this theory the political act of recognition is a precondition of the existence of legal rights. “In its extreme form this implies that the very personality of a state depends on the political decision of other states.” Many criticisms can be directed against this theory.

Legal Consequences of Recognition or Non-Recognition

  1. Evidential value in the determination of statehood: State recognition may act as evidence in the legal question relating to statehood. That is, if one of more states have recognised an entity as a state it may provide evidence that the entity in question might actually be a state.
  2. Recognition generally is essential for the establishment of formal relations, including diplomatic relations and the conclusion of bilateral treaties.

Be that as it may, the act of state recognition is a political act more than legal act. Hence, the consequences are mostly political rather than legal.

According to Warbrick, a bare statement of non-recognition carries five possible consequences:

  1. Statement of neutrality, under which no view is taken deliberately as to the entity’s statehood
  2. Driven purely by political calculations (thereby implying statehood in legal terms)
  3. Driven by the understanding that recognition would be unlawful or premature
  4. Issued on the basis that supervening obligations in custom or treaty prevent recognition
  5. Issued on the basis of supervening obligations imposed by the security council.

 

Recognition of State may be Implied or Express

According to Lauterpacht, in the case of recognition of states, only the conclusion of a bilateral treaty, the formal initiation of diplomatic relations, and, probably, the issue of consular exequaturs, justify the implication.

Implication is not presumed from negotiations, unofficial representation, the conclusion of a multilateral treaty to which the unrecognised entity is also a party, admission to an international organisation.

Recognition may be retroactive even though there is no particular rule defining such recognition.

Statehood and Recognition are entirely two different things. Hence, even in absence of recognition a state may remain a state and exercise rights and duties under the international law.

 

Recognition of Government

Government, under international law, is the representation of the state.

So state recognition is far more significant than recognition of government. Non-recognition of government does not change the legal status of the state, it only means that the government is not regarded as a government in terms of independence and effectiveness, or that the non-recognizing state is unwilling to have normal intergovernmental relations with it.

It may also take political nature whereby states may not recognise undemocratic governments, or other qualifications are placed for the recognition of government.

De facto and De jure Recognition of Government

Like implied recognition de facto recognition is used when a state is making a cautious decision of recognising another government.

Non-Recognition as an international obligation

Article 41(2) of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts and Kosovo advisory opinion.

Article 41

Particular consequences of a serious breach of an obligation under this chapter

  1. No State shall recognize as lawful a situation created by a serious breach within

the meaning of article 40, nor render aid or assistance in maintaining that situation.