Author: Mansi Rana, UPES Dehradun
The identity and number of countries that belong to the international community are by no means fixed. The advance of history has brought many changes. The old state disappears or merges with other states, or disintegrates and splits into several new states, or the former colonial or vassal territory may gain statehood through the process of liberating itself. Then, even in the case of existing countries, evolution or military conquests have taken place, and the status of the new government has become a concern for other countries that previously had relationships with displaced Governments, leading to the Failure to follow formal statements recognizes the policies of the new government (only through some form of interaction) and establishes formal or informal relationships with the new regime.
These changes have created problems for the international community, one of which is the recognition of the new state of the new government or other changes in status. At some point, certain countries must face this recognition problem, especially if they must maintain diplomatic relations with the country or government to be recognized.
It is important to distinguish between recognition of the state and recognition of the government. The former is more important because it is the basis of the international legal order. States are entities that bear international rights and obligations, not governments that temporarily represent the state. Therefore, even if governments come and go, these rights and obligations will continue to exist. Therefore, the recognition of a new State is a serious step, and other countries will only take it after due consideration and formal declaration. Changing the national government through normal constitutional procedures, such as elections, does not require other countries to act in a recognized manner. Irregular government changes, such as military takeovers or revolutions, do require some response from other states.
THEORIES OF RECOGNITION:
1. CONSECUTIVE THEORY:
The main indices related to this theory are Oppenheim, Hegal and Anziloti.
According to this theory, if a country is to be considered an international person, it must be recognized as a sovereign state by an existing country. The theory holds that only after recognition can a country acquire international status and become the subject of international law. Therefore, even if an entity has all the characteristics of a country, it will not acquire international status unless it is recognized by an existing country.
This theory does not mean that a country does not exist unless it is recognized, but according to this theory, a country only acquires exclusive rights and obligations and becomes the subject of international law after being recognized by other existing countries.
CRITICISM OF THIS THEORY:
Several jurists have criticized this theory.
- The theory is criticized because the rights, duties and obligations of the founding community under international law do not apply to the theory unless one country is recognized by other existing countries.
- The theory can also cause confusion when a new state is confirmed and recognized by some existing states and disapproved by others.
2. DECLARATORY THEORY:
The main representatives of the Declaratory theory are Wigner, Hall, Fisher, and Brier. According to this theory, any new country is independent of the consent of the existing country. This theory has been elaborated in accordance with Article 3 of the Montevideo Conference of 1933. The theory states that the existence of a new country does not depend on the recognition of an existing country. Even before other nations recognize it, the new nation has the right to defend its integrity and independence under international law.
Followers of the theory believe that the process of recognition is merely the formal recognition of statehood by other states.
CRITICISM OF THIS THEORY:
The declaratory theory has also been criticized. The reason for criticizing the theory is that the theory alone cannot be applied to the recognition of the state. When a country with essential characteristics is established as a country, it can exercise international rights and obligations. This is the application of declarative theory, but when other countries recognize its existence and the country obtains recognized legal rights, then consecutive theory plays a role.
FORMS OF RECOGNITION:
Recognition is essentially a question of intention. It builds on the will and intentions of the state. It may be explicit or implicit. The way the recognition is done has no special meaning. However, it is essential that the conduct constituting recognition must clearly indicate whether it intends to deal with such a new country, accept the new government as an effective government of that country and maintain contact with it, or recognize them in the case of insurgents The right to war.
1. EXPRESS RECOGNITION:
It means recognition of the recognized State through a formal statement. In national practice, a formal statement can be made through a formal declaration of recognition, private information from the head of state or foreign minister, diplomatic notes or recognition treaties.
Recognition does not require expression. May be implied in some cases. In some cases, it may be possible to declare that a country is acting in a certain manner does indeed imply recognition of another country or government. However, because of this possibility, States can make a clear statement that a particular action involving another State is never considered to imply recognition of any recognition. For example, Arab countries maintain this position with Israel.
2. IMPLIED RECOGNITION:
It is the recognition of a country or government through an official statement or an action other than an action designed to grant recognition. The actions required for implied recognition must be clear, and there is no doubt that the State performing them intends to recognize the State or government and act accordingly. A country has taken multiple actions against an unrecognized country or government. The conclusion is that certain actions mean recognition, while others do not. The first category includes formal congratulations on independence, the formal establishment of diplomatic relations and the conclusion of bilateral treaties. Actions that do not ultimately imply recognition are participation in multilateral treaties, participation in international institutions, joint participation in international conferences, maintenance of informal and informal contacts, negotiations with unknown countries, and requests for unrecognized countries.
The recognition of a State with certain conditions in order to obtain the status of a sovereign State is conditional recognition. Additional conditions vary from state to state, such as religious freedom, rule of law, democracy, human rights, etc. The recognition of any country is already related to the basic conditions that the status of a sovereign state must meet, but when it is attached, it is a Conditional Recognition.
Many jurists criticize conditional recognition. Criticism of conditional recognition is based on the recognition that it is a legal process and that no other conditions should be attached in addition to the conditions of legal recognition. Another reason for the criticism is that if the recognized State does not meet the conditions for its recognition, that recognition will not disappear and it should still be valid.
MODES OF RECOGNITION:
1. 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 recognized in principle. Three conditions for giving de-facto recognition.
(ii) the govt. commands popular support
(iii) the govt. fulfills international obligations.
This pattern recognition is obtained when a new state has sufficient territory and controls a particular territory, but other existing states believe that it does not have sufficient stability or any other unresolved issues. Therefore, we can think of it as a control test for newly formed states. De Facto recognition is the process of acknowledging a new state through non-commitment.
States that are actually recognized are not eligible to become members of the United Nations. For example, Israel, Taiwan, Bangladesh.
2. DE JURE RECOGNITION:
De jure recognition is the recognition of a new state by existing states when they believe that the new state meets all the basic characteristics of a state. De jure recognition may or may not grant factual recognition. This model of recognition will be granted when the newly established State attains permanent stability and national status. The legal recognition model will grant the new state a permanent status as a sovereign state.
LEGAL CONSEQUENCES OF STATE RECOGNITION:
Recognition has legal consequences that affect the rights, powers, and privileges of the country or government recognized in international law and in the municipal laws of the states that grant recognition. Moreover, when an object of approval is examined, by chance, municipal courts in these states consider various evidence, legal interpretations, and procedural issues.
- Recognized state and government capabilities can be considered negatively by identifying the special disability of an unrecognized state and government:
- It cannot sue in courts in states that have not recognized it. In a US case, the basic principles of the rule were well expressed. ‘Foreign powers are suing in our courts, whether it is a right. Its ability to do so is a polite creature. Until such a government has been recognized by the United Nations, there is no such politeness. “
- By the same principle, the conduct of an unrecognized country or government usually does not give the courts of the unrecognized country the usual effect under the rules of etiquette.
- Its representative cannot claim to be immune to legal proceedings
- State property that has not been recognized by the government can actually be recovered by the overturned legal government representative.
- Recognize the full status of translating these disabilities into sovereign states or governments. Therefore, the newly recognized state or government:
- The right of prosecution of the courts of the recognized State;
- These courts may have an impact on their past and future legislative and administrative actions;
- May request action against their property and diplomatic representatives;
- The right to claim and accept possession or disposition of property that was previously under the jurisdiction of the recognizing State of the previous government.
RECOGNITION OF GOVERNMENT:
In addition to recognizing other countries, states can also recognize the governments. This is especially problematic when the new government comes to power through illegal means such as a coup, or when the current government continues to come to power through elections. The country has officially recognized the government of a country and the country itself, but many countries no longer follow this method. Even if they maintain diplomatic relations, the government must establish diplomatic relations with them.
The recognition of the new government is different from the recognition of the new country, although the principles are the same. Recognition of the new government needs to meet certain conditions, such as effectiveness and independence.
Emperor Hailee vs cable and wireless ltd. of england Ethiopia’s king was the emperor of Haile Selassie. He signed an agreement with England’s Cable and Wires ltd. for lying down the cable lines for the postal department in the state of Ethiopia. A large sum was expected from cable and wires ltd. to the Emperor. During that period there was a battle going on between Italy and the Emperor. The Emperor lost the battle and went to exile in the U.K. where he resided for a long time and after that, he filed a suit in England against Cable and Wires ltd. for the remaining amount. This judgment was done in favor of the Emperor and he was entitled to claim from the company as the matter was between De jure and De facto. And the concept of De Jure will prevail over the occupier.
I am alone case, 1929 I am alone was registered British ship in Canada. The ship was used for the purpose of smuggling alcohol liquor in the U.S. in 1929 the ship sank because of a U.S. Coast Guard vessel, nearly 200 miles from the US coast. In the arbitration court, the Canadian government filed a lawsuit for damages.
It was held by the court that the government of Canada was entitled to claim for the damages as here the concept of De Jure recognition will prevail over the De Facto.
In Luther v Sagor , a case involving legislation of an unrecognized Soviet government, it was held that for the purpose of the internal act of recognized authority there is no difference between De jure and De facto.
In Adams v Adams, Rhodesia ’s divorce decree was not upheld in the English courts because Rhodesia was not recognized by the United Kingdom. However, this does not mean that the laws of unauthorized entities will never have legal force.
In Gur Corporation v Trust Bank of Africa, the court must consider the status of Bantustan Ciskei, which is said to be independent of South Africa. Since the Ministry of Foreign Affairs does not recognize Chisquet as an independent sovereign, the court still considers it to be a legal subordinate of South Africa after this, so it can only file a lawsuit or be sued in this regard. From the facts, it seems inappropriate to resort to agency methods.
Recognition of the State is an essential process, so it can enjoy all the privileges of a founding society under international law. There is a controversy between the consecutive and the declaratory recognition, but we can conclude that the theory followed for recognition is between consecutive and declaratory.
Recognition is de facto or de jure recognition, it provides rights, privileges, and obligations. When a country is de facto recognized, rights, privileges, and duties are reduced, but when it is recognized legally, it will receive absolute rights, duties, and privileges.
In many cases, powerful states create obstacles when they recognize newly formed states. When the acknowledgment states that the new state does not meet the prerequisites for becoming a sovereign state, it can even withdraw. Identification can be carried out in an expressive or implicit form, the way in which actual and legal identification differs from case to case.
- Dr.H.O.Agarwal, International law and Human Right, 19th ed.2013 Central law pub.
- Dr. S.K. Kapoor, International Law and Human Rights, 19thed. 2014
- Malcom, M. Shaw, International Law (5th Ed. 2003)
 (1939) 1 Ch. 182; 9 AD
 (1935) 3 R.I.A.A. 1609
 (1921) 3KB532;1AD
(1971) P. 188; 52 ILR
(1987) 1 QB 599 75 ILR