Locating the Political Identity and Effectivity of Recognized and Non-recognized Entity
Author: Masoom Reza
Co-Author: Mudassir Hasan
Jamia Millia Islamia
The international community has biological growth and owing to the evolving nature of international law, strategic considerations, and political dynamism now and then new states come in picture and old representations fade away. In the realm of international law, the primary players are states which possess all the rights, responsibilities, and required the ability to bring an international claim on international platform. This paper discusses the doctrine of recognition as well as the non-recognition of an entity in the sphere of international law. Fundamentally, recognition is nothing but a political act of expressed or implied acceptance of all the capabilities of a new state as international juridical personality by the international community which may be either constitutive or declaratory.
After analyzing the nature, mode, scope, and withdrawal of recognition, the doctrine of non-recognition as an apparatus of popular pressure, legal sanction, and safeguarding from the wronged invasion is examined with the help of historic illustrations and judicial pronouncement. Furthermore, the legal, political, and economic consequences of recognition and non-recognition of an entity, not only in the international arena in general but also within domestic law in particular (the UK, the USA, and India), are analyzed.
In the end, in the midst of modern-day political gimmick of existing states to recognize or non-recognize an entity worldwide, certain ways have been recommended to regulate and systematize the process of recognition.
Change is inevitable and the map of the world is no exception to this, as new states keep on emerging and old states disappear. The issue of the emergence of new states has always been a source of conflict because the recognition of a new entity has various ramifications both in international spheres and municipal law.
In the arena of international law, both politics and law are the key factors in the dynamics of recognition of a state. Diplomatic considerations, political motivations, strategic reasons are the key factors to determine the policy of a country with regard to recognition. The idea of recognition and non-recognition is largely based on state practices and in the absence of specified rules/conducts; these practices are very inconsistent and unsystematic.
The Concept of Recognition:
Recognition means the inclusion of the new player on the face of the world and it causes a transformation in economic and political spheres. Therefore, it becomes highly significant for the world order. In the view of Oppenheim, recognition is an act where an existing state proclaims the existence of new foreign authority which has the essentials/capacities of statehood, government, and belligerency. It is to be noted that all the components mentioned under art. 1 of the Montevideo Convention, 1933 needs to be satisfied before an entity is to be recognized as a state. The essential elements are the permanent population, the government, defined territory, and capacity to enter into relations with the other states. Although, all these constituents of a state are not sine qua non of recognition of a new entity as the episodes of Israel (having no definite territory) and Vatican City (having no permanent population) make evident that a state can be recognized even it lacks some of the essential attributes.
It must be noticed that recognition is a political act and it is not a legal obligation, therefore the existing states are not bound to recognize a new entity that fulfills all the essential prerequisites of a state. It is fundamentally based on state practice which is very unsystematic and largely based on political and diplomatic considerations. For instance, India recognized Israel as a state in 1950 which came into existence on 14 May 1949 and established diplomatic relations in 1992. The people’s Republic of China was recognized by India on 30 December 1949, but the US granted its recognition only after 30 years of its proclamation of independence.
It’s worth mentioning that recognition is primarily attached to political considerations, but its legal consequence can not be overlooked. It involves conferring on the new emerging entity certain legal rights under spheres of international law, for instance, establishing diplomatic relationships and determining the juridical standing in the court of law of the recognizing State.
Theories of recognition:
At the outset, it is necessary to understand the theories of recognition to further understand the issue in a better manner. Fundamentally, there are two prominent theories that determine the nature of international law of recognition namely, constituent theory and declaratory theory.
1. Constituent theory (Status-creating):
At the outset, recognition of state has been based on the constitutive theory and its existence can be traced back to the peace congress of Vienna held in 1815. This theory is based on the principle that the acts of the existing states to recognize a new entity of the member of international law leads to the emergence of a new state. The consent and will of the existing states are mandatory. According to Oppenheim, “a State is, and becomes, an international person through recognition only and exclusively”.
Criticism of the theory:
(I) this theory implies that a non-recognized entity does not have any right and duty under international law which clearly results in illogicality.
(II) The Rule of the retrospective effect of recognition contradicts the idea of constituent theory.
(III) It is criticized for having extreme manifestation of the concept of State sovereignty.
2. Declaratory theory or evidentiary theory (Status confirming):
This theory is more close to the reality of the world. A new entity is recognized as a state, not by reason of consent of the existing states but, due to required particular factual circumstances. If a new entity fulfills all the elements of statehood so, it should be recognized as a state. Brierly says: “A State may exist without being recognized, and if it does exist in fact, then, whether or not it has been formally recognized by other States, it has a right to be treated by them as a State”. In the Deutsche Continental Gas vs. Polish State case, it was held that the recognition is simply a declaration of the acceptance of the State. Moreover, art. 3 of Montevideo Convention, 1933, also provides that ‘the political existence of a State is independent of recognition by the other States’.
Criticism of the theory:
(I) if an entity satisfies all the requirements of the state, but not recognized so it cannot have a legal relationship with other international personalities.
(II) Only after attaining recognition, an entity gets the juridical status under the municipal law of the recognizing State otherwise not.
Forms of Recognition:
The status of an International personality, through which the nascent state becomes entitled to claim rights and duties in international law, can be provided through various forms by the existing states of the international community. Some of the forms of recognition are given below:
(I) De Facto and De Jure Recognition:
De Facto Recognition is a temporary or conditional recognition granted to a new state. There are plenty of reasons behind recognizing a state as De Facto, such as doubts on the Stability of new state and government, the Unwillingness of new state to acknowledge its duties or obligations under international law, and its defiance towards settling of outside issues. If a nascent state or government is unable to fulfill its obligation or responsibilities under international law, despite the new state is independent and has an effective government, many existing states of the international community provide it De facto recognition. It must be noticed that De Facto’s recognition can be succeeded by De jure when all the doubts enumerated above would be eliminated. For instance, the Soviet Union was recognized de facto by the United Kingdom in 1921 and after 3 years in 1924 UK gave it De jure recognition. Similarly, the UK government provided De facto recognition to the government of the Italian conquering forces in Ethiopia in 1936 and de jure recognition in 1938.
Hence, when a recognizing state is of the opinion that the new state fulfills all the requirements prescribed by international law then, it provides De Jure recognition which is considered to be a full-fledged recognition given to any state. It is legal in nature and gives the power to claim property located in recognizing state. According to article 6 of the Montevideo Convention of 1933, De Jure recognition is unconditional or irrevocable. The Essential requirements to get De jure recognition is the assurance of government stability, the government command overpopulation, and the capability to discharge the international obligations. In the case of the German Democratic Republic v. Dynamic Industrial Undertaking Ltd, it was held that the immunities available to a De Jure recognized government the same immunities will also be available to De Facto government in India.
(II) Premature Recognition:
The Attributes of statehood are sine qua non of granting recognition, but the premature recognition can be given even in the absence of these attributes. Premature recognition is provided generally to those established provisional governments which acquire power by succession. It is generally considered an illegal intervention in the internal affairs of the existing state. For instance, Premature recognition to Biafra was considered as an illegal intervention in the internal affairs of Niger. The USA recognition to Israel on 14 May 1948 was also a premature recognition. Moreover, Croatia was recognized by the European Community even though it did not have control over its 1/3 territory.
(III) IMPLIED RECOGNITION
Article 7 of the Montevideo Convention of 1933 provides the provision for tacit and implied recognition. Many actions such as the signing of the Bilateral Treaty, Participation of Unrecognized states in a multinational conference or treaty, and the start of formal diplomatic relations, etc symbolize implied recognition. However, If an Unambiguous intention not to recognize a new state is declared then, participation or signing of a treaty does not imply automatic recognition. For example, the USA and China were parties to the Geneva Protocol, but mere participation did not mean automatic recognition of china by the USA as it was clearly negated.
(IV) COLLECTIVE RECOGNITION:
This method of recognition involves the idea of Recognition granted to a nascent state by the various existing state of the international community collectively. For instance, to get admission to the United Nation, a new state has to be recognized collectively by the member states of the UN.
(V) CONDITIONAL RECOGNITION:
The Protocol of 28 June 1978 signed on behalf of Great Britain, France, Italy, and Germany introduced the concept of conditional recognition. This recognition is attached to certain conditions such as recognition to Serbia by four countries mentioned above on condition that it would not impose any religious inabilities on its citizens. Oppenheim maintained that recognition is neither a contractual agreement nor a political consideration but, it is evidence of certain particulars.
Retroactive Effect of Recognition:
According to the opinion of different jurists and legal luminaries, both De Jure and De Facto recognition have a retroactive effect. It connotes recognizing state only does not recognize the present acts of the newly recognized state but also all the acts done from the date the state came into existence. J M Jones asserted that the effect is based on the state policy and not on juristic logic. In the case of Civil Air Transport Incorporation v Central Air Transport Corporation, the respondent corporation was under the nationalist government of China. China’s revolution caused the chairman of the corporation to flee to peeking and accordingly submitted his loyalty to the peeking government. The previous government of China has sold the property of the respondent to a firm belong to America. The main question before the court was whether the past act of de jure government is valid or not. In this case, the court held when the respondent property was sold, the nationalist government of china had de jure recognition thus; the same has the power to sell the property. The court also ruled that granting De jure recognition to a state would not automatically invalidate the legality of the previous De Jure government of china. Thus rule on the face is that if a state firstly grants de facto and later on grants de jure recognition, then the effect of recognition will be valid from the date of de facto recognition.
Doctrine of Non-recognition:
Since 1930s the doctrine of non-recognition has gained currency which is based on the principle of (ex injuria jus nonoritur) meaning thereby ‘legal rights cannot be derived from an illegal situation’. This doctrine has, in fact, emerged in the backdrop of the invasion of Manchuria by Japan in 1931. The US Secretary of State urged that this illegitimate intrusion should not be recognized because it violated the 1928 Pact of Paris. The policy of non-recognition of any treaty, situation, and state which comes into existence through non-legal methods is called the Stimson doctrine after the name of American Secretary of State who put it forward before the world. This idea was also upheld by a resolution of the Assembly of the League of Nations that all the league members should refrain from recognizing any such agreement or covenant which is contrary to the norms of the league. Furthermore, with the formation of the United Nations Organization, the doctrine was revived as Article 2(4) of the UN Charter clearly forbids the threat or use of any kind of force against any state’s territorial integrity. The draft Declaration on the Rights and Duties of States, 1949, also maintained that states should not recognize territorial acquisition by other states which is contrary to international norms, achieved through forceful and by threat or by the threat of use of force. Similarly, The Declaration of Principles of International Law, 1970, proclaims that any illegal territorial acquisition should not be recognized which is indubitably achieved by the threat/use of force. Art. 52 of the Vienna Convention on the Law of Treaties, 1969, makes a provision that a treaty is considered to be void if its conclusion has been obtained by threat or use of force. Besides, on the solution to the Middle East conflict, the Security Council resolution 242 (1967) affirmed ‘the inadmissibility of the acquisition of territory by war’. In this respect, it is to be noted that Turkey occupied the part of Cyprus in 1974 and this move was criticized and the proposed Turkish Cypriot state was expressly declared invalid by the Security Council. In the same way, the invasion of Kuwait by Iraq in 1990 was an affirmed void. In the Namibia case 1971, (the Advisory Opinion of the International Court of Justice) it was held that South Africa acquisition was illegal, hence, the united nation ‘members refrained from recognizing this action expressly or impliedly and providing any aid in respect of that.
Consequences of non-recognition:
The consequences of non-recognition may be political as well as legal. The opportunities available to a state after recognition are the establishment of diplomatic and councilor relations, improvement in internal relations and access to aid from foreign countries, etc. The consequences of non-recognition are briefly summarized below:
(I) Unrecognized state cannot sue:
The option to sue in the court of the non-recognizing state is not available to the unrecognized state. In the case of Russian Socialist federated Soviet public v. Cirbaria, the court held that America has not recognized the Russian Soviet Socialist Republic, so the unrecognized state cannot sue as a matter of right. In the case of Guarantee Trust Co. of New York V. the US, the rule laid down, in this case, was that it is not within the power of the court to recognize a state as it is a function of the executive. In the case of Re Alfin Corporation Patent, it was held that the court will entertain only executive acts of those states which have been recognized.
When a new government comes into power by rebellion or unconstitutional way, the same government is recognized by some states on one hand and on another hand, some states refuse to grant under political consideration. As a result, the rebellion government can file a suit for claiming its property only in the court of recognized states which have granted it either de facto or de jure recognition but, cannot institute a case in the court of those states which have not provided recognition.
(II) An unrecognized state cannot establish diplomatic relation.
The existing states, if they do not recognize a newly emerged entity as a state, refuse to have diplomatic relations with that unrecognized state. The countries adopt these measures to voice their political stand globally.
(III) Economic consequences:
In the absence of diplomatic relations, the non-recognized states face various economic/trade restrictions and limitations. Non-recognized states do not have a strong voice globally and due to lack of trade relations with developed nations, the growth and development of these countries are comparatively low. It is to be noted that many times economic necessities caused an existing state to recognize another country. Furthermore, it is very difficult for non-recognized states to get foreign economic aid as many states do not express their willingness to help them out.
(IV) Non-availability of immunities to representatives of unrecognized state.
The immunities by way of legal processes are not available to diplomatic representatives of an unrecognized state. The existing states when refuse to grant recognition to a state so, in the view of that existing state the unrecognized state is no longer a state hence, the representative of that unrecognized state cannot be given immunities.
(V) No claim over Property
An unrecognized state cannot claim property situated on the premises of a state which has not yet recognize it. In the case of Bank of China v. Wells Fargo Bank and Union Trust Co., California Bank was the defendant. The bank of China had deposited their money in California bank. The bank of China was a chartered bank and the stock was shared between the government of China and their citizen. In 1949, the bank of China filed suit in the district of China and the same has been informed to California by cable from Shanghai on 26 January 1950. The new government of China requested the court to dismiss the name of the plaintiff and replace its name because America has recognized this government. The court held it is not an appropriate function of the domestic court of the United state to consider which government will aptly represent the government of China. The court recognized the national government of China as a party.
‘Recognition of states is a matter of politics, not law’:
In the View of Lauterpacht, the idea of recognition of a state is a matter of political considerations than law and the latter half of the 20th century has distinctly proved it. It is evident that an act of existing state to recognize newly emerged state is purely discretionary. The idea behind recognizing a state is that the existing state desires to establish formal relations with the new state and attempting to grant the status of international personality to that state.
Fulfilling all the prescribed attributes of the statehood mentioned under article 1 of the Montevideo Convention on the Rights and Duties of States, 1933 does not amount to recognition as it is primarily based on consideration of the governments of the existing states through acknowledging all the legal consequences of such recognition. The accepted notion is that recognition is just a declaratory act in its nature and it does not form anyhow a new state. There are many circumstances where both theories (constitutive and declarative) have failed to define the precise situation and political considerations have determined the movement of a country, for example, India recognized Bangladesh in 1971 despite there was no operational government which is an essential attribute of the statehood. The political aspects of recognition become more evident in light of another example that China vetoed the proposal of Bangladesh of the membership of the UN which is the closest ally of Pakistan and US was among the nations who recognized Bangladesh very lately. Pakistan too, under political consideration, recognized Bangladesh statehood to secure the liberty of Pakistani prisoner-of-wars as per the terms of the 1972 Simla Agreement. Moreover, many a time, recognition is withdrawn or provided with the condition to a state even though a state fulfills all the attributes of the statehood. East Germany had all the attributes of state however, West Germany and the Western block withheld its diplomatic recognition but, recognition was maintained by the Eastern Bloc. In addition, It is a norm of international law that wrongful annexation should be expressly condemned by other countries, although, it is a matter of political consideration. All the civilized nations are supposed to collectively disregard any illegal act of annexation by any country, but geopolitics plays a significant role in this regard. The European Union adopted the policy of non-recognition and formally disapproved annexation of Crimea by Russia in support of the territorial integrity of Ukraine and international order. The European Union imposed economic sanctions on Russia through various means such as banning goods importation and restriction on any type of investments etc.
Policies of recognition:
In this segment, the state’s practices pertaining to the policy of recognition of some of the prominent countries (the US, the UK, and India) are briefly analyzed for a better understanding of the involvement of political considerations and legal obligations while granting recognition.
(I) India’s policy:
Recognition is often termed as a political-diplomatic Function. In essence, India recognizes the new state or government routinely. India approves recognition to a new state as soon as the attributes of statehood get fulfilled. Pandit Jawaharlal Nehru (India’s first prime minister) said: “It was India policy to recognize any state that was an independent functioning country represented in a united nation.”
However, India, in certain cases, had followed different approaches owing to various reasons such as in the cases of Israel and Spain (due to political consideration granted delayed recognition) and Vietnam (India refusal of recognition was based on moral pressure), etc. Thus, on the basis of above-mentioned illustrations, it can be concluded that India’s policy of granting recognition to a state is based on ‘de factoism’ principle.
(II) The US policy:
Since its inception, the US as an independent state establishes diplomatic relations with other nations and follows a certain sets of laws while granting recognition. At the time of recognition to a new entity, the United States presupposes the existence of certain factors such as the control over defined territory as well as population, functional government for the administration of that territory and the power to perform international obligations. Besides, many a time the US due to certain reasons refused to grant recognition such as the government of Mexican dictator Victorian Huerta. The US also recognized the anti-communist government in Taipei as the valid government of China for a long duration. Furthermore, the US adopts the idea that it would not provide any kind of aid to that country whose democratically elected chief is removed by a military coup. In addition, the US many times recognizes a state but does not have diplomatic relations due to political issues such as Iran.
(III) The UK practice:
The UK government follows, the criteria for recognition, the entity should have definite territory and population, effective government, and capacity to manage external affairs. The recognition policy of the United Kingdom is based on ‘effectiveness’. The government of the United Kingdom constantly expresses its criteria pertaining to recognition. The main criteria are reasonable anticipation of permanence, compliance of masses, and control of the government on a great part of the territory. It is to be noted that In American courts, only recognized state or government can sue but, in the United Kingdom, the order or declaration of executive can be taken into consideration by the court while deciding the case. In the case of Emin v. Yeldag, the court held that even the private transactions conducted with an unrecognized state will be treated as valid in the United Kingdom’s legal system provided that there is the absence of statutory provisions of that effect. In the case of Luther v Sagar, the British court declared the retrospective effect of recognition as valid. Basically, the UK also maintains the idea that recognition is mainly a political discretionary act of a country.
Codification of Rules of Recognition:
The issue of codification of rules of recognition has always been subjecting of debate and discussion. Codification is necessary to bring stability, consistency, and regularity in the conduct of the behaviors governing the recognition and non-recognition of a state. The prolonged controversies regarding it finally came to an end in 1925. In 1925, the executive committee of the American Institute of International law adopted a draft Convention pertaining to the recognition of state and government in a meeting of Havana in 1925. The rule laid down in convention was “every abnormally constituted government may be recognized if it is capable of maintaining order and tranquility and is disposed to fulfill the international obligation of the state”. Article 8 provides certain conditions to get recognition which are mentioned below:
1. The stability and consolidation are prerequisite of an effective authority to get recognition at international level.
2. The capacity to discharge the pre-existing international obligation, to sign new contract and agreement with nations, ready to the established principle of international law.
This draft was sent to the Sixth International Conference of American State in Havana in 1928, but unfortunately, no action was taken on it.
Moreover, The European Community, on 16 December 1991, adopted a declaration titled ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’ in which the common rule on the process of recognition of the newly emerged states was adopted. The certain observations of the guideline are:
· The provisions/commitments of United Nation charter, Act of Helsinki, and the Charter of Paris should be respected which primarily involve the concept of rule of law, democracy, and human rights.
· Show commitment to the framework of the CSCE by providing rights to ethnic groups and protection to minorities.
· The inviolability of all frontiers and territorial integrity should be preserved and boundaries should be altered only adopting peaceful means.
· Respect for commitments done in respect of disarmament and nuclear non-proliferation.
· Adoption of the method of arbitration to resolve the issues of state succession and other regional disputes.
Prof. Schwargenberger’s opinion rightly remarked, “In absence of established rules or treaty, obligations to the contrary, recognition is a matter of discretion”. So, to provide it a structured form and obligation, it is necessary that rules of recognition should be codified as soon as possible. It must be noticed that the presence of a codified structured form of rules would pave the way for the development of international harmony and peace as recognition would remain no longer a political act.
In a recent development, the International Law Association (a nonprofit organization) which has consultative status in the international arena has played a vital role in this regard. The committee of this organization has presented many reports, Sofia (2012), Washington (2014), Johannesburg (2016), and the recent report on recognition and non-recognition in international law was presented in Sydney (2018). This report has put forward certain observations with regards to recognition and non-recognition and some significant observations are enlisted below to understand the current development in this area.
(I) the criteria laid down in the Montevideo Convention of 1933 will be continued to define the basic attributes of statehood.
(II) The division between the declaratory and constitutive theory of recognition is useful in analyzing the doctrine of recognition but its scope is very limited.
(III) It is clear that providing status to the newly emerging entity has legal consequences for another state but any existing state is not under duty-bound to grant formal recognition.
(IV) Now the government’s formal recognition is not considered to be a prevalent practice.
(V) Recognition and non-recognition of a state involve innumerable municipal legal effects such as access to courts, immunities to the representatives and have power over foreign State property situated within the jurisdiction.
(VI) Domestic courts should prevent themselves to recognize/non-recognize any entity as it is largely an executive act.
(VII) The recognition of territorial alteration and the non-recognition of illegal situations are the areas where extensive research needs to be done.
It becomes evident that the involvement of political considerations and its various implications make the whole subject of recognition extremely complicated. International law does not provide any limitation and it is left upon the discretion of the state to determine which entity possesses the attributes of a state and issues of recognition/non-recognition. the consequences of non-recognition are also having far-reaching impacts as they involve the idea of the geo-politics.
It’s axiomatic that the aim of the international law is to maintain peace, tranquility and co-operation. The need of the hour is to formulate strict and comprehensive international law regarding ‘recognition’ so that merely on the ground of self interest, a state cannot withdraw recognition. For this purpose, the whole world should endeavor to arrive at a consensus for the codification of rules of recognition. The codification would certainly pave the way for ensuring the unification of different practices adopted by various states. Additionally, a supervising body should be established to look after and regulate the conduct of countries with regard to granting and rejecting recognition of a newly emerged state. The time has come to understand the fact that only the existence of legal obligation (codified rules of recognition) would pave the way for the elimination of political biasness while granting recognition to a newly emerged entity.
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