pil rough draft 5th sem

THEORIES OF RECOGNITION OF STATEHOOD PROJECT BY:

NAME: Mukul Rathore COURSE: B.A. LL. B (Hons.) ROLL NO: 1742 SEMESTER: 5th

SUBMITTED TO:

Mrs. Sugandha Sinha Lecturer of law A FINAL DRAFT SUBMITTED FOR THE PARTIAL FULFILMENT OF THE COURSE PUBLIC INTERNATIONAL LAW FOR THE DEGREE OF B.A.LL. B

August 2019

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR, MITHAPUR, PATNA – 800001

DECLARATION I, hereby declare that the project entitled “THEORIES OF RECOGNITION OF STATEHOOD” submitted in partial fulfilment of the requirements for award of the degree of B.A.LL.B. at CHANAKYA NATIONAL LAW UNIVERSITY, is an authentic work and has not been submitted to any other University/Institute for award of any degree/diploma.

MUKUL RATHORE (1742) B.A.LL.B. THIRD YEAR.

ACKNOWLEDGEMENT Firstly, I would like to express our immense gratitude towards our institution Chanakya National Law University, which created a great platform to attain profound technical skills in the field of B.A.LL.B. in the subject Public International Law, thereby fulfilling our most cherished goal. I sincerely express thanks to my guide and teacher Mrs. Sugandha Sinha who helped me complete this project to the best of my capabilities and patiently attended to my queries and doubts. I express deep gratitude to my family and friends who continue to push me in the daunting times of project submission and ultimately, whether directly or indirectly, helping me complete this project successfully.

MUKUL RATHORE (1742) B.A.LL.B. THIRD YEAR.

Contents INTRODUCTION .......................................................................................................................... 5 AIMS AND OBJECTIVES: ....................................................................................................... 6 RESEARCH METHODOLOGY: ............................................................................................... 6 HYPOTHESIS: ........................................................................................................................... 6 LIMITATION: ............................................................................................................................. 6 SOURCES OF DATA: ................................................................................................................ 6 STATE RECOGNITION................................................................................................................. 7 RECOGNITION ............................................................................................................................. 9 THEORIES OF RECOGNITION ..................................................................................................11 CONSTITUTIVE THEORY ......................................................................................................11 Criticism................................................................................................................................ 12 Disadvantages of the theory .................................................................................................. 14 DECLARATIVE THEORY OR EVIDENTIARY THEORY ................................................... 15 Criticism................................................................................................................................ 17 Disadvantages ....................................................................................................................... 17 CONCLUSION ............................................................................................................................. 18 BIBLIOGRAPHY ......................................................................................................................... 20 1.

Dr.H.O.Agarwal, International law and Human Right, 19th ed.2013 Central law pub. ........ 20

INTRODUCTION Meaning and Definition of the term “RECOGNITION” According to International Law, Recognition is the formal acknowledgment of the status of an independent State by other existing states. According to Prof. L. Oppenheim, “In recognising a State as member of international community, the existing States declare that in their opinion the new State fulfils the conditions of statehood as required by international law."1 Fenwick also subscribes to the view that through recognition the members of the international community formally acknowledge that the new State has acquired international personality. International Law has defined the term 'recognition' in the following words: it is “The free act by which one or more States acknowledge the existence of a definite territory of a human society politically organized independent of any other existing States and capable of observing obligations of international law by which they manifest through their intention to consider it a member of international community.” 2 According to Kelsen, a community to be recognised as an international person must fulfill the following conditions : (1) The community must be politically organised ; (2) It should have control over a definite territory ; (3) This definite control should tend towards permanence ; and (4) The community thus constituted must be independent.3 Thus the conditions of a Statehood are (a) People ; (b) a territory ; (c) a government ; and (d) sovereignty. “Recognition of a State is an act by which another State acknowledges that the political entity recognized possesses the attributes of statehood.” 4In short, we may say that through recognition, the recognising State acknowledges that the recognised State possesses the essential conditions of statehood. However, international law does not provide as to how these essential conditions are to be determined. In fact, international law leaves members of international community free to

1

L. Oppenhiem, International Law, vol.1Eighth Edition, p.127. See also Oppenhiem’s International Law Ninth Edition, Longman Group UK Ltd. and Mrs. Tomoko Hudson,1992, pp.127,128 and p.132 2 Charles G. Fenwick International Law (1971), p.156 3 see A.J.I.L (1936), Vol.30 supplement, at p.185 4 Hens Kelsen” Recognition in International Law”, A.J.I.L. Vol.55(1941), p.605 at pp.607-8.

determine by themselves whether the recognised States contain the essential condtions of statehood. It is because of this reason that very often recognition is said to be a political diplomatic function.5 

Every State has to have some essential features, called attributes of statehood, in order for other States to recognize the State as independent.

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States are considered as the principal persons in International Law.

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The recognition of a state is often a political act of a state.

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Recognition is not a conclusive proof of the existence of the state.

AIMS AND OBJECTIVES: The aim of the researcher is to critically analyse the Theories of Recognition of statehood.

RESEARCH METHODOLOGY: The researcher will be relying on Doctrinal method of research to complete the project.

HYPOTHESIS: Researcher presumes that Recognition of a State is more of a political concept than a legal concept because there are no specific rules for recognition of a State.

LIMITATION: Owing to the large number of topics that could be included in the project, the scope of this research project is exceedingly vast. However, in the interest of brevity, this paper has been limited to the specified topics. Also, the researcher will have time and money limitations while making of this project.

SOURCES OF DATA: The researcher will be relying on both primary and secondary sources to complete the project.

5

Philip c. Jessup, A Modern Law of Nations(1948),p.63.

STATE RECOGNITION State Recognition is the free act by which one or more states acknowledges 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.

To recognize a community as a State is to declare that it fulfils the conditions of statehood as required by international law. If these conditions are present, existing States are under the duty to grant recognition. In the absence of an international organ competent to ascertain and authoritatively to declare the presence of requirements of full international personality, States already established fulfil that function in their capacity as organs of international law. In thus acting they administer the law of nations. This rule of law signifies that in granting or withholding recognition States do not claim and are not entitled to serve exclusively the interests of their national policy and convenience regardless of the principles of international law in the matter. Although recognition is thus declaratory of an existing fact, such declaration, made in the impartial fulfilment of a legal duty, is constitutive, as between the recognizing State and the new community, of international rights and duties associated with full statehood. Prior to recognition such rights and obligations exist only to the extent to which they have been expressly conceded or legitimately asserted by reference to compelling rules of humanity and justice, either by the existing members of international society or by the community claiming recognition., These principles are believed to have been accepted by the preponderant practice of States. They are also considered to represent rules of conduct most consistent with the fundamental requirements of international law conceived as a system of law. However, while followed in practice with some regularity, they cannot be regarded as having been uniformly acted upon or clearly perceived by governments. Neither have they secured the assent of the majority of writers on the subject.6 After the break-up of the former Soviet Union and the former Socialist Federal Republic of Yugoslavia in the early 1990s the topic of recognition in international law lay dormant for several years until in February 2008 it was revived, perhaps not unexpectedly, with the unilateral 6

H. Lauterpatch, Recognition of State in International Law, 53Yale L.J. (1944)

declaration of independence of Kosovo and the controversy about its recognition as a sovereign and independent State by some 51 States (as of 15 October 2008).7 The topic recently gained further prominence when in August 2008 the Russian Federation recognized the statehood of Georgia’s breakaway regions of South Ossetia and Abkhazia; a move followed so far only by Nicaragua. These developments have again raised interest in the question of a possible recognition of the “Nagorno-Karabakh Republic” and its government by foreign States. This article briefly sets out some of the general principles of recognition of States and governments in international law. The term “recognition,” when used in the context of recognition of States and governments in international law, may have several different meanings. It may indicate the recognizing State’s willingness to enter into official relations with a new State or government or manifest its opinion on the legal status of a new entity or authority, or both. The subject has been complicated by the introduction of several variants of the term. Distinctions between “de facto recognition,” “diplomatic recognition” and “de jure recognition” may be traced back to the secession of the Spanish provinces in South America in early 19th century. Like “recognition,” these terms can be given meaning only by establishing the intention of the authority using them within the factual and legal context of each case. Recognition is a unilateral act performed by the recognizing State’s government. It may be express or implicit. There is probably no other subject in the field of international law in which law and politics are more closely interwoven. However, that does not mean that recognition, in the sense of expressing an opinion on the legal status of an entity or authority, is a purely political act that is within the discretion of the recognizing State. Recognition, if unfounded in law (such as premature recognition) and backed by State activity, may constitute an internationally wrongful act which gives rise to State responsibility. Recognition of States must be distinguished from recognition of governments, each form having its own theories and practices.

7

Malcom N. Shaw, International Law, p.335(8th ed. ,2019).

RECOGNITION Recognition occupies a central place in state practice and in the literature, but this does not necessarily mean that it is, properly speaking, a legal institution. First and foremost, recognition is a political act whereby a subject of international law, whether a state or any other entity with legal personality, expresses its unilateral interpretation of a given factual situation, be it the birth of a new state, the coming to power of a new government, the creation of a new intergovernmental organization, the status of an insurgent, the outcome of an election, the continuation of a defunct state by another, a specific territorial arrangement, and so on. In that sense, recognition is a formal expression by its author about how it perceives the situation to which it extends recognition. Recognition simultaneously constitutes a means for its author to make known its own view of a situation, including the legal consequences, if any, that the author attributes to the situation and on which the author intends to base its policy. With a few exceptions, recognition remains discretionary. Any subject of international law decides for itself how it interprets and construes the facts or the situation that is the object of recognition. The subject may also decide not to express any position at all. Once granted, recognition can also be subsequently withdrawn if the author changes its interpretation (and policies) or wishes to make it known differently. Although a political act, recognition deeply affects the international legal system and bears wide-ranging legal effects in both the international and the domestic legal orders. International legal scholars have mostly focused on the international and domestic legal effects of recognition as well as the forms and modes in which and whereby it is extended. It is noteworthy that the forms, modes, and legal effects of recognition have been primarily studied in connection with the birth or extinction of states as well as the coming to power or overthrow governments. But, as was previously stated, recognition can potentially be directed at many other situations that states judge require a reaction. The discretionary character of recognition has been increasingly qualified by the development in positive international law of an obligation not to recognize that has been systematized and studied in the framework of international responsibility and that applies in many situations besides the birth of new states or illegal acquisition of territory. This constitutes another, more recent angle from which recognition has been examined in the literature.

It is a political move with important legal consequences in International law. There are two legal consequences- firstly, it has evidential value that an entity has now fulfilled the requirements of statehood. therefore, according to Brownlie, ‘the determination of statehood, a question of law: such individual determination may have evidential value. Secondly, Recognition leads to relationship between the recognised and the recognising state, through mutual recognition of their laws, citizenship, diplomatic relationships etc. Therefore, according to Brownlie, ‘a condition of the establishment of formal relations, including diplomatic relations and the conclusion of bilateral treaties: it is this second function which has been described by some as ‘constitutive’, but it is not a condition of statehood.’8

8

Lan Brownlie, principles of international law.

THEORIES OF RECOGNITION Recognition of a State is more of a political concept than a legal concept because there are no specific rules for recognition of a State. There are two popular theories laid down for the purpose of understanding the nature of recognition: 

Constitutive Theory



Declarative or Evidentiary Theory

CONSTITUTIVE THEORY According to this theory, recognition clothes the recognized State with rights and duties under International law. Recognition is a process through which a political community acquires international personality by becoming a member of family of nations. Hegel, Anzilloti, Oppenheim, etc. are the chief exponents of constitutive theory. In the words of Professor Oppenheim, 9"A State is, and becomes, an international person, though, recognition only and exclusively." "According to the constitutive theory, statehood and participation in the International legal order are attained by political group only in so far as they are recognised by established State10. Holland also supports the Constitutive theory. In his view, recognition, confers maturity upon State and until and unless a State is recognised, it cannot acquire rights under International law. In the view of Judge Lauterpacht, Constitutive theory is the practices of the State and is based on sound legal principles. The practice of most of the States, however, indicates the contrary. In practice most of the States accept the declaratory theory. In this connection, Judge Lauterpacht has remarked that the wide acceptance of Declaratory theory is due to the reaction against the traditional conception of recognition as a political act purely and simply. In his view, there is a legal duty on the part of the State to recognize any community that has in fact acquired the characteristics of the statehood. According to this theory, recognition is a necessary condition for statehood and personality. It is a process by which a political community acquires personality and becomes a member of the family 9

Oppenhiem: see supra note 1,at p.125 P.E. Corbett, The Growth of World Law (1971), p.62

10

of nations. A State comes into existence through recognition only and exclusively. This theory is supported from the fact that upon recognition, the recognized state or government acquires status, as such, in the municipal courts of the recognizing state. This theory gives upper hand to International community over state sovereignty, for example, right to sue and sued, Immunity. Validity Legislative and executive act & Possession of property.

Examples: 

Poland and Czechoslovakia were recognized by the instrumentality of the Treaty of Versailles.

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Germany was divided into two parts after the World War II by a treaty

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Korea was divided into two parts

Criticism Jurists have criticized the Constitutive theory. The view of Judge Lauterpacht that there is legal duty on the part of the existing States to recognize any Immunity that has in fact acquired the characteristics of statehood, does not seem to be correct. In practice, State do not accept any such obligation. “The practice indicates, however, that although established States normally recognize new States and new governments that in fact exist, they have not consented to law norms that obligate them to do so11. Besides this, the Constitutive theory presents several other serious difficulties. According to this theory, if a State is not recognized it can have neither duty r rights under international law. This is a very absurd suggestion. If we accept this proposition, it will create difficulties in the case of new State which is recognized by some Sates but not recognized by others. The examples of China and Bangladesh can be cited in this connection. China was not recognized by America and other Western countries for several years although China possessed all the essential attributes of State. But to assert that China, therefore, did not have rights and duties under international law would be an absurd proposition. Similarly, Bangladesh was not recognised

11

Edward Collins, International Law in changing World (1969), p.88

for some time by China, Pakistan, Albania, etc. However, in support of the constitutive theory, it must be admitted that once a state is recognized it acquires status and is recognized as such by the municipal courts of the recognising state. Tinoco Concession case- the Tinoco government took over power of the country Costa Rica by force in February 1917, and remained in power till August 1919, when it was ousted. The new government revived the earlier constitution and by passing a decree repudiated certain obligations undertaken by the Tinoco government, including those towards British nationals. Tinoco government was not recognized by many nations, including the UK. The UK brought a claim on behalf of its nationals against Costa Rica which disputed the claim as inadmissible because of nonrecognition of the Tinoco government by the UK. The arbitrator, Justice Taft, while observing that UK can bring a claim against Costa Rica, stated: Recognition is an important evidential factor in establishing the proof of existence of government. Non-recognition for any reason however cannot outweigh the evidence as to the de facto character of Tinoco’s government, according to standards set by international law. He however, recognized that non recognition is evidence that the entity has not fulfilled requirements of statehood. His understanding was that where degree of authority asserted by the new admin is uncertain, recognition by other states will be a vital factor. (here uncertain means not effective control). However, recognition is irrelevant if government has effective control. Legal character of govt. is still there.Therefore, according to Taft, recognition is Constitutive - where factual condition-that is effective control is in dispute. It is declaratory -if effective control exists.

Disadvantages of the theory 

Recognition is political and diplomatic but not legal. This theory imposes an obligation on all member states to recognize a State. Practically, no states wants to do something on obligation.

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There is no law the obliges established states to recognize new States.

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Recognition of a State can be done by few States and others might refuse. According to this theory, the recognition should be done by all the States.

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Palestine is recognized as country by 80 nations thought it does not have a definite territory, population and a definite Government.

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Israel is formed in 1947 by the United Nations Organization. Within few hours, many countries too recognized it. However, India recognized it in 1992.

DECLARATIVE THEORY OR EVIDENTIARY THEORY According to this theory, statehood or the authority of the new government exists as such prior to and independently of recognition. Recognition is merely a formal acknowledgment through which established facts are accepted. The act of recognition is merely declaratory of an existing fact that a particular State or government possesses the essential attributes as required under international law. The chief exponents of this theory are Hall, Wagner, Brierly, Pitt Corbett and Fisher. According to Prof. Hall, a State enters into the family of nations as of right when it has acquired the essential attributes of statehood. Pitt Corbett has expressed the view that existence of a State is a matter of fact. In his words, “So long as a political community possesses in fact the requisites of a statehood, formal recognition would not appear to be a condition precedent to acquisition of the ordinary rights and obligations incident thereto.” Brierly has also remarked, “the granting of recognition to a new State is not a 'Constitutive' but a 'Declaratory' act. A State may exist without being recognized and if it exists 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 State12." The Soviet view and practice are also in favour of the declaratory theory of recognition. According to the Soviet view, birth of a State is the act of internal law rather than that of international law13. In modern times international personality does not depend upon recognition.14 This theory states that declaration is a mere formality and has no legal effect as the existence of a State is a mere question of fact.Every new state becomes a member of the family of nations ipso facto by its coming into existence. Recognition only provides the evidence to this fact. This theory says recognition is not important. In Genocide (Bosnia and Herzegovina v Yugoslavia), it “was argued by the Socialist Federal Republic of Yugoslavia (SFRY) that the allegations of the breach of the Genocide Convention made by Bosnia-Herzegovina were not admissible as the parties to the dispute had not recognized each other at the time of the events in question. The Court dismissed this argument on 12

J.L. Brierly. The Law of Nations, Sixth Edition (1946),p.139 see Kazimierz Grozybowski Soviet public International Law(A.W. Sijthoff, Leyden(1970), p.69. 14 Ibid at p.70 M. Lach has also observed: “We face today the waning legal importance of recognition. Nonrecognition based on political considerations has lost most of its meaning. it no longer produces all effects it was meant to in the past.” “Recognition and modern Methods of International Cooperation. “BYBIL, Vol.XXXV ,(1959),p.252 at p.259 13

the basis that, as recognition had been given subsequently in the Dayton Accord, any defect was merely procedural and could be remedied by re-filing the claim to relate to events of genocide occurring prior to 1995.” “Substantial state practice supports the declaratory view. Unrecognized states are quite commonly the object of international claims by the very states refusing recognition. An example is Israel, long held accountable under international humanitarian and human rights law by certain Arab states that persistently deny it recognition. State which has for particular reasons refused to recognise other states, such as in the Arab world and Israel and the US and certain communist nations, rarely contend that the other party is devoid of power 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. This has not been adopted in any of the stance of non-recognition of states. Of course, if an entity, while meeting the condition of international law as to statehood went totally unrecognised this would undoubtedly hamper the exercise of its rights and duties , especially in view of the absence of diplomatic relations , but it would not seem in law to amount to a decisive argument against statehood itself. For example- charter of the organisation of American states Bogota 1948. The political existence of the state is independent of recognition by other states. Even before being recognised the state has the right to defend its integrity and independence. Institutede droit international 1956- existence of the new state with all the legal effects connected with that existence is not affected by the refusal of one or more states to recognise. Similarly the courts of a new states European and central Europe, regarded their states as coming into being upon the actual declaration of independence and not simply as a result of the peace of treaties .Example- arbitration commission on Yugoslavia- opinion no. 1 – the existence or disappearance of the states is a question of fact and that the effect of recognition by other states are purely declaratory.

Criticism This theory has also been subject to criticism. The view that recognition is only a declaratory of an existing fact is not completely correct15. In fact, when a State is recognized, it is a declaratory act. But the moment it is recognized, there ensue some legal effects of recognition which may be said to be of constitutive nature.

Disadvantages The theory fails to explain legal rights and consequent of a recognized state. Example: Taiwan is a democratic country and is adjoining areas where Chinese territory. Only few countries recognize Taiwan, yet it had business dealings with almost every country. US VIEW ON RECOGNITION: In the view of the united states, international law does not require a state to recognise another entity as a state; it is matter for the judgement of each state whether an entity merits recognition as state. in reaching this judgement, the us, traditionally looked to the establishment of certain facts. These facts include, effective control over the a clearly defined territory, population; an organised government administration of that territory and a capacity to act effective to conduct foreign relation and to fulfil international obligations. The united states have also considered whether the entity in question has attracted the recognition of the international community of states.16 UK VIEW ON RECOGNITION: the normal criteria which the UK government apply for recognition as a state are that it should have, and seem likely to continue to have, a clearly defined territory with a population, a government who are able to themselves to exercise effective control of that territory, and independence in their external relation. Other factors, include including some united national resolution, may also be relevant.17

15 16

17

See Oppenheim supra note 1 at p.128 Malcom N. Shaw, International Law, p.334(8th ed. ,2019). Malcom N. Shaw, International Law, p.334(8th ed. ,2019).

CONCLUSION According to International Law, Recognition is the formal acknowledgment of the status of an independent State by other existing states. Every State must have some essential features, called attributes of statehood, in order for other States to recognize the State as independent. States are considered as the principal persons in International Law. The recognition of a state is often a political act of a state. Recognition is not a conclusive proof of the existence of the state. Recognition of a State is more of a political concept than a legal concept because there are no specific rules for recognition of a State. the two most common schools of thought for the creation of statehood are the constitutive and declaratory theories of state creation the constitutive theory was the standard nineteenth-century model of statehood, and the declaratory theory was developed in the twentieth century to address shortcomings of the constitutive theory. In the constitutive theory, a state exists exclusively via recognition by other states. The theory splits on whether this recognition requires “diplomatic recognition” or merely “recognition of existence”. No other state grants Sealand official recognition, but it has been argued by Bates that negotiations carried out by Germany constituted “recognition of existence”. In the declaratory theory of statehood, an entity becomes a state as soon as it meets the minimal criteria for statehood. Therefore, recognition by other states is purely “declaratory”. Neither theory of recognition satisfactorily explains modern practice. The declaratory theory assumes that territorial entities can readily, by virtue of their mere existence, be classified as having one particular legal status: it thus, in a way, confuses ‘fact’ with ‘law’. For, even if effectiveness is the dominant principle, it must nonetheless be a legal principle. A State is not a fact in the sense that a chair is a fact; it is a fact in the sense in which it may be said a treaty is a fact: that is, a legal status attaching to a certain state of affairs by virtue of certain rules or practices. And the declaratory theorist’s equation of fact with law also obscures the possibility that the creation of States might be regulated by rules predicated on other fundamental principles—a possibility that, as we shall see, now exists as a matter of international law. On the other hand, the constitutive theory, although it draws attention to the need for cognition, or identification, of the subjects of international law, and leaves open the possibility of taking into account relevant legal principles not based on ‘fact’, incorrectly identifies that cognition with

diplomatic recognition, and fails to consider the possibility that identification of new subjects may be achieved in accordance with general rules or principles rather than on an ad hoc, discretionary basis.

BIBLIOGRAPHY

BOOKS 1. Dr.H.O.Agarwal, International law and Human Right, 19th ed.2013 Central law pub. 2. Dr. S.K. Kapoor, International Law and Human Rights, 19thed. 2014

WEBSITE 

http://www.lawnotes.in/Recognition_of_a_State

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http://karabakh.org/articles/recognition-of-states-and-governments-in-international-law/

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http://internationallawu.blogspot.in/2012/11/recognition-de-facto-and-de-jure.html

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http://www.preservearticles.com/2012011020478/point-out-the-differences-betweendefacto-and-dejure-recognition.html