Author: Shivanshu Dwivedi, II Year of LL.B(Hons) from Faculty of Law, University of Lucknow.
The International Society is not immune from territorial changes and is subject to the ebb and flow of political life. The New States are carved out from the existing states or the existing states perish by unifying with another state or splitting into many small states. New Governments come into being within these states either by a public mandate or revolution or in some other manner contrary to the declared constitutions like coup etc. The authority to approve or disapprove or grant legal sanctity to such events is vested in the International Community. Thus, Recognition is the act by which a State gives its endorsement to the change in the State or the Government that has taken place.
In the absence of codified law, the subject of recognition is largely regulated by State practice. The practice of majority states reflects that the subject of recognition is more tilted towards the policy of the state. Generally, it is seen that granting of recognition is subjected to self-interest, with the recognizing state granting or withholding recognition depending upon its political exigencies. Despite being a political act, the legal significance of recognition cannot be brushed aside.
When it comes to defining the term Recognition, there is no straitjacket definition. Various authors and eminent jurists of International Law over time have defined the concept in their accordance.
To quote a few:
According to Phillip Jessup, “Recognition means that an existing State acknowledges the political entity of another State, by overt or covert act. It may be noted that recognition is neither a contractual arrangement nor a political concession. "It is a declaration of the existence of certain facts”.
According to Professor G. Schrawzenberger, “Recognition is a means by which States express their willingness to acknowledge vis-a-vis themselves the existence, and legal effect, of a situation or transaction which, in the absence of such recognition, would not be opposable to them”.
Oppenheim states that through recognition, the recognising State declares that “a foreign community or authority is in possession of necessary qualifications of Statehood, of governmental capacity or of belligerency”.
According to the Institute of International Law, “the recognition of a new State is, the free act by which one or more States acknowledge the existence on a definite territory of a human society politically organised, 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”.
Thus, in brief, we can say that recognition is a state’s acknowledgment or acceptance as an international personality by the existing state of the international community.
However, before a state can be recognized as an international personality, it has to satisfy certain essential attributes of Statehood. These attributes find mention in the Montevideo Convention, 1933. These attributes are as follows:-
The capacity to conduct its international relations independently.
When the possession of all these attributes in a state is acknowledged by another state, it may grant recognition to that very state.
Another important point to be noted here is that the concept of recognition is not restricted only to States and Governments. Belligerents and Insurgents are also subject matters of recognition.
MODES OF RECOGNITION
Generally, there are 2 modes of recognition, i.e., de facto Recognition and de jure Recognition. A state or government may either be granted de facto recognition or de jure recognition.
De facto recognition – The granting of De facto recognition indicates that the State or Government recognized possesses the essential attributes of statehood and is fit to be the subject of International Law.
However, there are certain doubts regarding the long-term viability and stability of the Government in question. Thus de facto recognition is transient and is followed by de jure recognition. For instance, the United Kingdom recognized the Soviet government de facto in 1921 and de jure in 1924.
De jure recognition – De jure recognition is granted when the recognizing state is satiated with the effective control displayed by the government which was granted de facto recognition. Generally, de jure recognition follows de facto recognition. It is legal and permanent, and once granted, it cannot be withdrawn.
RECOGNITION OF GOVERNMENT
The Government of a State is its sole representative at the international forum.
Thus, the recognition granted to a government indicates that the recognizing state adjudges the government as the sole representative of that state. However, the recognition of a government is distinct from that of a State. The recognition granted to a state is unconnected to that granted to the government of that state with the only exception of a Nascent State.
Thus, withholding recognition to a new government does not jeopardize the recognition granted to the state.
A new government may come into existence either in the normal course of political life, i.e. by constitutional means or through non-constitutional procedure, i.e., by revolution, coup, etc. In the former case, the granting of recognition to the government is a mere formality, but in the latter case, the recognizing states analyze the stability, efficacy, and control of the new regime over the population before granting recognition to the government in question.
There is no hard and fast procedure on how to grant recognition, as the decision whether or not to recognise a government is a unilateral act and at the discretion of each State. Recognition of Government serves three functions. These are as follows -
It ensures that only those regimes which are apt for such status are embraced as Governments of States.
It gives assurance to the new governments that others will honor their status.
It enlightens the Courts, Government Agencies and Nationals of the recognizing State that a particular regime is the government of the particular state.
The recognition of government holds significance in the sphere of diplomatic relations. If the government of a state is not recognized by another state, then no diplomatic links can be established between the two states.
DOCTRINES REGARDING RECOGNITION OF GOVERNMENT
Some of the famous doctrines regarding the recognition of a government are as follows:
Tobar Doctrine – The Tobar doctrine was propounded by Carlos Tobar, the then Foreign Minister of Ecuador in the year 1907. It is also known as the 'Doctrine of Non-Recognition'. The Tobar doctrine states that; “recognition of government should only be granted if its administration came to power by legitimate democratic means”. It was primarily adopted by the Central American States in 1907. Later recognition of the US to this doctrine turned it into be known as ‘Wilsonian Policy’.
Estrada Doctrine – The “Estrada doctrine” was propounded in 1930 by Genaro Estrada, the then Mexican secretary of Foreign Affairs. According to this doctrine, “Recognition of government should be based on its de facto existence rather than on its legitimacy”. Thus, according to Mr. Estrada, a State should continue diplomatic relations with States without regard to revolutionary changes.
Stimson Doctrine – The Stimson doctrine was advocated by the then American Secretary of State, Mr. Stimson in the year 1932. As per this doctrine "Any territorial change brought about by aggression will not be recognized".
THE EFFECTIVE CONTROL TEST
The Effective Control test constitutes another set of criteria based on which a government can be recognized. This test was adopted under the earlier United Kingdom to grant recognition to the then newly established regimes. The test employed here was whether the new government enjoyed, with a reasonable prospect of permanence, the obedience of the mass of the population and exercised effective control over significant regions of the state concerned. A great example of the application of this test was the Tinoco Arbitration. In this case, Chief Justice Taft, who was the sole Arbitrator, decided that since the new regime in Costa Rica was exercising effective control of the country, it was a valid government.
LANDMARK CASES CONCERNING RECOGNITION OF GOVERNMENT
Here are some of the well-renounced cases pertaining to the concept of recognition of government. These are as follows-
In the case of Luther v. Sagor, the Czarist Empire of Russia was ousted by Lenin’s Communist party in 1917. The plaintiff-appellant owned a timber factory in Russia and after the communist party came into power, it ordered the nationalisation of the timber industry in 1918. In 1920, the representatives of the Russian government entered into a contract with the defendant to sell some timber, etc.
The plaintiff-appellant claimed ownership over some of the timber works which this organization held in England. The ownership of the company was disputed because, according to the plaintiff-appellant, the communist regime of the erstwhile USSR was not recognized at the International Level.. He argued that the decree should not be recognised by an English court inter alia because the Soviet government had not been recognized in the United Kingdom.
The Plaintiff lost the case at the lower court and the Court of Appeal. Finally, the matter was heard by the House of Lords under its Appellate Jurisdiction. While the case was pending, the Government of England recognized the Communist Regime of the USSR. By virtue of this act of recognition, the Nationalisation of Timber Company was held to be valid. This happened because recognition is always granted with a retrospective effect.
In the famous Arantzazu Mendi case, two rival factions of government made their claim on a ship that was harbored in London. The country involved here was Spain. A civil war had broken out in Spain in 1936. The federal government which was a democratically elected government faced a coup d’état at the hands of General Franco. Franco’s government was called the Nationalist Government.
Arantzazu Mendi was a Spanish ship registered at Bilbao. After the occupation of Bilbao by insurgents led by General Franco, the federal government served a notice of requisition to the owner of the ship on 23 March 1938. Subsequently, the Nationalist government also served a notice of requisition on the owners of the ship under a decree issued on 2 March 1938. On April 13, the owners of the firm submitted to the provisions of the decree of the Nationalist Government.
On the same day, the Republican Government issued a writ claiming possession of the ship. However, the Nationalist Government argued that the writ be set aside on the ground that it impleaded a foreign state, namely the Nationalist Government which was in possession of the ship. So the question here was whether the Nationalist government was the government of a foreign sovereign state or not?
In this case, Justice Becknell held that the Nationalist Government was the government of a foreign sovereign state and therefore held a better title on Arantzazu Mendi.
In Haile Selaisse v. Cable and Wireless Ltd., the exiled emperor of Ethiopia had filed a case against the defendant company in England for the recovery of a loan due under a concessionary contract executed in 1934. However, the British government at that time recognized the plaintiff-appellant as the de jure sovereign of Ethiopia.
The defendant company argued that by virtue of de facto recognition granted to the King of Italy, he was entitled to the recovery of the loan.
Initially, in this case Justice Bennett held that the right to sue for the recovery of the loan was vested in the plaintiff and the annexation of Ethiopia by the Italian forces will not have the effect of depriving the plaintiff-appellant of the title to sue. However, the defendant appealed against this decision but before the hearing could start in the Court of Appeal, the King of Italy was granted recognition by the British Government as the de jure sovereign of Ethiopia, and as a result of it, the Court held that the power to sue was now vested in the King of Italy.
LEGAL EFFECTS OF RECOGNITION AND NON-RECOGNITION
Recognition is a politically inspired act and depends upon the desire and sweet will of the recognizing state. However, it has dual consequences, i.e., political and legal and also bestows on the recognized entity an international persona as well as a status under Municipal law. The legal effects of the act of recognition are as follows:
The recognized entity is entitled to sue in the courts of recognizing states, and the courts will give effect to its past and present legislative acts.
The recognized entity can claim Sovereign Immunity for its diplomats and public property from legal action.
The recognized entity can demand and receive possession of the public property belonging to the recognized state.
Contrary to it, the position of an unrecognized entity is as follows:
The unrecognized entity will not possess any locus standi before the municipal courts of a state which has not recognized it. Also, the Administrative and Legislative acts of the state will not be given any effect.
The diplomats of an unrecognized entity do not possess any immunity against legal actions.
The unrecognized entity cannot recover the public property belonging to it.
WITHDRAWAL OF RECOGNITION
Whether recognition once granted can be withdrawn or not has remained a million-dollar question for quite some time. However, things became clear with the coming of the Montevideo Convention in 1933. As per Article 6 of the convention, recognition once granted is "unconditional and irrevocable''. Thus, de jure recognition is permanent in nature. The Institute of International Law in 1936 also observed that recognition once given is irrevocable.
When recognition is granted to a new regime that demonstrates effective control over the territory, the recognition granted to the former government stands extracted. For example, the British Government withdrew recognition of Ethiopia and the Haile Selaisse Government.
However, de facto recognition stands on a different footing. It is transient and attaches a certain degree of uncertainty concerning the stability of the entity to be recognized. Once the stability of the new entity is dubious, the recognition is withdrawn. Similarly, if the entity ceases to exist, the recognition also ceases to operate.
Recognition has emerged as a dynamic phenomenon in the field of international law. Recognition has come a long way from the era of colonization and monarchy rule to the modern democratic era. Recognition results in the emergence of new states and governments and, therefore, aids in the development of the international community. Recognition is an act of validation that provides a sui generis identity to a state and government. It ultimately leads to the development of new diplomatic relations in the global community on which the whole interest of international politics is based.