About this topic
Recognition decides whether a new entity is treated as a state, and whether a new authority is treated as the government of a state, by other states. Three problem situations show why the topic matters. They are answered at the end of these notes.
Situation 1 (a new state): A chain of islands votes in a peaceful referendum to leave a large mainland country. The islands have their own people, a clear coastline, an elected parliament and a foreign ministry. Yet only a handful of countries accept them. Are they a state?
Situation 2 (a new government by force): In a distant republic, the army chief surrounds the presidential palace one night and takes power. The elected President escapes abroad. Both sides now claim the republic's embassy in New Delhi and its bank account in Mumbai. Whom should India deal with, and who gets the property?
Situation 3 (acts of an unrecognised government): A revolutionary government seizes a private tea estate and sells the tea to an Indian importer. The old owner sues the importer in India, saying India never accepted that government. While the case is pending, India accepts it. Who wins?
All three situations turn on one idea: recognition.
Meaning of recognition
Recognition works like a birth certificate. The certificate does not create the child, who is alive from birth. But without it, the child struggles at every step, from school admission to a passport. Recognition plays a similar role in international law.
Recognition is the formal acceptance by an existing state that a new entity is a state, or that a new authority is the government of a state, with the rights and duties that international law attaches to that position.
Recognition therefore has two objects:
- Recognition of a state – accepting that a new entity is a state.
- Recognition of a government – accepting that a new authority is the government of a state.
Theories of recognition
The central question is whether the "certificate" only records a fact, or whether it creates a legal person. This debate has produced three theories.
1. Constitutive theory
- Recognition creates the state in the eyes of international law.
- Until other states recognise it, the entity may have land and people, but it is not an international person.
- Everything depends on the will of existing states.
- Jurists linked with this view: Hegel, Anzilotti and Oppenheim.
2. Declaratory (evidentiary) theory
- Statehood is a matter of fact. Once the essential elements are present, the state exists.
- Recognition only declares, or gives evidence of, that fact. Hence it is also called the evidentiary theory.
- Jurists linked with this view: Hall, Wagner, Brierly and Fisher.
- The Montevideo Convention on the Rights and Duties of States, signed in December 1933, supports this view.
Montevideo Convention, Article 3 (opening words): "The political existence of the state is independent of recognition by the other states."
3. Kelsen's modified constitutive theory
- Natural statehood – existence as a fact. A community acquires it as soon as it acquires the essential elements.
- Juridical statehood – existence as a legal person in its relations with another state. It comes only through that state's recognition.
In the birth-certificate analogy, the facts give birth to the child, and the certificate gives it a legal identity.
Comparison of the three theories
| Point | Constitutive theory | Declaratory theory | Kelsen's modified constitutive theory |
|---|---|---|---|
| Role of recognition | Creates the state as an international person | Only declares or evidences an existing fact | Facts give natural statehood; recognition gives juridical statehood in relation to the recognising state |
| Basis of statehood | Will of existing states | Presence of the essential elements | Essential elements (as fact) plus recognition (as law) |
| Jurists | Hegel, Anzilotti, Oppenheim | Hall, Wagner, Brierly, Fisher | Kelsen |
| Support | – | Montevideo Convention, Article 3 | – |
Which theory prevails
The constitutive theory has an obvious weakness. If 50 states recognise an entity and 50 refuse, the entity would be a state and not a state at the same time. So modern practice leans towards the declaratory view.
Exam point: the main criticism of the constitutive theory is that it makes statehood relative – the same entity could be a state for some states and not for others. Modern practice and Article 3 of the Montevideo Convention favour the declaratory theory.
Essentials of statehood
If statehood is a matter of fact, the relevant facts are listed in Article 1 of the Montevideo Convention.
Montevideo Convention, Article 1: "The state as a person of international law should possess the following qualifications:" first, "a permanent population"; second, "a defined territory"; third, "government"; and fourth, "capacity to enter into relations with the other states."
Memory aid – the four P's: People (permanent population), Place (defined territory), Power (government) and Partners (capacity to enter into relations with other states).
- People – a settled community, whatever its size.
- Place – a territory of its own, though its borders need not be fully settled.
- Power – an effective government that actually controls the territory.
- Partners – the ability to deal with other states on its own, which really means independence.
People: Nauru, a Pacific island of about 12,000 people, is a full member of the United Nations. Size of population does not matter.
Place: India itself has unresolved boundary questions, yet it is plainly a state. Borders need not be fully settled.
Partners: Manchukuo, set up in Manchuria in 1932 under Japanese control, failed the test of independence, and most of the world refused to accept it.
Modes of recognition: express and tacit
Montevideo Convention, Article 7: "The recognition of a state may be express or tacit. The latter results from any act which implies the intention of recognizing the new state."
- Express recognition – a clear statement, such as a formal announcement.
- Tacit (implied) recognition – arises from conduct, such as:
- signing a bilateral treaty with the new state;
- exchanging ambassadors;
- formally receiving the new state's envoy.
The key word for tacit recognition is intention. Merely attending the same conference, or joining the same multilateral treaty, does not show an intention to recognise.
Conditional and premature recognition
Conditional recognition
Sometimes recognition comes with strings attached, for instance a promise by the new state to protect religious minorities. This is conditional recognition.
Montevideo Convention, Article 6: "The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable."
If the new state breaks the condition, the recognition survives. The new state has only broken an obligation; the recognition itself is not undone.
Premature recognition
The opposite danger is haste. Premature recognition means recognising a breakaway region while the parent state is still genuinely fighting to keep it. This takes sides in another country's internal struggle and is treated as unlawful intervention.
Montevideo Convention, Article 8: "No state has the right to intervene in the internal or external affairs of another."
De facto and de jure recognition
Recognition comes in two strengths. Compare a learner's driving licence with a permanent licence:
- De facto recognition – recognition based on fact. It is like the learner's licence.
- De jure recognition – recognition in law. It is like the permanent licence.
The two are compared through three questions: How sure? How strong? How long?
How sure
De facto recognition is given when the authority clearly controls the ground, but doubts remain about its stability or its legal claim. This usually happens after a revolution, a coup or a breakaway struggle. De jure recognition comes when those doubts are gone. Where change is peaceful and constitutional, the cautious de facto step is rarely needed.
How strong
De facto recognition opens limited doors. Full diplomatic relations are not normally set up, and the authority cannot claim its predecessor's property lying in the recognising state. De jure recognition opens every door, including these.
How long
De facto recognition is provisional and can be withdrawn if the doubts prove right. De jure recognition is final, and the words "unconditional and irrevocable" in Article 6 are understood to describe it.
| Question | De facto recognition | De jure recognition |
|---|---|---|
| Meaning | Recognition based on fact (learner's licence) | Recognition in law (permanent licence) |
| How sure? | Authority controls the ground, but doubts remain about its stability or legal claim (usually after a revolution, coup or breakaway struggle) | Given when those doubts are gone |
| How strong? | Limited: full diplomatic relations not normally set up; cannot claim predecessor's property in the recognising state | Full: opens every door, including diplomatic relations and the predecessor's property |
| How long? | Provisional; can be withdrawn if the doubts prove right | Final; "unconditional and irrevocable" in Article 6 is understood to describe it |
Recognition of governments
The two strengths matter most for governments. Think of the state as a car and the government as its driver.
- The car (the state) is registered once.
- When drivers change at a scheduled stop – through an election or another constitutional process – nobody registers the car again, and no question of recognition arises.
- The problem begins when someone seizes the wheel by force, through a coup d'état or a revolution. Other states must then decide whether to deal with the new driver.
Recognition of a government becomes an issue only when the government changes by unconstitutional means (coup d'état or revolution). A constitutional change of government raises no question of recognition.
Recognition of insurgency and belligerency
If the fight inside the country goes on, the law sorts the rebels by how much of the map they hold and how they fight.
Insurgents
- They hold only pockets of territory, without settled control.
- They get no recognition as a state or a government.
- At most, outside states may admit that an insurgency exists, so that the rebels are not treated as pirates or ordinary criminals.
Belligerents
Belligerents have gone much further. Outside states may recognise their belligerency when:
- the conflict is general;
- the rebels hold and administer a substantial part of the territory;
- they fight through an organised command that respects the laws of war; and
- outside states are forced to take a position.
Effects of recognising belligerency:
- The laws of war then apply.
- The recognising states must stay neutral.
- The status is provisional, like de facto recognition. If the belligerents win and settle into power, de jure recognition may follow.
| Point | Insurgency | Belligerency |
|---|---|---|
| Territory | Only pockets of territory, without settled control | Hold and administer a substantial part of the territory |
| Nature of conflict | Falls short of the conditions for belligerency | General conflict, fought through an organised command respecting the laws of war; outside states forced to take a position |
| What outside states do | At most admit that an insurgency exists | May recognise the belligerency |
| Effect | Rebels not treated as pirates or ordinary criminals; no recognition as state or government | Laws of war apply; recognising states must stay neutral; status is provisional and de jure recognition may follow victory |
Doctrines of recognition
States have answered cases of governments that seize power through doctrines of recognition. They fall into two camps, with one doctrine kept aside because it concerns territory rather than governments.
Camp 1: Legitimacy – is the new government legitimate?
Tobar Doctrine (1907)
- Put forward in 1907 by Carlos Tobar, Foreign Minister of Ecuador.
- Governments born of a revolution or a coup should not be recognised until the freely elected representatives of the people have reorganised the country constitutionally.
Betancourt Doctrine (1959)
- Announced in 1959 by Rómulo Betancourt on taking office as President of Venezuela.
- Refuses recognition to regimes that seize power through the army.
Camp 2: Effectiveness – does the government exist and control the country?
Estrada Doctrine (1930)
- Announced on 27 September 1930 by Genaro Estrada, Mexico's Secretary of Foreign Affairs.
- Pronouncing on another country's government is itself a judgment on that people's internal affairs.
- So a state should make no such pronouncement. It should simply decide whether to keep or withdraw its diplomats.
- The doctrine rests on non-intervention and self-determination.
Kept aside: Stimson Doctrine (1932) – territory, not governments
- After Japan seized Manchuria, the American Secretary of State, Henry Stimson, declared in a note of 7 January 1932 that his country would not recognise any change of territory achieved by force.
- Article 11 of the Montevideo Convention then made this binding among its parties, as "the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force".
| Doctrine | Year | Author | Test / rule |
|---|---|---|---|
| Tobar | 1907 | Carlos Tobar, Foreign Minister of Ecuador | Legitimacy: no recognition of revolutionary or coup governments until freely elected representatives reorganise the country constitutionally |
| Betancourt | 1959 | Rómulo Betancourt, President of Venezuela | Legitimacy: no recognition of regimes that seize power through the army |
| Estrada | 1930 (27 September) | Genaro Estrada, Mexico's Secretary of Foreign Affairs | Effectiveness: no pronouncement on the government; only decide whether to keep or withdraw diplomats; based on non-intervention and self-determination |
| Stimson | 1932 (7 January) | Henry Stimson, American Secretary of State | Territory: no recognition of any change of territory achieved by force; made binding by Article 11 of the Montevideo Convention |
Memory aid: two camps and one exception. Legitimacy camp – Tobar and Betancourt. Effectiveness camp – Estrada. Exception – Stimson, which deals with territory acquired by force, not with governments.
Legal consequences of recognition
Recognition hands over five keys:
- Diplomacy – ambassadors, diplomatic privileges and treaties.
- The courtroom – a recognised state or government can bring a case before the courts of the state that recognises it.
- A shield (sovereign immunity) – it cannot ordinarily be sued in the courts of the recognising state without its consent.
- Property – the right to claim its predecessor's property situated in the recognising state. This belongs to de jure recognition.
- The past (retroactivity) – recognition is retroactive. It reaches back to the date on which the state or government actually began, so its earlier laws and official acts are treated as valid.
Retroactive effect of recognition
Luther v. Sagor (1921, English Court of Appeal): A Russian company, A. M. Luther, owned a plywood factory in Russia. In 1919, Soviet authorities took over the factory and its stock under a nationalisation decree. In 1920, the Soviet government sold some of that plywood to James Sagor and Company, an English firm, which brought it to England. Luther claimed the goods, arguing that Britain had not recognised the Soviet government, so the decree meant nothing in English law. The trial judge agreed. Before the appeal, Britain recognised the Soviet government as the de facto government of Russia. Held: the Court of Appeal reversed the decision. Recognition related back to the time that government established itself, so the nationalisation was a sovereign act within its own territory, which English courts would not question. Sagor kept the goods. Principle: recognition is retroactive, and even de facto recognition lets courts give effect to a government's acts within its own territory.
Applying the law to the three situations
- Situation 1 (the islands): The islands are a state if they have the four P's – People, Place, Power and Partners. On the declaratory view and Article 3 of the Montevideo Convention, the cold response of other states does not erase their existence.
- Situation 2 (the army chief): The army chief may receive de facto recognition if he truly controls the republic. Followers of the Tobar or Betancourt Doctrine would refuse him recognition, while a follower of the Estrada Doctrine would simply decide whether to keep diplomats there. In principle, the embassy and the bank account go to the government that India recognises de jure.
- Situation 3 (the tea estate): The tea importer wins. Recognition is retroactive, so the takeover counts as a valid act of that government, on the same reasoning as Luther v. Sagor.
Quick revision
- Four P's for statehood – People, Place, Power, Partners (Article 1, Montevideo Convention).
- Three questions for the two strengths – How sure? How strong? How long? (de facto v. de jure recognition).
- Two camps and one exception for the doctrines – legitimacy (Tobar, Betancourt), effectiveness (Estrada), and Stimson for territory taken by force.
- Five keys for the consequences – diplomacy, the courtroom, sovereign immunity, property, and retroactivity.
