RECOGNITION

1. Introduction
Issue of recognition of states and government become important because changes in
international scenario may lead to new states being created, old states being dead.
Government may change democratically, through revolution, rebellion, military conquest etc.
The above changes puts question before the other states as to how to engage, whether to
engage or not to engage, to engage formally or informally- these issues are hinged on the
concept of recognition of states and government because that will decide the interaction
between states would happen or not, and the nature of interaction(formal, informal, etc.).
Recognition is a difficult principle in international law because (1) Recognition is more a
question of policy than a law (2) Policy of Recognition is conditioned by the necessity of
protecting one’s own interest(political consideration also like trade, strategy) (3)Therefore,
tendency to use legal principal Recognition as a convenient camouflage for political
decisions.
There are different kinds of Recognition like Recognition of new states, Recognition of
belligerency, Recognition of insurgency, Recognition of national liberation, De facto- De jure
Recognition, Recognition of states and Recognition of government

2. Definitions
State Recognition- 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.
Recognition of government- Recognized government is in the opinion of the recognizing
state, qualified to represent an existing state, but it does not necessarily signify of approval of
that government by the recognizing state.

3. Nature and form of Recognition

Effect of recognition
International
Some theorists believe recognition to have constitutive effect in international law in the sense
that it is a necessary condition for constitution of a state or government concerned
international level. An entity is not a state or government in International law unless
recognised. This is relevant in case of new states/governments having coe through extra
constitutional means.
Some theorists however believe that recognition is merely an acknowledgement of a fact
already existing. Therefore non recognition will not deprive that entity of rights and duties
before International Law. Unrecognised state may therefore deemed to be subject to
international law and not free from restraint.
Non-Recognition however will affect the exercise of rights and duties though not its
existence.
Domestic law:
Courts cannot recognise a government. They can only accept and enforce the legal
consequences which flow for the executive’s political decision. But now this has got
complicated (see dealings).
Recognition is constitutive within domestic jurisdiction of recognising state because the act
of Recognition alone creates legal results within the domestic jurisdiction.
1. Right to sue and sued.
2. Immunity.
3. Validity Legislative and executive act.
4. Possession of property.
However with respect to private citizens of unrecognised states/governments, countries
like Switzerland and Germany have followed declaratory theory and have granted them
protection. However, many countries like US, UK have now begun to adopt policy
wherein courts apply the law of non recognised entity which the executive confirm
having no harmful effect on policy behind non recognition.

Recognition = Cognition+ Intention (legal consequences of Recognition Should operate).

Recognition is more than mere acknowledgement of fact of existence of state or government.
It is approval of the fact that a state or government possesses requisite qualifications to be
part of international community or to represent a state in the case of government. The
practical purpose of recognition is the initiation of formal relations with the recognizing state
but recognition may not necessarily translate into such relation.

Manner of Recognition
Manner of Recognition is not material, provided that it unequivocally indicates the intention
of the recognising state. There are no rules of international law restrictive of the form or
manner in which recognition may be accorded.
Recognition may be express or implied.
The act of recognition of state or government may be express (public statement, notification,
diplomatic note, personnel message, bilateral treaty or agreement for example in the case of
Estonia, Latvia and Lithuania where the Indian prime minister sent messages to the presidents
of these countries) or implied when it is a matter of inference from certain relations between
the recognizing state and the new state or new government. The act must be such as to
clearly indicate that recognition was intended. The crucial question thus is of intention
(article 7 of the Montevideo Convention states that tacit or implied recognition results from
any act which implies the intention of recognising the new state).
In cases where there is a possibility of inferring recognition from conduct, states may make
express declarations that their act is no way an act to recognize.(eg.- Arab countries with
respect to Israel, or US, which was a party along with People’s Republic of China to the
Geneva Protocols on French Indo-China of 1954 and 1972, declared at the time of signing
that it was not to be construed as according diplomatic recognition to the Red Chinese
regime.) Unofficial contact is not recognition.
The act of recognition may be bilateral or multilateral.
Bilateral acts
1. Formal recognition of a bilateral treaty by the recognised and recognising state.(
1928 treaty between China and Us) as distinct from mere temporary arrangements
or agreements. Ratification is not necessary.
2. Formal initiation if diplomatic relations between the recognised and recognising
states.
3. The issue of a consular exchange by the admitting state for a consul of an
unrecognised state.
However, every bilateral act may not amount to recognition. Unless and until recognition is
express, intention to recognise needs to be clear in the bilateral act. Therefore in implied
recognition through bilateral act, circumstances may have to be studied.
Multilateral acts
Generally, multilateral act may not lead to recognition. In certain exceptional circumstances,
however, recognition has been inferred from the following circumstances:
a) Common participation in a multilateral treaty. However, states such as great Britain
and the US has sometimes when signing a convention, declared that their signature
was not to be construed as the recognition of a signatory or adhering power not
recognised by them.
b) Participation in an international conference.
However, what is required in all these cases is that the act must unequivocally reflect
intention to recognise.
Recognition is primarily a unilateral diplomatic act.
Recognition is primarily a unilateral act even though there have been instances of collective
recognition. There is no collective, organic procedure for granting recognition though
International law does not present or prohibit the grant of collective recognition nor does it
preclude derocognition. The provisions in the UN Charter (Article 3 (4)) directed to the
admission of states to membership of the organization may incidentally in most instances
amount to a certificate of statehood.
There are some instances of Collective recognition granted by states through same collective
international act like treaty or through the medium of international institutions. Examples are
the Berlin Congress of 1878 where recognition to Bulgaria, Serbia, Montenegro; EC
recognition of Baltic states of Estonia, Latvia, Lithuania in 1991.
(Note- the difference between collective recognition and recognition through
multilateral act- collective recognition refers to a situation where many states are granted
recognition by a single international act for example through a treaty. Recognition through
multilateral act refers to recognition of a state/government by several states through its
participation in a multilateral forum like international conference, treaty convention or
through membership of an international institution, etc.)

Duty to grant Recognition?

Some countries (e.g.- Britain) and scholars (e.g.- Lauterpacht) propose that once an entity
fulfils the factual characteristics of statehood, a legal duty should be imposed to recognize it
as state. Britain stated in 1998 in observations on Draft Declaration on Rights and Duties of
States that it favoured a development of international law under which recognition would
become a matter of legal duty for all states fulfilling conditions of statehood.
Lauterpacht- to recognize a community as a state is to declare that it fulfils conditions of
statehood as required by international law. If these conditions are present, existing states are
under duty to grant recognition. Although recognition is declaratory of an existing fact, such
declaration made in the impartial fulfilment of a legal duty, is constitutive as between the
recognising sate and the community so recognized.

Criticism
1. If there were a legal duty to recognise, it is difficult to say by whom and in what
manner it could be enforced. Example- how would one define right correlative to the
duty to recognise and whose right it would be of the state ruling recognition on
international community. How would claim of such right be prevented?
2. No right to recognition is laid down in draft declaration on rights and duties of states.
3. Recognition is treated as an internal policy that each state is entitled to decide for
itself. Municipal courts have also ruled so. US state department observed that in its
perspective, international law does not require a state to recognise another entity as a
state.
4. State practice does not reflect such a duty.
However, even though states give recognition as a matter of policy and may withhold it for
political reasons, when they decide to grant recognition, they endeavour as far as possible to
grant it, according to legal principle and make sure that a state/ government to be recognised
at least possess the requisite legal qualifications.
Recognition of the validity of the law decreed or enacted by a particular entity does not
necessarily import recognition of the law making entity.
Carl Zeiss Stifung vs. Rayner and keeler Ltd. (1967)1 AC 853 at 961

Non recognition is not necessarily accompanied by non-intercourse

Recognition does not always manifest into intercourse between two states/governments
(eg: India and Israel)
Conditional Recognition
Conditional recognition is when granting of recognition is made dependent upon the
fulfilment by the recognised states of certain stipulations in addition to the normal
requirement. E.g. 1878- Berlin of Congress - condition that no religious disability should be
imposed.
Significance of conditions:
1) Non observance of the condition would not annul the recognition, since once
recognition given cannot be withdrawn.
2) Recognition is granted to a new entity if in the opinion of the recognising state, it
fulfils all the attributes of statehood and government authorities and this is not
affected by the subsequent non-observance of the conditions.
3) Recognition being a unilateral act of a state, the recognised state is not bound to
observe conditions imposed.
 4) Conditions are generally expressed in political than legal terms
Maximum fallout of non- fulfilment may be unfriendly relation between these states.
By way of exception however, conditional recognition of states or governments which
are just in the process of emerging is probably revocable.
Eg: recognition in 1919b y Great Britain of the Estonian National Council for the time being
professionally and with all necessary reservations for the future, was no doubt revocable in
the sense that it didn’t constitute an undertaking to continue the recognition if conditions
altered.

Recognition and Membership of the UN

Q. Whether the act of admission to membership of the UN amounts to recognition of the
appellant as a state, and if a new member state has not been recognised as a state by
some/all/few member states what would be the effect of actual voting on its application for
membership?
A. UN membership:
1. Admission of a new entity to the UN is an acknowledgement by the organisation that the
new member is a state. After the decision has been taken to admit a state to the UN, its
statehood cannot be called in question with the effect of contesting the validity of mutual
rights and obligations arising from co-membership.
2. Admission to membership may not amount to collective recognition. This was clarified
also by the UN Secretary General in 1980: ‘Since recognition of either state or government is
an individual act, and either admission to membership or acceptance of representation in the
organisation are collective acts, It would appear to be legally inadmissible to condition the
latter acts by a requirement that they be preceded by individual recognition.’
3. Further, it was stated that ‘such a vote did not imply recognition or readiness to assume
diplomatic relations.
However, admission to membership is evidence that the new entity has fulfilled conditions of
statehood. For individual state thus, admission to membership is of probative value about
existence of an entity as a state. This is true even if the decision to admit the state constituted
under the substantive law, a contravention of the prohibition of intervention enshrined in
Article 2(7).
However, since the existence of a state under international law is independent of individual
acts of recognition, collective decisions taken or view expressed by the member nation at the
time of admission should not affect the attitude maintained by an individual member on
recognition.
Dispute- on acceptance of credentials of Government of an existing member state where
the change of Government has happened through revolution.
The credentials of a new representative from an existing member state, following a change in
the Government are normally accepted but in the case of acceptance of the credentials of a
revolutionary Government the problem involved is whether accepting within the UN, the
credentials of a revolutionary Government of a member state invokes the same consideration
as the recognition of that Government
In a memorandum circulated to the Security Council members on 8th march 1950, the
Secretary General adopted the view that the two matters rested on different considerations
and that UN representation must rest, inter alia, on plenitude of capacity to fulfil the
obligations of membership of the UN.
A stage may be reached where, unless the credential of the effective Government are
accepted in the same manner as it has been recognised, the member state for all practical
purpose be denied its due right of participating in the organisation.

Premature Recognition
Sometimes early recognition of a
state/government may amount to
premature recognition amounting to
interference in the internal affairs of a
state. For example, early recognition of
Biafra in Nigeria was considered by many
as breach of international law as it
amounted to interference in internal affairs
of a state.
Yugoslavia arbitration commission in opinion 5 held that Croatia did not meet fully the
conditions for recognition laid down by E.C. in guidelines of 1991(human rights and
minority rights).It was still recognized by the EC when it did not have control over one third
of its territory.
Bosnia Herzegovina was also recognised by the EC and the US when it had effective control
on less than half the territory.

Theories of Recognition
There are principally two theories as to nature, function and effect of recognition-
These two theories which apply also to newly recognized states are based principally on the
necessary consideration that there should be no gap of time during which a state or
government is out of existence. In other words, continuity is the essence of state sovereignty
or of governmental authority. Otherwise, many transactions, contracts, change of status etc.
would be null and void because of being made in a period when the laws of the particular
state or government under which they were effected were unrecognized.
Constitutive Theory- Historically the constitutive theory was more important than one might
suppose. During 19th century, international law was often regarded as applying mainly
between states with European civilisation. Other countries were admitted to the club only if
they were elected by the other members and the election took the form of recognition. There
were also occasions when some states tended to treat revolutionary governments as outlaws
which were excluded from the club until they were recognised.
According to this theory it is the act of recognition alone which creates statehood or
which clothes a new government with any authority or states in the international
sphere. Even today when a state or government is established in breach of
International Law, the state or government is regarded as having no legal For
example, for many years, the western powers refused to recognise the existence of
East Germany mainly because they considered that its establishment was in breach of
 USSR’s obligation under International treaties. The recognition of East Germany by
west had constitutive effect as far as western powers were concerned.
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
Critiques of constitutive theory
1. Brierly: the status of a state recognized by state A but not represented by state B and
therefore, apparently both an International person and not an international person at
the same time, would be a legal curiosity.
2. States do not refrain from bringing claims against unrecognized states or government
under international law.
Pueblo Case- US vessel was captured by North Korea (1968). it was Subsequently
released without trial upon US signing a document indicating that Pueblo was spying.
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 non-recognition 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 fullfilled
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

British airplane shot down over Egypt in 1949 by Israeli airmen. British government had
not recognised Israel and still demanded compensation
In practice, many states/government were recognized after much delay by many states (e.g-
China, Bangladesh, Taiwan etc.) but it could not be stated that because they were un
recognised by many countries, they did not have any rights and duties under international
law.
Further, recognition is a political act. Delay or refusal is done to further one’s national
interest.
Recognition has retroactive effect to the date of inception of the state, when requirement of
statehood was in fact fulfilled

Why constitutive theory is still relevant?

- For new states or establishment of a new Government by unconstitutional means,
recognition plays a vital role. In any event and particularly where the facts are
unclear and open to different interpretations, recognition by a state will amount to a
declaration by that state of how it understands the situation, and that such an
evaluation will be binding upon it with all its legal consequences. It will not be able to
deny later the factual position it has recognised unless of course circumstances
radically alter in the meantime. In this sense, recognition can be constitutive.
Example- the Yugoslavia Arbitration Commission noted in opinion no. 8 that while
recognition of a state by other states has only declarative value, such recognition, along with
membership of international organisation bears witness to these states’ conviction that
political entity so recognised is a reality and confers on it certain right and obligations under
international law.
By way of contrast, the fact of non-recognition of a new state by a vast majority of existing
states will constitute tangible evidence for the view that such an entity has not established its
conformity with the required criteria of statehood.
- Practice in many states whereby an unrecognised state or government cannot claim
the rights available to a recognised state or government before the municipal courts.
This implies that the act of recognition itself entails a distinct legal effect and that
after recognition, a state of government would have enforceable rights within the
domestic jurisdiction it would not have had prior to the recognition.
Declaratory theory- Statehood or the authority of new government exists as such prior to
and independently of recognition. The act of recognition is merely a formal
acknowledgement of an established situation of fact.
Arguments in favour of declaratory theory are many. For instance, countries generally seek or
give or refer it in accordance with legal principals and precedents.
Recognition has been frequently withheld for political reasons or until such time as it could
be given in exchange for same material diplomatic advantage to be conceded by the newly
recognized state or government- a clear indication that the latter already possessed the
requisite attribute of statehood or government authority.
A mere refusal by a single state to recognize could not affect the situation if a great number
of other states had already given their recognition
Nor have states in practice regarded non-recognition as conclusive evidence of the absence of
qualifications to be a state or government.
Indeed, by asserting that unrecognized states or governments must observe the rules of
international law, they have implicitly acknowledged that they possess same status as such.
The rule that if a question arises in the courts of a new states as to the date at which the state
came into existence, it will be relevant to consider the date when treaties to other states
recognising it came into operation. The date when the requirements of statehood were in fact
first fulfilled is the only material date- Rights of citizenship in succession state case.
The rule that recognition of a new state has retroactive effect, dating back to its actual
inception as an independent state- A M Luther v James Sagor & Co.(1921) 3 532.

Why declaratory?
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.
Institute de 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.

Declaratory vs. constitutive theory

Actual practice shows a mixture of both approaches. Recognition does reflect that state meets
the basic requirement of state under international law The UK practice of recognition of state
for instance is primarily based on test of effective control which is a legal test. However,
recognition is also a political act, done for political reason. For example- US statement in
1948 in SC regarding recognition was that it is “highly improper for one to admit that any
country on Earth can question the recognition of the US in the exercise of the high political
act of recognition of the de facto status of a state”.

Recent practices
US (1976) International law does not require a state to recognise another state. It is upon the
judgement of each state. Certain facts to be looked into before deciding to recognise

 Effective control over a body.

 Defined territory
  Population
 Organised govt.
 Capacity to act effectively to conduct foreign relation and to fulfil international
obligation.
 Recognition by other states.
UK

 Defined territory
 Population
 Govt able to exercise
 Effective control
 Independence in the external relation
 UN resolution

However, note that UK emphasises more on legal aspect of recognition and the US more
on its political aspect. With respect to recognition of government however, they have
discontinued with the practice of recognising governments (see below)
Other factors: eg – EC guideline on the recognition of new states in Eastern Europe and SU.

 Respect for UN Charter, charter of Paris

 Minority respect, respect for ethnic groups.
 Respect for frontiers
 Disarmament, nuclear non-proliferation.
 Peaceful settlement of disputes.
Lauterpacht – proposed assimilation of Constitutive and declaratory ( once condition of
statehood are fulfilled/met, there is a duty to recognise)

- But fails to recongise the political aspects of recognition

- Further if there is duty, there must also be rights (who will enforce the rights?)
- Not adopted and practice
Note- opinion no. 10 – Yugoslavia Arbitral Commission  recognition is a
declaratory act.

Recognition of government
Questions have been raised whether Recognition of government is a necessary institution,
and if not, accordingly whether it ought to be discarded either generally or in most instances.
Views-
1. Prof. Richard Baxter- Recognition causes more problems than it solves and that its
partial withdrawal would facilitate the maintenance of relation with states in which
extra-constitutional states of government were taking place.
2. In 1930, Minister of foreign affairs of Mexico Estrada announced that his government
would no longer issue declarations in the name of grants of new government in as
much as such a course is an insulting practice and in which, in addition to the fact it
affects the sovereignty of other nations, implies that judgement of some sort may be
passed upon the internal affairs of those nations by other government- Estrada
Doctrine. This doctrine has been adopted by many countries like the US, UK, France,
Spain, Australia, Belgium, Canada, etc.
 However, many have criticised this discontinuance as unrealistic, something that has
reduced distinction between recognition and maintenance of diplomatic relations.
For example- UK earlier followed effective control test of revolutionary government
However, since 1980s, practice of only state recognition has been followed. With
respect to revolutionary govt., UK will decide their approach on the basis of their
‘dealings’ with these governments. However, the fact remains that even dealings will
have to depend on effective control, the earliest theory of recognition.
Similarly, even though US says that its policy is that establishment of relations does
not involve the approval or disapproval but mainly demonstrates the willingness to
conduct its relations with other governments and have diplomatic relations with them,
but even then it takes into consideration factual control, stability, etc. Us used to
earlier follow the Tobar Doctrine- doctrine of legitimacy where the government which
came into power through unconstitutional means would not be recognised unless
change was accepted by people.
Akehurst therefore holds that Estrada doctrine merely replaces express recognition
with implied recognition.
Recognition of government still remains relevant also because discontinuing the practice of
recognition of government has not eliminated the responsibility falling on other governments
of deciding in certain circumstances with which of two rival regimes relation would be
maintained.
Note – when a new regime is recognised officially, it is considered to be in continuity of the
old government even if there has been a gap in granting recognition because for international
law purpose, the states’ legal capacity is not affected, hence recognition is retroactive in
question. However, so long as the new regime is not recognised, the official intercourse
remains suspended.

Recognition of government- meaning and nature

Recognition granted to a government signifies that the recognising state considers the
government in power as the role representative of the state. While the recognition of state
affects its legal personality, recognition of government affects status of administrative
authority.
Recognition granted to government of a state is independent of recognition granted to that
state.

If one state refused to recognise the changed government or a new government in a state, that
does affect the identity of a state (i.e. its recognition as a state).

There is no legal duty on states to grant recognition to new govt. is is discretionary act of
state.

Further, once a state is recognised, its obligations towards other nations are not affected
because of change in government which is entirely an internal change.
 change of government

through extra constitutional means

through constitutional means
like coup, revolution etc

Here states take into account

stability, effectiveneness, control
here recognition of government is
over population and territory
merely a formality
among various factors in granting
recognition to government

Sometimes states may grant recognition to a state or government too early/prematurely. Such
recognition may however be considered as an interference in the internal affairs of a state. It
may amount to breach of international law. Such act may also be termed unfriendly by the
legal government. Act may be termed unfriendly by legal govt. However, it is only through
recognition that a state may be able to take care of its interest in the territory of the new
government.

As a solution, a practice evolved wherein, new governments with regard to which states were
not satisfied of their effectiveness, were initially granted defacto recognition. If and when the
stabilised they were granted dejure recognition. This helped the states to care of their interests
within the territories in control of the new government without violating international law
(through grant of premature recognition).
Therefore, in situations wherein the government came through extra constitutional means,
governments follow wait and watch policy by first granting defacto recognition and
thereafter, once stability is achieved, dejure recognition.

Dejure and Defacto Recognition

De facto and De jure recognition are essentially practised in recognition of governments and
rarely in recognition of states.
De facto recognition- When in the opinion of the recognising state, the new state or govt.
lacks stability and permanency, or does not possess all the essentials required under
international law for its effective participation in international affairs, but fulfils these
requirements in fact, it may grant recognition to the latter provisionally with all due
reservation for the future.
Recognition de facto means that in the opinion of the recognising state, provisionally and
temporarily and with all due reservations for the future, the state or govt. recognised fulfils
the above requirements in fact.
De facto recognition reflects doubt on the long term stability of the govt. It is a Wait and
watch attitude followed by the recognising state.
De jure recognition- If the recognising authority considers that the new state or govt. fulfils
all the attributes essential for its effective participation in international community, the
former may grant recognition to the latter formally.
Recognition de jure means that according to the recognising state, the state or govt.
recognised formally fulfils the requirements laid down by international law for effective
participation in international community.
It reflects that the government has effective control, govt. is permanent and it is firmly rooted.
Role of de facto-de jure in revolutionary government:
If a constitutional govt. is replaced by a govt. through revolution-
1st stage- De facto recognition (A non-commital formulae whereby the recognising state
acknowledges that there is a legal de jure govt. which ought to possess the powers of
sovereignty, though at the time may be deprived of them but that there is a de facto govt.
which is really in possession of them, although the possession may be wrongful. Advantage
of de facto recognition-- It enables the recognising authority to protect its own economic
interests and rights of its citizens in the recognised territory without committing itself to
condemning the illegalities and irregularities in the emergence of the new regime and for this
reason, it may be considered a necessary concomitant.)
2nd stage- Dejure Recognition

Legal incidents of De facto and De jure recognition

1. Non-recognised govt. does not have any locus standi before municipal courts. (Luther
vs Sagor)
2. De facto recognition of a foreign government is as conclusively binding, while it lasts,
as de jure recognition. Court would give due recognition to all the legislative acts of
the de facto recognised regi(Luther vs Sagor)
3. Even de facto recognition has retrospective operation (Luther vs Sagor)
4. Transactions with the government of a foreign state which has received de facto
recognition are binding on that foreign state and cannot be repudiated by a subsequent
government which has overthrown its predecessor by force.
5. In case Conflict situation between newly de facto government and displaced de jure
govt.:
- So far as concerns matters in the territory ruled by the de facto govt., the rights
and status of de facto government prevails
- So far as concerns matters in the territory ruled by the dejure govt., the rights and
status of de jure government prevails. (Bank of Ethiopia Vs National Bank of
Egypt and Ligorie), Arantzazu Mendi (HOL)
6. Where property is situated and recoverable outside the territory, the dejure sovereign
will have precedence (Haile Selassie vs cables and Wireless Ltd)
7. Both dejure and Defacto recognition will have retroactive effect. However,
 - Retroactivity of recognition operates to validate acts of defacto government
which has subsequently become the new dejure government and not to
invalidate acts of previous dejure government.
- There will be retroactive operation of new dejure recognition
- But the recognition of old government (dejure or defacto) remained effective
down to the date when it was infact withdrawn (in case of dejure recognition -
extinguished).
- And therefore, prior to the actual date of new dejure recognition, one would
have to accept and put into effect the acts of the previous dejure government (
or previous de facto government for all acts which was under its control) )(
see for conflict between two dejure recognitions of governments - Gdynia
Ameryka Linie Vs Bogulawski, Civil Air Transport vs Central Air
Transport)
8. De facto recognition implies some degree of uncertainty as to future stability of
recognised entity, hence it may be withdrawn if there is any doubt about the new
regime’s ability as it ceases to exist.
9. De jure recognition whether granted to state or govt., cannot be withdrawn unless the
state has ceased to exist or the govt. has been replaced by another authority.
Note: de facto recognition may also be substituted with de jure recognition when
recognising govt. is satisfied about its stability.

A. M. Luther (Company for Mechanical Woodworking A. M. Luther) V. James Sagor

And Company (UK)
Plaintiff claimed title to the wood on the ground that had come from the plaintiff’s factory
which was confiscated under the 1919 decrees of the new government. Plaintiff’s main
argument was that since the Soviet Union had not been recognised by the British govt., the
Soviet government’s decree should not be recognised.
When the case came up before the court of 1st instance, the Soviet govt. had not yet been
recognised by the British govt. and hence was not entitled to recognition of its sovereign acts.
The court gave judgement for the plaintiff.
But when the case came up in appeal, the new Soviet regime was recognised de facto by
Great Britain. The court gave judgement for the defendant by reversing the judgement of the
court below and observed-
‘The court of the country having recognised the Soviet court as the govt. really in possession
of the powers of sovereignty in Russia, the act of that govt. must be treated by the court of the
country with all the respect due to the acts of a duly recognised foreign sovereign state.’
Bank of Ethiopia vs. National Bank of Egypt and Liguori
Italian conquered Ethiopia in 1936. UK recognised Italy’s de facto govt. However, De jure
recognition was with exiled emperor of Abyssinia. De facto govt. decreed for dissolving
Plaintiff’s bank and appointing liquidator. This was in conflict with exiled government’s
orders.
Clawson J held that British govt. had given de facto recognition to Italian govt. the de jure
authority was mere theoretical authority. Whereas Italian govt. was in actual control and de
facto recognised. .. Effect must be given to the laws of this govt.
Arantzazu Mendi case (HOL
A private steamship AM was registered in Bilbao in Palque province of Spain. This region
was in control of General Franco, the Nationalist, the insurgent group. This Insurgent govt.
was in control of greater part of Spain and the UK government had granted De facto
recognition to it. The constitutional government which was confined only to a part of territory
of Spain, was the Republican government. The Republican government had dejure
recognition from UK.
Both the governments passed decree for requisition of all ships registered in Bilbao. But
Republican decree was eight months earlier than Nationalist decree, but this decree was
issues only after Insurgents had already gained control over Bilbao.
The HOL held that the defacto government was entitled to be regarded as a sovereign and its
claim was accepted as it had control over the territory.
Haile Selassie
Emperor of Ethiopia sued a British company for money owing to him under an agreement.
When action was brought, Haile selasssie government enjoyed dejure recognition from. But
Britain had given de-facto recognition to the Italian government which had conquered
Ethiopia and was in control of its entire territory. Court held that in case of debt recoverable
in England and not with regard to persons and property in Ethiopia, de-jure govt. was
entitled to receive.
However, before appeal UK extended de- jure recognition to Italian authorities. BY this
recognition the recognition of Haile Selassie government got extinguished. Now only the
new government was held entitled to receive loan payment.

Where there are two Dejure Governments.

Interest of two recognised de-jure govt. of the same state are involved, as it supersedes the
other. Issue is of Retroactivity and how far the court will relate back actions of a de-jure
govt., since recognition is retroactive to the moment of inception of the particular state or
govt. Retroactivity was restricted to matters within effective control of new govt. Act of
withdrawal of de-jure recognition from previous government and retroactive effect of new
dejure recognition does not affect validity of old law.

Gydnia Ameryka Linie V. Boguslawski

Poland govt. in exile had de-jure recognition from Britain.
However, Communist govt. took control of Poland on 28th June.
On 2nd of July the govt. in exile made an offer to Polish seamen of compensation in the event
of leaving the merchant navy ship.
On 5th July midnight, 1945 UK recognised govt. Of communist regime having effective
control in Poland as de-jure. This had retroactive effect to the date this government actually
came to power that is 28th june.
Therefore there were now two dejure governments on 2nd of july- the date of agreement- the
actual dejure government- that is the polish government in exile which entered into
agreement and the new communist government which existed in fact on 2nd of july and was
validated retroactively from 28th of june.
The employer refused to pay compensation to seamen on the ground that UK de-jure
recognition had retroactive effect to the date of coming into existence of Communist the govt
i.e., 28 June. Therefore by this retroactivity the agreement of the previous dejure government
(government in exile) was invalidated.
HOL held that recognition of govt. also has retroactive effect but courts had to give effect not
only to acts done by the new govt. after recognition but also act done before the recognition
in so far as these acts related to matters under its control when the acts were done.
HoL held that (a) recognition of new govt. had retroactive effect.
(b)But the recognition of old govt. remained effective down to the date when it
was in fact withdrawn.
(c)where something outside the effective control of the new govt. is involved,
it would appear that recognition does not operate retroactively, and that
(d)prior to the actual date of recognition we would have to accept and put
into effect the act of the previous de-jure govt.
DIFFERENCE BITWEEN DEFECTO AND DEJURE

DeFacto Dejure
Conditional Formal
Temporary Final
Can be withdrawn Cannot be withdrawn
Absence of diplomatic relations and Possibility of full diplomatic relations and
immunity immunity
Only this regime can claim to receive
property located in recognising state’s
territory
Entitled to espouse cause of its citizens and
exercise diplomatic protection for injuries
suffered by them out of breach of
international law
Only dejure government can represent old
state for state succession
Dejure state when grants independence,
creates a new dejure state.