What Is the Importance of Recognition In the International Legal System

Regarding the recognition of states; “it involves the acknowledgment of membership of the international community. This can be made by an existing member or members of the community and its effect is to grant that a territorial entity which previously was not holding membership of the community is now entitled to it, and, as a result of the membership, to all the privileges of other members of the community. However, the recognition given to the recognized state is so far as the State giving recognition is concerned”. Historically, individual States have been influenced by whether the new State has been accepted as a major international organization (such as the UN).

“Other states can refuse or postpone their recognition towards it. An entity which fulfills the factual requirements of territory, population and a stable government will fail to qualify as a state in the absence of recognition of this status by the international community. It was suggested, however, that this constitutive aspect of recognition is more a political fact of international life than it is a fundamental legal principle”.

“On the other hand, recognition of a new government has been given a different approach from that of the state. This recognition depends solely upon the actions of individual states. Thus every member of the international community is given the task whether that particular government can legitimately represent the state concerned”.

However, problems are likely to arise when that government comes to power by unconstitutional means. “Recognition of such circumstances may appear an endorsement of the new regime, and the recognizing State may not wish to offer such an endorsement or approval. However by not acknowledging a factual situation it may appear unrealistic and the recognizing State may choose to point out that recognition is foreseeable once a given set of facts arise”.

On the other hand, non-recognition of a government can be very problematic. This doctrine connotes that “under certain conditions a factual situation will not be recognized because of strong reservations as to the morality or legality of the actions that have been adopted in order to bring about the factual situation”. What happens if one state refuses to recognize a new state government when at the same time there was maltreatment towards the citizens of that country? An unfair decision would be emerged once compensation will be denied. “Legal consequences can therefore come forward by non-recognition of a government as it occurred in City of Berne v The Bank of England  where, the court refused to allow the revolutionary government of Berne to bring an action against the Bank of England, because the government was not recognized by the UK”. Furthermore, in The Annette, “ships of the unrecognized ‘Provisional Government of Northern Russia’ could not be protected by the courts from claims affecting them as a result of not been able to claim immunity before the courts”.

“Recognition itself may take different forms. It may be either de facto or de jure. Recognition of an entity as de jure means that according to the recognizing state, the state or government recognized normally fulfills the requirements laid down by international law for effective participation in the international community”. “Recognition de facto means that in the opinion of the recognizing state, provisionally and temporarily and with all due reservations for the future, the state or government recognized fulfills the above requirements in fact”. “De facto recognition involves a hesitant assessment of the situation, an attitude of wait and see, to be succeeded by de jure recognition when the doubts are sufficiently overcome to extend formal acceptance”. “To take illustrations from British practice, the Soviet Government was recognized de facto on 16th March 1921, but only de jure on 1st February 1924”.. “In some situations, particularly where there is a civil war, both a de facto and a de jure government may be recognized; for example, during the Spanish Civil War, when the Republican government continued to be recognized as the de jure government but, as the Nationalist forces under General Franco took increasingly effective control of Spain, de facto recognition was accorded to the Nationalist government, eventually, the nationalist government obtained full de jure recognition”.

“In 1980 the British Government announced that it would ‘no longer accord recognition to governments’. The then Foreign Secretary, Lord Carrington, stated that the question of the recognition of a foreign government will still depend upon the court examining a foreign office certificate but from that point forth would issue a certificate allowing the court to examine whether the UK had any dealings with the regime in question rather than considering to grant any de jure or de facto recognition”.

“In Republic of Somalia v Woodhouse Drake and Carey SA,, Hobhouse J had to decide whether the interim government of Somalia, which was in a state of civil war at the time, was entitled to bring proceedings as the legitimate government of that state. In the course of his judgment, Hobhouse J identified four questions which the courts would consider when deciding whether a regime existed as the government of a State:

1. had the regime come to power by unconstitutional means?
2. What was the degree, nature and stability of administrative control exercised by the regime over the territory of the State?
3. Did the British government maintain any form of relationship with the regime?
4. What was the extent of international recognition of the regime?”

Similar approach has been adopted by the US “with some important differences”. “Only a recognized State or Government can in principle sue in the US courts irrespective of the state of diplomatic relations, providing there is no war between the two”. However, an unrecognized state or government may “in certain circumstances be permitted access before the American courts. This would appear to depend on the facts of each case and a practical appreciation of the entity in question”. In Transportes Aeros de Angola  it was stated that “…allowing the plaintiff to access to the court would be consistent with the foreign policy interests of the US….”.

“The capacity of a recognized state or government may be considered by a negative aspect, by ascertaining the particular disabilities of one which is unrecognized. These are: (a) it cannot sue in the courts of a state which has not recognized, (b) its representatives cannot claim immunity from legal process and (c) property due to a state whose government is unrecognized may actually be recovered by the representatives of the de jure government which has been overthrown”.

From the other hand, “the newly recognized state or government: (i) acquires the right of suing in the courts of law of the recognizing state, (ii) may have effect given by these courts to its legislative and executive acts both past and future, (iii) may claim immunity from suit in regard to its property and its diplomatic representatives, and (iv) becomes entitled to demand and receive possession of, or to dispose of property situate within the jurisdiction of a recognizing state which formerly belong to a preceding government”.

“Where the procedure of recognition is used bona fide by all members of the international community it will have no detrimental effects. However, where ideological and political motives influence the decision whether or not to recognize a State, a government or a territorial situation, abuse is quite possible”.

As it can be viewed from the above, “recognition is an important aspect for any new entity in the world community. In the absence of such recognition, the emerging entity may find itself handicapped in its relations with the outside world. Therefore, recognition is absolutely necessary for a new entity if it has come into existence by revolt or unconstitutional means”.

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