Recognition under Human Rights Law- Theories, Benefits, Kinds, Cases
Recognition under Human Rights Law- Theories, Benefits, Kinds, Cases

 

Synopsis

  • Introduction
  • Meaning
  • Theories of Recognition
  • Benefits of Recognition
  • Consequences of Non-Recognition
  • Kinds of Recognition
  • Case Laws
  • Conclusion

Introduction

An entity which has important attributes of statehood like population, territory, a government and capacity to enter into relations with other states is called a State. The number of states in the world is never fixed and is always changing. States can be formed in the following ways:

  1. Disappearance of old State
  2. Formation of new State
  3. Division of State
  4. Union of States

There is no general rule as to requirements of Statehood but Montevedio Convention has laid down some requirements, which are: Permanent population, fixed territory, well organized Government and, ability to enter into an agreement with other states. The nature of these requirements is a combination of legal and political affair as there is no consensus as to the nature of them.

As per Kelson, a community has to fulfill following four requirements to be recognized as an International Person:

  1. a) Political organization of community;
  2. b) Control of Definite Territory;
  3. c) Control of fixed territory towards permanence;
  4. d) Constitution of community shall be independent.

 

Meaning

Recognition is a process in which a state is conferred the concept of statehood. In other words, it is a process in which a political community acquires membership of family of nations. According to Professor Openheim, “By recognizing State as a member of International community, the existing state declares that in their opinion the new state fulfills the condition of statehood as required by International Law.” As per J. Jessup, “State is a political community acquiring or satisfying the requirements of statehood qualifying itself to be the members of International Community.”

The importance of recognition is implied in the fact that the interpersonal relations between states are governed by the process of recognition and recognized states have various rights and duties. The recognized states have Diplomatic Immunity and capacity to file suit in International Court of Justice.

Theories of Recognition

There are two main theories of recognition:

  1. a) Constitutive Theory: This theory has been pioneered by Hegel and supported by Anzilloti, Holland and Oppenheim. This theory implies that recognition involves a process of constituting, thus it is known as a constitutive theory. According to constitutive theory, existence of the state comes after the recognition. Recognition gives the recognized states, the rights and duties under International Law. Constitutive Theory has been criticized due to its nonsatisfactory explanation of the question that if a state exists and it is not recognized then what shall be the rights and duties of such states. The theory fails to give reasoning for conferment of rights and duties on such states.
  2. b) Declaratory Theory: Declaratory Theory, also known as Evidentiary Theory has been supported majorly by Hall and Brierly. This theory demands evidence or declaration. This theory states that recognition is confirmation on the already existing state. It is opposite to the constitutive as it says “Statehood comes prior to Recognition.” As per this theory, statehood existed before the recognition as well and recognition is a mere formal acknowledgment of already existing state through which established facts are accepted. Declaratory Theory says that statehood comes prior to recognition. The question arises as to why recognition is required if a state already has statehood?

Overall, both the theories have completely opposite views and neither of them can be said to be perfect. Constitutive theory study recognition before its inception and Declaratory Theory studies the aspect of recognition after formation.

Benefits of Recognition

Upon Recognition, the following effects can be seen:

  1. a) The recognized can sue in the Courts of recognizing States.
  2. b) The legislation and executive acts of the recognized state will be given effect by Court of recognizing states.
  3. c) The recognized state can claim immunities in property and diplomatic relations.
  4. d) The diplomatic representatives of the recognized state are given few privileges and immunities in recognizing state.

 

Consequences of Non-Recognition

When a state is not recognized, the following consequences follows:

  1. a) A non-recognized state doesn’t have a right to sue in the Court of Recognized state.
  2. b) A state which is not recognized cannot establish diplomatic relations or enter into a treaty with the states which have not recognized such state.
  3. c) The diplomatic representatives of the recognized state are not given any privileges or immunities in recognizing state.
  4. d) A state which is not recognized cannot claim its property which is situated in foreign country.

 

Kinds of Recognition

There are three classes of Recognition

  1. a) Express and Implied Recognition
  2. b) Individual and Collective Recognition
  3. c) De Facto and De Jure Recognition

 

The difference between these classes of recognition is as follows:

  1. a) Express or Implied Recognition
Express Recognition Implied Recognition
Express Recognition is a direct act of recognition. Implied Recognition is indirect mode of recognition.
The recognition or statehood is formally indicated or declared. The recognition or statehood is by conduct of state.
There is an express agreement or treaty for recognition. There is no agreement or treaty for recognition.

 

  1. b) Individual or Collective Recognition
Individual Recognition Collective Recognition
In Individual recognition, a state is recognized by an individual state. In Collective recognition, a state is recognized by group of states.
In Individual Recognition, the relationship is only between the recognized state and the state which is to be recognized. In Collective Recognition, the relationship is between the state which is to be recognized and all the states which are recognizing it.
Individual Recognition is generally done by a bilateral treaty. Collective Recognition is generally done by multilateral treaty, convention, conferences, and meetings.

 

  1. c) De Facto and De Jure Recognition
De Facto Recognition De Jure Recognition
De Facto Recognition is a factual recognition. De Jure Recognition is a legal recognition.
It is based on factual situations. It is based on a process contemplated by law.
De Facto recognition is temporary and provisional which can be withdrawn Whereas, De Jure Recognition is permanent recognition and cannot be withdrawn.
This recognition makes reference to possession and occupation. This recognition is a matter of right.
De Facto Recognition is conferred so that interests of a State which is having actual possession of a territory can be protected. De Jure Recognition is conferred once De Facto recognition is conferred or if a state is in power under a government.

 

Case Laws

  • Emperor Haile Selassie v/s Cable and Wires Ltd. Of England

Ethiopia’s King was the Emperor of Haile Selassie. He entered into an agreement with England’s Cable and Wires Ltd. for lying down cable lines for postal Department in state of Ethiopia. A large sum was expected to from Cable and Wire Ltd. to the Emperor. During that period there was a battle going on between Italy and Emperor of Haile Selassie. Emperor of Haile Selassie lost the battle and went in exile in U.K. where he resided for a really long time. Then he initiated a suit in England against the Cable and Wires Ltd., of England for the remaining amount.

Liability was admitted by the Company but they claimed indemnity stating that there were two claimants. Then the dispute arose that who was the legitimate claimant:

  1. Emperor of Haile Selassie or

Issue: E.H. Selassie: De Jure recognition.

Italy: De facto recognition (occupier) which shall prevail.

Held: The court gave the judgment in the favor of Emperor of Haile Selassie stating that he is entitled to the claim from Cable and Wires Ltd. as the dispute was between de jure and de facto recognition. And the concept of de jure shall prevail over the occupier.

  • I am alone Case, 1929:

In this case, the damages were awarded in the favor of a De Jure Recognition.

Facts: “I am alone” was a registered British ship in Canada. The ship was used for the purpose of smuggling alcohol liquor in U.S. In 1929 the ship sunk because of United States Coast Guard Vessel on the high seas almost 200 miles away from the U.S. Coast. In the Arbitration Court a suit was filed by the Canadian Government for damages.

Issue: Whether the Government of Canada was entitled to claim damages?

The U.S.A. Government or defendant Defense: They stated that the ship was owned and occupied by the Government of U.S.A., therefore they are entitled to the damages if awarded as De Facto Recognition.

The government of Canada Defence: They claimed that the ship was De Jure of Canadian Nationality.

Held: The Arbitration Court held that Government of Canada was entitled to claim for the damages from the Government of U.S.A on the concept of De Jure Recognition as the conflict was between the De Jure and De Facto recognition where De jure will prevail. Thus the contention of Government of U.S.A was rejected.

Conclusion

For the purpose of recognition of state as member of International Community, the existing states give a declaration as to whether or not the states to be recognized fulfill the requirements of statehood as required under International Law. A state will be recognized if it is a political community and has acquired or satisfied the essentials of statehood and qualifies to be a member of International Community.

To summarize, we can say that Recognition is a status of political community. There are two major theories as to recognition i.e. Constitutive Theory and Declaration Theory and none of them can be said to be perfect. There are certain benefits which a state acquires through recognition and few consequences of non-recognition.

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