Shashwat Pil.docx

RECOGNITION & WITHDRAWAL OF RECOGNITION OF STATES UNDER INTERNATIONAL LAW “The recognition itself is regulated by international law, in that states are sometimes constrained in their choices when comes to recognition.”

By- SHASHWAT PATHAK [B.A.L.L.B. (Hons.) (S.F.) SEM. 4 ]

AKNOWLEDGEMENT I would like to express my special thanks of gratitude to my teacher Prof. Ghulam Yazdani as well as our DEAN PROF. DR. NUZHAT PARVEEN KHAN who gave me the golden opportunity to do this wonderful project on the topic CASES RELATED TO EEZ (EXCUSIVE ECONOMIC ZONE) which also helped me in doing a lot of Research and i came to know about so many new things I am really thankful to them. Most important would also like to thank my parents and friends who helped me a lot in finalizing this project within the limited time frame.

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INDEX Sr. No.

Content

Page No.

1.

Introduction

3

2.

Essentials for Recognition

5

3.

Legal effects of Recognition

12

4.

Theories of Recognition

13

5.

Modes of Recognition

15

6.

Forms of Recognition

16

7.

Withdrawal of Recognition

17

8.

Conclusion

18

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RECOGNITION OF STATES

INTRODUCTION-

Each state conducts its relations with other states on the

basis of particular understandings of the legal status of those other states. In many instances, such understandings are uncontroversial and amount to a recognition of the status quo: the UK and its dealings with France, for example. Sometimes, however, a state can take a position which challenges the existing order, such as recognizing a new state-for example the claim of Kosovo in 2008 to constitute a state comprising territory formerly part of Serbia–or take a position which rejects a claim itself challenging the status quo-for example that of the Turkish Republic of Northern Cyprus to constitute a state comprising territory formerly part of Cyprus. Recognition, then, can be an attempt to alter or reaffirm the existing order. There are two main international law aspects to the recognition process. Recognition can play a role in the international legality of the object of recognition: sometimes, a state is or is not a state legally because, amongst other things, other states have decided to treat it as such. The recognition itself is regulated by international law, in that states are sometimes constrained in their choices when comes to recognition. These two aspects are related, and can come into tension insofar as states seek through recognition to create a new sovereignty arrangement which challenges the legal status quo and thereby is potentially at odds with their obligations to another state or group of states whose entitlements are being altered by this change. The international law framework is bound up in the rules that define what is and is not a state. In understanding the international law concerning statehood, and their significance for recognition,

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a distinction between two particular usages of the term ‘sovereignty’ is instructive. As Eli Lauterpacht remarked: . . . it is necessary to distinguish between the two principal meanings attributed to the word “sovereignty". It is used, in one sense, to describe the right of ownership which a State may have in any particular portion of territory. This may be called ‘the legal sovereignty ‘ . . . This kind of sovereignty may be likened to the residual title of the owner of freehold land which is let out on a long lease. The word “sovereignty" is, however, more commonly used, in its second meaning, to describe the jurisdiction and control which a State may exercise over territory, regardless of the question of where ultimate title to the territory may lay. [1] These two ideas of “sovereignty" reflect two potential connections between the juridical person of the state and a territorial unit: administration (what Lauterpacht terms “jurisdiction and control") on the one hand, and ownership on the other. It is sometimes assumed that control is exercised over territory on the basis that the territory in question is, or forms part of, the state exercising this control. In order to draw such a conclusion, however, one needs to assume that the actor asserting the right to administer territory does so in a particular capacity: as the holder of title with respect to the territory. But such an assumption cannot be made. As Lauterpacht states in relation to his two models of “sovereignty": Usually sovereignty in this latter sense (mere jurisdiction and control) is to be found in the same hands as the legal sovereignty i.e., ownership, but there is no reason in law why it should be and often it is not. The starting point for understanding the legalities of any regime of recognition or nonrecognition, then, is to consider what the object of that recognition or non-recognition itself claims to be. In the words of D.P. O’Connell, “a government is only recognized for what it claims to be". One cannot determine fully what the legal significance of recognition is to that being recognized, and whether this recognition is itself lawful, without first focusing more closely on the legalities surrounding the claim itself.

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In understanding the different capacities in which entities may administer territory insofar as issues of territorial status are concerned, the distinction between a “state" and a “government" is instructive. In international law, the connection between the two is understood in terms of agency: the government is not itself a legal person, but, rather, the agent that acts on behalf of the legal person - the state - concerned. Its acts are the acts of the state. It follows, then, that simply looking at who is control on the ground is insufficient by itself for resolving the status of the territory and the legality of any recognition or non-recognition of this arrangement. One needs to enquire into the basis on which this control is exercised as far as the status of the territory is concerned. When states administer territory, they often do so on the basis that the area in question is their own sovereign territory, whether this arrangement is longstanding, for example the UK in UK territory, or amounts to a change in the status quo, for example Iraq’s claim to title over Kuwait following its invasion in 1990, and Kosovo’s claim to statehood in territory forming part of Serbia on declaring independence in 2008. Sometimes, states administer territory on the basis that sovereignty resides somewhere other than in themselves. So, for example, the Allies in Germany and Austria and the US in Japan after the Second World War, and the US - UK Coalition Provisional Authority in Iraq in 2003-4, operated on the basis that they were not claiming title over the territories involved and that, indeed, this title resided in the existing sovereign states – Germany, Austria Japan and Iraq.

Essentials for Recognition – The main essentials of recognition may be given as under: 1. That the community ( of new state ) must be politically organized, 2. That it should have control over a definite territory, 3. That the control should tend towards permanency, 4. That such community must be independent. In other words, the attributes of statehood are people, territory, Government, and sovereignty.

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Territory The sovereignty of a state is confined to a defined piece of territory, which is subject to the exclusive jurisdiction of the state and is protected by international law from violation by other states. Although frontier disputes do not detract from the sovereignty or independence of a particular state, it is inherent in statehood that there should be a core territory that is subject to the effective control of the authorities of the state. Additional territory may be acquired by states through cession from other states (the Island of Palmas case in 1928); by the occupation of territory that is terra nullius (Latin: “the land of no one”)—i.e., land not under the sovereignty or control of any other state or socially or politically organized grouping; or by prescription, where a state acquires territory through a continued period of uncontested sovereignty. Under the UN Charter, sovereign title to territory cannot be acquired purely and simply by the use of force. Express or implied consent is required under international law for recognition of territory acquired by force, whether or not the use of force was legal. When states are created from the dissolution or dismemberment of existing countries, it is presumed that the frontiers of the new states will conform to the boundaries of prior internal administrative divisions. This doctrine, known as uti possidetis (Latin: “as you possess”), was established to ensure the stability of newly independent states whose colonial boundaries were often drawn arbitrarily.

Maritime spaces and boundaries The sovereign territory of a state extends to its recognized land boundaries and to the border of airspace and outer space above them. A state that has a coastal boundary also possesses certain areas of the sea. Sovereignty over bodies of water is regulated by four separate 1958 conventions—the Convention on the Territorial Sea and ContiguousZone, the Convention on the Continental Shelf, the Convention on the High Seas, and the Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas—and by the comprehensive Law of the Sea treaty (1982), which entered into force in 1994. The territory of states includes internal waters (i.e., harbours, lakes, and rivers that are on the landward side of the baselines from which the territorial sea and other maritime zones are measured), over which the state has full and complete sovereignty and exclusive jurisdiction. Through the Law of the Sea treaty and now under customary international law, a state may claim 6|Page

a territorial sea of up to 12 nautical miles from the baselines (essentially the low-water mark around the coasts of the state concerned), though, in cases where a coast is heavily indented, a series of straight baselines from projecting points may be drawn. A state has sovereignty over its territorial seas, but they are subject to the right of innocent passage—i.e., the right of all shipping to pass through the territorial waters of states, provided that the passage is not prejudicial. Examples of prejudicial conduct include the threat or use of force, spying, willful and serious pollution, breaches of customs, sanitary, fiscal, and immigration regulations, and fishing. Coastal states may exercise a limited degree of criminal jurisdiction with regard to foreign ships that are engaged in innocent passage through their territorial seas (e.g., in cases where the consequences of the crime alleged extend to the coastal state or where such measures are necessary for the suppression of the traffic of illicit drugs). The 1958 Convention on the Territorial Sea and Contiguous Zone provided that states cannot suspend the innocent passage of foreign ships through straits that are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign state. The 1982 treaty established a new right of transit passage for the purpose of continuous and expeditious transit in straits used for international navigation between one part of the high seas or exclusive economic zone and another. Some international straits are subject to special regimes. The controversial Straits Question, for example, concerned restrictions in the 19th and 20th centuries that limited naval access to the Bosporus and Dardanelles—which connect the Black Sea with the Sea of Marmara and the Mediterranean Sea—to countries bordering the Black Sea. A series of other maritime zones extend beyond territorial seas. A contiguous zone—which must be claimed and, unlike territorial seas, does not exist automatically—allows coastal states to exercise the control necessary to prevent and punish infringements of customs, sanitary, fiscal, and immigration regulations within and beyond its territory or territorial sea. The zone originally extended 12 nautical miles from the baselines but was doubled by the 1982 treaty. The exclusive economic zone developed out of claims to fishing zones. The 1982 treaty allowed states to claim such a zone, extending 200 nautical miles from the baselines, in which they would possess sovereign rights to explore, exploit, conserve, and manage the natural resources of the seas and seabed; to exercise jurisdiction over artificial installations and scientific research; and to protect and preserve the marine environment. The zone was accepted as part of customary international 7|Page

law in the ICJ’s 1985 decision in the dispute between Libya and Malta, which concerned the delimitation of the continental shelf between them. A state is automatically entitled to exercise sovereign rights to explore and exploit the natural resources in an adjacent continental shelf (i.e., the ledges projecting from the land into and under the sea). The shelf may extend either to the outer edge of the continental margin or to 200 miles from the baselines where the outer edge of the continental margin does not reach that distance. Thus, the continental shelf as a concept in international law becomes a legal fiction where the shelf does not in fact extend as far as 200 miles. Problems have arisen over the delimitation of the various maritime zones between adjacent and opposing states. International law generally requires equitable resolutions of maritime territorial disputes. Although the definition of equity is unclear, relevant factors include the impact of natural prolongation of the land territory (i.e., the basic principle that the continental shelf is a continuation of the land territory into the sea), proportionality between the length of a disputing party’s coastline and the extent of continental shelf it controls, the principle of equidistance (i.e., a line of equal distance from the two shores in question), and the existence (if any) of islands between the coastlines.

Jurisdiction Jurisdiction refers to the power of a state to affect persons, property, and circumstances within its territory. It may be exercised through legislative, executive, or judicial actions. International law particularly addresses questions of criminal law and essentially leaves civil jurisdiction to national control. According to the territorial principle, states have exclusive authority to deal with criminal issues arising within their territories; this principle has been modified to permit officials from one state to act within another state in certain circumstances (e.g., the Channel Tunnel arrangements between the United Kingdom and France and the 1994 peace treaty between Israel and Jordan). The nationality principle permits a country to exercise criminal jurisdiction over any of its nationals accused of criminal offenses in another state. Historically, this principle has been associated more closely with civil-law systems than with common-law ones, though its use in common-law systems increased in the late 20th century (e.g., the adoption in Britain of the War Crimes Act in 1991 and the Sex Offenders Act in 1997).

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Ships and aircraft have the nationality of the state whose flag they fly or in which they are registered and are subject to its jurisdiction. The passive personality principle allows states, in limited cases, to claim jurisdiction to try a foreign national for offenses committed abroad that affect its own citizens. This principle has been used by the United States to prosecute terrorists and even to arrest (in 1989–90) the de facto leader of Panama, Manuel Noriega, who was subsequently convicted by an American court of cocaine trafficking, racketeering, and money laundering. The principle appears in a number of conventions, including the International Convention Against the Taking of Hostages (1979), the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (1973), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984). The protective principle, which is included in the hostages and aircraft-hijacking conventions and the Convention on the Safety of United Nations and Associated Personnel (1994), can be invoked by a state in cases where an alien has committed an act abroad deemed prejudicial to that state’s interests, as distinct from harming the interests of nationals (the passive personality principle). Finally, the universality principle allows for the assertion of jurisdiction in cases where the alleged crime may be prosecuted by all states (e.g., war crimes, crimes against the peace, crimes against humanity, slavery, and piracy). Jurisdictional immunity exists in certain contexts. Diplomatic personnel, for example, have immunity from prosecution in the state in which they operate. In the 1960s, however, the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations stipulatedthat the level of immunity varies according to the official’s rank. Immunity is generally more extensive in criminal than in civil matters. A country’s diplomatic mission and archives also are protected. International organizations possess immunity from local jurisdiction in accordance with international conventions (e.g., the General Convention on the Privileges and Immunities of the United Nations of 1946) and agreements signed with the state in which they are based. Certain immunities also extend to the judges of international courts and to visiting armed forces.

Disputes between states Peaceful settlement International law provides a variety of methods for settling disputes peacefully, none of which takes precedence over any other. Nonbinding mechanisms include 9|Page

direct negotiations between the parties and the involvement of third parties through good offices, mediation, inquiry, and conciliation. The involvement of regional and global international organizations has increased dramatically since the end of World War II, as many of their charters contain specific peaceful-settlement mechanisms applicable to disputes between member states. The UNmay be utilized at several levels. The secretary-general, for example, may use his good offices to suggest the terms or modalities of a settlement, and the General Assembly may recommend particular solutions or methods to resolve disputes. Similarly, the Security Council may recommend solutions (e.g., its resolution in 1967 regarding the Arab-Israeli conflict) or, if there is a threat to or a breach of international peace and security or an act of aggression, issue binding decisions to impose economic sanctions or to authorize the use of military force (e.g., in Korea in 1950 and in Kuwait in 1990). Regional organizations, such as the Organization of American States and the African Union, also have played active roles in resolving interstate disputes. Additional methods of binding dispute resolution include arbitration and judicial settlement. Arbitration occurs when the disputing states place their conflict before a binding tribunal. In some cases, the tribunal is required to make a number of decisions involving different claimants (e.g., in the dispute between the United States and Iran arising out of the 1979 Iranian revolution), while in others the tribunal will exercise jurisdiction over a single issue only. In a judicial settlement, a dispute is placed before an existing independent court. The most important and comprehensive of these courts is the ICJ, the successor of the Permanent Court of International Justice, created in 1920. Established by the UN Charter (Article 92) as the UN’s principal judicial organ, the ICJ consists of 15 judges who represent the main forms of civilization and principal legal systems of the world. They are elected by the General Assembly and Security Council for nine-year terms. The ICJ, whose decisions are binding upon the parties and extremely influential generally, possesses both contentious and advisory jurisdiction. Contentious jurisdiction enables the court to hear cases between states, provided that the states concerned have given their consent. This consent may be signaled through a special agreement, or compromis (French: “compromise”); through a convention that gives the court jurisdiction over matters that include the dispute in question (e.g., the genocide convention); or through the so-called optional clause, in which a state makes a declaration in advance accepting the ICJ’s jurisdiction over matters relating to the 10 | P a g e

dispute. The ICJ has issued rulings in numerous important cases, ranging from the Corfu Channelcase (1949), in which Albania was ordered to pay compensation to Britain for the damage caused by Albania’s mining of the channel, to the territorial dispute between Botswana and Namibia (1999), in which the ICJ favoured Botswana’s claim over Sedudu (Kasikili) Island. The ICJ’s advisory jurisdiction enables it to give opinions on legal questions put to it by any body authorized by or acting in accordance with the UN Charter. Other important international judicial bodies are the European Court of Human Rights, established by the European Convention on Human Rights; the Inter-American Court of Human Rights, created by the Inter-American Convention on Human Rights; and the International Tribunal for the Law of the Sea, set up under the Law of the Sea treaty. The World Trade Organization (WTO), established in 1995 to supervise and liberalize world trade, also has created dispute-settlement mechanisms. Use of Force The UN Charter prohibits the threat or the use of force against the territorial integrity or political independence of states or in any other manner inconsistent with the purposes of the Charter; these proscriptions also are part of customary international law. Force may be used by states only for self-defense or pursuant to a UN Security Council decision giving appropriate authorization (e.g., the decision to authorize the use of force against Iraq by the United States and its allies in the Persian Gulf War in 1990–91). The right of self-defense exists in customary international law and permits states to resort to force if there is an instant and overwhelming need to act, but the use of such force must be proportionate to the threat. The right to self-defense is slightly more restricted under Article 51 of the UN Charter, which refers to the “inherent right of individual or collective self-defence if an armed attack occurs” until the Security Council has taken action. In a series of binding resolutions adopted after the terrorist September 11 attacks in 2001 against the World Trade Center and the Pentagon in the United States, the Security Council emphasized that the right to self-defense also applies with regard to international terrorism. Preemptive strikes by countries that reasonably believe that an attack upon them is imminentare controversial but permissible under international law, provided that the criteria of necessity and proportionality are present. It has been argued that force may be used without prior UN authorization in cases of extreme domestic human rights abuses (e.g., the actions taken by NATO with regard to Kosovo in 1999 or India’s intervention in East Pakistan [now Bangladesh] in 1971). Nonetheless, humanitarian 11 | P a g e

interventions are deeply controversial, because they contradict the principle of nonintervention in the domestic affairs of other states. The use of force is regulated by the rules and principles of international humanitarian law. The Geneva Conventions (1949) and their additional protocols (1977) deal with, among other topics, prisoners of war, the sick and wounded, war at sea, occupied territories, and the treatment of civilians. In addition, a number of conventions and declarations detail the types of weapons that may not be used in warfare. So-called “dum-dum bullets,” which cause extensive tissue damage, poisonous gases, and chemical weapons are prohibited, and the use of mines has been restricted. Whether the use of nuclear weapons is per se illegal under international law is an issue of some controversy; in any event, the criteria of necessity and proportionality would have to be met.

Legal effects of Recognition-

According to present-day state practice,

recognition has only a declaratory character, not constitutive (i.e. fundamental or determining). The state comes into existence as soon as it has fulfilled the objective preconditions, especially the three elements of statehood referred to above. Recognition also constitutes a declaration by a state that in its opinion the country it has recognized must be regarded as a "state" within the meaning of international law, and hence also as a subject of international law. In legal theory the question of whether it is not in fact the act of recognition that actually creates statehood – whether recognition has a constitutive effect, in other words – remains under discussion. In practice, however, the existence of a state is not dependent on whether it has been recognized as such. The sole determining factor is whether or not the elements of statehood under international law (state people, state territory, state power) are actually present in the specific case. Realistically, however, an entity cannot function as a state unless at least a certain number of states recognize it as such. The Turkish Republic of Cyprus, for example, which is only recognized as a state by Turkey, lacks statehood. In recent state practice recognition has often been made contingent on the fulfilment of certain conditions, for example compliance with the UN Charter or observance of the rule of law, democracy and human rights. From the viewpoint of international law, however, these are not criteria for recognition but conditions of a political nature, formulated in relation to the establishment of diplomatic relations.

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Theories of Recognition:

– There are mainly two theories of recognition

which may discussed as under: 1. Constitutive Theory. 2. Declarative Theory or Evidentiary Theory.

Constitutive Theory: -Oppenheim, Hegal and Anziloti are the chief exponents of this theory. According to this theory the only certificate to issue international personality to a new born state is the consent of the already existing states. In other words a new entity shall only be called a state when the existing states acknowledges about its statehood. So, the independence of a new entity shall not amount it to be called a state unless it has not recognized by the existing states. Criticism: – The theory has severely been criticized by a number of jurists. Because, at first instance that states do not seem to accept recognition as a legal duty. And at the second instance, it creates many difficulties when a community claims of being a new state and its non-recognition will, according to this theory, imply that it has no rights, duties and obligations under international law. The theory is not correct in any sense so shall be rejected.

Examples: 

Poland and Czechoslovakia were recognized by the instrumentality of the Treaty of Versailles.



Germany was divided into two parts after the World War II by a treaty



Korea was divided into two parts.

Criticism

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

Recognition is political and diplomatic but not legal. This theory imposes an obligation on all member states to recognize a State. Practically, no states wants to do something on obligation.



There is no law the obliges established states to recognize new States.



Recognition of a State can be done by few States and others might refuse. According to this theory, the recognition should be done by all the States. 

Palestine is recognized as country by 80 nations thought it does not have a definite territory, population and a definite Government.



Isreal is formed in 1947 by the United Nations Organization. Within few hours, many countries too recognized it. However, India recognized it in 1992.

Declaratory Theory: – The chief exponents of this theory are Hall, Wagner, Fisher and Brierly. According to this theory, the statehood or the authority of new Government is not dependent on the consent of the existing state but is based on some prior or existing fact. According the followers of this theory, the recognition by the existing states is merely a formal acknowledgement of the statehood and not the condition. In fact the statehood is dependent on the some prior conditions necessary for an entity to be called as a state.

Criticism: – This theory has also been criticized, because it is not correct that in all cases the existing fact shall imply the statehood, rather some time the statehood may be constitutive. Conclusion: – From the above discussion it may be concluded that both the theories are insufficient to reflect the real explanation of recognition. In fact there shall be intermediate course of approach between the two theories to understand recognition. Briefly, speaking, the definition of recognition depends upon the mode, scope and nature of each case. In other words, recognition may be sometimes constitutive and sometimes declaratory.

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Modes of Recognition: – There are two modes of recognition, which may be given; 1. De facto Recognition. 2. De jure Recognition.

De facto Recognition: – The provisionally grant; that is subject to fulfillment of all the attributes of statehood, of recognition to a new state which has acquired sufficient territory and control over the same, but the recognizing states considers it not stable more, is said to be De facto Recognition.

De jure Recognition: – The grant of recognition to a new born state by an existing state, when it considers that such new born state has attained all the attributes of statehood with stability and permanency, is called De jure Recognition. Differences Between De facto and De jure Recognition. De facto and De jure recognition may differentiate on the basis of following points of distinction. 1. De facto Recognition is provisional recognition subject to fulfillment all attributes of statehood. 1. it is absolute recognition granted to a state which have attained all the attributes of statehood, possesses sufficient control with permanency. 2. De facto Recognition creates few essential rights and duties for recognized and recognizing states. 2. It creates absolute rights for the parties thereto. 3. De facto Recognition does not create full diplomatic intercourse between the parties. 3. It creates full diplomatic intercourse between the parties. 4. The full diplomatic immunities are not granted in this De facto Recognition. 4. Here in full diplomatic relations are granted to the recognized state. 5. In this case the recognized state 5. In this case, the claim can be made and cannot claim for the property situate in the recognizing state’s territory 6. In such a case the official visits and dealings may be subjected to limitations. 6. In such a case limitations are not necessary. 15 | P a g e

Forms of Recognition:

– There are following two forms for the declaration of

recognition. 1. Express Recognition. 2. Implied Recognition.

Express Recognition:

– The declaration or notification by an existing state which

purports the intention to recognize a newly born state, the recognition is said to be express recognition. In other words, when a formal and express declaration or statement is made and published or sent to the opposite party, the recognition is said to be express recognition.

Implied Recognition: – When the existing state shows its intention of recognition of a newly born state by some acts, the recognition is said to be implied recognition. In other words, in case of implied recognition no formal statement or declaration is to be made, rather the intention of recognition is to be collected by the acts or transactions of the existing state. So, if such acts purport intention of recognition, it is said to be implied recognition.

Conditional Recognition: – The grant of recognition by an existing state to a newly born state stipulated on fulfillment some conditions in addition to the requirements of statehood is said to be conditional recognition. As for as, the recognition is concerned it is itself conditioned with the fulfillment of the essentials of statehood, that is to say, the new state must occupy some territory, has some population, government and sovereignty. If these requirements have been complied with by the new state, then that should be recognized by existing states. But as for as, the recognition is concerned it is usually based on some political considerations. So, in the pursuance of these considerations the existing states sometimes declare recognition but stipulated with certain other conditions for the recognized state to be fulfilled.

Criticism:

– Many jurists have criticized conditional recognition. According to them

recognition is a legal matter and it should not be accompanied with conditions other than 16 | P a g e

required by law. It is due to this reason that when in case of conditional recognition the recognized state if didn’t fulfill the prescribed condition the recognition shall be valid and not extinguished. Rather it will affect the relations between the recognized and recognizing states.

Withdrawal of Recognition: – A state may withdraw diplomatic recognition of another state, or simply refuse to deal with that other country, after withdrawing from all diplomatic relations with that country, such as embassies and consulates, and requiring the other country to do the same. The state will appoint a protecting power to represent its interests in the other state. The doctrine of non-recognition of illegal or immoral situations, like territorial gains achieved by force, is called the Stimson Doctrine, and has become more important since the Second World War, especially in the United Nations where it is a method of ensuring compliance with international law – for instance, in the case of Rhodesia in 1965. Withdrawal of recognition of a government is a more severe act of disapproval than the breaking of diplomatic relations. Withdrawal of recognition may be explained as under:

Withdrawal of de facto Recognition:

– Withdrawal of de facto

recognition is possible under international law only on the ground that if the recognized state has been failed to fulfill the pre requisite condition for statehood. In such a case the recognizing state may withdraw from the recognition by communicating a declaration to the authorities of recognized stated or by a public statement. The non-recognition of a de facto existing State or government may be motivated by political reasons, as in the case of the non-recognition by Western States of the German Democratic Republic as State (1949-19723) or US non-recognition of the Chinese Communist Government (19491979). It may also be used as a sanction in response to a violation of a fundamental norm of international law (such as the prohibition of the use of force or racial discrimination), especially when applied collectively, as in the case of the State of Rhodesia (1965-1980). The duty not to recognize as lawful a situation created by a serious breach of an obligation arising under a norm of jus cogens is now laid down in article 41(2) of the 17 | P a g e

International Law Commission’s Articles on Responsibility of States of Internationally Wrongful Acts (2001). A duty of non-recognition may also arise under a treaty or a binding resolution of the United Nations Security Council. Non-binding resolutions of the Security Council which in their preamble merely reaffirm “the sovereignty and territorial integrity” of a State and the “inadmissibility of the use of force for the acquisition of territory” may contribute to the establishment of a customary international law duty of non-recognition of the secessionist entity created by force.

Withdrawal of de jure Recognition: –

There are different views

about the withdrawal of de jure recognition. But according to the strict letters of international law and by the virtue of some conventions in this behalf, it is evident that the withdrawal of de jure recognition is not valid in any case. Though recognition is a political act but de jure but it by nature and status it is a legal oriented. But some jurists think that de jure recognition may be withdrawn, because it is a political act. But in fact it is not so. Only those de jure recognitions may be withdrawn where a state subsequently loses any essential of statehood. In such a case the state withdrawing from recognition shall send his express intention to the concerned authority issue a public statement to that extent.

CONCLUSION To find the true nature of recognition, one must examine its several functions. Such examination shows that both constitutive and declaratory theories have some, but not total, validity. Three main functions of recognition must be separately considered: A. In the general international law which imposes state responsibility for external actions, recognition is granted by a declaratory process. Such an approach is necessary in order to avoid the possibility of hostile confrontations. Any community which meets the standards of statehood must be treated with all the respect due to a foreign state. B. This declaratory standard does not apply to matters which international law leaves to the discretion of each state, such as the exchange of diplomatic representatives, which may be called political recognition. Since these matters are merely discretionary, the constitutive theory provides a better description of them. C. In cases involving private law transactions, considerations of commercial and general convenience dictate that acts of an unrecognized government taking effect upon persons or chattels within its 18 | P a g e

physical control be recognized if these persons or chattels later come within another jurisdiction. Hence, recognition of foreign acts which take place abroad is properly declaratory. The same considerations, however, dictate the opposite result in relation to acts-in-the-law of the nonrecognizing state, especially when the unrecognized government attempts to apply its legislation or directly to claim assets located in the nonrecognizing state. Here recognition is properly constitutive. The current problems in the Middle East (which most recently erupted after the copy for this comment was out of the hands of the author) can illustrate the first two of these points. No one can doubt that Israel exists in fact. The declaratory approach, summarized in point A, requires that other states recognize the territorial integrity and other fundamental rights of Israel. Only by such action can wars like the brief but bloody Arab-Israeli conflict of this year be prevented. It is the existence of Israel, and not its legitimacy in the eyes of the Arabs, which gives its military forces the capability to attack and to defend. As point B indicates, the Arab states need grant nothing further than these bare fundamental rights. They need not enter into diplomatic relations, trading agreements, treaties, or grant other concessions which are discretionary. Of course, a problem of classification arises: Is Egypt required by international law to grant passage through the Straits of Tiran or is that simply a matter of discretion? Such questions raise fresh problems of international law which are beyond the scope of this comment.

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