Withdrawal of Recognition of States and Its Implications

The aftermath of the Second World War leads to the advent of wider pre-requisites for recognizing an entity as a state. Recognition of state is important to establish a diplomatic relationship and in today’s globalized world the same cannot be denied. It is profusely criticized to be a unilateral political instrument but still necessary to demarcate between situations of haphazard to that of organized one. Once recognition is granted by recognizing states, the recognized states are allowed to take part in international discourses. But still, the invariability in its status cannot be granted. Thus it is a cautious step, as once recognition is transcended it is rarely immune to withdrawal.[1]

But in recent years the scope of de-recognition is under consideration and there are many instances where the same is upheld, the modern international system based upon complete territorial sovereignty of a government over a specified region has experienced some new challenges: the existence of regions that do not fit into the international order of juridically equal states. These regions are easily identified as trouble spots in today’s media–Somalia, Kurdistan, and the Waziristan region between Afghanistan and Pakistan. De-recognition opens up the possibility that troubled regions could be dealt with based on their actual governance structure. It would also add further stability to the entire international order by creating a mechanism in which international criminals and terrorists hiding within these poorly governed regions could be brought to justice. International juridical de-recognition has the potential to be a very conservative and stabilizing addition to a system that has striven to reduce conflict and promote order.

De-Recognition of States One method of dealing with the problem of weak or ineffective states in a region, one that has both theoretical and historical precedents, is de-recognition of the existence of a state in that territory. Just as there are requirements for recognition of a state’s existence, should there not be a comparable check and resultant action for cases in which factual requirements are no longer present.

Withdrawal of recognition: A Debate

Lauterpacht elucidated this explicit argument: Recognition is not a contract or grant. It is a declaration of capacity as determined by objective facts. These facts are not necessarily enduring. A State may lose its independence or the necessary degree of cohesion as an organized community, a government may cease to wield effective authority, a recognized belligerent may be utterly defeated. In all these cases the basis of recognition disappears, and outside States are entitled and bound to take cognizance of that fact.[2]

Additionally, Fauchille made a similar argument earlier, but based most of his case on the now less-respected condition for statehood of being a ‘civilized state,’ and conducting itself as such to maintain its standing in the international community.[3]

Lauterpacht recognized that in most cases, both theoretical and practical, the de-recognized region would be immediately replaced by another state, either entirely new or encompassed by another.[4] This means that most cases of de-recognition have not been explicitly made by other governments, but instead have been made implicit in the positive recognition of another polity’s control over the region that was formerly under the control of a now-defunct state. This explains the lack of direct documentation and infrequent discourse on withdrawal or de-recognition of states, termed as such. While Lauterpacht envisioned states as whole units either created or subsumed into one another.[5]

De-recognition has also been thought about in the context of fracturing or fragmenting states, as well as regions infringing on multiple states.

Thomas Baty, who wrote in the 1930s, was concerned with the interactions between foreign states and regions that had either collapsed into anarchy or rule by multiple factions with each clearly unable to assume the mantle of what had previously been a state (either de facto or de jure). He argued that “foreign states cannot be expected to treat as a single state a region in which there are even two perfectly independent governments, equally devoid of title.”

He concluded that, as a result, realism must take precedence in order to afford all the states involved their full rights, help resolve conflicts, and maintain international stability. The one historical case in which de jure statehood was withdrawn without recognition of control given to another state in return, was one that, unfortunately, turned out to be a pretence for invasion and conquest.

Withdrawal of recognition: Interstate Dispute

In February 1932, Japan wrote a letter to the League of Nations stating that “it must be emphasized that the Japanese Government does not and cannot consider that China is an ‘organized people’ within the meaning of the Covenant of the League of Nations,” effectively saying that China was neither currently under a central government, nor capable of being dealt with as a single entity.[6]

“Fictions” of statehood, they wrote, “cannot last forever, nor can they be tolerated when they become grave sources of practical danger.” While history has shown that Japan’s primary interest in this was imperial expansion and conquest, there was a genuine problem with the fractionalization of China at the time and an inability of the current practice to effectively deal with any conflict arising from the lack of centralized control existent at the time. Before the emergence of Nationalist and Communist Chinese forces during World War Two, there was a multitude of warlords each in control of one of the numerous regions in the ‘state’ of China.[7]

The irresponsible and aggressive actions of these warlords presented problems for surrounding nations. However, with the world’s attention focused on Europe and domestic problems, the international community was unable to keep Japan’s subsequent actions in check. This lack of attention, coupled with Japan’s aggressive imperialism, led to the actions taken after de-recognition, which were not in the interests of international stability and conflict avoidance. However, the act of de-recognition itself need not have been inherently malicious, and both Lauterpacht and Baty seem to say that it was necessitated by the lack of de facto state control in China.[8]

De-recognition, or at least the threat of de-recognition, may also prove to be a worthwhile tool in helping to improve the representative nature and quality of life in post-colonial. The third World States, which are noted for their despotism. The current practice of indefinite de jure sovereignty despite the de facto reality presents strong disincentives for authoritarian rulers to reform.

The problem, according to Pegg, is because they are already sovereign, the longing for independence cannot serve as an incentive for incumbent rulers to mobilize and organize their populations to strive for freedom. On the contrary, sovereignty gives incumbent elites a strong incentive to maintain their privileges by preserving the status quo.

By removing, or at least threatening to remove this international crutch for Third World authoritarian governments through de-recognition, the international community may be able to force “political leaders in badly governed and post-conflict countries to craft deals with their own citizens that could give rise to self-enforcing institutions of the sort that improve life generally for society and all those living within it.”[9]

Withdrawal of recognition: Basic concept

There is basically two kinds of recognition:

-Recognition de Jure

-Recognition de facto

Recognition de Jure: Recognition de jure means that according to recognizing state, the government or state-recognized formally fulfils the requirements laid down by the international law for effective participation in the international community. Recognition de facto: Recognition de facto means that in the opinion of recognizing state, provisionally and temporarily and with all due reservations for the future, the state or government recognized fulfils the requirement in fact.[10]

As per rule, recognition de jure once given is irrevocable. This holds true even though recognition was given in the first instance from purely political motives to indicate to the world at large that relations with the recognized state government were being initiated.

It is a paradox that when a gesture is made in a contrary sense, indicating that no further relations will be maintained with the formerly recognized state or government, it is not in general attended by withdrawal an of recognition. A formal severance of diplomatic relations may be declared, but the once recognized state or government does not otherwise lose its status in the international community. Thus, Great Britain recognized the Soviet Government de jure in 1924, but later broke off relations in 1927, and although relations were subsequently resumed, participated in the vote of 1939 expelling the Soviet Union from the League of Nations. Neither the rupture of diplomatic relations nor the act of expulsion annulled recognition of the Soviet Government. [11]

Refusal to recognize does not necessarily imply non-cognition.[12] Thus non-recognition of a new state or new government does not necessarily mean non-intercourse with non-recognizing states, just as non-intercourse does not necessarily signify non-recognition,”[13] For instance, even before its 1980 declaration of a policy of non-recognition of new governments, the British Government had in practice never declined to have talked or to transact necessary business with the agents or ministers of unrecognized states or governments, as witness the discussions with the Rhodesian Government after its unilateral declaration of independence in November 1965, although it was made plain that such informal relations or non-committal exchanges did not in any sense amount to formal diplomatic intercourse. Thus frequently consular appointments had been made to such unrecognized entities, although care was taken to express the appointments in such a way as not to involve even de facto recognition.” [14]

Conditional Recognition: – The grant of recognition by an existing state to a newly born state stipulated on fulfilment 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 fulfilment 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 the recognition is a legal matter and it should not be accompanied by conditions other than required by law. It is due to this reason that when in case of conditional recognition the recognized state if didn’t fulfil 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: – 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 fulfil the prerequisite 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.

-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 de jure 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.[15]

Withdrawal of Recognition: India

India, like most other countries, has accorded recognition to states and governments as a matter of course or routine. In such cases, there is no cleavage between the principles of in­ternational law and the state practice of India. The difficulty arises when recognition of a new state or government does not serve the interests of the recognizing country. In such cases, policy considerations come to exercise considerable, and sometimes even decisive, influence. The recognition policy of a country is put to a real test in this situation. In the foregoing pages, only those few cases have been examined in which either the foreign policy of the Government of India or of an important foreign Power have influenced recognition.

In cases where the situation was doubtful in the initial stages, she preferred to wait and take the de­cision in favour of the country when conditions became reasonably stable. In doing so she even risked misunderstanding by some of her best friends.[16]Policy considerations did exercise a fair degree of influence in cases where countries had been divided by the big Powers after the second “World War. So far she has refused to recognize any such divided state.[17]

A substantial measure of effectiveness has been the guiding principle of the Government of India in recognizing governments. The principle of legitimacy, which has long been discarded by other countries, has found no sympathy in India.

In India, the decision to recognize a particular state or government has always been taken by the Cabinet at the federal level. The President of India, largely because of Prime Minister Nehru’s personality, is not known to have played any role in these matters. Generally, the Parliament of India has not exercised any appreciable influence on the recognition policy of the Government, although in certain controversial cases individual M.Ps have given vent to their feelings on recognition. As a responsible executive, the Cabinet must have given due weight to them. But in excep­tional cases, as for example the recognition of the state of Israel, Parlia­ment played a role which was not of inconsiderable importance.

Finally, it may be stated that the Government of India, broadly speaking, falls in line with all other governments, whose recognition policies have, at times, been influenced by factors other than those prescribed by international law. But the reasons, in the case of India, have been unique. Leading nations have given much importance to their security and eco­nomic interests in recognition policies at times, in utter disregard of the generally accepted principles of international law. India, on the other hand, cannot be accused of being guilty of any such bias. If at times, she has attached any importance to them, it has been very short-lived and followed by the decision to recognize. Whenever extra-legal factors have influenced her recognition policy, they have been motivated by the desire to save a region from being territorially and politically dismembered, to help a region obtain its political freedom, and to establish democratic values in the country in question. These considerations may be of no legal importance, but politically their importance cannot be exaggerated.

Recognition and Derecognition: A political venture

States play a primordial role in the structure of legal relationships that are commenced, modified or extinguished at an international level. In the field of international relations, the means by which states act and interact should be governed by principles such as sovereignty and equality. In reality, some states decide to act in a way dictated by geopolitical dynamics, that is, the power or influence held and through which their interests could be enforced at the regional or global level. Thus, depending on each state’s interests, massive inconsistencies can exist between the strategies that are carried out. One of the most elementary instruments used in diplomacy is, for these reasons, the mechanism of recognition.

State recognition has an important place in international law, being a unilateral act through which the very existence of a state and its status as a subject of international law is acknowledged. Only the states, as primary subjects of international law, are subject to this procedure, as international organizations are founded and act in a rather distinct manner. An international legal person is capable of having rights and duties under international law, and states, in particular, can weld virtually any right and be held to fulfil any duty to which it has agreed. Without recognition, a state’s capability to enter relations with another state is greatly limited due to its isolation from the international community. Two opposing theories have been developed to explain and order the admission of states into the international community.

First, the Constitutive Theory embraces the opinion that any state completes its formation through recognition by other states. Recognition is thus seen as a requirement for statehood, but no state can be forced to recognize another. This discretionary nature of state recognition arguably turned the international community into an elite club of nations lead by the Great Powers.

Second, the Declarative Theory came as a response to the constitutive conception, ruling out the necessity of international recognition as a condition for statehood, and introducing unbiased standards codified as the Montevideo Criteria.[18]

Conclusion

One particular issue in terms of recognition would be its withdrawal. It has been argued that such a fiat would be much easier accomplished in cases of factual recognition rather than full-fledged, de jure recognition.[19] In this regard, the withdrawal of recognition is, at least in the circumstance of de jure recognition, an exceptional event that can occur whenever a state considers that such an action is appropriate.[20] But it will only deepen the roots of political gestures in legal issues. Secondly, it will intend to threaten the sovereignty of a country, which is of prime importance for a democratic country. The best way to tackle these problems is to establish some kind of concrete international law on this subject matter. But still, the question would revolve around the enforceability of such rule which is one of the drawbacks of international law.

Author- Jata Shankar

[1] Shearer,I.A, Starke’s International law, Oxford University Press,11th edition, pg no-117

[2] Lauterpacht, H. 1945. “De Facto Recognition, Withdrawal of Recognition, and Conditional Recognition.” 22 BYBIL. pg. 180.

[3] Fauchille vol I(i), No. 213 BYBIL in “De Facto Recognition” pg. 181.

[4] Lauterpacht, H. 1945. “De Facto Recognition, Withdrawal of Recognition, and Conditional Recognition.” 22 BBIL. pg. 181

[5] In this work, in Lauterpacht, H. “Recognition of Insurgents as a De Facto Government,” The Modern Law Review, Vol. 3, No. 1, (Jun., 1939), pp. 1-20

[6] League of Nations O.J. 386 (1932) Annexes. (Reply dated February 23, 1932, from the Japanese Government to the appeal of the President of the Council, dated February 16, 1932)

[7] Calvocoressi, Peter, et al. 1999. The Penguin History of the Second World War. New York, Penguin Publishing. pp. 674-690

[8] Lauterpacht, H. 1945. “De Facto Recognition, Withdrawal of Recognition, and Conditional Recognition.” 22 BBIL. pg. 181

[9] Krasner, Stephen D. 2005.“The Case for Shared Sovereignty.” Journal of Democracy 16(1)

[10] Shearer,I.A, Starke’s International law, Oxford University Press,11th edition, pg no-128

[11] Shearer,I.A, Starke’s International law, Oxford University Press,11th edition, pg no-129

[12] Salimuff o Cov Standard Oil Co of New York 262 NY 220 (1933)

[13] In Compania de Transportes Mar Caribe SA v M/T Mar Canbe (1961) 55 AJIL 749

[14] Great Britain and the Law of Nations (1932) Voi I, p 79. In 1949 & Civil A Transport Inc v Central Ar Transport Corpn (1953) AC 70 ar 88-89

[15] https://www.legalbites.in/recognition-state-implication-modes-necessity/24 April 2020, 20:45

[16] The case of the state of Israel may be cited as an example.

[17] India has so far not recognized the following states: North Vietnam, South Vietnam, North Korea, South Korea, and East Germany. With West Germany it already had some kind of relationship through the Allies, of which she was a part during the Second World War.

[18] Montevideo Convention on the Rights and Duties,1933

[19] Malcolm Nathan Shaw, op.cit., p. 388.

[20] Kalevi Jaakko Holsti, Taming the Sovereigns: Institutional Change in International Politics, Cambridge University Press, 2004, pp. 128-129., pp. 389-390

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