Modes and Legal Effects of Recognition

Conditional and unconditional

Conditional recognition is granted on terms: that the new State protect minorities, observe religious freedom, accept certain boundaries, or assume a share of the predecessor's debts.

The orthodox view is that once recognition has been given it takes effect, and the breach of a condition is a breach of the undertaking rather than a ground for treating the recognition as void. So the condition creates an obligation and does not suspend the recognition.

Individual and collective

Individual recognition is what usually happens: each State decides for itself.

Collective recognition is recognition by a group of States acting together, or through an international organisation. It has been proposed repeatedly and has never been institutionalised. As explained in [Recognition of States], admission to the United Nations under article 4 is not collective recognition, and a Member does not thereby recognise every other Member.

Something close to it happens in practice when a group of States announces common criteria and then recognises together, which is how several new European States were recognised in the early 1990s.

Premature recognition

Recognition given before the entity satisfies the criteria, most obviously while the parent State is still fighting to suppress a secession.

Premature recognition is a wrongful act, an unlawful intervention in the affairs of the parent State, and the parent State may treat it as such. It is important because it shows recognition is not a purely discretionary act: the discretion runs out where the criteria are plainly not satisfied.

Withdrawal of recognition

Recognition of a government may be withdrawn when the authority loses control, and in practice it is more often allowed to lapse than formally revoked.

Recognition of a State is withdrawn only if the State ceases to exist, by absorption or merger or complete disintegration. It is not a means of expressing displeasure, and States that quarrel break off diplomatic relations instead, which is a different thing.

The legal effects

This is where the topic earns its place in a syllabus, because these are the consequences that decide real cases.

On the international plane

Diplomatic relations become possible, though they do not follow automatically: recognition and the exchange of ambassadors are separate steps.

Bilateral treaties become possible, since a State will not conclude one with an entity it does not accept as a State.

Claims may be made and received between the two, and the recognised entity may bring an international claim against the recognising State.

In the recognising State's own courts

Four consequences, and these are the ones examiners ask about.

Standing to sue. A recognised State or government may bring proceedings in the recognising State's courts. An unrecognised one generally cannot, because the court will not accept that it exists as a legal person for that purpose.

Sovereign immunity. A recognised State and its property are entitled to immunity, on the principles in [Immunity from Jurisdiction]. An unrecognised entity is not.

Validity of legislative and executive acts. The courts of the recognising State give effect to the laws and official acts of a recognised State or government within its territory: its marriages, its company registrations, its judgments, its transfers of property. Those of an unrecognised authority are, in strict theory, a nullity, which produces the injustice noted below.

Title to property abroad. Recognition, and particularly de jure recognition, entitles the government to the State's property in the recognising State, including bank accounts and embassy premises, and this is what the litigation is usually really about.

Retroactivity. De jure recognition is generally treated as dating back to the moment the authority actually came to power, so that acts done before recognition are validated. That doctrine exists precisely to reduce the injustice of treating a whole population's transactions as a nullity.

A worked example

The authorities of Ruritania, an entity that broke away from State W four years ago, sue in the courts of State X to recover a consignment of goods. Ruritania controls its territory, but State X has not recognised it. Meanwhile a couple married under Ruritanian law seek to have their marriage recognised in State X, and State W claims Ruritania's bank account in a State X bank.

Can Ruritania sue? If State X has not recognised it, generally no. The court will not treat it as a legal person entitled to appear.

Is Ruritania entitled to immunity if sued? No, on the same reasoning, which cuts the other way and is an argument the unrecognised entity will not make.

Is the marriage valid? In strict theory the acts of an unrecognised authority are a nullity in State X, so the marriage would not be recognised. That is a harsh result for people who had no choice in the matter, and it is the reason courts and legislatures have found ways round: recognising private-law acts of daily life even where the authority is not recognised, and applying the retroactivity doctrine as soon as recognition comes.

Who gets the bank account? State W, while it is the recognised claimant. If State X later recognises Ruritania de jure, the recognition relates back to the date Ruritania came to power, and Ruritania's title is treated as having existed throughout.

Change the facts: State X recognised Ruritania two years ago, while State W was still fighting to suppress the secession and Ruritania controlled only part of its claimed territory. That is premature recognition, and it is a wrongful act, an unlawful intervention in State W's affairs, of which State W may complain.

Distinctions table

What it does NOT mean

Recognition is not the same as diplomatic relations. Breaking off relations does not withdraw recognition, and recognition does not require an exchange of ambassadors.

Dealing with an entity is not recognising it. Negotiation, trade, membership of the same organisation and participation in the same multilateral treaty do not imply recognition, and States often say so expressly.

Conditional recognition is not conditional. Once given it takes effect, and breach of the condition is a breach of an undertaking, not a ground for treating the recognition as never given.

Withdrawal of recognition of a government is not withdrawal of recognition of the State.

Limits and criticism

The consequences fall on private people who had no say. Whether a marriage, a birth certificate, a company registration or a judgment is valid should not depend on a foreign ministry's political judgment, and the devices courts use to avoid that result are patches on a doctrine that produces the wrong answer.

The de facto and de jure distinction is imprecise. It is a distinction between degrees of confidence dressed as a distinction of kind, and States use the labels inconsistently.

Non-recognition is used as a sanction, which the doctrine cannot really bear. Recognition is supposed to acknowledge facts, and using it to punish makes the legal question turn on unrelated policy, which is the criticism the Estrada doctrine was built on.

Quick revision

Modes. Express or implied; de facto or de jure; conditional or unconditional; individual or collective.

Implied by: a bilateral treaty, full diplomatic relations, a consular exequatur. Not implied by: a multilateral treaty, common membership of an organisation, negotiation, trade contacts, or a vote for admission to the United Nations.

De facto is provisional and readily withdrawn; de jure is final and generally retroactive to the date power was assumed.

Conditional recognition takes effect once given; breach of the condition is a breach of an undertaking.

Collective recognition has never been institutionalised; article 4 admission is not recognition.

Premature recognition is a wrongful act, an unlawful intervention in the parent State's affairs.

Effects internationally: diplomatic relations become possible, bilateral treaties become possible, claims may be exchanged.

Effects in the recognising State's courts: standing to sue, sovereign immunity, validity of legislative and executive acts, and title to State property abroad, with retroactivity on de jure recognition.

Test yourself

1. List the modes of recognition and say which acts imply it.

Recognition may be express or implied, de facto or de jure, conditional or unconditional, and individual or collective. The acts generally treated as implying recognition are the conclusion of a bilateral treaty, the establishment of full diplomatic relations, and the grant of a consular exequatur. Acts not treated as implying it include being parties to the same multilateral convention, common membership of an international organisation, negotiation, unofficial and trade contacts, and voting for admission to the United Nations. Recognition is not lightly implied, and States that wish to avoid it commonly declare that their dealings are not to be taken as recognition.

2. Distinguish de facto from de jure recognition and give three consequences.

De facto recognition acknowledges effective control provisionally, reserving judgment on lawfulness and permanence; de jure recognition acknowledges lawful status and is intended to be final. First, de facto recognition may be withdrawn if the control it acknowledged ceases, while de jure recognition is withdrawn only in grave circumstances. Second, de jure recognition is generally retroactive to the date the authority came to power, so that its earlier acts are validated, while de facto recognition is not, or not to the same extent. Third, full diplomatic relations and the right to claim the State's property in the recognising State ordinarily follow de jure recognition.

3. What are the effects of recognition in the courts of the recognising State?

Four. The recognised State or government may sue there, while an unrecognised one generally may not. It and its property are entitled to sovereign immunity. Its legislative and executive acts within its own territory are given effect, so its marriages, registrations, judgments and transfers of property are treated as valid. And it is entitled to the State's property within the recognising State, including bank accounts and diplomatic premises. De jure recognition operates retroactively to the date power was assumed, validating acts done before recognition was given.

4. Is premature recognition lawful?

No. Recognition given before the entity satisfies the criteria of statehood, in particular while the parent State is still actively resisting a secession, is a wrongful act amounting to an unlawful intervention in the parent State's internal affairs, of which the parent State may complain. It shows that recognition is not a wholly discretionary political act: the discretion is exercised on facts, and it runs out where the facts are plainly absent.

5. What is the effect of breaching a condition attached to recognition?

On the orthodox view, none upon the recognition itself. Recognition once given takes effect, and the condition creates an obligation whose breach is a breach of an undertaking, giving rise to a complaint or to a claim, but not to the treatment of the recognition as void or as never having been given. The point matters because conditions of this kind were common in the recognition of new States in Europe, and the question of what happens when they are not kept has repeatedly arisen.

6. Why do courts treat the acts of an unrecognised authority as valid in some circumstances?

Because the strict rule produces injustice to private people who had no choice in the matter. If the acts of an unrecognised authority were a nullity everywhere, then marriages, births, deaths, company registrations, land transfers and judgments in a whole territory would have no effect abroad, and the population would be punished for a political decision taken elsewhere. Courts therefore distinguish the authority's public and political acts from the private-law acts of daily life, giving effect to the latter, and the doctrine that de jure recognition relates back to the date power was assumed removes the problem entirely once recognition is finally given.