THE LEGAL EFFECTS OF RECOGNITION
In this section some of the legal results that flow from the recognition or non-recognition of an
entity, both in the international sphere and within the municipal law of particular states, will be
noted. Although recognition may legitimately be regarded as a political tool, it is one that
nevertheless entails important consequences in the legal field.
INTERNATIONALLY
In the majority of cases, it can be accepted that recognition of a state or government is a legal
acknowledgement of a factual state of affairs. Nevertheless, it should not be assumed that nonrecognition of, for example, a state will deprive that entity of rights and duties before
international law, excepting, of course, those situations where it may be possible to say that
recognition is constitutive of the legal entity.
In general, the political existence of a state is independent of recognition by other states, and thus
an unrecognized state must be deemed subject to the rules of international law. It cannot consider
itself free from restraints as to aggressive behavior, nor can its territory be regarded as terra
nullius. States which have signed international agreements are entitled to assume that states
which they have not recognized but which have similarly signed the agreement are bound by that
agreement. For example, the United Kingdom treated the German Democratic Republic as bound
by its signature of the 1963 Nuclear Test Ban Treaty even when the state was not recognized by
the UK.
Non-recognition, with its consequent absence of diplomatic relations, may affect the
unrecognized state in asserting its rights or other states in asserting its duties under international
law, but will not affect the existence of such rights and duties. The position is, however, different
under municipal law.
INTERNALLY
Because recognition is fundamentally a political act, it is reserved to the executive branch of
government. This means that the judiciary must as a general principle accept the discretion of the
executive and give effect to its decisions. The courts cannot recognize a state or government.
They can only accept and enforce the legal consequences which flow from the executive’s
political decision, although this situation has become more complex with the change in policy
from express recognition of governments to acceptance of dealings with such entities.
To this extent, recognition is constitutive, because the act of recognition itself creates
legal results within the domestic jurisdiction. In the United Kingdom and the United States
particularly, the courts feel themselves obliged to accept the verdict of the executive branch of
government as to whether a particular entity should be regarded as recognized or not. If the
administration has recognized a state or government and so informs the judiciary by means of a
certificate, the position of that state or government within the municipal structure is totally
transformed.
It may sue in the domestic courts and be granted immunity from suit in certain instances.
Its own legislative and executive acts will be given effect to in the courts of the recognizing state
and its own diplomatic 472 international law representatives will be able to claim the various
immunities accorded to the official envoys of a recognized state. In addition, it will be entitled to
possession in the recognizing state of property belonging to its predecessor.i
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i
Shaw, Malcolm N. 2008. International law. Cambridge, UK: Cambridge University Press. Pp 470.