A PROJECT

ON

INDIA’S PRACTICE AND POLICY OF RECOGNITION

[Submitted as partial requirements for B.A.LL.B. (Hons.) 5 Year Integrated

Course]

Submitted On: 22 September 2019

Submitted By: - Submitted To: -

Kranti Gila Dr. Anita Jain

Roll No. 15 Faculty

Sem. 7th A

University Five Year Law College

University of Rajasthan,

Jaipur
 CERTIFICATE

Dr. Anita Jain Date: 22 September 2019

Faculty

University Five Year Law College

University of Rajasthan, Jaipur

This is to certify that Miss Kranti Gila of VII Semester, Section A of University Five Year Law
College, University of Rajasthan, Jaipur has carried out the project entitled “India’s practice and
policy of Recognition” under my supervision and guidance. It is an investigation report of a minor
project. The student has completed research work in my stipulated time and according to norms
prescribed for the purpose.

Supervisor
 DECLARATION

I, Kranti Gila, hereby declare that this project titled “India’s practice and policy of Recognition”
is based on the original research work carried out by me under the guidance and supervision of Dr.
Anita Jain.

The interpretations put forth are based on my reading and understanding of the original texts. The
books, articles and websites etc. which have been relied upon by me have been duly acknowledged
at the respective places in the text.

For the present project which I am submitting to the university, no degree or diploma has been
conferred on me before, either in this or in any other university.

Date: September 22, 2019 Signature

Kranti Gila

Roll No. 15

Semester: VII
 ACKNOWLEDGEMENT

I would like to express my gratitude to those who generously took initiative and helped in the
successful completion of this project. I thank them for their inspiration and guidance towards
preparation of this report.

Primarily, I would like to thank director Dr. Sanjula Thanvi and my supervisor Dr. Anita Jain,
whose valuable guidance has helped me immensely to complete this work.

Then I would like to thank librarian and library staff for their help and support in various stages of
completion of this project successfully.

Kranti Gila
 TABLE OF CONTENTS

Contents Page No.

Certificate

Declaration

Acknowledgements

Introduction

 Research Methodology
 Research Objective

Chapters

1. Recognition
2. Theories
3. India’s practice and policy

Conclusion

Bibliography
 INTRODUCTION
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 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 are 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 wield virtually any right and be held to fulfill 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.
 RESEARCH METHODOLOGY

The research methodology used for the purpose of this work is Doctrinal. The information included
in the project is from secondary sources i.e. books, articles, journals and web sources.

Research Objective

The objective of this work is to study the concept of Recognition in International Law and to study
the policy and practice of India in recognition of states in international community.
 CHAPTER 1

RECOGNITION

Recognition of a new State is often described as a political diplomatic function. Recognition, or

the withholding of recognition is often used as a political instrument to express approval or
disapproval of a new State Government or a territorial change. It may, however, be noted that in
the practice of States, the birth of a new State, the establishment of a new Government, or a
territorial change, is frequently recognized by states. This is true of India also. Like most other
countries, India has also granted recognition to States and governments as a matter of course or
routine. India has generally accorded recognition to State as soon as the conditions of statehood
were fulfilled. In some cases, however India was also guided by certain other considerations. It is
discussed briefly some of such cases in which recognition was not granted by India as a matter of
course or routine.

ESSENTIALS OF STATE

International law states that, an entity which meets the international legal criteria of statehood is
able to be a State. And the Article 1 of the Montevideo Convention on Rights and Duties of States
provides the criteria of the statehood.1 According to the Convention a state should have: -

(a)A permanent population

There must be some people to establish the existence of a State but there is not a specification of
a minimum number of people and again there is not a requirement that all of the people be national
of the state.

(b) Territory

The second qualification is territory where the permanent population live on. However, there is
not a necessity of having well- established boundaries as the International Court of Justice said in
the North Sea Continental Shelf cases, “there is no rule that the land frontiers of a state must be
fully delimited and defined”.

1
https://www.legalbites.in/recognition-state-implication-modes-necessity/
(c) Government

A State requires a government that functions as a political body within the law of the land. But it
is not a condition precedent for recognition as an independent State.

(d) Capacity to enter into relations with other states

The fourth and last qualification is about independency.

 CHAPTER 2

THEORIES

CONSTITUTIVE THEORY

The constitutive theory of statehood defines a state as a person of international law if, and only if,
it is recognized as sovereign by other states. This theory of recognition was developed in the 19th
century. Under it, a state was sovereign if another sovereign state recognized it as such. Because
of this, new states could not immediately become part of the international community or be bound
by international law, and recognized nations did not have to respect international law in their
dealings with them. In 1815 at the Congress of Vienna the Final Act recognized only 39 sovereign
states in the European diplomatic system, and as a result it was firmly established that in future
new states would have to be recognized by other states, and that meant in practice recognition by
one or more of the great powers. One of the major criticisms of this law is the confusion caused
when some states recognize a new entity, but other states do not. Hersch Lauterpacht, one of the
theory's main proponents, suggested that it is a state's duty to grant recognition as a possible
solution. However, a state may use any criteria when judging if they should give recognition and
they have no obligation to use such criteria. Many states may only recognize another state if it is
to their advantage. Oppenheim had the following to say on constitutive theory: International Law
does not say that a State is not in existence as long as it is not recognized, but it takes no notice of
it before its recognition. Through recognition only and exclusively a State becomes an
International Person and a subject of International Law.

DECLARATIVE THEORY

According to declarative theory, an entity's statehood is independent of its recognition by other

states. The declarative model was most famously expressed in the 1933 Montevideo Convention.
Article 3 of the Convention declares that statehood is independent of recognition by other states.
In contrast, recognition is considered a requirement for statehood by the constitutive theory of
statehood. The chief exponents of this theory are Hall, Wagner, Breisly, Pitt Cobbet and Fisher.
A similar opinion about the conditions on which an entity constitutes a state is expressed by the
European Economic Community Opinions of the Badinter Arbitration Committee, which found
that a state was defined by having a territory, a population, and a political authority. This theory
has been subject to criticism as recognition is only declaratory of an existing fact is not completely
correct. In fact, when a state is recognized, there ensure some legal effects of recognition which
may be said to be constitutive in nature.
 CHAPTER 3

INDIA’S PRACTICE AND POLICY

Like most other countries, India has also granted recognition to States and governments as a matter
of course or routine. India has generally accorded recognition to State as soon as the conditions of
statehood were fulfilled. In some cases, however India was also guided by certain other
considerations. It is discussed briefly some of such cases in which recognition was not granted by
India as a matter of course or routine.

CHINA

The general theory and practice of recognition has been strained twice, almost to the breaking
point, in the last few decades, by the problems created by the two Chinese revolutions, one led by
Sun Yat Sen in 1912- 1913, and the other led by Mao Tse Tung, toward the end of the year 1949.
Of the two occasions, the latter has attracted much wider attention and has created a situation of
unprecedented complexity. It has led to a sharp difference of opinion not only between the East
and the West but between the leading Powers of the West also. Even now the solution seems to be
far from sight. After taking over the government of independent India in the middle of the year
1947, the Indian leaders keenly watched the developing situation in China. The Government of
India had stationed one of her most illustrious diplomats, Sardar K. M. Panikkar, as Ambassador
in China. He has the distinction of having been India's ambassador before as well as after the
inauguration of the new Chinese Government. Situated as he was, he played an important role in
shaping India's recognition policy towards China. It is rightly held that “Panikkar laid the
foundation for cordiality and trust between the two great powers of Asia.”1

Soon after the establishment of the People's Republic of China, the new regime addressed a
communication to all important governments, including India, expressing their desire to enter into
diplomatic relations on the basis of the principles of equality, mutual interest and mutual respect
for sovereign and territorial rights.

1
https://www.scribd.com/document/131471221/INDIA-S-PRACTICE-AND-POLICY-OF-RECOGNITION-OF-
STATES-AND-GOVERNMENTS
The position of the Government of India, though obviously embarrassing, was unmistakably clear:
embarrassing because the leaders of the Government of India had personal relations with the
Chinese Nationalist leaders, in addition, of course, to having the usual formal relations with the
Nationalist Government; clear because the new Chinese regime had been swept into power beyond
any shadow of doubt. Panikkar tells us that the Indian leaders were unanimous on the question of
recognition, though most of them, including himself, had absolutely no sympathy for the theory
and practice of Communism. C. Rajagopalachari, the then Governor General, and Sardar Vallabh
bhai Patel, the second in command in the Government of India, and a few others, including some
top officials of the Indian bureaucracy, wanted to pursue a slower policy.

In October last, the Government of India received a communication from the Foreign Minister of
the People's Republic of China, expressing their desire to enter into diplomatic relations with India
on the basis of the principles of equality, mutual interest and mutual respect for sovereign and
territorial rights. Having considered this communication and taken note of the subsequent
developments, the Government of India has intimated to the new Government of China their
willingness to establish diplomatic relations with them. The announcement, though important, was
in no way unexpected. For a couple of months preceding the announcement, it was known that
India was conferring with other governments, particularly the members of the Commonwealth, on
the problem of Chinese recognition. India was virtually, though not technically, the first country
outside the Russian bloc to accord recognition to new China, and certainly the first in the
Commonwealth. Technically, the first country outside the Communist bloc was Burma. Soon after,
many countries of the East and the West, Communist and non-Communist, followed suit.

The decision of the Government of India had the overwhelming, if not unanimous, support of the
people of the country. This is, to a very large degree, reflected in the editorial comments of the
leading newspapers of the country. Abroad, the reaction was bound to be mixed.

The reasons for the recognition policy of the Government of India, were clearly stated by Prime
Minister Nehru (also Minister for External Affairs) in a speech in the Indian Parliament. When it
was clear that the new Chinese Government was in possession of practically the entire mainland
of China, when it was quite clear that this Government was stable, and that there was no force
which was likely to supplant it or push it away, we offered recognition to this new Government
and suggested that we might exchange diplomatic missions. A few months later India's chief
delegate to the United Nations General Assembly, Sir Benegal N. Rau, expounded India's policy
by quoting Oppenheim's views:

A government which enjoys the habitual obedience of the bulk of the population with a reasonable
expectancy of permanence, can be said to represent the state in question, and as such to be entitled
to recognition. The bulk of the practice of States, in the matter of recognition of Governments, is
based on the principle of effectiveness thus conceived. After citing this statement, Rau said that
this is the principle which India has followed in respect of China. It is submitted that the
Government of India determined its policy according to the facts of the situation. To summarize
the situation, the new Chinese Government was in possession of the entire mainland of China. The
Government of Chiang Kai-Shek had taken refuge on the Island of Formosa, which, in the
Government of India's view, was not a part of China, at least technically insofar as the legal
position was concerned. Formosa was still juridically a part of the Japanese Empire, since the
treaty transferring it to the Allies had not been signed. "Moreover, the Indian Government
professed the conviction that the new regime had the support of the people. Lastly, they were sure
that the new Government of China was stable and that there was no force which was likely to
supplant it or push it away. About a week after India's announcement, Professor Hersch
Lauterpacht urged and justified the recognition of the new Chinese Government on these very
grounds.

Other factors and forces which influenced India's attitude, though significant from the standpoint
of India's foreign policy generally, were subsidiary and secondary in nature in this particular case.
In the first place, India looked at the emergence of the new Government of China from a different
point of view than, for example, the United States or even the United Kingdom. The continent of
Asia, including India and China, had been the victim of colonial and imperial Powers of the West.
Therefore, the emergence of a united and forceful China free from Western domination was in
partial fulfillment of general objective and hence a matter of satisfaction and pleasure. The second
factor, perhaps equally important, was the fact that India and China had been friendly neighbors
of long standing. India wanted to affirm the traditional friendship with the people of China, who
had given overwhelming support to the process which had culminated in the establishment of the
new government. Both countries share a long common border, which was another consideration.
In 1949, India, through friendly overtures, of which recognition was a part, wanted to lay the
foundation of an era of friendship and mutual co-operation with the new regime. It would be far
from the facts to suggest, as some have done, that India, because of her long common border, was
afraid of China. Thirdly, Indian leaders, at least a section of them, did not view the emergence of
the new Government of China as a victory of Communism, which it was. They looked at it as a
triumph of nationalism. Finally, the basis of recognition, as offered by the new Chinese
Government, was considered by India as adequate and honorable. The Chinese Government had
desired to have relations on the basis of equality, mutual interests and mutual respect for sovereign
and territorial rights. The basis was accepted at its face value and thought of as broad enough,
requiring no further undertakings or assurances.

The Indian recognition policy toward the new regime of China has a striking similarity to the
policy adopted by Jefferson in the early years of the American Republic. Again, India's policy was
almost in complete accord with the policy the Government of the United Kingdom adopted in this
regard. The decision to recognize the new regime in China was taken almost simultaneously and
after due consultations between the two governments, although the British decision was announced
a week after India's announcement. Like India's, the British decision was primarily determined by
the fact that the Central People's Government now exercises effective power over almost all of
China and it is likely to continue to do so for so long as can be foreseen. The view was in keeping
with their general policy in such cases in the past.

BANGLADESH

Another important case which deserves mention is that of Bangladesh which also evoked criticisms
from certain countries. India recognised Bangladesh on 6th December, 1971. India's recognition
of Bangladesh was widely welcomed inside the country and Indian jurists justified it. Some Indian
writers even expressed the view that the elements of statehood were present in Bangladesh long
before 6th December, 1971. On the other hand, India's action was subjected to criticism and was
regarded as premature. Thus, while recognition in respect of Israel, Spain, Vietnam and East
Germany had been delayed, India was very quick to accord recognition to Bangladesh. India was
the first country to recognize Bangladesh. This was obviously due to expedience and political
considerations.

CAMBODIA
So is also the case of India's recognition of Royal Cambodian Government headed by Prince
Sihanouk. On April 1, 1975, India accorded full diplomatic recognition to the Royal Cambodian
Government headed by Prince Sihanouk in a joint communique issued at the end of the visit of the
Foreign Minister of the Royal Government Mr. Sarin Chhak who claimed 97 per cent of the
Cambodian territory under control of his government.1

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STATES-AND-GOVERNMENTS
 CONCLUSION

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 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. 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, India
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 the 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.
 BIBLIOGRAPHY

BOOK SOURCES

1. Kapoor S. K. (Dr.), “International Law and Human Rights” Central Law Agency19th
Edition, 2014.

WEB SOURCES

1. https://www.scribd.com/document/131471221/INDIA-S-PRACTICE-AND-
POLICY-OF-RECOGNITION-OF-STATES-AND-GOVERNMENTS
2. https://www.legalbites.in/recognition-state-implication-modes-necessity/
3. https://www.researchgate.net/publication/318110618_State_formation_and_recognit
ion_in_international_law