Recognition of Insurgency

Insurgency denotes the state of political revolt in a State. Insurgency, presupposes a civil war.
Insurgency is used to denote the condition of political revolt in a country where the rebels
have not attained the character of belligerents. Thus Insurrection is a war of citizens against
the State for the purposes of obtaining power in the whole or part. It always implies a
sustained armed struggle by a group of citizenry against an established order. In fact,
insurgency is an intermediate stage between tranquillity and belligerency. In the view of
Judge Lauterpacht if the State recognizes the insurgents of another State, it would imply that
it would not treat such insurgents as violators of law. It also implies that such a State wishes
to establish relations with such insurgents on a temporary basis. The effect of insurgency is
that it partially internationalises the conflict In the view of Judge Lauterpacth, it is not
against international law to recognize insurgents as a de facto government over the territory
under their control. It is merely an acknowledgement of fact situation for practical purposes.

Following are the essential conditions for recognition of insurgents:

(1) Control over a considerable part of the territory:
(2) Considerable support to the insurgents from the majority of the people living in the
territory; and
(3) Insurgents should have the capacity and will to carry out the international obligations.
Effects of recognition of insurgency-
The recognition of insurgency is less important than the recognition of belligerents. The
following effects ensue from the recognition of insurgency:
(1) They (i.e. insurgents) are not treated as pirates:
(2) The rebels of civil strife are treated as hostis humani generis (the public enemy) until
they are recognized as insurgents;
(3) The international rules of war become applicable to them.
Recognition of belligerency
When the insurgents are well organized, conduct hostilities according to laws of war and
have a determinate territory under their control they may be recognized as belligerents
whether or not the parent State has already recognized that status. As in the case of a
recognition of a State recognition of belligerency is the question of policy and not of law.
Consequently some States find it convenient to recognise belligerency and some do not. The
policy of State in this regard hinges upon national interest of recognizing State." The
belligerency is in fact the final status of three stages of the ascending intents of the conflict
which presents a 'violent challenge to the sovereign authority within a State". Recognition of
belligerency is the acknowledgment of a juridical fact that there exists a state of hostilities
between two factions contending for power or authority.

Essential conditions for the recognition of belligerents

Recognition of belligerency is treated to be an unfriendly act until the following conditions
are present:
 (1) The armed conflict is to be of general character:
(2) The insurgents occupy and administer a considerable portion of the national territory.
(3) They conduct hostilities through armed forces under a responsible authority.
Moreover, they conduct hostilities in accordance with the rules of war; and
(4) The hostilities are to be of such magnitude that the foreign States may find it
necessary to define their attitude towards the belligerents and the established
government.
Effects of recognition of belligerents.
Following are the effects or consequences of the recognition of belligerency:
(1) From the date on which the recognition of belligerency is accorded international law
rules governing the conduct of hostilities apply.
(2) The conflict is internationalised and the belligerents get some rights under
International Law.
(3) The relations between the recognized belligerent authorities established Government
and, the recognising States are governed by International Law rather than municipal
law.
Legal effects of recognition.
As pointed out earlier, recognition is, a political diplomatic function and depends upon the
discretion of the recognizing State. But once recognition is accorded, there ensue certain legal
effects. The recognized State acquires certain rights, privileges and immunities under
international law as well as municipal law. In the words of Starke, "Recognition produces
legal consequence affecting the rights, powers and privileges of the recognised States or
government both at International Law and under the municipal law of States which have
given it recognition. Some jurists are of the view that since recognition is a political act, there
ensue no legal effects except the special agreements which are made at the time of granting
recognition. For example, Philip Marshall Brown holds this view. But this view does not
seem to be correct. "The typical act of recognition has two legal functions. Firstly, the
determination of statehood, a question of law: Such individual determination may have
evidential effect before a tribunal. Secondly, the act of recognition is a condition of the
establishment of formal, optional and bilateral relations, including diplomatic relations and
the conclusion of treaties. It is this second function which has been described by some jurists
as 'constitutivist' although here it is not a condition of statehood. Kelsen has rightly written
that by the grant of recognition, legal relations are established between the recognising and
the recognised States and their relations are governed by the rules of international law.

Following are the main effects of recognition:

(1) The recognized State becomes entitled to sue in the courts of the recognized State.
(2) The courts of the recognizing State given effect to the past as well as present legislation
and executive acts of the recognized State.
(3) In case of de jure recognition, diplomatic relations are established and the rules of
international law relating to privileges and immunities apply.
(4) A recognised State is entitled to sovereign immunity for itself as well as its property in
the Courts of the recognising State.
(5) The recognised State is also entitled to the succession and possession of the property
situated in the territory of the recognising State.
For example, State X deposited some gold in State Y. There is a rebellion in State X and the
rebels are successful in establishing a parallel government. After sometime Y grants de jure
recognition to the new government. The new government claim the gold deposited by the old
Govt. The new government which has been granted de jure recognition will be entitled to the
succession and possession of the gold deposited by the old government for recognition of a
government means the recognised government has effective control over the State and is fit to
represent that State.
Conclusion
It is clear from the above discussion that after being recognized, the new State becomes a
member of the international community. After the grant of de jure recognition the State
recognized becomes entitled to establish diplomatic relations with other States. Since it
becomes a member of international community, it requires certain rights as well as duties
under international law.

Retroactivity of Recognition
Recognition de facto as well as de jure has a ‘retroactive' effect in the sense that all the acts of
newly recognized State are treated valid dating back on the commencement of the activities
of the authority thus recognized. For instance, if the communist China was recognized by the
U.S.A. in 1979, the latter would treat all the acts of the former from the date when it in fact
comes into existence.
Every act of recognition is not retroactive in its operation. It depends upon the ‘intention'
behind the individual act of recognition. In Luther v. Sapor, held that de facto recognition
dates back in the same manner as de jure recognition. Another case, which furthers the
‘Intention test', is Civil Air Transport Inc. v. Central Air Transport Corpn. (1952) 2 All
ER 733. In this case, the court held:

1. Retroactivity depends upon intention.

2. Where there is a clear date mentioned, recognition takes effect from that date
(mentioned) Thus, it is an exception to the general rule of retroactivity.
3. Acts of previous de jure government cannot be invalidated by subsequent de jure
recognition of new government.
4. Prima facie, recognition operates retrospectively not to invalidate the acts of a
former government, but to validate the acts of a de facto government, which has
become the new de jure government. It may be noted that where a State is granted
de facto recognition initially and de jure recognition later on, the effect of
recognition starts from the date of de facto recognition. It may be regarded as a
prima facie rule (Starke).

Government-in-exile: This situation may arise when the State is temporarily occupied by
invaders or usurpers and the government has had to flee, or there is a rebel community which
has not yet succeeded in establishing itself in the territory of which it aspires to be the
government. An example is Palestine Liberation Organization (P.L.O.), recognized by many
States including India. In contrast to de facto government, governments-in-exile lack
effective control over the territory of a State and have been accorded de jure recognition
Withdrawal of Recognition

1. Withdrawal of De Facto Recognition

Under International Law, when a State having De Facto recognition but fails to obtain or
fulfill the essential conditions then the recognition can be withdrawn.
The recognition can be withdrawn through declaration or through communicating with the
authorities of the recognised State. It can also be withdrawn by issuing a public Statement.

2. Withdrawal of De Jure Recognition

Withdrawal of De Jure recognition is a debatable topic under International Law. Withdrawal
of this recognition comes under as an exception.
This recognition can be withdrawn when a State loses the essentials elements or other
circumstances.

Recent case law regarding recognition

Recognition of Kosovo:
On 17 February 2008, Kosovo declared its independence from the state of Serbia. However,
this decision brought a lot of concern and chaos amongst states. Many states expressed their
concern over Kosovo's declaration as a separate state. Russia and China rejected the
declaration calling it illegal however united states, the united kingdom and France have
recognized the declaration of independence.

At last international court of justice held that the declaration of independence of Kosovo does
not violate their rules laid down by international law. Hence it can be recognized as a fully
independent state. To date, 116 states have recognized the state of Kosovo, of which 15 have
since been withdrawn