Page 41 - Law of Peace, Volume ,

Pam 27-161-1

which the government gains control is not of primary im- international politics and may be a decisive factor in the
portance. However, it may be of the utmost importance in decision by other states to grant or withhold recognition.
Section 11. RECOGNITION OF STATES AND GOVERNMENTS

3-7. Nature of Recognition. a. Recognition is essentially tended to coktitute recognition. 35 Recognition of a new
a political act, taken by the government of a state in the state usually carries with it recognition of the government
conduct of foreign affairs. It may be extended to another of that state, as states can speak and act only through their
state, to the government of another state, or to a governments. 36
belligerency. Generally, the need for recognition arises 3-8. International Legal Aspects of Recognition. a.
only when there has been some extraordinary political Theories of Recognition. The two principal theories pro-
change, such as the creation of a new state by separation posed to explain the legal effect of recognition are the con-
from an existing state 27 or the formation by coup d'etat stitutive and the declaratory.
(or some other departure from orderly transition) of a (1) The Constitutive Theory. 37 According to this
new government of an existing state. As a practical mat- theory, recognition has a "constitutive" effect, i.e., it is
ter, most recognition problems involve recognition of new through recognition (and only through recognition) that a
governments of already-recognized states. 28 state becomes an international person and a subject of in-
b. Recognition of belligerency rarely occurs. It arises ternational law. This view has two si@icant weaknesses.
only in cases of armed conflict-rebellion or civil war- First, if a state is recognized by some states but not by
within a particular state. This type of recognition means others, then under the constitutive theory that state is
the recognition by one state that a revolt or insurrection both an international person and not an international per-
within another state has attained such a magnitude as to son at the same time. Second, and perhaps more irnpor-
constitute a state of war, entitling the revolutionaries (or tant, it follows from the constitutive theory that an
insurgents) to the benefits, and imposing upon them the unrecognized state has neither rights nor duties under in-
obligations, of the laws of war. 29 The state granting such ternational law. Although nonrecognition may make the
recognition demands for itself all the legal consequences enforcement of rights and duties more difficult than it
that flow from the existence of a war; it claims the rights of would otherwise be, international practice does not sup-
a neutral, and accords the rights of belligerents to the war- port the view that a state has no legal existence before
ring factions. 30 If a state is unwilling to accord the rights of
recognition. 38
a belligerent to an insurgent group within another state, it (2) The Declaratory Theory. 39 This theory main-
may nevertheless accord them a more limited status, i.e., tains that both states and governments are facts. Once the
a recognition of insurgency. 31 Although the status of
belligerency gives rise to definite rights and duties, the objective criteria mentioned earlier are met, international
status of insurgency does not. At least, however, recogni- legal personality exists. Recognition merely declares the
tion of insurgency indicates a desire to treat the insurgents existence of the state or government, which existence has
as something more than outlaws. 32 preceded the recognition in time. A state may exist with-
c. In the case of a new state or government, recognition out being recognized, and if it does exist in fact, then it is
is evidenced by an act acknowledging the existence of an entity having rights and duties under international law,
such state or government and indicating a readiness on the whether or not it has been formally recognized by other
part of the recognizing state to enter into formal (but not states. 40 Under this view, the granting of recognition
necessarily diplomatic) relations with it. 33 Recognition is
merely enables the recognized state to exercise its interna-
fundamentally a matter of intention, and may be express
tional legal personality with the state that extends recogni-
or implied. The mode by which it is accomplished is of no
special signif~cance. 34 An act that would normally have 35. For example, the conclusion of a bilateral treaty ordinarily im-
the effect of recognition may be deprived of that effect if plies recognition, but that implication may be negatived by appropriate
the government performing it indicates that it is not in- language or conduct. Thus, during 1919 and 1920 the British, French,
Danish, and Belgian governments entered into bilateral agreements
27. A recent example of extraordinary political change resulting in with the Soviet Union (which had not yet been recognized by those con-
recognition of a new state is the case of Bengladesh. tracting governments) for the repatriation of prisoners of war, without
28. Leech, Oliver, & Sweeney, The International Legal System 768 those agreements beiig considered as constituting recognition. See 2
(1973) Fereinafter cited as Leech]. Whiteman, supra note 16, at 52. See also Restatement, supra note 2, at 5
29. 1 G. Hackwork, Digest of International Law 161 (1940) 104. Although recognition by implication can occur, a disclaimer is sufli-
bereinafter cited as Hackworth]. cient to negate it.
30. Brierb, supra note 2, at 142. 36. See Hackworth, supra note 29, at 167.
31. See Friedmann, supra note 20, at 163. 37. For a comprehensive treatment of the constitutive theory, see
32. Id. DA Pam 27-161-2 deals comprehensively with the recogni- H. Lauterpacht, Recognition in International Law (1 948).
tion of belligerency and insurgency. Accordingly, these topics are given 38. Brierly, supra note 2, at 138-39.
only passing mention here. 39. For a detailed analysis of the declaratory theory, see I. Chen,
33. Hackworth, supra note 29, at 161. The International Law of Recognition (195 1).
34. Id. at 166-67. 40. Brierly, supra note 2, at 138-39.