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tion. 41 An unrecognized state or government, however, may come into play as a result of the fact that international
does not depend upon recognition from anyone for its in- law, according to most authorities, does not require for-
ternational legal personality. Rather, its juridical existence mal recognition once the objective criteria have been
is complete when the objective criteria of statehood or met. 46 The more common of these subjective criteria will
government are satisfied. now be considered.
b. Criteria for Recognition. (1) The Objective Criteria. (2) The Subjective Criteria. It should be made clear
If the four elements of a state (i.e., people, territory, inde- at the outset that the subjective criteria are not a substitute
pendence, and governmental structure) or the two ele- for the objective criteria discussed above. Subjective cri-
ments of a government (i.e., (a) a group which is (b) in teria are considered only after the objective criteria have
effective control) exist, formal recognition may follow by been met. Moreover, the various subjective considera-
other states. If formal recognition is not extended it would tions usually come into play in conjunction with the recog-
be difficult in practice for the withholding government to nition of governments rather than with the recognition of
ignore entirely the factual existence of the other state or states. They may be grouped under three major headings.
government. This it seldom attempts to do. The withhold- (A) Willingness to abide by international law. The
ing government merely attempts to keep its international peaceful intentions of the new government and its respect
deals with the other to a minimum. The result is that the for the prior international obligations of the state are
withholding of recognition from a factually existing state generally considered by governments before recognition is
or government is often very similar to the breaking off of extended. This is particularly true if the government con-
diplomatic relations between two governments that have sidering recognition suspects that the new government
previously extended recognition to one another. 42 may not intend to honor bilateral treaties existing between
(A) If a foreign government extends recognition the two states. For example, treaties of alliance or of friend-.
when all the objective criteria of a state or government are ship and cooperation ,nonaggression pacts, trade agree-
not present, particularly those of independence and con- ments, and treaties concerning the protection of foreign
trol, then it may be viewed as interfering in the internal assets are among the many that a new government,
affairs of another state. 43 The government of the latter particularly a revolutionary one, may be reluctant to fulfi.
state may consider the recognition a hostile act. For exam- @) Lawfulness of the control assumed by the new
ple, if Group A attempts to unseat Group B, which is and group. This lawfulness may be tested in three ways.
has been in control of State X, any recognition of Group (i) By the municipal laws of the state. If a new
A before it has actually gained control may work to the group comes into power by revolution the constitution of
disadvantage of Group B. 44 Similarly, if a portion of State the state has usually been broken in the process. If a
X attempted to separate itself from State X, any recogni- foreign government has a policy of discouraging revolu-
tion of the separatists before they had achieved their inde- tions and of promoting free democratic elections in neigh-
pendence would be detrimental to State X. 45 boring states it may withhold recognition until the revolu-
(B) Some governments have, from time to time, tionary group has agreed to elections and other constitu-
adopted the practice of following only the objective cri- tional processes.
teria. However, it is dacult to prevent additional subjec- (ii) By international law. If an aggressor invades
tive criteria from entering the considerations of govern- a foreign state and annexes it contrary to international law,
ments. criteria, other than the objective facts of people, other states may wish to discourage such unlawfulness by
territory, independence, and a group in actual control, withholding recognition of the fruits of the conquest. 47
(ii) By means of the will of the nation substan-
41. see convention on Rights and Duties of States, supra note 2, tially declared. This is the Jeffersonian principle that a
art. 6. Article 3 of this Convention,which appears expressly to adopt the
declaratory theory of recognition, states in part: "[Tlhe political exist- government derives its power to govern from the consent
ence of the state is independent of recognition by other states."
42. Jaffe, Judicial Aspects of Foreign Relations 148 (1 933). 46. J. Moore, Digest of Inlernational Law 72 (1906). Professor
43. Brierly, supra note 2, at 138. Such recognition is termed "pre- Lauterpacht's contrary view that states are under a legal duty to recog-
cipitate recognition." Oppenheim, supra note 2, at 128. An example was nize new states that meet the objective criteria is criticized by Kunz, Cri-
the recognition of the Provisional Government of the Algerian Republic tical Remarks on Louterpacht's Recognition in International Law, 44
by seventeen states as of 1959 while France was still actively seeking to Am. J. Int'l L. 713-719 (1950).
retain Algeria. Algerian Of&, White Paper on the Application of the 47. This was the primary purpose of the Stirnson Doctrine. On Jan.
Geneva Convention of 1949 lo the French Algerian Coqflict 9 (1960). 7, 1932, the United States sent the following message to both China and
44. The newly recognized group may request aid from the recogniz- Japan: "The American Govemment . . . does not intend to recognize
ing state. Such took place shortly before the Soviet-Finnish War when any situation, treaty, or agreement which may be brought about by
the U.S.S.R. was alleged to have recognized a faction which did not con- means contrary to the covenants and obligations of the Pact of Paris of
trol the Finnish State. August 27, 1928, to which both China and Japan, as well as the United
45. Usual examples given are the recognition of the American States, are parties. . . ." 26 Am. J. Int7 L. 342 (1932); 119321 Docu-
States by France in 1778, and the recognition of Panama by the U.S.A. ments on Foreign Affairs 262; see also Oppenheim, supra note 2, at 143.
in 1903. Oppenheim, supra note 2, at 129. More recently, Egypt took Moreover, there may well be an affumative duty under Article l(1) of
offense at the recognition of Syria by Turkey and Jordan in September the U.N. Charter to withhold recognition of territorial gains resulting
1961, and France at the recognition of Algeria by the U.S.S.R. in 1962. from acts of aggression.