Page 43 - Law of Peace, Volume ,

Pam 27-161-1

of the people. This principle has a deeper meaning than jective criteria, subjective criteria continue to play an im-
mere compliance by the group in power with the munici- portant role in particular cases. 53 That fact is demon-
pal laws of the state. These laws may not even provide for strated by the nonrecognition of the Communist govern-
a means whereby the will of the nation may be substan- ment of China, a policy clearly based more upon political
tially declared. and national security considerations than upon legal
(C) Gain or loss to the state extending recogni- ones. 54 Since recognition is a political act and a tool in the
tion. This third subjective criterion places the extention of conduct of foreign relations, it is hardly surprising that ex-
or the withholding of formal recognition upon the basis of tra-legal factors may be decisive. Recognition is a discre-
national self-interest. 48 tionary matter; international law does not require any
3-9. Practice of the United States. a. Since its inception, government to extend recognition to any other state or
the United States generally has followed the declaratory
theory of recognition. But in recognizing or not recogniz- government. 55 Ultimately, then, all states, including the
ing new states and governments, our government has not United States, formulate their policies on recognition in
been guided solely by the objective criteria mentioned accordance with their perceptions of national self-in-
above. Rather, the United States has tended to regard terest. 56
recognition as an act of policy signifying something more c. Although the United States has asserted that non-
than the recognition of a situation of fact and law. Subjec- recognition denies to an aspiring state or government cer-
tive criteria, the content of which has varied from time to tain international rights, 57 it also has insisted upon com-
time, have been used. Jefferson, for example, in instruct- pliance with international law by regimes it has refused to
ing the United States Minister to France regarding recog-
nition of the new government produced by the French 53. The period 1823-1855 probably saw the high-water mark of use
of solely objective criteria by the United States in extending recognition.
Revolution, expressed the view that the essential test for
The Monroe Doctrine includes the statement: "Our policy in regard to
recognition of a new government is whether or not that Europe [is] . .. to consider the government 'de facto' as the legitimate
government has been formed by "the will of the nation, government for us. . .." 4 Moore, supra note 46, at 401. Secretary of
substantially declared. . . ." 49 Later, Chief Justice Taft State Van Buren elaborated on that theme in 1830 when explaining why
referred to "illegitimacy or irregularity of origin" of the the United States was one of only three states that had recognized the
Tinoco government of Costa Rica as a basis for nonrecog- Dom Miguel Government in Portugal. 1 Moore, supra note 46, at 137.
And Secretary of State Buchanan reiterated the policy of adherence to
nition by the United States of that government. 50 objective criteria in 1848: "It is sufficient for us to know that a govem-
Another subjective criterion sometimes used is that of ment exists, capable of maintaining itself, and then its recognition on
willingness of the new government to fulfill the interna- our part inevitably follows." Id. at 124. But consistent application of that
tional commitments of the state it represents. 51 Still policy lasted no longer than 1855, when recognition was denied the
another is whether or not the new government has been Walker-Rivas Government in Nicaragua because it "was as yet unsanc-
tioned by the will or acquiescence of the people." Id. at 140.
created by formal constitutional process. 52
More recently, during the 1960's coup after coup in sub-Sahara Africa
b. Although the United States has, at times, granted and southeast Asia resulted in routine recognition of the new regimes,
recognition upon a straightforward application of the ob- apparently by reason of application of the objective criteria. Yet in 1962,
President Kennedy delayed for nearly a month in recognizing a coup in
40. As mentioned at the beginning of this discussion of recogni- Peru, on the grounds that the new government had not come to power
tion, for one govemment to extend recognition to another government by democratic means. See Leech, supra note 28, at 813.
or to a state is essentially a political act. De Visscher emphasizes this 54. In 1958, the Department of State sent a memorandum to its
aspect of recognition. He sees a tendency for recognition to be used as a missions abroad outlining U.S. policy with regard to the nonrecognition
weapon of power politics, especially in periods of high tensions in inter- of Communist China. This document states in part:
national relations. See De Visscher, Theory and Realiw in Public Interna- Basically the United States policy of not extending diplomatic
tional Law 239 (rev. ed. Corbett trans]. 1968). recognition to the Communist regime in China proceeds from the
49. Moore, supra note 46, at 120. conviction that such recognition would produce no tangible
50. Tinoco Claims (Great Britainxosta Rica), 1 U.N.R.I.A.A. benefits to the United States or to the free world as a whole and
369; see also 18 Am. J. Int'l L. 147 (1934). would be of material assistance to Chinese Communist attempts to
51. For example, the United States refused to recognize the Soviet extend Communist dominion throughout Asia. It is not an "inflex-
Govemment in 1919 because, among other things, it was not willing to ible" policy which cannot be altered to meet changed conditions. If
abide by the international obligations of the Russian State. See I. Hyde, the situation in the Far East were so to change in its basic elements
supra note 2, at 169-70. as to call for a radically different evaluation of the threat Chinese
52. Use of this criterion was initiated in 1913 by President Wilson. Communist policies pose to United States and free-world security
See I. Hyde, supra note 2, at 166. In 1915 its application resulted in the interests, the United States would of course readjust its present
denial of dejure recognition to the Carranza Government in Mexico. Id. policies. .. .
at 168. Abandonment of this criterion was announced by Secretary of 55. See note 46, supra. See also Restatement, supra note 2, at 5
State Stirnson in 1931. See Bishop, supra note 7, at 342. Meanwhile 99(1): "[A] state is not required by international law to recognize an en-
Mexico, reacting against the United States practice of withholding recog- tity as a state or a regime as the government of a state."
nition from revolutionary govenunents in Latin America, in 1930 pro- 56. A state's perception of its self-interest may lead it to adopt a
nounced the so-called "Estrada Doctrine," which declares there is no policy of granting recognition to any state or government that meets the
more reason for new recognition following a revolution or a coup d'etat objective criteria. An apparent example is the United Kingdom. See
than for new recognition following a constitutional change of govem- Leech, supra note 28, at 810-12.
ment. See Jessup, The Estrada Doctrine, 25 Am. J. Int'l L. 719 (1930). 57. See Friedmann, supra note 20, at 175-77.