RECOGNITION

Declaratory Recognition (Political)

As long as political unit possesses all the elements needed for a state, other states are duty bound to recognize the former. It has a legal right to be recognized as a state.

Constitutive Recognition (Legal)

Even if a political unit possesses the ordinary constituent elements of a state, still foreign countries are at liberty to either grant or withhold recognition. The act of recognition is discretionary.

OBJECTS OF RECOGNITION

Recognition may be extended to a state, to a government, or to a belligerent community.

KINDS OF RECOGNITION

Express recognition may be verbal or in writing.

The ways of extending an express recognition of a state are:

formal proclamation
announcement stipulation in a treaty a letter or telegram official call conference

Implied recognition
It takes place when the recognizing state enters into official intercourse with the new member by: exchanging diplomatic representatives bipartite treaty

acknowledging its flag

entering into formal relations with each other

In every case, it is important that the act constituting recognition shall give a clear indication of an intention:
1. to treat with the new state as such; 2. to accept the new government as

having authority to represent the state it; purports to govern and maintain diplomatic relations with it; and that they are entitled to exercise belligerent rights.

3. to recognize in the case of insurgents

RECOGNITION OF STATES

a free act one or more states acknowledge the existence on a definite territory or a human society politically organized, independent of any existing state, and capable of observing the obligations of international law and by which they manifest their intention to consider it a member of the international community.

RECOGNITION OF GOVERNMENTS

The recognition of the new government of a state which has been already recognized is the free act by which one or several states acknowledge that a person or a group of persons is capable of binding the state which they claim to represent and witness their intention to enter into relations with them.

De Jure
vs

De Facto

Three kinds of de facto governments are the following:

1. Those established by the inhabitants who

rise in revolt against and depose the legitimate regime.

2. Those established in the course of war by

the invading forces of one belligerent in the territory of the other belligerent, the government of which is also displaced. state who secede therefrom without overthrowing its government.

3. Those established by the inhabitants of a

Tobar or Wilson principle

Recognition shall not be extended to any government established by revolution, civil war, coup detat or other forms of internal violence until the freely elected representatives of the people have organized a constitutional government.

Stimson principle
It was incumbent upon the members of the League of Nations not to recognize any situation, treaty or agreement which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris.

Estrada doctrine
The Mexican government declared that it would, as it saw fit, continue or terminate its relations with any country in which a political upheaval had taken place and in so doing it does not pronounce judgment, either precipitately or a posteriori, regarding the right of foreign nations to accept, maintain or replace their governments or authorities.

Objective Test

Subjective Test
that it is willing to comply with its international obligation; employed for the purpose of justifying the withholding of recognition from a government that is politically unacceptable.

that the new government has control of the administrative machinery of the state with popular acquiescence; imports that the government must be able to maintain order within the state to repel external aggression.

Recognition de jure Relatively permanent

Recognition de facto Provisional

Vests title in the government to its properties abroad

Does not vest title

Brings about to full diplomatic relations

Limited to certain juridical relations

EFFECTS OF RECOGNITION OF STATES AND GOVERNMENTS

1. Full diplomatic relations, except

where the government recognized is de facto;

2. Acquisition of the right to sue in the

courts of the recognizing state. However, mere breach of diplomatic relations does not have the effect of withdrawing the right to sue;

Doctrine of State Immunity

To cite a foreign sovereign in the municipal courts of another state would be an insult which he is entitled to resent and would certainly vex the peace of nations.

3. Immunity from the jurisdiction of the courts of the recognizing state; 4. Right to the possession of the properties of its predecessor; and

5. All acts are validated retroactively, preventing the recognizing state from passing upon their legality in its own courts.

Consequences of recognition of governments:

A duly recognized revolutionary government has capacity to sue in the courts of the recognizing state; A foreign state or government may sue only when it is recognized; but whether recognized or not, it cannot be sued; and The recognition of a successful revolutionary government has a retroactive effect and validates prior acts of the same government;

RECOGNITION OF BELLIGERENCY

Insurgency
o

Belligerency
More serious and widespread

Initial stage of a belligerency

Directed by military authorities

Under a civil government

Usually not recognized

Settled rules exist regarding its recognition

When the conflict widens and aggravates, it may be necessary to consider the formal recognition of the belligerent community, under the establishment of the following conditions:
1. 2. 3.

There must be an organized civil government directing the rebel forces;

There rebels must occupy a substantial portion of the territory of the state; The conflict between the legitimate government and the rebels must be serious, making the outcome uncertain; and The rebels must be willing and bale to observe the laws of war.

4.

CONSEQUENCES OF RECOGNITION OF BELLIGERENCY

Upon recognition by the parent state

Where the recognition is extended by third states