Recognition

The existence of states provides the basis of the contemporary international legal order. But what should determine the lawful existence of a state or even a government? State practice has devised special rules and procedures for this purpose, albeit governments perform them unilaterally and discretionarily. This process of formally acknowledging the legal existence of a state or government in international relations is called recognition.

In a legal system as individualistic as international law, rights and responsibilities cannot be created for a subject of the law unless that subject has been publicly acknowledged. A state can exist independent of recognition, but some form of recognition is necessary to secure the admission of that polity into the international community. Governments of states have complete discretion in granting recognition as subjects of international law to other entities. They are limited primarily by their interest or willingness to establish direct contact with an independent territorial group that demonstrates signs of permanency. Recognition thus remains an executive act. Recognition attaches certain legal conse­quences to an existing set of facts, as applied to either a state or government that claims to be the lawful representative of a state. The recognition of a state defines its membership in the world community and supports its claim as a separate judicial personality—that is, as an international person. Also important is the fact that recognition carries with it entitlement to the rights and privileges held by states under international law. Recognition assumes that the recognized state is capable and willing to not only claim the benefits of international law but to also abide by its rules. The overarching purpose of recognition, then, is to allow the recognized state to participate in the mutual and reciprocal giving and taking that form the essential conditions of interstate relations.

The act of recognition amounts to a state's becoming accepted into the international community, whether explicitly or implicitly. Recognition is explicit when the government of the recognizing state issues a formal statement. A new state may be recognized implicitly by an established state through the conclusion of a treaty; through the sending or receiving of diplomatic agents; by saluting its flag; or by establishing official relations, such as proffering the intention to treat the entity as an international person. The critical ingredient remains a clear indication of intent to recognize the state or new government; otherwise, the quality of the implicit recognition will be deemed as lacking. […]

Two theories of recognition prevail in modem international law. First, there is the constitutive theory of recognition, which suggests that recognition is a law-creative action. It is the act of recognition that endows a polity with the legal status of statehood and infuses a government with the legal capacity to engage in international diplomatic relations. In the constitutive theory, recognition becomes a formal legal act intended to attach the prescribed legal consequences of statehood on some new polity. It is not supposed to be political in nature or in consequence.²⁹ Second, there is the declaratory theory of recognition, which maintains that statehood or governmental authority exists separately from the act of recognition by some state. The existence of a state is based in fact; it is not dependent on formal acknowledgment by some other government. The declaratory theory asserts that recognition by a government merely acknowledges a factual situation: the existence of a state. The act of recognition does not create the legal existence of that state.

While recognition remains a process essential for international relations, neither theory satisfactorily explains the legal condition of a polity before the moment of formal recognition. Of greater substantive concern is whether standards of recognition are more political than legal. If formal recognition of a state by some government depends on the former polity fulfilling requisite qualifications that define a state—that is, it must have territory with recognized borders, a population, a responsible government, and the qualities of being sovereign and independent—then there should not be any real question over the status of that polity. If an entity fully meets those qualifications, then government officials in other states should deem it acceptable for recognition as a state. Such is not always the case, as political considerations of governments sometimes preempt perceptible reality. During the Cold War, the United States refused to recognize the legitimacy of several communist states, including the Democratic Republic of Germany (until 1973), the People's Republic of China (until 1978), Vietnam (until 1995), and the Democratic Republic of Korea. Many states also refused to recognize the Hanoi-installed government of Kampuchea (Cambodia), which had seized power while Prince Sihanouk's UN-recognized government was in exile. Similarly, the United States refused to recognize the government in Haiti imposed by military coup in 1991 that overthrew the democratically elected government of a former Catholic priest, Henri Aristide.