RECOGNITION

The extent of a states membership in the international community is, therefore, dependent on the number of states prepared to admit it. Declaratory Recognition (Political) affirms the pre-existing fact that the entity being recognized already possesses the status of an international person; this kind of recognition in highly political and discretionary; 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) recognition is the last indispensable element that converts or constitutes the entity being recognized into an international person; recognition is regarded as mandatory and legal and may be demanded as a matter of right by any entity that can establish its possession of the four essential elements of a state; 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. Recognition may be extended by individual states or by a number of them together. Recognition may also be conditional or unconditional, individual or collective. In the Philippines, the President determines the question of recognition and his decisions are considered acts of the state which are, therefore, not subject to judicial review. OBJECTS OF RECOGNITION Recognition may be extended to a state, to a government, or to a belligerent community. Generally, the recognition of a state is irrevocable and imports the recognition of its government. On the other hand, the recognition of a government may be withdrawn and does not necessarily signify the existence of a state as the government may be a mere colony. Recognition of belligerency does not produce the same effects as the recognition of states and governments because the rebels are accorded international personality only in connection with the hostilities they are waging. KINDS OF RECOGNITION Express recognition may be verbal or in writing. The ways of extending an express recognition of a state are: 1) formal proclamation 2) announcement 3) stipulation in a treaty 4) a letter or telegram

Prepared By: Donali Gem M. Pableo

5) official call 6) conference An implied recognition takes place when the recognizing state enters into official intercourse with the new member by: 1) exchanging diplomatic representatives 2) bipartite treaty 3) acknowledging its flag 4) 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 3) to recognize in the case of insurgents that they are entitled to exercise belligerent rights. Short of an intention, dealings with the entity in question will not give rise to recognition. As to the effect of common membership in an international organization of state that have not previously recognized each other, the view is that they are deemed to recognize each other only within the said body and not elsewhere. RECOGNITION OF STATES The recognition of a new state is a free act by which 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. It does not present much difficulty when it is established through peaceful methods, such as a plebiscite or agreement. 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. Recognition of governments is usually decided mainly on the basis of political considerations. Where the former government is replaced by force and the new government thereafter claims the right to represent the state to the exclusion of the other, the de jure government might have cause for complaint if recognition is extended by other governments to the de facto government. 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.

Prepared By: Donali Gem M. Pableo

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. 3) Those established by the inhabitants of a state who secede therefrom without overthrowing its government. Under the 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. The Stimson principle states that 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. Under the 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. The practice of most states now is to extend recognition to a new government through the application of these two tests: 1) Objective Test - 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. 2) 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. If a government satisfies the aforementioned tests, it is usually recognized as de jure. Where there is no indication of the kind of recognition being extended, the presumption is that it is de jure. Recognition de jure Relatively permanent Vests title in the government to its properties abroad Brings about to full diplomatic relations Recognition de facto Provisional Does not vest title 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;

Prepared By: Donali Gem M. Pableo

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: 1) A duly recognized revolutionary government has capacity to sue in the courts of the recognizing state; 2) A foreign state or government may sue only when it is recognized; but whether recognized or not, it cannot be sued; and 3) The recognition of a successful revolutionary government has a retroactive effect and validates prior acts of the same government; RECOGNITION OF BELLIGERENCY When the inhabitants of a state rise up in arm for the purpose of overthrowing the legitimate government, a state of belligerency exists. Insurgency Initial stage of a belligerency Directed by military authorities Usually not recognized Belligerency More serious and widespread Under a civil government Settled rules exist regarding its recognition

Generally, belligerency is supposed to be a merely internal affair of the state. However, any damage cause by the rebels to a third state is imputable to the legitimate government. 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) There must be an organized civil government directing the rebel forces; 2) There rebels must occupy a substantial portion of the territory of the state; 3) The conflict between the legitimate government and the rebels must be serious, making the outcome uncertain; and 4) The rebels must be willing and bale to observe the laws of war. CONSEQUENCES OF RECOGNITION OF BELLIGERENCY Upon recognition by the parent state, the belligerent community is considered as separate state for the purposes of the conflict it is waging against the legitimate government. Their relations with each other shall be, for the duration of the hostilities, governed by the laws of war, and their relations with other states shall be subject to the laws of neutrality.

Prepared By: Donali Gem M. Pableo

Where the recognition is extended by third states, the above consequences are effective only as to them and do not bind other states not extending recognition. It is only where the recognition is made by the parent state that the effects thereof become general and are legally applicable to all other states.

References: Cruz, Isagani A. International Law. Central Law Book Publishing Co., Inc, 2003. Paras, Edgardo L. International Law and World Organizations. Rex Printing Company. Inc, 1985.

Prepared By: Donali Gem M. Pableo