Recognition - Definitions of "recognition"

All "new" states seek recognition from other states because recognition admits that a state has an international personality. All states have the legal duty to decide whether a "new" state meets certain conditions and therefore warrants being recognized. Does it have complete independence from parent and other states, exercise authority over a defined geographic area, enjoy the obedience of the great majority of its population, reveal willingness and ability to assume international obligations and duties?

Express recognition may be extended unilaterally in an explicit executive statement by one state or collectively following the agreement of several states. Recognition is implied if a state undertakes some sort of intercourse with another, as in concluding treaties with it or sending diplomatic representatives to it, without, however, having recognized it, thereby revealing at least intent to recognize it explicitly at a later time. A state's imposition of demands upon a community seeking recognition is a conditional type of recognition. Contingent recognition is generally reserved for acknowledgment by a parent state that a revolution against it has succeeded—indeed, it endorses the rupture. Recognition is granted by some states if a state is admitted to an international conference (for example, China, Persia, and Siam at the Hague Conference of 1907), or to an international organization (Ethiopia admitted to membership of the League of Nations in 1923, Syria and Lebanon admitted to the United Nations in 1945), or if a mother country grants independence to a former colony, mandate, or trusteeship.

Despite much argument over precise meanings, de facto recognition seems to mean a "qualified" or "provisional" recognition that subsequently may be withdrawn, whereas de jure recognition is final and irrevocable, indicates the legitimacy of title, and signifies closer political ties than de facto recognition. The phrase "de facto" has caused confusion because it has been applied indiscriminately in constitutional and international law and also with respect to recognition. De jure or de facto describes the character of the act of recognition, whereas recognition of a de facto or de jure government or state characterizes the status of the entity recognized. The courts or other agencies of the recognizing power, however, treat the validity of the acts of recognized powers in identical fashion, regardless of how they were recognized.

The determination of the government to be recognized, even of the "policy" governing such determination, is an executive function in the United States. In 1897, when congressional resolutions sought recognition of Cuban independence and United States mediation between Cuba and Spain, the Senate Foreign Relations Committee objected, saying, "Resolutions of their [nation's] legislative departments upon diplomatic matters have no status in international law." President Grover Cleveland agreed—indeed, he said privately that he would not mobilize the army even if Congress declared war.

Controversies involving certain aspects of foreign affairs occasionally provoke conflict between the president and the courts, the latter of which may or may not agree to recognize a new state in legal proceedings and to enforce that state's laws in American territory. It is nevertheless possible to have officieuses ("officious") intercourse, as the French put it, with states that are denied recognition—for instance, by carrying on private undertakings in such fields as the recovery of property and exchange of persons.

A distinction is often made between "constitutive" (or "creative" or "positivist") and "declaratory" (or "de facto") recognition. According to the constitutive theory, prior to recognition a community possesses neither the rights nor the obligations associated with statehood. Moreover, recognition is a political rather than a legal action. The declaratory theory, denying the legal necessity for a community to be recognized as a state, holds that a community seeking recognition possesses many of the characteristics inherent in statehood but has no right to claim recognition as such. The constitutive doctrine remains the preferred one.

The precise timing of the acceptance of a new state into the community of nations thus may vary. The British colonists in America, for example, proclaimed their independence on 4 July 1776. Although Britain never formally recognized their belligerency, they were recognized as independent by France on 6 February 1778, when Benjamin Franklin, Silas Deane, and Arthur Lee signed the Treaty of Amity and Commerce. Britain recognized the United States as independent in the Peace of Paris of 3 September 1783. Not until the Nootka Sound controversy of 1789–1790 did it realize that the United States existed as a viable community. In consequence, in 1791 Britain sent a minister plenipotentiary and then began diplomatic relations with its former colony. A commercial treaty was not written, however, until Jay's Treaty of 1794. In accordance with the declaratory theory, the United States became a state when it declared its independence, 4 July 1776; in accordance with the preferred constitutive view, toward which Britain leans, the date is 6 February 1778, when it was recognized by France. In more recent years the question of timing arose in October 2000, after North Korean officials contacted British and German officials and requested recognition—already granted by Canada, Italy, and Australia. While on his way to a summit meeting in Seoul, British Prime Minister Tony Blair was asked by a reporter when he would grant recognition. Blair replied, "Diplomatic moves of that kind move at a leisurely pace. But we intend to give a positive response to the letter we received last month." German Chancellor Gerhard Schroeder revealed a similar attitude.

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