1 Recogni tion a Con II RECOGNITION OF STATES AS INTERNATIONAL PERSONS Hall, §§ 2 and 26-Lawrence, §§ 44-47-Phillimore, ii. §§ 10-22-Taylor, $$ 153-160-Walker, § 1-Westlake, i. pp. 49-58-Wheaton, § 27-Moore, i. §§ 27-75-Hershey, Nos. 110-123-Bluntschli, §§ 28-38-Hartmann, § 11-Heffter, § 23-Holtzendorff in Holtzendorff, ii. pp. 18-33—Liszt, § 5, iv.-Ullmann, §§ 29-30-Bonfils, Nos. 195-213-Despagnet, Nos. 79-85-Pradier-Fodéré, i. Nos. 136-145-Nys, i. pp. 73-120-Mérignhac, i. pp. 320-330-Rivier, i. pp. 57-61-Calvo, i. §§ 87-98-Fiore, i. Nos. 310-320, and Code, Nos. 165-182-Martens, i. §§ 63-64-Le Normand, La Reconnaissance internationale et ses diverses Applications (1899)— Borchard, § 85. § 71. As the basis of the Law of Nations is the common dition of consent of the civilised States, statehood alone does Member: not imply membership of the Family of Nations. Family of There are States in existence, although their number Nations. decreases gradually, which are not, or not fully, members ship of the of that family, because their civilisation, if any, does not enable them and their subjects to act in conformity with the principles of International Law. Those States which are members are either original members because the Law of Nations grew up gradually between them through custom and treaties, or they are members which have been recognised by the body of members already in existence when they were born. For every State that is not already, but wants to be, a member, recognition is therefore necessary. A State is, and becomes, 'an International Person through recognition only and "exclusively. TA Many writers do not agree with this opinion. They maintain that, if a new civilised State comes into exist ence either by breaking off from an existing recognised State, as Belgium did in 1831, or otherwise, such new State enters of right into the Family of Nations an 1 See above, §§ 27 and 28. becomes of right an International Person.1 They do not deny that in practice such recognition is necessary to enable every new State to enter into official intercourse with other States. Yet they assert that theoretically every new State becomes a member of the Family of Nations ipso facto by its rising into existence, and that recognition supplies only the necessary evidence for this fact. If the real facts of international life are taken into consideration, this opinion cannot stand. It is a rule of International Law that no new State has a right as against other States to be recognised by them, and that no State has a duty to recognise a new State. It is generally agreed that a new State before its recognition cannot claim any right which a member of the Family of Nations has as against other members. It can, therefore, not be seen what the function of recognition could be, if a State entered at its birth really of right into the membership of the Family of Nations. There is no doubt that statehood itself is independent of recognition. International Law does not say that a State is not in existence as long as it is not recognised, but it takes no notice of it before its recognition. Through recognition only and exclusively a State becomes an International Person and a subject of International Law. Recogni §72. Recognition is the act through which it becomes Mode of apparent that an old State is ready to deal with a new tion. State as an International Person and a member of the Family of Nations. Recognition is given either expressly or implicitly. If a new State asks formally for recognition and receives it in a formal declaration of any kind, it receives express recognition. On the other hand, recognition is implicitly and indirectly given when See, for instance, Hall, §§ 2 and Rivier, i. p. 57; Heilborn in Stier28; Ullmann, § 30; Gareis, p. 64; Somlo, i. p. 58. Recognition under tions, an old State enters officially into intercourse with the new, be it by sending or receiving a diplomatic envoy,1 or by concluding a treaty, or by any other act through which it becomes apparent that the new State is actually treated as an International Person. But no new State has by International Law a right to demand recognition, although in practice such recognition cannot in the long run be withheld, because without it there is no possibility of entering into intercourse with the new State. The interests of the old States must suffer quite as much as those of the new State, if recognition is for any length of time refused, and in practice these interests in time enforce either express or implicit recognition. History nevertheless records many cases of deferred recognition,2 and, apart from other proof, it becomes thereby apparent that the granting or the denial of recognition is not a matter of International Law but of international policy. It must be specially mentioned that recognition by one State is not at all binding upon other States, so that they must follow suit. But in practice such an example, if set by one or more Great Powers and at a time when the new State is really established on a sound basis, will make many other States at a later period give their recognition too. § 73. Recognition will, as a rule, be given without Condi- any conditions whatever, provided the new State is safely and permanently established. Since, however, the granting of recognition is a matter of policy, and not of law, nothing prevents an old State from making the recognition of a new State dependent upon the latter fulfilling certain conditions. Thus the Powers assembled at the Berlin Congress in 1878 recognised 1 Whether the sending of a consul involves recognition is discussed below, § 428. 2 See the cases enumerated by Rivier, i. p. 58. Bulgaria, Montenegro, Serbia, and Roumania under the condition only that these States should not 1 impose any religious disabilities on any of their subjects.2 The meaning of such conditional recognition is not that recognition can be withdrawn in case the condition is not complied with. The nature of the thing makes recognition, if once given, incapable of withdrawal. But conditional recognition, if accepted by the new State, imposes the internationally legal duty upon such State of complying with the condition; failing which a right of intervention is given to the other party for the purpose of making the recognised State comply with the imposed condition. tion cipitate. § 74. Recognition is of special importance in those Recognicases where a new State tries to establish itself by timely breaking off from an existing State in the course of a and prerevolution. And here the question is material whether a new State has really already safely and permanently established itself, or only makes efforts to this end without having already succeeded. That in every case of civil war a foreign State can recognise the insurgents 3 as a belligerent Power if they succeed in keeping a part of the country in their hands, set up a Government of their own, and conduct their military operations according to the laws of war there is no doubt. But between this recognition as a belligerent Power and the recognition of these insurgents and their part of the country as a new State, there is a broad and deep gulf. And the question is precisely at what exact time recognition of a new State may be given instead of the recognition as a belligerent Power. For an untimely and precipitate recognition as a new State is a violation of the dignity 1 This condition contains a restriction on the personal supremacy of the respective States. See below, $128. * See Arts. 5, 27, 35, and 44 of the Treaty of Berlin of 1878, in Martens, 3 The question of recognition of of the mother-State, to which the latter need not patiently submit. It is frequently maintained that such untimely recognition comprises an intervention. But this is not correct, since intervention is (see below, § 134) dictatorial interference in the affairs of another State. In spite of the importance of the question, no hardand-fast rule can be laid down as regards the time when it can be said that a State created by revolution has established itself safely and permanently. Indication of such safe and permanent establishment may be found either in the fact that the revolutionary State has utterly defeated the mother-State, or that the mother-State has ceased to make efforts to subdue the revolutionary State, or even that the mother-State, in spite of its efforts, is apparently incapable of bringing the revolutionary back under its sway.1 Of course, as soon as the mother-State itself recognises the new State, there is no reason for other States to withhold any longer their recognition, although they have even then no legal obligation to grant it. The breaking-off of the American States from their European mother-States furnishes many illustrative examples. Thus the recognition of the United States by France in 1778 was precipitate. But when in 1782 England herself recognised the independence of the United States, other States could accord recognition too without giving offence to England. Again, when the South American colonies of Spain declared their independence in 1810, no Power recognised the new States for many years. When, however, it became apparent that Spain, although she still kept up her claims, was not able to restore her sway, the United 1 When, in 1903, Panama fell away from Colombia, the United States immediately recognised the new Re For public as an independent State. |