r e c o g n i t i o n
447
highly improper for one to admit that any country on earth can question
the sovereignty of the United States of America in the exercise of the high
political act of recognition of the
de facto
status of a state.
Indeed, he added that there was no authority that could determine
the legality or validity of that act of the United States.
7
This American
view that recognition is to be used as a kind of mark of approval was in
evidence with regard to the attitude adopted towards Communist China
for a generation.
8
The United Kingdom, on the other hand, has often tended to extend
recognition once it is satisfied that the authorities of the state in question
have complied with the minimum requirements of international law, and
have effective control which seems likely to continue over the country.
9
Recognition is constitutive in a political sense, for it marks the new entity
out as a state within the international community and is evidence of
acceptance of its new political status by the society of nations. This does
not imply that the act of recognition is legally constitutive, because rights
and duties do not arise as a result of the recognition.
Practice over the last century or so is not unambiguous but does
point to the declaratory approach as the better of the two theories. States
which for particular reasons have refused to recognise other states, such
as in the Arab world and Israel and the USA and certain communist
nations,
10
rarely contend that the other party is devoid of powers and
obligations before international law and exists in a legal vacuum. The
stance is rather that rights and duties are binding upon them, and that
recognition has not been accorded for primarily political reasons. If the
constitutive theory were accepted it would mean, for example, in the con-
text of the former Arab non-recognition of Israel, that the latter was not
bound by international law rules of non-aggression and non-intervention.
This has not been adopted in any of the stances of non-recognition of
‘states’.
11
7
See M. Whiteman,
Digest of International Law
, Washington, 1968, vol. II, p. 10.
8
See generally D. Young, ‘American Dealings with Peking’, 45
Foreign Affairs
, 1966, p. 77,
and Whiteman,
Digest
, vol. II, pp. 551 ff. See also A/CN.4/2, p. 53.
9
See Lauterpacht,
Recognition
, p. 6.
10
See 39
Bulletin of the US Department of State
, 1958, p. 385.
11
See e.g. the
Pueblo
incident, 62 AJIL, 1968, p. 756 and
Keesing’s Contemporary Archives
,
p. 23129; Whiteman,
Digest
, vol. II, pp. 604 ff. and 651; ‘Contemporary Practice of the UK
in International Law’, 6 ICLQ, 1957, p. 507, and
British Practice in International Law
(ed. E.
Lauterpacht), London, 1963, vol. II, p. 90. See also N. Mugerwa, ‘Subjects of International
Law’ in
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