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Recognition of Governments should not be Abolished

Published online by Cambridge University Press:  27 February 2017

M. J. Peterson
M. J. Peterson*
Affiliation:
Harvard Center for International Affairs, Harvard University
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Extract

Recognition of governments serves three functions in the international legal system: ensuring that only regimes clearly deserving such status are accepted as governments of states, assuring new governments that others will respect their status, and informing courts, government agencies, and nationals of recognizing states that a particular regime is in fact the government of another state. Lately, some statesmen and a respectable number of legal scholars have come to view recognition of governments as causing more difficulties than it is worth as it is now used. In particular, they suspect that decisions whether to recognize a new regime often depend more on its character or policy than on its ability to meet the objective test of effectively ruling its state, and they believe that current doctrine on the effects of recognition or nonrecognition creates unnecessary confusion.

Type
Research Article
Information
American Journal of International Law , Volume 77 , Issue 1 , January 1983 , pp. 31 - 50
Copyright
Copyright © American Society of International Law 1983

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References

1 Baxter, , Foreword to L. T. Galloway, Recognizing Foreign Governments: The Practice of the United States, at xi (1978)Google Scholar.

2 1 Rivier, A., Principes de Droit des Gens 283 (1896)Google Scholar.

3 The United States succeeded in maintaining such a majority against seating delegates of the People’s Republic of China (PRC) in the United Nations General Assembly from 1949 until 1971; between October 1971 and January 1979 it had to deal with the PRC as a fellow member of the United Nations though refusing to recognize it.

4 Such a solution has been advocated by Lauterpacht, H., Recognition in International Law 166–69 (1947)Google Scholar; Chen, T., The International Law of Recognition 222–23 (1951)Google Scholar; Charpentier, J., La Reconnaissance Internationale et l’Evolution du droit Des Gens 317–18 (1956)Google Scholar; Patel, S., Recognition in the Law of Nations 79 (1959)Google Scholar; Chatelain, , La Reconnaissance Internationale, in 2 La Technique et les Principes de Droit Public 707, 710 ( Rousseau, C. ed. 1950)Google Scholar; Wright, Q., Some Thoughts about Recognition, 44 AJIL 548, 558–59 (1950)Google Scholar; Tabata, , Admission to the U.N. and Recognition of States, 5 Japanese Annual of International Law 1, 1 (1961)Google Scholar; and Corbett, P., The Growth of World Law 67 (1971)Google Scholar.

5 A change of the sending government would require new credentials even if the new government decided to retain the diplomatic representative sent by its predecessor. See 1 Pradier-Fodéré, P., Cours de Droit Diplomatique 388–89 (1881)Google Scholar.

6 See, e.g., 1 Verhoeven, J., La Reconnaissance Internationale dans la Pratique Contemporain 355–415 (1975 Google Scholar).

7 U.S.-PRC Agreement on the Settlement of Claims of May 11, 1979, 18 ILM 551 (1979); Art. II of the U.S.-PRC Agreement on Trade Relations of July 7, 1979, id. at 1041.

8 Satow, E., Guide to Diplomatic Practice Sec. 21.1–3 (Gore-Booth 5th ed. 1979)Google Scholar. If diplomatic relations had been interrupted or a new head of mission sent, then new credentials would be necessary.

9 On European courts, see 1 Spiropoulos, J., Die de Facto Regierung im Völkerrecht 123–71 (1926)Google Scholar; Noel-Henry, , Le Gouvernement de Fait Devant le Juge (1927)Google Scholar; and Stierlin, P., Die Rechtsstellung der Nichtanerkannten Regierungen im Völkerrecht (1940)Google Scholar. On U.S. courts, see 2 Whiteman, M., Digest of International Law 604– 55 (1963)Google Scholar; and Restatement (Second) of the Foreign Relations Law of the United States §113 (1962). On British courts, see Merrils, , Recognition and Construction, 20 Int’l & Comp. L.Q. 476 (1971)CrossRefGoogle Scholar.

10 Tinoco Case (UK v. Costa Rica), 1 R. Int’l Arb. Awards 370 (1923).

11 On the general question of sovereign immunity for unrecognized governments, see T. Chen, supra note 4, at 140–45; Restatement (second), supra note 9, §65; Lord Atkin’s opinion in The Arantzazu Mendi, 1939 Crim. App. 256 (H.L.), 9 Ann. Dig. 60; and Wulfsohn v. Russian Socialist Federated Soviet Republic, 234 N.Y. 372 (1923), 2 Ann. Dig. 39. Recent legislation includes the U.S. Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§1602–1611, 71 AJIL 595 (1977), 15 ILM 1388 (1976); and the UK State Immunity Act of 1978, 17 id. at 1123 (1978). Similar rules appear in the European Convention on State Immunity, 11 id. at 470 (1972).

12 In the 1930’s, a number of European scholars argued that there is no general obstacle to admitting such suits’. See J. Spiropoulos, supra note 9, at 130; and Von Livonius, E., Der Völkerrechtlicher Anerkennung 15 (1934)Google Scholar. European legal codes permit unrecognized governments to sue. British and American courts remain reluctant to entertain their suits. On U.S. attitudes, see Russian Socialist Federated Soviet Republic v. Cibrario, 239 N.Y. 158 (1924), 2 Ann. Dig. 41; Republic of Vietnam v. Pfizer, Inc., 556 F.2d 892 (8th Cir. 1977), summarized in 72 AJIL 152 (1978); and Restatement of The Foreign Relations Law of the United States (Revised) §205 (Tentative Draft No. 2, 1981).

15 See T. Chen, supra note 4, at 145–66; J. Charpentier, supra note 4, at 22–39; Restatement (Second), supra note 9, §113; and Restatement (Revised), supra note 11, §205. The extraterritorial acts of recognized governments are not given automatic effect; their effects are limited by rules on conflict of laws.

14 See Restatement (Second), supra note 9, § 111; Jessup, P., A Modern Law of Nations 45 (1950)Google Scholar; Dhokalia, R., International Law 230–33 (1963)Google Scholar; and Mookerjea, S., International Law 130 (1968)Google Scholar.

15 This is usually called a “defactoist” rule in the literature on recognition. That term distinguishes decisions based solely on whether the new regime controls the state only from decisions based on ideological beliefs about the relative acceptability of different forms of government. The term “effectivist” is meant to provide a distinction between decisions based on control and those based on all other considerations.

16 British, Dutch, French, Italian, and United States nonrecognition of the Karageorgevich dynasty in Serbia, which was brought to power in 1903 by a coup resulting in the deaths of the former King and Queen, several of her relatives, and several ministers of the Government. See 1 Smith, H., Great Britain and the Law of Nations 229–33 (1932)Google Scholar.

17 British, French, and United States nonrecognition of the Rivas Government of Nicaragua (1854–1856), which came to power with the aid of American adventurers led by William Walker, and U.S. nonrecognition of the French-aided Imperial Government of Mexico under Maximilian (1854–1867). See 1 Moore, J., Digest of International Law 141 and 147 (1906)Google Scholar.

18 Swiss and United States delay in recognizing the Second French Empire (J. Moore, supra note 17, at 125–126); Austrian, British, German, and Russian delay in recognizing the Third French Republic ( Fontes Juris, Gentium, Series B: Digest of the Diplomatic Correspondence of the European States, sec. 1, vol. l, pt. l, at 164–70)Google Scholar; general delay in recognizing the Portuguese Republic in 1910–1911 (1 Accioly, H., Traité de Droit International Public 182–83 (1940))Google Scholar.

19 See p. 39 infra.

20 Text in 2 AJIL, Supp. 229, 229–30 (1908).

21 For fuller discussion, see Sharp, R., Nonrecognition as a Legal Obligation 43–47 (1934)Google Scholar.

22 Text of the 1923 Treaty in 17 AJIL, Supp. 117 (1923). This Treaty included the 1907 provisions plus clauses aimed at preventing the organizers of a coup from attaining high office in the Government formed by the postcoup elections.

23 English translation in 7 ILM 1323 (1968).

24 See 1908 Foreign Relations of the United States [hereinafter cited as FRUS] 648–49; 1912 FRUS 68–86, passim; and 1913 FRUS 84–115, passim.

25 On the particular instances, see 1 Hackworth, G., Digest of International Law 250– 52,257–63, 280–81, and 305–07 (1944)Google Scholar; MacCorkle, S., American Policy of Recognition Towards Mexico 82–100 (1933)Google Scholar; and H. Lauterpacht, supra note 4, at 33–36. For a discussion of why using recognition as a bargaining tool is unlikely to recur, see Peterson, M. , Political Use of Recognition, 34 World Pol. 324, 347–98 (1982)Google Scholar.

26 E.g., the 1931 coups bringing Ureña to power in the Dominican Republic, Montero in Chile, and the “Acción Communal” group in Panama, as well as two changes of president in Portugal during 1926. 1 G. Hackworth, supra note 25, at 231, 243, 269, and 293–95.

27 Mussolini’s takeover in Italy, Hitler’s appointment as Chancellor of Germany, and changes of premier in Thailand in 1932 and 1935. 2 M. Whiteman, supra note 9, at 463–64. Also the 1948 Communist coup in Czechoslovakia, the 1957 Thai coup, U Nu’s forced resignation as Premier of Burma in 1958, and the Greek colonels’ coup of 1967. Id. at 466 and 548; [1948] 4 FRUS 733–55; 56 Dep’t State Bull. 750 (1967).

28 E.g., the 1931 accession of the Ocampo junta in Peru, which was drawn from a faction of the “August 1930” movement that had been in power. [1931] 2 FRUS 918–21. President Obregón of Mexico tried to persuade U.S. President Harding to recognize his Government with the same argument in 1921. See his letter dated June 11, 1921, in [1921] 2 FRUS 419.

29 Exceptions noted, inter alia, in 1 G. Hackworth, supra note 25, at 306–07; 2 M. Whiteman, supra note 9, at 265; Hsiung, , China’s Recognition Practice, in China’s Practice of International Law 14, 43 ( Cohen, J. ed. 1972)Google Scholar; and Australian Ministry of External Affairs, Current Notes on International Affairs 660 (1971).

30 1 A. Rivier, supra note 2, at 293.

31 Huess, , Zum Problem juristischer Unterscheidung völkerrechtlicher Anerkennungsarten, 19 Zeitschrift für Völkerrecht 1, 4–5 (1935)Google Scholar; 1 de Louter, J., Le Droit International Public Positif 245 (1920)Google Scholar; and Brown, , The Legal Effects of Recognition, 44 AJIL 617, 630–33 (1950)Google Scholar.

32 Charvin, , La République démocratique allemande et le droit international, 75 Rev. Générale Droit Int’l Public [RGDIP] 1014, 1022 (1971)Google Scholar; Ulanova, N., Recognition of States and Governments and Participation in Multilateral Treaties, 1961 Soviet Y.B. Int’l L. 321 Google Scholar.

33 One of the few points of general agreement among statesmen and legal scholars in both the 19th and 20th centuries.

34 Press statement of Sept. 27, 1930, translated in 25 AJIL, Supp. 203 (1931).

35 See many of the early Latin American reactions in Instituto Americano de Derecho Y Legislación Comparada, La Opinión Universal Sobre la Doctrina Estrada (1931).

36 Jessup, , The Estrada Doctrine, 25 AJIL 719 (1931)CrossRefGoogle Scholar; and the Mexican diplomat Nervo, M., La Doctrine Estrada et la reconnaissance des gouvernements “de facto,” 4 Séances et Travaux de l’Académie Diplomatique Internationale 84–88 (1931)Google Scholar. A later acceptance of this interpretation appears in 1 J. Verhoeven, supra note 6, at 91.

37 The Mexicans went even farther, continuing to recognize the Republicans as the Government of Spain from 1939 until 1977. See New York Times, March 19, 1977, at 4, col. 3.

38 See responses from the Burundi, Danish, Dutch, and Libyan Governments in L. T. Galloway, supra note 1, App. A. The Finns view it as a Western Hemisphere doctrine inapplicable to their policy (id.,n.28), while the Swiss say it applies only in certain circumstances and cite the Spanish and Angolan civil wars as examples (id., n.33).

39 1 J. Verhoeven, supra note 6, at 90, credits France with the first use.

40 Exchange between Senator Rolin and Foreign Minister Spaak on Dec. 14, 1965, quoted in 4 Rev. Belge Droit Int’l 541–42 (1968).

41 1966 Annuaire Français de Droit International 918; 7 Rev. Belge Droit Int’l 319(1971).

42 83 RGDIP 808 (1979).

43 Yakemtchouk, R., L’Afrique En Droit International 51–53 (1971)Google Scholar; 4 Africa Contemporary Record C64–65 and C79 (1971–72); 75 RGDIP 158–59 (1971); 1974 Annuaire Français de Droit International 1065; 79 RGDIP 525 (1975); Washington Post, May 1, 1975, at A36; 1976 Italian Y.B. Int’l L. 412.

44 L. T. Galloway, supra note 1, App. A and notes thereto.

45 1 J. Verhoeven, supra note 6, at 91, notes that Senegal and Madagascar follow it.

46 L. T. Galloway, supra note 1, at 152.

47 Compare the number discussed in the Chronique section of the RGDIP in 1930 and 1976.

48 McChesney, R., International Law and Mexican Foreign Policy 57–61 (PhD diss., University of Virginia, 1969)Google Scholar.

49 79 RGDIP 525 (1975).

50 1979 Annuaire Français de Droit International 983.

51 A number of scholars and officials who ought to know better have been confused on this point. See, e.g., Stepan, , U.S.-Latin American Relations, 58 Foreign Aff. 659, 689–90 (1980)Google Scholar; Silberman, L. (former U.S. Ambassador to Yugoslavia), No Recognition for Cuba and Vietnam Now, New York Times, April 25, 1977, at 31 Google Scholar; and (at least with the headings supplied in the published version) then Deputy Secretary of State Warren Christopher’s address, “Normalization of Diplomatic Relations,” Dep’t of State Press Release No. 269, June 10, 1977.

52 The text of the communiqué establishing the liaison offices appears in 67 AJIL 536 (1973). In the United States, the grant of diplomatic status required special legislation, which can be found in id. at 762.

53 On the limits to contacts with Cuba, see Binder, , US and Cuba Discussed Links in Talks in 1975, New York Times, March 29, 1977, at 8 Google Scholar.

54 Dep’t of State, Treaties in Force on January 1, 1981, at 45–46.

55 Compare regulations governing trade, financial transactions, and travel in Title 22, pt. 52.72 with those in Title 33, pts. 500, 505, 515, and 520 in the 1975 Code of Federal Regulations.

56 E.g., Republic of Cuba v. Mayan Lines, S.A., 145 So.2d 679 (4th Cir. 1961); and Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).

57 1 M. Whiteman, supra note 9, at 226; the 1980 Europa Yearbook includes no Albanian mission in London or British mission in Tirana in its lists of diplomatic missions accredited to each Government.

58 This is not a new idea; several supporters of the Estrada Doctrine advanced it in 1931. See Jessup, supra note 36, at 721.

59 As codified in Art. 14 of the Vienna Convention on Diplomatic Relations, TIAS No. 7502, 23 UST 3227, 500 UNTS 95.

60 The Restatement (Revised), supra note 12, §203, appears to endorse the idea of withdrawing recognition from a government still in control of its state, using the “de-recognition” of the Teipeh Government as an example. In strict legal terms, however, this was the ending of an illegal prolonged recognition of a regime that had lost control of its state 29 years before, not a withdrawal of recognition from an effective government. The only way it could be taken to be the latter is by assuming that Taiwan is a state independent of China, something neither the Teipeh nor the United States Government has ever done.

61 Though it has been proposed that recognition be denied to regimes that are imposed by foreign intervention, depend for their continued existence on foreign support, base themselves on policies of racial discrimination, represent counterrevolutionary movements, or commit massive violations of human rights in the course of consolidating power, none of these ideas has won general support. In the absence of such support and, equally important, relatively objective and agreed criteria for determining whether a new regime falls into any of the agreed categories, this author believes such proposals are simply excuses for continuing to play political games with recognition regardless of whether decisions are made by individual states or some UN body.

62 Collective decisions could form the basis for severe discrimination against any such regime. The International Court of Justice suggested various possibilities in its advisory opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970). 1971 ICJ Rep. 16, 55–56.