Chapter III

RECOGNITION

IN GENERAL1

§1

"Recognition" in international law is generally used with reference to the recognition of states, the recognition of governments, and the recognition of insurgency or belligerency. However, the term is also used, inter alia, on occasion with reference to recognition or nonrecognition of acts of aggression, conquests, etc. Thus, it is commonly used in connection with recognition or nonrecognition of acquisition of territory.

While the terms "state" and "nation" in some instances have been used interchangeably in speaking of the recognition of states, strictly speaking, unless used in an oratorical sense or because of the high political tone of the document, the term "nation" should appropriately be reserved for use in connection with peoples connected by ties of blood or race. Different nations may inhabit a single state. Accordingly, in this aspect of recognition, the accurate terminology is that of recognition of states rather than that of recognition of nations.

As to the use of the term "state" in preference to "nation", see Michael Brandon, Legal Department, U.N. Secretariat, “State vs. Nation: Fresh Evidence Admitted-Issue Held Non-Justiciable", 44 Am. J. Int'l L. (1950) 577-578.

Further, in this connection, the term "state" is used in preference to the term "country". A country connotes a part of the earth's surface. While the term "country" can be appropriate in some significations, it is usually not used-except in a loose sense-in connection with the matter of international recognition. (It is true, however, that states may recognize or decline to recognize territory as belonging to, or under the sovereignty of, or having been acquired or lost by, other states, and that they may also recognize or decline to recognize certain described boundaries, titles, jurisdiction, and claims, to mention certain of the possibilities.) As to the use of the word "country" and the word "state", it has been stated: "... the term

'In this connection, see prior U.S. digests of international law, particularly: I Wharton, International Law Digest (1887), ch. III, §§ 69-71; I Moore, International Law Digest (1906), ch. III, pp. 67 ff.; and I Hackworth, Digest of International Law (1940), ch. III, pp. 161 ff.

(1)

'state' is used because of the vagueness of 'country.' A state is a body of people occupying a definite territory and politically organized under one government independent of other governments. . . . (George Crossette, chief of geographic research for the National Geographic Society, National Geographic News Bulletin, Aug. 30, 1957, p. 2.)

Nor does a state necessarily have to be fully independent in order that it may be recognized by another state. States may be recognized as fully independent, as sovereign, as semisovereign, as protected, as states members of an international organization, etc.

"3. The term recognition is applied only to international situations, not to situations internal to a state. Within its domestic jurisdiction a state gives judgments and enacts legislation through the organs with competence under its constitution. It 'recognizes' only situations outside its 'domestic jurisdiction', that is [a] situation in which its discretion is limited by international law. Thus it may recognize the legal status of entities such as states, governments, diplomatic persons, international organizations, non-self-governing territories, trust territories, or protectorates, of situations such as war, neutrality, aggression; of transactions such as territorial transfer, or the self-determination of people; or of unilateral declarations of right or of law, such as title to the bed of the sea, the limits of territorial waters or territorial bays, and rules of maritime law or of international law. . . ."

Wright, "Recognition, Intervention and Ideologies”, VII The Indian Yearbook of International Affairs 1958 (1958-59) 89, 92.

For materials on nonrecognition of the fruits of aggression, see post this Digest.

Nonrecognition may take the form of nonrecognition of acts. Thus, when in 1940 the United States commented on a Spanish note in explanation of Spanish action in occupying the Tangier Zone on June 14, 1940, and also on an order dated November 3, 1940, issued by Colonel Antonio Yuste who announced that he had assumed charge "of the Tangier Zone as Governor General and as delegate of the High Commissariat of Spain in Morocco", it pointed out that the United States "possesses certain treaty rights in Morocco" and added:

"It is of course to be understood that nothing in this note involves a recognition by the Government of the United States of America of any unilateral act of the Spanish Government affecting the Tangier Zone."

The Secretary of State (Hull) to the American Ambassador in Spain (Weddell), telegram No. 297, Nov. 9, 1940, MS. Department of State, file 740.0011 European War 1939/3801; 1940 For. Rel., vol. III, pp. 789-790.

When a border rectification between Syria and Iraq was agreed upon in 1932, the Department [of State] took the position

that 'territorial changes in the mandated territory of Syria and
the Lebanon are inapplicable to the United States and its
nationals unless such changes have received the assent of the
United States.'

"When sovereignty over the Sanjak of Alexandretta (Hatay) was about to be ceded by France to Turkey in 1939, the Department instructed the Embassy in Paris to enter a general reservation of the rights of the United States under the mandate convention. Subsequent to that time the American Government has not had or taken occasion formally to recognize the transfer of sovereignty of the Sanjak. Administratively, the Department has transferred the area from the Beirut [Syria] to the Izmir consular district. However, the U.S. Customs Bureau still regards the Sanjak as Syrian territory for purposes of determining the country of origin of goods imported into the United States, and for immigration visa purposes the State Department still includes persons born in the Sanjak as coming under the Syrian quota."

The Chief of the Division of Near Eastern Affairs (Murray) to Le (Office of the Legal Adviser), memorandum, May 22, 1941, MS. Department of State, file 890D.01/530. Article IV of the French Mandate for Syria and Lebanon provided: "The Mandatory shall be responsible for seeing that no part of the territory of Syria and the Lebanon is ceded or leased or in any way placed under the control of a foreign Power." Mandate approved by the Council of the League of Nations, July 24, 1922. League of Nations Off. J. (1922) 825, 1013. By the Convention of April 4, 1924, between the United States and France, the United States consented to the administration of the Mandate by France, and the United States and her nationals were assured the rights and benefits secured by the Mandate to members of the League of Nations and their nationals. It was expressly provided in article 6 of the Convention that nothing in the Convention should be affected by a modification in the terms of the Mandate unless the United States should have assented to such modification. 43 Stat. 1821; IV Trenwith, Treaties, etc. (1938) 4169, 4174.

While the terms "de facto recognition" and "de jure recognition" are frequently employed, the expressions "recognition of a de facto government", situation, etc., and "recognition of a de jure government", etc., are preferable. The character of the object recognized may be recognized as "de facto" in existence or control. In prevailing practice, when the United States extends recognition, it is recognition per se, not "de facto" recognition. The United States may, however, should it so desire, recognize a de facto situation, government, state, etc.; that is to say, recognize that the situation, government, state, etc., in fact exists.

"But statesmen in recent times have very much desired to have it both ways. They have desired to admit that a new community is

Terms:

"de facto" and "de jure"

a State, for the sake of the conveniences this will bring, the "De facto" ready intercourse of commerce, the easy redress of grievances, the recognition unobstructed access and intelligence; and at the same time they

Purpose

have very much desired to avoid the necessary consequence,-the frank admission of independent statehood, with freedom to dispose of the State's resources, untrammelled by the engagements of others. They have therefore invented the bastard institution of so-called 'de facto' recognition, according to which they can deal with a perfectly independent community as a State while refusing to it the rights of a State.

"This desire of politicians to create a new status of de facto States with truncated rights, unknown powers and undefined responsibilities, is a phenomenon of this illogical twentieth century. It would have been impossible in the nineteenth century, which had no animus against clear thinking. Anyone can see what confusion would be caused by the admission of a new class of ambiguous States. It would be impossible to know whether and for what purposes they could raise a loan, whether they could grant concessions and privileges, whether they could grant passports and visas, how far their envoys had diplomatic prerogatives, whether they could settle outstanding disputes relating to their territories, and a host of similar matters. If it is answered that their position in these respects would be exactly the same as that of belligerent rebels, such an answer would be simply untrue. States recognized de facto have sent regular envoys; but when the envoys of belligerent rebels are received, it means that the independence of the rebels is finally and fully recognized. Messrs. Mason and Slidell were kept at arm's length.'

Baty, "Abuse of Terms: 'Recognition': 'War'", 30 Am. J. Int'l L. (1936) 377, 378.

When a suggestion was made that the United States might confine itself to "de facto recognition" of the United Arab Republic, the Department of State took the position that it believed that such a position, halfway between recognition and nonrecognition, would not result in whatever benefits might reside in either of the latter attitudes, and that, instead, by indicating doubt as to the legal qualifications of the U.A.R. for recognition, irritation and resentment might be caused, making it difficult for states extending "de facto recognition" to transact business with the government thus recognized. Further, the United States did not wish to cast doubt as to the de jure character of the U.A.R.

The Department of State to the American Embassies at Baghdad, Karachi, Ankara, Tehran, Amman, telegram, Feb. 24, 1958, MS. Department of State, file 786.02/2-2458.

"Our policy with respect to recognizing new governments in the hemisphere is not inconsistent with our encouragement of democracy. We maintain diplomatic relations with other countries primarily because we are all on the same planet and must do business with each other. We do not establish an embassy or legation in a foreign country to show approval of its government. We do so to have a channel through which to conduct.