Because recognition applies to belligerency as well as to state governments, precise discrimination and timing must be paid to the facts in a civil war. Premature recognition of political parties seeking to establish a state separate from a parent state may be deemed tortious or delictual, if not actual intervention, and may even lead to war with the parent state, which is vested with the presumption of right until the rebels triumph. The writing of the Treaty of Amity and Commerce (1778) between France and the rebellious British subjects in America resulted in a war between France and Great Britain, as France intended. The United States threatened war because of what it believed to be too prompt a recognition of belligerency of the Confederate States of America by Great Britain, and Colombia assumed a very aggrieved stance after what appeared to it as the precipitous—six hour—recognition by the United States of the Panama Republic in 1903. In contrast, belated recognition of eventually victorious rebels may result in unpleasant relations, such as those attending the unwillingness of the United States to recognize for a dozen years the Latin American republics that seceded from Spain, Texas throughout 1836, Mexico at times between 1913 and 1923, the Soviet Union from 1917 to 1933, Manchukuo from 1932, the People's Republic of China from 1949 to 1972, and East Germany from 1945 to 1974.
The test applied to belligerents, unless the parent state has stopped trying to impose its authority or has assented to its loss of sovereignty, is whether they have created a separate political existence capable of maintaining order at home and worthy of respect from abroad. Applicable to rebellions or secessions seeking independence is the formula stated by Secretary of State John Quincy Adams when writing to the American minister to Colombia on 27 May 1823: "So long as a contest of arms with a rational or even a remote prospect of eventual success, was maintained by Spain, the United States could not recognize the independence of the colonies as existing de facto without trespassing on their duties to Spain by assuming as decided that which was precisely the question of the war." By prematurely recognizing the independence of the Latin American republics, Adams might give Spain justification for declaring war and for not negotiating with the United States for the release of the Floridas. On the other hand, if he recognized the Latin Americans too late, he would arouse resentment in their governments and also lose trade to active British rivals. Consequently, he devised the "utterly desperate" formula. "It is the stage," he wrote President James Monroe on 24 August 1818, "when independence is established as a matter of fact so as to leave the chances of the opposite party to recover their dominion utterly desperate." After Spain protested the intention of the United States to recognize the revolted provinces as independent, Adams replied that American policy was to recognize as independent states "nations which, after deliberately asserting their right to that character, have maintained and established it against all the resistance which had been or could be brought to oppose it."
Timing is important, as the Texas revolution against Mexico and the American Civil War reveal. Friction between U.S. settlers and the Mexican government provoked a revolution in 1835. President Andrew Jackson remained neutral until 3 March 1837, the last day of his administration, when he recognized the independence of Texas, announced in 1836. When Mexico protested that recognition, Secretary of State John Forsyth replied that it was the policy of the United States to recognize de facto governments. For seven years an independent Texas had been recognized by at least the United States, Great Britain, and France but not by Mexico, which had repeatedly stated that its annexation by the United States would mean war. The question of recognition became academic when the United States annexed Texas in 1845 and, in the treaty ending the Mexican War, won confirmation of its title to the former republic.
Until the Civil War, the United States looked upon secessionist activity, such as that of the Latin American states, as following its own revolutionary model. Moreover, it frowned upon the monarchical principle and objected especially to the forcible maintenance of monarchical legitimacy in the New World. In brief, rebellion against monarchy was not illegal; it was the assertion of natural right. During the American Civil War, although the shoe appeared to be on the other foot, the Union refused to change its historic policy with respect to the recognition of belligerency or, for that matter, the duty of neutrals.
On 19 April 1861, President Abraham Lincoln proclaimed a maritime blockade of seven seceded southern states. By thus granting the Confederacy the status of belligerent, he elevated a domestic disturbance to a full-fledged war and recognized the Confederacy as an "apparent" international entity, or "embryonic state," or "local de facto government" possessed of all the rights of a state with respect to the conduct of war. Although the Union never recognized the belligerency of the Confederacy, the U.S. Supreme Court decided, in the prize cases (1863), that the Confederacy was engaged in a civil war.
With two parts of the United States at war, third states could agree that the as yet ineffective blockade was legal and thereby uphold the Union; could recognize the Confederacy as a belligerent by proclaiming neutrality; could recognize the Confederacy as an independent state and invite war with the Union; or could do nothing and leave their international relations to the vicissitudes of an ill-defined international law.
Particularly involved was Great Britain, whose ubiquitous ships could be captured by Union ships enforcing the blockade. Its decision to remain neutral—based upon the announced Union blockade, President Jefferson Davis's proclamation of the intent of the Confederacy to exercise the rights of a belligerent, and upon its own Foreign Enlistment Act of 1819—was followed by all the major powers. Such neutrality gave the Confederacy both a morale boost and hope for eventual recognition as being independent, because both belligerents were placed on a legal par; the Confederacy could license privateers, send ships to the ports of recognizing powers, exercise the right of visit and search at sea, seek foreign loans, conduct a blockade, and seize contraband. The British proclamation was issued on 6 May 1861. Had the British waited until after the Union defeat at the second Battle of Bull Run, they might have opted for recognition of independence instead of merely belligerency.
Instead, in July 1862, when a representative asked Britain to recognize the Confederacy as a separate and independent power, the prime minister, Henry John Temple, Lord Palmerston, advised Earl John Russell, the foreign minister, that recent military reverses indicated that the time for recognition had not yet come. Russell therefore replied that "In order to be entitled to a place among the independent nations of the earth, a State ought to have not only strength and resources for a time, but afford promise of stability and permanence." On the other hand, when the Union protested Britain's having any relations with the Confederacy, Russell stated that the protection of British interests there might cause him to deal with the Confederate capital and even with southern state capitals, "but such communications will not imply any acknowledgment of the Confederacy as a separate state." The French took the same attitude, so that both Britain and France acknowledged that belligerents obtain their rights from the fact of war rather than from recognition.
Following the crushing Union defeat at the second Battle of Bull Run, Palmerston suggested to the French a joint mediation proposal that Washington accept as an "arrangement on the basis of a separation." The ability of the Union to hold southern forces at Antietam Creek, Maryland, blunted British and French ardor for this proposal. Resolution of the question of recognition had thus depended upon a military victory over the North that attested to the viability of the South as a community warranting membership in the international sphere. Then, as an example of how moral and humanitarian elements may alter a situation, Lincoln's Emancipation Proclamation drove all thought of the recognition of the Confederacy from the minds of the leaders of the major European powers.
The law of belligerent recognition attained maturity during the Civil War. Because the historical policy of the United States was to remain neutral in case of civil war, the Union secretary of state, William H. Seward, took umbrage at the attempts by the European powers to recognize the Confederacy. He denied that the southern rebellion amounted to a state of war, and saw no need for foreign action even if a state of war existed. On 28 February 1861, he instructed U.S. ministers abroad to counter any suggestion of recognition and to ask foreign powers to "take no steps which may tend to encourage the revolutionary movement of the seceding states; or increase danger of disaffection in those which still remain loyal." In April he told the U.S. minister to Great Britain, Charles Francis Adams, that European states customarily used the collective method of granting recognition, a method not used in the Americas.
Furthermore, Seward was inclined to treat recognition of even belligerency as an unfriendly act, to the point that he pondered seeking compensation for damages done by a premature grant of belligerent rights, which he viewed, he told Adams, as interference with the sovereign rights of the United States. Indeed, Seward asserted that a proclamation of neutrality by Great Britain would challenge the right of the Union to protect its government and territory, and that he would declare war on any nation that recognized the independence of the Confederacy. Throughout the Civil War, then, the policy of the United States with respect to the recognition of belligerency remained consistent with earlier practice.
Consistency continued with respect to both Cuban revolutions. In 1875, during the Ten Years' War, President Ulysses S. Grant told Congress that the policy of the United States was to recognize de facto governments. Cuba was not at the time "a fact" because it lacked an effective and stable government. Therefore, it could not be recognized. Similarly, President William McKinley told Congress on 11 April 1898 that "recognition of independent statehood is not due to a revolted dependency until the danger of its being again subjugated by the parent state has entirely passed away"—a rewording of John Quincy Adams's "utterly desperate" formula.
The Spanish Civil War (1936–1939), "the most disputed case of belligerent recognition since the American Civil War," presents a special case illustrative of the abuse of power of recognition. Few will deny that war existed and that a recognition of belligerency was in order. Germany and Italy championed the rebel, pro-Catholic General Francisco Franco, against the anticlerical Republican (Loyalist) regime supported by the Russians and enjoying the sympathy of a goodly number of Americans. By recognizing Franco two and a half years before the end of the war, much too early to tell how the struggle would end, Adolf Hitler and Benito Mussolini reversed the situation so that the lawful government became the rebellious party. Most other countries simply stood by. Twenty-seven European states banned the export of war materials and departure of volunteers to Spain, and Britain announced its neutrality.
Although several thousand Americans volunteered to fight with the Loyalists, such was the popular support for noninvolvement that the administration of Franklin D. Roosevelt amended its neutrality laws to cover civil wars and thus denied support customarily given to the legitimate government, as in embargoing the export of munitions. When Franco won in 1939, the United States recognized him de facto and took steps to resume diplomatic relations suspended during the civil war. Instead of the test of effectiveness being the free expression of popular approval or of democracy, it was made to read effectiveness of authoritarian control, or of dictatorship.
If the character of a civil war will be admitted to the Arab-Jewish conflict in Palestine, that will serve as a fine example. The British shifted responsibility for their League of Nations mandate over Palestine on 3 December 1947, effective 15 May 1948, to the United Nations, which late in 1947 adopted a partition plan vehemently opposed by the Arabs but upheld by President Harry S. Truman. At midnight local time, 14 May 1948, the provisional government of Israel proclaimed the existence of the Republic of Israel that it had carved out of Palestine. Overriding objections from the Department of State, disregarding the wishes of Britain, France, and the Soviet Union, overlooking the nonrecognition of Israel by strategically located and oil-rich Arab states, the general fighting between Arabs and Jews throughout Palestine, and stating that he did so in keeping with the principle of self-determination and for humanitarian reasons, Truman extended de facto recognition when Israel was but eleven minutes old. Perhaps his need to win the Jewish vote in the fall elections stimulated his prompt action. After Israel held its first elections, on 25 January 1949, Truman extended it de jure recognition six days later. War between Israel and its Arab neighbors has been intermittent since the Republic of Israel first saw light. At the beginning of the twenty-first century the Palestinian leader Yasser Arafat was demanding a Palestine state with the capital in Jerusalem and sovereignty over shrines sacred to both Jews and Muslims—which Israel would not let him have.
A most unexpected and exciting transfer of sovereignty occurred in Yugoslavia beginning in September 2000. Elections held on 24 September chose a fifty-six-year-old attorney, Vojislav Kostunica, rather than Slobodan Milosevic, who had enjoyed thirteen years of autocratic and corrupt rule. The latter asked for a runoff election and sent an aide to summon Kostunica. When Milosevic said he had won the election, Kostunica informed him that a constitutional court had ruled in his own favor—information Milosevic lacked. In any event, a crowd of some 200,000 persons paraded in Belgrade and burned the parliament building, with the army and police doing little to hinder them. On 6 October, Milosevic admitted defeat. Following Kostunica's formal investiture as president, the United States and western Europe quickly recognized him. After holding out for several days, Russia and China extended recognition as well.