Recognition - U.s. policy in the recognition of states

The distinction between a state and its government is made primarily for the purpose of recognition, since a state as a corporate person may continue after change has occurred in its government. Indeed, a state remains a state until it has been abolished. That recognition extends to a government rather than to a person was decided upon early in the American government and set a pattern followed by most states. When Louis XVI of France was deposed and beheaded in 1793, Alexander Hamilton argued that the supplanting of an admittedly tyrannous government by an equally tyrannous mob should go unrecognized and that the Treaty of Amity and Commerce with France should be considered suspended until a French government was formed. Secretary of State Thomas Jefferson instead held that the French people had the inherent right to form their own government, and that the treaty should remain in full force regardless of change in the French government, because treaties, not governments, bind nations. President George Washington agreed with Jefferson and recognized the new French republic and subsequent governments, as did the British, although they were at war with France.

For its first century, the policy of the United States was to recognize de facto governments. (Despite many military coups and dictatorial governments established in Mexico between 1823 and 1860, for example, the United States withdrew its diplomatic representatives from Mexico City only three times, and that for only short periods.) In the early twentieth century this changed somewhat as a large element of moralism motivated the administration of Woodrow Wilson. Subsequent administrations reverted to the policy of "de factoism" during the 1920s and 1930s, but the United States refused to recognize forcible changes made in the territory or governments of victims of aggression, be the offender Japan, as in the case of Manchuria, the Soviet Union with respect to the Baltic states, or Germany with respect to its conquest of western Europe during World War II. A policy of nonrecognition was followed toward the Baltic states until these were freed of Russian control at the end of the Cold War. The United States also obtained collective support for the policy from democratic European nations and the Latin American states.

Until Wilson's presidency, United States practice prior to extending recognition was to eschew the question of legitimacy and to demand effectiveness and evidence of popular consent, with the element of democratic legality proved by means of free elections. Although monarchic heads of state took as an open declaration of war by the French National Convention in 1792 that it would aid those seeking to recover their liberties, Secretary of State Thomas Jefferson stated, "It accords with our principles to acknowledge any government to be rightful which is formed by the will of the people, substantially declared." By adding, however, that he would deal in certain instances with a "government de facto," he has been declared a pioneer of "de factoism."

Rather than insisting rigidly that a new government have the consent of its people, the United States, recalling its own revolutionary origin, adopted the principle of the people's subsequent legitimation of a government deemed to be de facto. The result was that the United States almost automatically extended recognition to de facto governments even though it took into account the use of democratic processes by a new government and the latter's disposition to fulfill international obligations. Sometimes, however, Jefferson's dictum with respect to "the will of the nation" was "interpreted" so as to take on a tinge of legitimism and to equate legitimism with legality or constitutionalism, as under Secretary of State William H. Seward in the 1860s and under Wilson early in the twentieth century.

Legally, the quality of a state's civilization, municipal law, legitimacy, politics, and religion should not be weighed, but states sometimes pay attention, for reasons of national advantage, to constitutional, political, legal, commercial, and even partisan, moral, and humanitarian considerations before extending recognition. Excellent examples are available in President Wilson's relations with China, Mexico, and Bolshevik Russia. With respect to China, Wilson and his first secretary of state, William Jennings Bryan, wished to see it become a constitutional republic freed from imperialistic powers and the clutches of American dollar diplomacy. They were also moved by humanitarian and moral considerations, for they spoke of love, brotherhood, and friendship. They therefore rejected a proposal of collective recognition made by Great Britain, Germany, Japan, and other powers and unilaterally recognized the government of Yüan Shih-k'ai on 2 May 1913, after which the European powers and Japan accorded formal recognition.

Abuse of the weapon of recognition appeared in especially aggravated form with respect to Mexico. Early in 1913, the government of Victoriano Huerta controlled about 80 percent of Mexico and had been recognized by twenty-eight states. Assistant Secretary of State Alvey A. Adee, counselor of the Department of State John Bassett Moore, and most American businessmen demanded its recognition. Wilson, however, demanded an orderly government that would not only protect Americans in Mexico and their large investments there—and perhaps keep out competing foreign investors, such as the British—but also fulfill the social aspirations of its people. The administration clearly meant to exercise a moral judgment upon Mexico's internal affairs and so apply the test of constitutionality before granting recognition.

Over a two-year period, Wilson obtained a recision of recognition from the important European and Latin American powers; violated U.S. neutrality laws by letting arms reach Huerta's constitutionalist opponents, even though he refused to recognize them as belligerents; probably made a "deal" over Panama Canal tolls in which Great Britain let the situation in Mexico become strictly an American affair; intervened militarily at Veracruz, and then grasped eagerly at mediation offered by Argentina, Brazil, and Chile. Huerta fled into exile in July 1914, but Wilson's relations with the government of Venustiano Carranza remained unhappy even though de facto recognition was granted to it in 1915. In 1918, Carranza's threat to make retroactive Article 27 of the Mexican constitution of 1917, which nationalized Mexico's subsoil properties, increased acerbities. It was not until 1923, after being clubbed again with a threat of nonrecognition, that President Alvaro Obregón pledged that the article would not be applied retroactively. His government was then recognized.

As Louis L. Jaffe has put it, "The whole world went off the de facto standard in its policy toward Soviet Russia." Giuseppe Mazzini and other Italians had followed the "principle of nationality," or self-determination, in creating the Italian state between 1861 and 1870. Wilson had used the principle to obtain independence for the subject nationalities of central Europe between 1918 and 1920. He considered some extremely subjective, as well as objective, factors in declining to recognize the Soviet Union, however. Russia had "defected" to Germany in World War I. Its Bolshevik leaders, not the people, had made the accommodations reached in the Treaty of Brest-Litovsk. The new government, which did not reflect popular political desires, faced such turmoil and revolution that it lacked definite geographical boundaries and a recognizable bureaucracy. And the minority in control of the government killed or imprisoned certain groups in the interest of progress for others.

In 1920, Bainbridge Colby, Wilson's third and last secretary of state, said that the United States refused to recognize the Soviet Union because it had subverted popular government and denied Russians the democratic right of self-determination, had taken American property without paying for it, had sent agents abroad to foment communist revolutions, and had negated the conventions of international law.

In 1922 Secretary of State Charles Evans Hughes asserted: "We recognize the right of revolution and we do not attempt to determine the internal concerns of other states." He added, however, "There still remain other questions to be considered." Since the acquiescence of the people was the most important question, Hughes seemed to be abandoning the Wilsonian concept of moral intervention. In 1930, Secretary of State Henry L. Stimson agreed that subsequent legitimation by constitutional methods would warrant the recognition of a new government. In that year, when the United States recognized new governments in Argentina, Bolivia, and Peru on a de facto basis, and in 1932, when it recognized a new government in Chile, all Stimson required was that a new government furnish evidence "that it is in control of the country and that there is no active resistance to it." He suggested, however, that each government "hold in due course elections to regularize its status." Stimson had thus retreated to the principle of recognition based simply upon the effectiveness of a government, thereby repudiating the Wilson policy of moralism.

Even though it had apparently reverted to a policy of "de factoism," the United States refused to recognize a number of states other than the Soviet Union in the 1920s and 1930s. Although not a signatory, it sometimes acted in accordance with the so-called Tobar Doctrine that grew out of the treaties written among the Central American republics in 1907 and renewed in 1923. Designed to discourage revolutions, these provided that the parties "shall not recognize any other Government which may come into power in any of the five Republics as a consequence of a coup d'etat, or of a revolution against the recognized Government, so long as the freely elected representatives of the people thereof have not constitutionally reorganized the country." They also disqualified the leaders of a coup d'état from assuming the presidency or vice presidency. The United States applied the doctrine to the revolutionary leader Federico Tinoco in Costa Rica in 1917, to Honduras in 1924, and to the government of Emiliano Chamorro of Nicaragua in 1925, thereby giving extreme expression to Jefferson's "will of the nation substantially declared," perhaps out of fear that dictatorships and revolutionary governments posed a danger for international peace.

States may withhold recognition or withdraw it in order to punish regimes they regard as illegitimate and those guilty of illegal conduct. In either case the executive, legislative, and judicial acts of an offender are treated as nonexistent. Treaties with the offender can be suspended, and foreign forces may be admitted to aid rebels against it. It may be rejected as a plaintiff in foreign courts and denied property situated abroad. Secretary of State Seward refused to recognize a revolutionary government in Peru in 1868; at the request of the Wilson administration a number of states rescinded their recognition of the Mexican government of Victoriano Huerta in 1918; still others refused to recognize the state of Manchukuo that Japan created in Manchuria on 18 February 1932. The major reason for recognizing the Soviet Union in 1933 was the (vain) hope that trade with it would help the United States climb out of the Great Depression.

When Nazi Germany overran a number of western European states in 1940, the United Kingdom and the United States, without declarations of recognition, regarded the governments in exile of these countries as de jure, even though they could not exercise effective control over their national territory. The United States took a similar hard line toward the victims of Soviet aggression in Latvia, Estonia, and Lithuania, which were quickly recognized as independent after the downfall of the Soviet Union and end of the Cold War, but it refused to recognize North Korea and North Vietnam. Conversely, Austria, which lost its international personality in 1938, when forced into an Anschluss with Germany, had it restored by treaty with the United States, Great Britain, France, and the Soviet Union in 1955. The United States has also followed the principle that recognition would not be granted to territorial changes made by force in violation of treaty rights. The principle was first enunciated in the Continental Treaty resulting from the Inter-American Conference held at Santiago, Chile, in 1847–1848, and was restated in the recommendations of the International Conference of American States held at Washington in 1890. In 1915, Bryan used it in dealing with Japan's Twenty-one Demands on China. If agreed to, the demands would have made China a Japanese protectorate, in violation of the treaty rights of Americans and others, and of the Open Door policy. Bryan told Japan, "The United States frankly recognizes that territorial contiguity creates special relations between Japan and these districts"(Shantung, Manchuria, and eastern Mongolia). Japan's demands, however, "while not infringing the territorial integrity of the Republic, are clearly derogatory to the political independence and administrative entity of that country." On 11 May 1915, Bryan issued the blunt caveat that the United States would not honor "any agreement or undertaking which has been entered into or which may be entered into between the Governments of Japan and China, impairing the treaty rights of the United States and its citizens in China, the political or territorial integrity of the Republic of China, or the international policy relative to China commonly known as the open door policy."

As viewed by the United States, Japan's seizure of southern Manchuria in 1931 countered its adherence to the Open Door as expressed in the Nine-Power Treaty of 1922, to the renunciation of war as an instrument of national policy written into the Kellogg-Briand Peace Pact of 1928, and to the comportment of nations as required by the Covenant of the League of Nations. Herbert Hoover would have no part of war. Although Secretary of State Stimson strongly supported collective security, he realized that there was a popular American and official British and French opposition both to strong unilateral action and to joint action with the League, of which the United States was not a member. Admittedly building on Bryan's note of 11 May 1915, Stimson told China and Japan that the United States would not recognize arrangements in Manchuria detrimental to American rights and that it "does not intend to recognize any situation, treaty, or agreement which may be brought about by means contrary to the covenants and obligations of the Kellogg-Briand Pact." But he could not persuade Hoover, such powers as Britain and France, or the League of Nations to impose even economic sanctions against Japan, or convince Britain to invoke the Nine-Power Treaty. When Manchukuo, as Japan renamed its stolen territory, proclaimed itself a new state, the United States denied it recognition. The Assembly of the League of Nations followed suit, with no observable results; and it was not until the end of World War II that Manchuria was restored to China.

Similarly, when Italy forcibly annexed Ethiopia, most league members handled the situation "in the light of their own situation and their own obligations." By denying Ethiopia de facto existence, they vitiated the league covenant. The United States stood by the Stimson Doctrine but refused to intervene. After World War II began, the European Allied powers rescinded their action, thereby admitting previous error, and "restored" Ethiopia's independence. These actions notwithstanding, the U.S. demand for an expression of popular will was slackening, as it was also in Great Britain, particularly toward states like Italy, the Soviet Union, and Japan, in which free popular expression was not provided for or tolerated. Britain recognized the Soviet Union de facto in 1921 and de jure in 1924. The United States extended recognition in 1933 even though to some persons it appeared that the unchallenged exercise of governmental authority had been substituted for the principle of subsequent legitimation through popular consent as a test for recognition. However, because the choice of self-determination extends to constitutions, the legal source of validity of a state's actions, and must not restrict the opportunity for change, international law permits the recognition of nondemocratic states that give evidence of effective government.

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