VII

ultimately succeeds. At the same time, the act of recognition CHAP. imposes upon third states the obligations of formal neutrality between the contending parties. Since both consequences are burdensome to the state giving recognition, its action is, as a rule, dictated either by sympathy with the rebellion or by the necessity of warning its citizens against the exercise of the rights of war by the de facto state and protecting them against illegal acts of either belligerent.

as to the

Precipitate action on the part of third states in recognizing the Controversies de facto status of belligerent communities is an offense against the time of parent state, but it is difficult to determine the precise moment in recognition advance of which recognition would be premature. The action of the United States in recognizing the belligerency of the South American states during the first quarter of the nineteenth century was regarded by Spain and the Holy Alliance as premature; but it was founded upon a fair basis of fact1 and was dictated partly by sympathy with the revolutionists and partly by a desire, as expressed in the Monroe Doctrine, to prevent the extension of the European system to the American continent. The recognition of the belligerency of Greece by Great Britain in 1825 was similarly inspired by sympathy with the effort of that country to throw off the yoke of Turkey. In justification of its recognition of the belligerency of the Confederate States in 1861, Great Britain argued that her proclamation of neutrality followed both the proclamation of President Davis announcing the purpose of the de facto Confederate Government to exercise the rights of a belligerent and the proclamation of President Lincoln announcing the blockade of the Southern coasts. Inasmuch as British shipping interests were seriously affected by both proclamations, the British Government maintained that its act of recognition was not premature.2 On the other hand, the United States insisted, first, that the rebellion of the Southern States did not amount to a state of war, and, later, that even if a state of war existed there was no necessity for the action of the British government. On the other hand, the unwillingness of Denmark to accord recognition of belligerency to the United States in 1779, expressed by the refusal to grant asylum

The controversy fills a large place in the literature of international law following 1861. It is now generally conceded by American writers that the position taken by the United States was an extreme one. See Moore, Digest, I, § 66; Papers Relating to the Treaty of Washington, I, 19-46.

CHAP. VII

Recognition

to prizes captured by John Paul Jones from Great Britain, was regarded as an unfriendly act by the United States when its independence was attained, and claims were entered for compensation for the delivery of the prizes to Great Britain.1

Distinct from the recognition of the belligerency of a de facto of insurgency state in revolt against the mother-country is the recognition of a "status of insurgency.' Such recognition may be given either to a group of revolutionists who are endeavoring to obtain the liberation of their country from a parent state, but who are unable to effect an organization capable of being recognized as a legal belligerent, or, on the other hand, to a group of revolutionists who are attempting to overthrow the established government of their country without themselves seeking to set up a new state. Both situations are peculiar to the American continent, and the law governing them is not well defined. Recognition of insurgency of the first type has several times been given by the United States with the primary object of bringing into effect the neutrality laws applicable to a state of war. At the same time such recognition has expressed a belief on the part of the recognizing power that the insurgents should not be treated by the mother-country as mere traitors and pirates, and, on the other hand, a willingness to submit to measures taken by the insurgents to prevent the access of supplies to the forces of the parent government, without, however, giving them the right of visit and search at sea. In 1895 President Cleveland recognized the insurgency of the Cuban revolutionists and enjoined the observance of the neutrality laws.2 During the following year, in the case of the Three Friends, the Supreme Court upheld the distinction "between recognition of belligerency and recognition of a condition of political revolt," and condemned, under the terms of the act of 1818, a vessel which had been fitted out and armed in the United States on behalf of Cuban insurgents unrecognized as belligerents.

Recognition of the insurgency of revolutionists seeking the overthrow of an established government has been given sometimes with the object of enabling the state giving recognition to put into effect its neutrality laws, at other times with the object of enabling it to demand from the insurgents the protection of the lives and property of its citizens, and again with the object of defining the

1 Moore, Digest, I, § 60.

2 Ibid., 242.

3 166 U. S. 1 (1897). Scott, Cases, 830; Evans, 66.

2

VII

extent to which it will acquiesce in the exercise of belligerent rights CHAP. by the insurgents. During the revolution in Chile in 1891 the United States applied its neutrality laws to the extent of demanding from the insurgent Congressionalist party the surrender of a vessel, the Itata, which had obtained supplies of arms in the United States.1 Compensation was subsequently made by the United States for the violation of Chilean territory involved in the pursuit of the vessel on the high seas and the demand for the surrender of the vessel in Chilean waters. During the Brazilian revolution of 1893 the United States instructed its minister to warn the commander of the insurgents in the harbor of Rio de Janeiro that American vessels must be free to load and unload their cargoes without interference by the insurgents, provided they did not cross the actual lines of fire. Similar orders were issued by the English, French, German, and other naval commanders present, who in addition notified the insurgent commander that force would be used by them to prevent a bombardment of the city. During the revolution in Colombia in 1885 the United States refused to recognize the validity of a decree of the de jure president of Colombia closing to foreign trade certain ports held by the insurgents unless the decree should be supported by an effective blockading force.*

Once a member of the international community, a state retains the same personal identity in spite of any changes that may take place in its internal organization and government. France remained France throughout its many changes of government from 1791 to 1870. In the case of the Sapphire, decided in 1871, it was held by the Supreme Court of the United States that the deposition of Napoleon in no way affected a suit brought in the name of the emperor to obtain damages for losses to a French transport injured in collision with the American ship Sapphire. Where,

1See below, p. 252. Also U. S. v. Trumbull, 48 Fed. Rep. 99 (1891). 'See Moore, International Arbitrations, III, 3067; Scott, Cases, 367. 3 Moore, Digest, I, § 70.

Foreign Relations, U. S. 1885, 252, 264.

'11 Wallace, 164 (1870). Scott, Cases, 68; Evans, 76.

The next question," said the court, "is, whether the suit has become abated by the recent deposition of the Emperor Napoleon. We think it has not. The reigning sovereign represents the national sovereignty, and that sovereignty is continuous and perpetual, residing in the proper successors of the sovereign for the time being. Napoleon was the owner of the Euryale, not as an individual, but as sovereign of France. This is substantially averred in the libel. On his deposition the sovereignty does not change, but merely the person or persons in whom it resides.'' Ibid., loc. cit.

c. Continuity

of inter

national

personality

CHAP.

VII

Recognition of de facto governments

Political con

siderations influencing

non-recog

nition

however, changes in the form of a government are sudden and abrupt, such as the transition from a monarchy to a republic or vice versa, or where, without change of form, changes in the personnel of the government take place by revolution or violence, it is the right of third states to refuse or delay recognition of the new government until such time as it has shown that it is sufficiently well established to be able to speak with authority in the name of the state and to be answerable for its obligations. International law thus leaves it to each state to determine for itself the time at which it will regard the new government as backed by a responsible public opinion, and as therefore competent to pledge the future conduct of the state. As in the case of the recognition of a new state, the test applied has been generally one of fact and has taken no account of the domestic issues involved in the establishment of a new government. The distinction between the two cases of the recognition of a new state and the recognition of a new government must, however, be sharply observed, since in the latter case there is no issue of the legal rights possessed by the state as such, but merely the issue as to who is competent to speak in the name of the state.

Pending formal recognition, third states may give provisional recognition to the new government as being de facto in control. By this means diplomatic relations may be kept up without interruption and affairs of ordinary business transacted. Formal recognition, if ultimately given, is retroactive in effect, and operates to validate the actions and conduct of the new government from the commencement of its existence.1 On the other hand, should ultimate recognition not be given the state cannot be held responsible for the acts of the de facto government in its official character; so that loans contracted or other obligations entered into with. foreign citizens by such a government are not binding upon a succeeding de jure government. Special problems, unsettled at law, arise where a government has been recognized by one or more states and not by others, and where it is later superseded by a new government which refuses to recognize the legal validity of the acts of its predecessor.

The practical test of the stability of a new government as determining its abstract right of recognition has at times been subordinated to the concrete issue of the political principles professed by the new government and the personal character of its 'See Oetjen v. Central Leather Co., 246 U. S., 297 (1918). Scott, Cases, 70.

VII

officials as affecting the interests of third powers. The delay in CHAP. the recognition of the republican government of France in the years following 1791 was largely due to fear on the part of monarchial governments lest recognition should encourage the spread of revolutionary principles beyond the borders of France. By contrast, Jefferson, as secretary of state in 1792, declared himself ready "to acknowledge any government to be rightful which is formed by the will of the nation, substantially declared." On the other hand, the transition of France from an empire to a republic in 1870 during the course of the Franco-Prussian War, was recognized without undue delay. The overthrow of the empire in Brazil in 1889 by a "bloodless revolution" was followed by immediate recognition of the provisional government by the United States, formal recognition being given when it was clear that a majority of the people supported the new government. In 1903, when the royal Obrenovitch family was assassinated in Serbia, there was some hesitancy in recognizing King Milan; but the apparent acceptance by the people of Serbia of the new dynasty finally overcame the scruples of the reluctant states. In the case of the revolution in Portugal in 1910, there was some delay in according recognition, due in part perhaps to sympathy with the monarchy; but by the time of the adoption of the new constitution in August, 1911, there could no longer be question as to the stability of the new government.

3

toward

Mexican

The recognition by the United States of the Obregon govern- American ment in Mexico in August, 1923, came after four years of suspended attitude diplomatic relations. The case dates from the deposition of Presi- de facto dent Madero in 1913. President Huerta was refused recognition governments by the United States on the ground that the establishment of his government had been accompanied by violence and murder. A new principle of recognition was announced by President Wilson in accordance with which the favor of American recognition was to be made contingent upon "the orderly processes of just government based upon law, not upon arbitrary or irregular force."4 Nevertheless, the United States was compelled to deal with Huerta indirectly as the head of a de facto government, and in the matter 1 Moore, Digest, I, § 43.

On the part of the United States, President Grant promptly telegraphed his congratulations as soon as he had learned that a republican body had been proclaimed at Paris, and that the people of France had acquiesced in the change." Moore, Digest, I, § 43.

* Ibid., § 55.

4

Statement issued March 11, 1913. See Am. Journal, VII (1913), 331.