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Recognition of Governments in International Law - With Particular Reference to Governments in Exile by Talmon, Stefan (5th July 2001)

Part I Meanings of Recognition of Governments in International Law, 1 Meanings of ‘Recognition’

From: Recognition of Governments in International Law: With Particular Reference to Governments in Exile

Stefan Talmon

Subject(s):
Recognition of governments

(p. 21) Meanings of ‘Recognition’

Introduction

The confusion which characterizes the subject of recognition1 of governments is due not so much to the unsettled state of the principles involved as to the nebulous nature of the term ‘recognition’. The lack of any clear definition of the term has sometimes led even government departments to argue whether they have accorded recognition to a certain government. For example, on 18 June 1919, Lord Curzon of Kedleston, British Acting Foreign Secretary, approved and rephrased a télégramme to Sir Charles Eliot, the British High Commissioner in Siberia, to begin: ‘Recognition of Admiral Kolchak’s Government has at the same time made clear the policy of the Allied Powers’. Mr Walford Selby, the deputy head of the Foreign Office’s Russia Department minuted on a draft of the outgoing telegramme: ‘The Allied governments have not “recognized” Admiral Kolchak’s Government’. Curzon then scrawled: ‘Very well. But if we have not recognized him I don’t know what it all means. Everyone knows that it is recognition.’2 In a telegramme to US President Roosevelt that concerned the recognition of the French Committee of National Liberation (CFLN), the British Prime Minister, Mr Churchill, wrote on 21 July 1943: ‘What does recognition mean? One can recognize a man as an Emperor or as a grocer. Recognition is meaningless without a defining formula.’3

However, even if a defining formula is added (a practice not always adhered to by States), the meaning of the term will not automatically become clear, as the example of the British recognition of the Czechoslovak National Council shows. In August 1918 the British Government was not prepared to follow the French Government in recognizing the Czechoslovak National Council ‘as the first basis of the future Czechoslovak (p. 22) Government’.4 The reluctance of the British Foreign Minister, Mr Balfour, to recognize the Council as the Provisional Czechoslovak Government was overcome by the use of a ‘mystical’ formula recognizing the Council ‘as the present trustee of the future Czecho-Slovak Government’.5 A formula which left not just the Secretary-General of the Czechoslovak National Council, Dr Beneš, puzzled. According to Henry Wickham Steed, a Times journalist, who devised the formula, it meant that the Council ‘will be recognized as responsible for the faithful expression of the wishes of the Czechoslovak people, if and when they wish to form an independent State and government of their own, but that they will be entitled to get rid of you if they do not want you’.6 The literature on the topic gives the firm impression that ‘recognition’ and its congener ‘non-recognition’ are terms of art with a consistent, uniform legal meaning,7 but, as Professor Brownlie has pointed out, ‘nothing could be further from the truth’.8 Most textbooks also give the wrong impression that ‘recognition’ of governments is exclusively concerned with the legal status of governments coming to power by coup d’état, revolution, or any other event involving a break in legal continuity.9 While it is true that normally no formal statement of recognition is made with respect to constitutional governments, recognition will as a matter of fact be implied by States continuing to deal with the newly elected government.10 (p. 23) That recognition is not restricted to unconstitutional governments becomes clear from the fact that in certain circumstances States have both expressly recognized and refused to recognize elected governments.11 The practice of States shows that the term ‘recognition’ has been employed in a variety of different meanings depending on the factual and legal circumstances of the case. Already in 1824, the British Foreign Secretary, Mr Canning, referring to the recognition of the independence of the Spanish colonies in South America, stressed that ‘it [recognition] has clearly two senses, in which it is to be differently understood’.12 This is equally true for the recognition of governments, as will be shown in the following.

Indication of Willingness to Enter into Official Relations

By the term ‘recognition’ or ‘non-recognition’ may be meant an indication of willingness or unwillingness on the part of the recognizing government to establish or maintain official, but not necessarily intimate,13 relations14 with the government in question.15 Especially in cases of prolonged official non-recognition of established governments States frequently speak of their willingness to ‘normalize’ their relations with the Government in question.16 (p. 24) This meaning of the term is given expression, for example, in a memorandum dated 17 May 1933 of the Legal Adviser to the US Department of State, Mr Hackworth, which reads in the relevant part as follows: ‘By the term “recognition”, used in the sense of recognition of new governments, is meant the establishment of normal official relations by the recognizing government with the government recognized, or an indication of readiness to do so.’17 While in most cases recognition of a government will lead to the establishment of normal official relations, this is not necessarily so, as the establishment of bilateral relations requires the consent of both parties.18 In view of the fact that recognition is only a unilateral act,19 it is therefore more precise to speak of an indication of readiness to establish normal official relations than to speak of the establishment of the same. Mr Hackworth was probably thinking of cases in which ‘recognition’ by the United States was in response to an official act of the government to be recognized, such as a formal note announcing the formation of the new government and expressing the desire to continue the existing friendly relations with the US Government. In such cases recognition may be compared to the acceptance of an existing offer thereby concluding a fictitious ‘agreement’ on the establishment of official relations.

(p. 25) It should be noted that ‘recognition’ itself says nothing about the nature, i.e. the extent, form, and content, of the official relations which the recognizing government is willing to enter into with the authority recognized. While there is a presumption that recognition of a ‘government’ indicates the readiness to enter into ‘normal’, i.e. diplomatic, relations, this is not the case with non-governmental authorities. It is, inter alia, for this reason that Mr Churchill called for a defining formula relating to the term when discussing the recognition of the CFLN with US President Roosevelt. By recognizing an authority ‘as something’, i.e. in a certain capacity, the recognizing government may indicate the nature of the official relations which it is willing to have with the authority recognized. Recognition ‘as something’ will thus usually mean that the recognizing government is willing to enter into official relations with the authority recognized in the capacity, and only in the capacity, set out in the defining formula. Thus, when on 26 August 1943 the United States recognized the CFLN ‘as administering those French overseas territories which acknowledge its authority’, it was pointed out that ‘this statement does not constitute recognition of a government of France or of the French Empire by the United States. It does constitute recognition of the French Committee of National Liberation as functioning within specific limitations during the war.’20 The recognition by the French, Italian, and British Governments in June 1918 of the Czecho-Slovak National Council ‘as the supreme organ of the Czechoslovak movement in Allied countries’ must thus be interpreted as indicating the willingness of these governments to enter into official relations with the Czecho-Slovak National Council on all matters concerning that movement and nothing more.21 This also becomes clear from a statement of Professor Masaryk, the President of the Czecho-Slovak National Council and later the President of Czechoslovakia, who writes in his memoirs that ‘the negotiations with the Allied governments for recognition were often long and difficult. There is, for instance,… a certain difference between the recognition of our National Council and the subsequent recognition of it as a Provisional Government.’22

Recognizing States have been very creative in devising such formulae. For instance, General de Gaulle was recognized by the United Kingdom on 28 June 1940, when it was still maintaining diplomatic relations with the French Government at Bordeaux, ‘as the leader of all free Frenchmen wherever they may be who rally to him in support of the Allied (p. 26) cause’.23 The Polish National Committee at Paris was recognized by the French Government on 20 September 1917 ‘as official national Polish organization’.24 The Dutch representative in the UN General Assembly stated on 4 November 1977: ‘The Netherlands recognizes SWAPO as a major political force in Namibia’.25 Similarly, France and Mexico on 28 August 1981 announced their recognition of the FMLN–FDR alliance in El Salvador as a ‘representative political force’, while stating that this did not imply a break with the Government of El Salvador.26 However, while some formulae have been used only once to define a special relationship, others such as ‘government’, ‘de facto government’, ‘de jure government’, ‘legal or legitimate government’, and (sole) ‘representative of a people’ have become standard formulae which, it is suggested, define a certain (but not necessarily different) nature of official relations. The use of these terms as a defining formula of the term ‘recognition’ indicating a certain nature of official relations must be distinguished from their descriptive usage.27 For example, a government may exist in fact, that is to say, it may be described as a ‘de facto government’, long before it is recognized as such, i.e. long before the recognizing government indicates its willingness to enter into official relations with it in that capacity. Thus, the Soviet Russian Government was referred to by the British Government as a ‘de facto Government’ long before it was recognized as the de facto Government of Russia on 16 March 1921.28 The defining formulae used by recognizing States with respect to a certain authority may vary, as may the nature of the relations which they are willing to have with it. For instance, the CFLN was recognized by the United States on 26 August 1943 ‘as administering those French overseas territories which acknowledge its authority’ while it was recognized by the USSR on 27 August 1943 ‘as representing the State (p. 27) interests of the French Republic, and as leading all French patriots fighting Hitlerite tyranny’.29 It is of interest to note in this connection the remark of Mr Bogomolov, the Soviet Ambassador to London, that ‘the USSR … has recognized the Committee far more fully than the other powers have’.30 The recognizing government may also indicate its willingness to change the nature of its relations with a government or a non-governmental authority by changing the defining formula, i.e. by recognizing it in a different capacity. For example, the British Government ‘recognized’ the Bolshevik Government ‘as the de facto Government of Russia’ on 16 March 1921 when it concluded a Trade Agreement with it.31 The Agreement provided, inter alia, for the exchange of official agents without diplomatic status, and its preamble declared that the agreement was merely preliminary to the conclusion of a formal general Peace Treaty covering both political and economic relations between the two countries.32 The Agreement was repeatedly referred to in Parliament as a ‘trade agreement’ to promote commercial relations, the ‘question of political relations being postponed’.33 On 12 February 1924 the British Prime Minister in reply to a question said: ‘His Majesty’s Government…granted de jure recognition to the Soviet Government on 1st February [1924].’34 On that day, Mr Hodgson, the British representative in Moscow under the Trade Agreement, stated in a note to the Soviet Government after informing it about his Government’s recognition: ‘I have been given the status of Chargé d’affaires pending the appointment of an Ambassador; and I am to state that his Majesty’s Government will be glad similarly to receive a Russian Chargé d’affaires representing the Government of the Union at the Court of St James.’35

In the majority of cases, however, no defining formula is added to the term ‘recognition’ and the recognizing government simply states that it recognizes or that it does not recognize a certain government or authority. In these cases, the nature of the official relations must be determined by looking at the factual and legal context in which the ‘recognition’ statement is made. The case of the British recognition of the Czechoslovak National Committee may serve as an example. On 23 July 1940, the British Prime (p. 28) Minister, Mr Churchill, read out in the House of Commons a letter, dated 21 July 1940, from Lord Halifax to Dr Beneš:

In the light of exchanges of view which have taken place between us, I have the honour to inform you, that in response to the request of the Czechoslovak National Committee, His Majesty’s Government in the United Kingdom are happy to recognize and enter into relations with the Provisional Government established by the Czechoslovak National Committee to function in this country.36

In the exchange of view which the letter refers to, Lord Halifax had ‘taken notice of the fact that this Provisional Government is to be a representative Government of the Czech and Slovak people’ (in contrast to a Provisional Government of the Czechoslovak Republic), had reserved the British Government’s ‘attitude concerning the legal continuity of the Czechoslovak Republic’ and had set out certain questions which had to be settled between His Majesty’s Government and the Provisional Czechoslovak Government.37 It should be noted in this connection that Mr Churchill, when asked about the position of the Czechoslovak Government in relation to the Polish and other Governments, stated that ‘there may be certain differences of form, but in principle there is no difference’. The Foreign Office, pointing to the lack of legal continuity of the Provisional Czechoslovak Government, had suggested answering that there are ‘certain technical distinctions’.38 It took the British Government until 18 July 1941 to even out these ‘differences of form’ and ‘to accord full recognition to the Czechoslovak Government and … to accredit an Envoy Extraordinary and Minister Plenipotentiary to Dr Beneš as President of the Czechoslovak Republic’.39

Recognition used in the context of recognition of a de facto government of a recognized State,40 as a rule, indicates a willingness on the part of the recognizing State to enter into normal official, i.e. diplomatic, relations with the government in question. In fact, most examples given under the heading ‘Recognition of [new] Governments’ in digests and compilations of State practice concern the question whether or not to enter into or re-establish diplomatic relations with a certain de facto government. This view is supported (p. 29) by statements of Assistant Legal Adviser to the US Department of State, Dr Whiteman, and others,41 the former writing in Volume II of her Digest in 1963: ‘Recognition of a government indicates a willingness on the part of the recognizing state to carry on diplomatic relations with that government.’42 This is reflected by the fact that the United States in modern practice increasingly uses the term ‘diplomatic recognition’ or ‘full diplomatic recognition’ instead of ‘recognition’.43 However, it must be pointed out that recognizing governments need not add the adjective ‘diplomatic’ in order to indicate their readiness to enter into this kind of official relations.

It is argued that when a government speaks of ‘full’, ‘partial’, or ‘limited’ recognition of a de facto government it uses the term ‘recognition’ in the meaning of an indication of readiness to enter into official relations, as these qualifying terms are incompatible with the idea of both factual existence of and legal status as a government. A government either exists (and fulfils the criteria for its legal status) or it does not. There is no ‘halfway house’. Such a rigid dichotomy does not apply to official relations which may be graded.44 It must be emphasized, however, that the use of the term ‘recognition’ in this meaning is not restricted to cases in which such qualifiers are added. On the contrary, as will be seen in the further course of this study recognition, with or without qualifier, is mainly, although not exclusively, used in this mode.

Manifestation of an Opinion on Legal Status

By the term ‘recognition’ or ‘non-recognition’ may also be meant the manifestation of the recognizing government’s opinion on the legal status of the government in question. It must be emphasized that recognition does not (p. 30) objectively establish the legal status of a government, but that it simply constitutes a subjective (relative) statement on that status. The British Foreign Secretary Canning already in 1824 pointed out that by ‘recognizing’ the independence of the Spanish colonies in South America the ‘other state simply acknowledges the fact, or rather its opinion on the fact [of independence]’.45 Comparing the different meanings of the term ‘recognition’, Mr Hackworth, the Legal Adviser to the US Department of State, stated in a memorandum dated 13 December 1940: ‘There is a difference between recognition of a government in this sense of the word [i.e. in the sense of establishing normal official relations with a government] and recognition or admission that a government exists.’46 Similarly, Dr Whiteman, the Assistant Legal Adviser to the US Department of State, wrote in 1963 in Volume II of her Digest: ‘The character of the object recognized may be recognized as “de facto” in existence or control…. The United States may …, should it so desire, recognize a … government; that is to say, recognize that the … government … in fact exists.’47

Recognition or non-recognition of a government may thus manifest whether or not, in the opinion of the recognizing authority, the government in question exists as such, that is to say whether or not it fulfils the criteria prescribed by international law48 for the status of government.49 By recognizing or not recognizing an authority ‘as something’, i.e. in a certain capacity, the recognizing government may indicate the legal status which, in its opinion, the authority in question qualifies, or does not qualify, for. Thus, when on 14 November 1966 the Protocol for the Further Prolongation of the International Sugar Agreement of 1958 was signed on behalf of China by the Nationalist Chinese Government, the British Foreign Secretary declared (p. 31) ‘that since the Government of the United Kingdom do not recognize the Nationalist Government as the competent Government of China, they cannot regard signature of the Protocol by a Nationalist Chinese representative as a valid signature on behalf of China’.50 Express non-recognition of a (government or non-governmental) authority ‘as something’, however, does not exclude tacit ‘recognition as something else’, that is to say that, in the recognizing government’s view, the authority in question fulfils the criteria for another legal status. The express manifestation of that opinion in the form of a recognition statement may be inopportune for political reasons. For example, the certificate issued by the British Foreign and Commonwealth Office in Hesperides Hotels Ltd v. Aegean Turkish Holidays Ltd (1977)51 reads as follows: ‘Her Majesty’s Government in the United Kingdom do not recognize the administration established under the name of the “Turkish Federated State of Cyprus” … Her Majesty’s Government do not recognize such administration as being the government of an independent de facto sovereign state.’52 In this certificate the Foreign Office specified the British non-recognition of the Turkish Cypriot administration as non-recognition as ‘the government of an independent de facto sovereign state’.53 This, however, does not rule out HM Government tacitly recognizing the administration as, for example, the local de facto government of the Turkish (occupied) part of Cyprus or a subordinate body of the Turkish occupation authorities. In order to establish in what form the Turkish Cypriot administration may have been recognized, other manifestations of the British Government’s opinion on its legal status will have to be examined. In this connection one may take into account that the British Government in parliamentary statements regularly refers to ‘Turkish Cypriot authorities’.54 The British Government’s opinion on the legal status of the Turkish Cypriot authorities may also be manifested in the nature of the (p. 32) relations with these authorities. For example, there have been ‘operational contacts between British police forces and the Turkish Cypriot police’.55 The British Government has presented claims for compensation for loss and damage suffered by British citizens during the fighting in 1974 to the Turkish Cypriot authorities,56 has maintained a general informal dialogue with them through the British High Commission in Nicosia,57 and has maintained a ‘residual presence’ of the British High Commission in the Turkish sector of Nicosia in order to deal with inquiries from individual Turkish Cypriots and British nationals.58 The Foreign Office also sent the British High Commissioner in Cyprus to lodge an official appeal with the Turkish Cypriot authorities for the return of the fugitive businessman Asil Nadir.59 Furthermore, the British Government had accepted export documentation for citrus and other produce issued by the Turkish Cypriot authorities, a practice which was later declared by the European Court of Justice to be not in conformity with EC law.60 On the other hand, the British Government does not recognize travel documents issued by the Turkish Cypriot authorities and does not endorse them with entrance clearances.61 It accepts the authority of the (Greek) Cypriot Government in matters of air traffic and telecommunication over the whole island of Cyprus.62 From these dealings it may be concluded that, in the opinion of the British Government, the Turkish Cypriot authorities qualify as the de facto government of the (occupied) northern part of Cyprus.63

Recognition in the sense of a manifestation of an opinion on legal status seems to suggest itself in cases in which the legal status of an authority is uncertain or controversial and the authority in question is expressly recognized ‘as something’. Such cases may arise, for example, when competing authorities claim to be the government of the same State, when questions of (p. 33) statehood and government status are linked, when the factual situation within a State is unclear owing to civil war, when a government is established by outside intervention, or when an authority claims ‘unusual’ legal status. However, this meaning of the term ‘recognition’ is not restricted to such cases and to the use of a defining formula (‘as something’). Even if the legal status of an authority is evident, recognition may still manifest the recognizing government’s opinion on it. But in this instance, recognition will very rarely be used in this meaning alone.

Relationship between the Two Meanings

In general, the two meanings of the term ‘recognition’ will coincide, that is to say, recognition of a government will express both the recognizing government’s willingness to enter into official relations with it and its opinion that the government recognized exists as such. This coincidence may be based on the recognizing government’s understanding that it should enter into official (but not necessarily diplomatic) relations with an authority when the same fulfils the criteria prescribed by international law for the status of government, and that it should not enter into such relations when the criteria are not fulfilled.64 However, the two meanings of the term need not always coincide. Recognizing governments may make their willingness to enter into official relations with a government dependent on criteria other than its legal status. Thus non-recognition of, for example, a government need not necessarily mean that, in the opinion of the recognizing government, the unrecognized government does not exist as a government in the sense of international law. It may mean only that the recognizing government is unwilling to enter into normal official, i.e. diplomatic, relations with it.65 Some of the ‘famous’ non-recognition cases may serve as examples for this proposition.

(p. 34) The Tinoco Government of Costa Rica. Great Britain refused to recognize the Government of Frederico Tinoco in Costa Rica (January 1917–August 1919). However, this did not prevent the British Government from contending in an arbitration between Great Britain and Costa Rica in 1923 that ‘the Tinoco Government was the only government of Costa Rica de facto and de jure for two years and nine months [and] that it was in peaceful administration of the whole country, with the acquiescence of its people’.66 Arbitrator Taft tried to reconcile these apparently conflicting statements by assuming a change in the British Government’s position on the question of the legal status of the Tinoco Government.67 Looking at the British practice prior to 1924, and especially the case of prolonged non-recognition of successive (elected) Mexican Governments for political reasons, it seems more likely that by not recognizing the Tinoco Government the British Government expressed its unwillingness to enter into official relations with an authority, which, in its opinion, qualified as the de jure and de facto government of Costa Rica. It is of interest to note in this connection that Mr Harmsworth, British Under-Secretary of State for Foreign Affairs, stated on 6 August 1919 in reply to a question in the House of Commons concerning British relations with the Spanish-American Republics: ‘The two latter posts [of Minister and Consul-General in Costa Rica] are at present in abeyance, as His Majesty’s Government have not recognized the present Government of Costa Rica.’68 The Tinoco Government had been recognized in 1917 by twenty States. Only the United States, Great Britain, France, and Italy refused to accord recognition. Arbitrator Taft speculated that ‘probably because of the leadership of the United States … her then Allies in the war … declined to recognize the Tinoco Government’.69 US non-recognition, however, was motivated by political rather than legal reasons, as becomes clear from a Department of State instruction to the American Minister in Costa Rica. On 17 February 1917 the State Department instructed him that, by authorization of President Wilson, he should inform General Tinoco ‘that even if he is elected he will not be given recognition by the United States’.70

The Bolshevik Government of Russia.71 The Bolsheviks seized power in (p. 35) Russia by coup d’état on 25 October/7 November 1917. In 1923 only seventeen States had extended either de facto or de jure recognition to the Soviet Government.72 This number rose to twenty-two in August 192673 and stood at twenty-eight74 by 16 November 1933 when the United States accorded recognition.75 Mr Hackworth, the Legal Adviser to the US State Department, wrote in 1940 with respect to this ‘recognition’: ‘We recognized or, to state it in a different way, realized that a Soviet Government existed long before we extended [political] recognition.’76 This statement shows that the recognition extended by the United States in 1933, and the same is probably true for the belated recognition of other States, expressed willingness to enter into normal official (diplomatic) relations with the Soviet Government rather than an opinion on its existence as a government. This view is also supported by the fact that the notes exchanged between the Soviet and US Governments on 16 November 1933 do not mention the word ‘recognition’ but state the mutual decision of the two Governments to establish normal diplomatic relations. In the letter to the President of the All Union Central Executive Committee of the USSR, which initiated the process leading to ‘recognition’ of the Soviet Government, President Roosevelt wrote on 10 October 1933: ‘Since the beginning of my Administration, I have contemplated the desirability of an effort to end the present abnormal relations…. It is most regrettable that these great peoples … should now be without a practical method of communicating directly with each other.’77 In this connection it is also of interest to note that proposed Senate (p. 36) Concurrent Resolution 7, which was introduced in the Senate on 21 January 1935, stated: ‘That it is the sense of the Senate and the House of Representatives of the United States that the diplomatic recognition by the Government of the United States of the Union of Soviet Socialist Republics should be withdrawn.’78 That the prolonged non-recognition of the Soviet Government was only the expression of the unwillingness of the non-recognizing State to enter into normal diplomatic relations with it is also supported by the reasons most commonly given by States for not recognizing the Soviet Government. Non-recognition of the Soviet Government was not based on a lack of effective control, stability, or independence, as becomes clear from the statement of the British Prime Minister, Lloyd George, in the House of Commons on 22 March 1921 that the Soviet Government ‘have as complete control over that vast territory as any Government could possibly have under present conditions’.79 And the US Secretary of State’s Office stated on the ‘status of the Soviet Government’ in Salimoff v. Standard Oil Co. (1933):

2. The Department of State is cognizant of the fact that the Soviet regime is exercising control and power in territory of the former Russian Empire … 3. The refusal of the Government of the United States to accord recognition to the Soviet regime is not based on the ground that the regime does not exercise control and authority in territory of the former Russian Empire, but on other facts.80

These other fact were, inter alia, the unwillingness of the Soviet Government to accept the liabilities of its predecessors81 and, above all, the fear of propaganda by diplomatic agents aimed at the overthrow of the recognizing government. Thus, US President Wilson wrote in a note on Russian affairs, delivered to the Italian Embassy in Washington on 10 August 1920, that: (p. 37)

it is not possible for the Government of the United States to recognize the present rulers of Russia as a government with which the relations common to friendly Governments can be maintained…. Indeed upon numerous occasions responsible spokesmen of this power and its official agencies have declared that it is their understanding that the very existence of Bolshevism in Russia, the maintenance of their own rule, depends, and must continue to depend, upon the occurrence of revolutions in all other great civilized nations, including the United States, which will overthrow and destroy their Governments and set up Bolshevist rule in their stead. They have made it quite plain that they intend to use every means, including, of course, diplomatic agencies, to promote such revolutionary movements in other countries…. We cannot recognize, hold official relations with, or give friendly reception to the agents of a Government which is determined and bound to conspire against our institutions, whose diplomats will be the agitators of dangerous revolt.82

‘Such conduct’, the Court of Appeals of New York said, ‘may lead to governmental refusal to recognize Russia as a country with which the United States may have diplomatic dealings…. The Government may be objectionable in a political sense. It is not unrecognizable as a real governmental power’.83 That prolonged non-recognition in the case of the Soviet Government expressed an unwillingness to enter into normal official (diplomatic) relations with it rather than a denial of governmental status also becomes clear in the case of Switzerland. As one of the last countries to recognize the Soviet Government, it extended ‘full recognition’ on 10 October 1944 when the Swiss envoy to London handed an Aide-Mémoire to the Russian Embassy there which stated: ‘Switzerland has the sincere desire to entertain normal relations based on the rules of international law and customs with all powers. Switzerland of course regrets circumstances which may have interrupted this general and normal intercourse. The Swiss Government and people are desirous of reestablishing normal relations with the USSR.’84 That, in the opinion of Switzerland, the Soviet Government qualified as a government in international law long before its ‘full recognition’ in 1944 is evidenced by the Berlin Declaration which had been issued by the two Governments on 16 April 1927 and which started: ‘In view of the desire of the Governments of the USSR and of the Swiss Confederation, to end the conflict existing between the two States’ (author’s translation).85

(p. 38) The MPLA Government of Angola. The Popular Movement for the Liberation of Angola (MPLA), one of the three Angolan liberation movements, seized power with Cuban and Soviet backing in Angola on 11 November 1975 when the country became independent of Portugal. The MPLA established the People’s Republic of Angola, which on 11 February 1976 became a member of the OAU and on 1 December 1976 a member of the UN. By 1980 the MPLA Government had expressly or tacitly been recognized by all States except the United States and South Africa. After withholding recognition for over seventeen years, the United States on 19 May 1993 finally recognized the (MPLA) Government of the People’s Republic of Angola and established diplomatic relations with it.86 Despite this non-recognition the US Department of State Dispatch had recorded, for example, in September 1991 the accession of Angola to the Vienna Convention on Diplomatic Relations 1961, and to the Convention on the Privileges and Immunities of the United Nations 1946, on 9 August 1990.87 As States can act only through their government and through their government exclusively88 it seems that ‘non-recognition’ did not connote that, in the opinion of the United States, the Angolan (MPLA) Government which declared the accession to these treaties did not qualify in international law as the Government of Angola.89 It rather expressed the United States’ unwillingness to enter into normal diplomatic relations with the MPLA Government. This becomes clear in a letter of Alfredo Salvaterra, Alternative Permanent Observer of the Republic of Angola to the OAS, to the Washington Post, published on 16 February 1993: ‘Finally, as to a fully normalized relationship with the United States, it is the view of my country, as expressed recently in a letter to President Clinton from (p. 39) President dos Santos, that it is in the interest of both the United States and Angola to have full diplomatic récognition.’90

Angola is a good illustration that both the meaning and the purpose of non-recognition may change over the years. At the beginning of the Angolan civil war between MPLA and UNITA the communist-oriented MPLA Government was armed by the Soviet Union and had thousands of Cuban troops fighting for it. US non-recognition was initially based on the Cuban and Soviet involvement in the civil war, and may be regarded as an expression of concern about the independence of the MPLA Government and thus about its governmental status. Thus Dr Kissinger, the US Secretary of State, declared in March 1976 that ‘there is every prospect of our dealing with the MPLA in Angola once it is clear that they are indeed an African government and not totally beholden of foreign input’.91 Later, after the withdrawal of the Cuban military presence, the United States withheld recognition, in the sense of formal diplomatic relations, in order to achieve national reconciliation between MPLA and UNITA.92 Thus, President Clinton declared on the occasion of US recognition of the MPLA Government on 19 May 1993 that he had ‘tried to use the possibility of U.S. recognition as a leverage toward promoting an end to the civil war and hostilities and, hopefully, the participation of all relevant political groups in the Government of Angola’.93

While non-recognition may only express the recognizing governments’s unwillingness to enter into normal official (diplomatic) relations, recognition may only express the recognizing government’s willingness to enter into such relations. Recognition of a ‘government’, while establishing a presumption that a government exists, need not necessarily mean that, in the opinion of the recognizing government, the recognized ‘government’ is, (p. 40) in fact, a government in the sense of international law. Being no ‘registered trade mark’, the term ‘government’, used in ‘recognition’ statements, need not denote a government in the sense of international law. It may just refer to the (self-given) name of an individual or a body of individuals.94 Thus recognition of the ‘Government of the Republic of …’ may mean only that the recognizing government is ready to enter into official relations with an individual or a group of individuals calling itself the ‘Government of the Republic of…’. For example, on 7 October 1960 the Soviet Prime Minister, Mr Khrushchev, stated at a press conference in New York:

It may be taken that our meetings and conversations with the representatives of the Algerian Provisional Government indicate95 de facto recognition of that Government. I would like to add it is not we alone who give de facto recognition to the Algerian Provisional Government, but the whole world beginning with the President of the French Republic, General de Gaulle, because he has begun negotiations with that Government.96

In October 1960, however, the Provisional Government of the Algerian Republic (GPRA) did not yet, in the opinion of the Soviet Government, qualify as the government of the State of Algeria.97 This becomes clear from correspondence between the Soviet Government and the GPRA98 and the subsequent Soviet de jure recognition of the GPRA on 19 March 1962, connected with the offer to establish formal diplomatic relations.99

The distinction between recognition ‘of’ and recognition ‘as’ something seems to be an indication for the recognizing State’s intention regarding the (p. 41) meaning of recognition. It seems that if a State speaks of the recognition of an authority ‘as something’ (i.e. ‘as the government of a particular State’) it intends to say that, in its opinion, the authority so recognized qualifies for that particular status. On the other hand, if a State speaks of the recognition ‘of something’ (i.e. a group of exiles calling themselves the government of a particular State) it seems that it intends, especially if the ‘something’ recognized is not a de facto government, to express only its willingness to enter into official relations with the ‘something’. The same is true if a State recognizes only the ‘existence’ or ‘constitution’100 of a government rather than the government as such. This view is supported by the fact that whenever the legal status of an authority is in question recognition statements speak of the recognition of the authority ‘as something’. This may sometimes lead to strange statements such as ‘We recognize the “Government of X” as the Government of X’. For example, the so-called ‘Foreign Offices certificates’ supplied to the British courts, when the British Government still formally accorded recognition, always spoke of the recognition of the authority in question ‘as something’. Under the new British policy of ‘recognizing States, not governments’, the Foreign Office certificate may state whether the British Government has dealings with the authority in question ‘as something’. Thus in Re an Application by Ernst Jaakson and Aarand Roos (1990) the Foreign Office stated that ‘Her Majesty’s Government do not have dealings with Mr Ernst Jaakson or Dr Aarand Roos as the representatives of Estonia or the Government thereof.’101 However, it must be emphasized that these are only general guidelines on the meaning of ‘recognition’ which do not absolve people from investigating the meaning in which the term is used in each individual case. In exceptional cases this investigation may even reveal that ‘recognition’ bears neither of the these two meanings and is simply understood to express moral support. The Omani recognition of the ‘State of Palestine’ is a good example for this. In a statement issued on 12 December 1988 the Omani Foreign Ministry said that Oman had decided to grant ‘official and legal recognition to the Palestinian State’.102 Referring to the timing and nature of the recognition Sultan Quabus, the Omani ruler, explained in an interview with the Kuwaiti newspaper al-siyasa, published on 17 December 1988, that:

the desire to establish the state of Palestine has been declared, but the state itself has not yet been established. Hence, what has actually taken place was the decision to establish this state…. The Palestinian brothers have explained to us the nature (p. 42) of recognition which has moral dimensions, so we immediately announced our recognition.

In January 1989 the Omani Minister of State for Foreign Affairs, Yusuf Ibn Alawi Ibn Abdallah, declared with respect to the issue of opening a PLO office in Muscat that Oman preferred to maintain relations with States that conducted their affairs in an orderly manner, rather than with organizations that tended to be irresponsible. While noting that there were Palestinian elements whose interest was incompatible with that of Oman, Alawi further emphasized that Oman would establish links with the Palestinian state when it was established.103 The value of newspaper reports that, for example, the PLO (or the State of Palestine) ‘won the recognition of 117 nations’104 must thus be assessed in the light of the above example.105 The examples given above show that the meaning of the term ‘recognition’ depends entirely on the intention of the State using it within the factual and legal context of a particular case.106 Recognition statements alone are seldom a safe guide to the intention of the recognizing State. It will rather have to be ascertained from all the available evidence: diplomatic correspondence, communiqués, statements in international organizations, declarations in national assemblies, interviews by government officials, and so forth. Finally, one should beware of the assumption that a certain State always uses the term ‘recognition’ in the same meaning, something to be proved. The British Government in particular has liked to portray its recognition policy since 1924 as consistent and principled. Prior to 1924 the British Government decided on a case-by-case basis whether it was in its political interest to enter into official (diplomatic) relations with a certain government.107 From 1924 onwards the view seems to have been that it is generally in the British interest to have official (but not necessarily diplomatic) relations with all new régimes that fulfil the criteria for government status.108 The prolonged non-recognition, together with the absence of diplomatic (p. 43) relations, with the Soviet Government and its adverse effects may have served as a ‘catalyst’ for this change in British recognition policy. It must however be noted that this policy of ‘universality of relations’ has not always been strictly adhered to as the initial non-recognition of the Farrell Government in Argentina and the Villaroel Government in Bolivia during the Second World War and the prolonged non-recognition of the Republican Government in the Yemen (27 September 1962–29 July 1970) show.109

Footnotes:

The act of recognition must be distinguished from the term ‘recognition’ used in diplomatic correspondence and official declarations. As the act of recognition may be express or implied, states may recognize governments and their analogues without employing the word ‘recognition’. However, in order to be able to establish what consists an act of recognition it is necessary to clarify first what States mean by ‘recognition’.

Ullman, Anglo-Soviet Relations, 1917–1920 (1968), ii, 205, n. 1. On the recognition of General Kolchak’s Government, see Kettle, Russia and the Allies (1992), iii, 370–413. The US State Department said on 29 July 1994 that the USA had formally recognized the new government in Rwanda. The White House disavowed the statement and said it was not yet prepared to announce diplomatic recognition.

Churchill, The Second World War (1954), v, 137; and [1943] II FRUS 173.

On the French recognition, see Kolař, ‘Edouard Beneš et le Conseil national tchécoslovaque de la rue Bonaparte’ (1993) 43/169 GMCC 9–15 at 14; The Birth of Czechoslovakia (1968), 48–9; Mattern, Die Exilregierung (1953), 30–1; Seton-Watson, ‘The Liberation of the Nationalities. Part III. The Formation of the Czecho-Slovak State’ in Temperley (ed.), A History of the Peace Conference of Paris (1921), iv, 237–77 at 261.

[1918] Ann. Reg. 217. On British recognition, see also ‘The Recognition of the Czecho-Slovak Armies’ (1917–18) 62 Sol. Jo. 735–6; Masaryk, The Making of a State: Memories and Observations 1914–1918 (1927), 265, 342–3, and annex.

Through Thirty Years 1892–1922. A Personal Narrative (1924), ii, 231–3.

‘Recognition of a government is formal acknowledgement that a particular regime is the effective government of a state and implies a commitment to treat that regime as the government of that state’: American Law Institute, Restatement of the Law (Third). The Foreign Relations Law of the United States (1987), i, 84. For similar definitions of ‘recognition’ of governments, see Ruda, ‘Recognition of States and Governments’ in Bedjaoui (ed.), International Law: Achievements and Prospects (1991), 449–65 at 455; Ipsen, Völkerrecht (3rd edn., 1990), 242; Rousseau, Droit international public (1977), iii, 554.

Brownlie, ‘Recognition in Theory and Practice’ (1982) 53 BYBIL 197–211 at 198 and Principles of Public International Law (4th edn., 1990), 91, 93. See also Wengler, Völkerrecht (1964), i, 773–80. An earlier attempt to distinguish between different meanings of the term ‘recognition’ may be seen in Professor Kelsen’s distinction between political and legal recognition: ‘Recognition in International Law: Theoretical Observations’ (1941) 35 AJIL 605–17 and Principles of International Law (2nd edn., 1967), 389–91, 399–404. First signs of a distinction between different meanings of the term may also be found in Chen, The International Law of Recognition. With Special Reference to Practice in Great Britain and the United States (1951), 129.

See, e.g., Jennings and Watts (eds.), Oppenheim’s International Law (9th edn., 1992), i, 148; Brierly, The Law of Nations. An Introduction to the International Law of Peace (6th edn., 1963), 145–6; Mugerwa, ‘Subjects of International Law’ in Sørensen (ed.), Manual of Public International Law (1968), 271; Dahm, Delbrūck, Wolfrum, Völkerrecht (2nd edn., 1989), I/1, 186–7; and Nguyen Quoc, Daillier, Pellet, Droit international public (3rd edn., 1987), 502–3.

10  So also Scelle, Manuel de droit international public (1948), 177. Cf. also ‘Recognition of Governments’ (1917–18) 62 Sol. Jo. 359–60 at 360; (1968) 4 RBDI 541–2.

11  See League of Nations, Records of the First Assembly. Plenary Meetings (1920), 598, 606; DBFP, 1st ser., XII, no 449, 528; [1945] Keesing’s 7600, 7618A; DBPO, 1st ser., V, no 96, and no 73, 349, n. 7; (1962) 47 DSB 560.

12  HC Debs., vol. 11, col. 1397, 15 June 1824. For an elaboration of the two different meanings of the term ‘recognition’ see the speech of Sir James Mackintosh urging the British Government to ‘recognize’ the States of Spanish America: ibid., cols. 1347–50, 15 June 1824.

13  See the address of US Secretary of State Acheson to the Pan American Society of the USA, New York, 19 Sept. 1949: ‘our long-range objectives … may, in fact, be best served by recognizing it [the new government] and thus maintaining a channel of communication with the country involved….our act of recognition need not necessarily be understood as the forerunner of a policy of intimate cooperation with the government concerned’ (Whiteman (ed.), Digest of International Law (1963), ii, 5).

14  The term ‘relations’ comprises communications, negotiations, and other political and legal transactions. It has been used interchangeably with ‘business’, ‘intercourse’, and ‘dealings’.

15  Compare, e.g., Schwarzenberger and Brown, A Manual of International Law (6th edn., 1976), 70; Rolin, ‘Conditions and Methods of Recognition of New Governments’ in Bisshop (ed.), International Law Conference London, 10th–12th July 1943 (1944), 40–7 at 42; Guggenheim, Lehrbuch des Völkerrechts (1948), i, 189; Heydte, Völkerrecht. Ein Lehrbuch (1958), 204; Akehurst, A Modern Introduction to International Law (6th edn., 1987), 58; and also Cassese, International Law in a Divided World (1986), 79, with respect to recognition of States.

16  For the ‘normalization of relations’ between the Government of the USA and the Government of the PR China, see the messages, dated 31 Dec. 1978 and 1 Jan. 1979: BBC, SWB, 2nd series, FE/6006/C/1–3, 3 Jan. 1979.

17  Whiteman, n. 13 above, 48. See also another memorandum by the same author of 8 Feb. 1934: ibid., 535. In vol. I of his Digest Mr Hackworth wrote: ‘[Recognition] is evidenced, in the case of a new state or government, by an act officially … indicating a readiness on the part of the recognizing state to enter into formal relations with it’ (Digest of International Law (1940), i, 161), and ‘In order that recognition may be implied from any act short of explicit recognition, the act must be of such unequivocal character as to leave no doubt of the intention … to deal with the new … government officially as such’ (ibid., 327, italics supplied). See further the statement of US Secretary of State Hughes on 19 July 1923: ‘Recognition is an invitation to intercourse’ (ibid., 178); and the instruction of 8 Sept. 1900 sent by Acting Secretary of State Hill to Mr Hart, US minister at Bogota: ‘[a foreign government] is recognized by directing the United States representative formally to notify its proper minister of his readiness to enter into relations with it’ (Moore (ed.), A Digest of International Law (1906), i, 139, italics supplied). See also the despatch of the German Chancellor Bismarck to Count Bernstorff, dated 15/16 Jan. 1862: ‘recognition only means that we think that the new government is adequately secure in order to establish regular relations with it in the interest of our citizens’ (Fontes, B.I.I.1, 150, italics and translation supplied).

18  See Art. 2 of the VCDR (500 UNTS 95). On 13 Oct. 1944 the Swiss envoy in London presented an Aide-Mémoire to the Soviet Embassy there expressing the Swiss federal Government’s recognition of the Soviet Government, i.e. its desire to re-establish normal diplomatic relations. The offer to re-establish normal diplomatic relations was rejected by the Soviet Government in a Memorandum of 1 Nov. 1944: DDS XV, nos 257, 277; Klarer, Schweizerische Praxis der vōlkerrechtlichen Anerkennung (1981), 127–9. See also the statement of the People’s Commissariat for Foreign Affairs of the USSR of 5 Nov. 1944: Soviet For. Pol. II, 174–5. For further illustrations that the establishment of bilateral relations requires the consent of both parties see the survey of the status of relations between the USA and 11 governments with which the USA did not maintain relations in 1977: (1977) 77 DSB 463.

19  See Suy, Les actes juridiques unilatéraux en droit international public (1969), 191–201; Rohr, ‘El reconocimiento como acto unilateral’ (1978) 2 Derecho Comparado 107–35 and (1979) 3 Derecho Comparado 92–124; Jennings and Watts, n. 9 above, 1188; Verdross and Simma, Universelles Völkerrecht. Theorie und Praxis (3rd edn., 1984), §666. Contra Verzijl, International Law in Historical Perspective (1969), ii, 578–9. For an example of ‘unilateral diplomatic recognition’, see [1972] Keesing’s 25624B.

20  At the end of Aug. 1943 the State Department instructed the American Ambassador to London that the establishment by the Government of the USA ‘of official relations with the French Committee of National Liberation at Algiers … render obsolete the liaison arrangements set up in London’ (Whiteman, n. 13 above, ii, 370–1).

21  For the British recognition statement of 3 June 1918, see Beneš, My War Memoirs (1928), 376.

22  Masaryk, n. 5 above, 342–3.

23  HC Debs., vol. 362, col. 815, 3 July 1940.

24  Blociszewski, ‘La restauration de la Pologne et la diplomatie européenne’ (1921) 28 RGDIP 1–83 at 68. The British, Italian, and US Governments followed the French example on 15 and 30 Oct. and 1 Dec. 1917, respectively (Roth, Die Entstehung des polnischen Staates. Eine völkerrechtlich-politische Untersuchung (1926), 132–3). See also the statement of the British Assistant Secretary of State for Foreign Affairs, Lord Robert Cecil, in the House of Commons on 2 July 1918: ‘The Polish National Committee, which has been recognized by all the Allied Governments as the most practicable channel through which to deal with Polish communities and interests in each country’ (HC Debs., vol. 107, cols. 1552, 2 July 1918).

25  (1979) 10 NYIL 322.

26  [1981] Keesing’s 30572A, 31174. A Dutch Foreign Ministry spokesman stated on 29 Sept. 1981: ‘We now recognize the Front [FMLN–FDR] as one of the political forces in the conflict. This step is in accord with the Franco-Mexican agreement’ (ibid.). On 22 Sept. 1981 the US State Department announced that the USA was ready, if the Salvadorean Government wished, to help initiate ‘contacts and discussions with the legally recognized parties on the holding of elections’ (ibid., 31175).

27  Cf. Jennings and Watts, n. 9 above, 155, n. 3.

28  See, e.g., HC Debs., vol. 104, col. 22, 11 Mar. 1918 (Mr Balfour). Cf. also ibid., vol. 106, cols. 940–1, 30 May 1918 and DBFP, 1st ser., XX, no 357, 648–9.

29  [1943] Keesing’s 5971A.

30  De Gaulle, War Memoirs. Documents (1959), ii, 331.

31  HC Debs., vol. 139, col. 2506, 22 Mar. 1921 (Mr Lloyd George); A.M. Luther v. James Sagor and Company [1921] 3 KB 532 at 536 (CA).

32  114 BFSP 373. On the history of the Trade Agreement, see Ullman, n. 2 above, (1972), iii.

33  HC Debs., vol. 139, col. 2198, 21 Mar. 1921. On the only limited relations between the British and the Soviet Government prior to de jure recognition, see HC Debs., vol. 149, WA, col. 302, 16 Dec. 1921.

34  HC Debs., vol. 174, col. 534 12 Feb. 1924.

35  Wilson, ‘British Recognition De Facto and De Jure of the USSR’ (1934) 28 AJIL 99–101 at 100. On the question whether there was a difference in the factual or legal character of the Soviet Government in 1921 and 1924, see Lauterpacht, Recognition in International Law (1947), 337, 338–9; and Chen, n. 8 above, 274, 275.

36  HC Debs., vol. 363, col. 615, 23 July 1940 (italics added).

37  For the correspondence between Dr Beneš and Lord Halifax preceding the above ‘recognition’ statement, see Beneš, Memoirs of Dr Eduard Beneš (1954), 106–10.

38  FO 371, vol. 26394, quoted in Brügel, ‘Die Anerkennung der tschechoslowakischen Auslandsregierung 1940–1942’ (1983) 24 Bohemia, 335–47 at 343.

39  [1942] CYBIL 231.

40  The term is used here in its descriptive meaning. It is interesting to note in this connection that, e.g., the USA in prevailing practice speaks of recognition of a de facto government rather than of recognition ‘as’ a government, thereby implying that the terms ‘recognition’ and ‘non-recognition’ both refer to an existing government and not to whether or not a government exists. See Whiteman, n. 13 above, i, 157–8; ii, 72, and the references in that Digest to the ‘US Position on Recognition of de facto Governments, First Meeting of the Inter-American Council of Jurists, Rio de Janeiro, 1950’.

41  Mr Aldrich, Acting Legal Adviser to the US Department of State, said before the Senate Foreign Relations Committee on 17 June 1969: ‘recognition is generally conceived to be something which can be negotiated and I think the Chinese Communists have certainly negotiated about the terms of recognition in terms of exchange of diplomatic representatives about as hard as any country I know’ (Congress, Senate, Committee on Foreign Relations, United States Recognition of Foreign Governments (1969), 8–17 at 12, italics supplied). In 1919 the British Under-Secretary of State for Foreign Affairs, Mr Harmsworth, stated in somewhat similar terms: ‘His Majesty’s Government are not disposed, in view of the Mexican Government, to accord the recognition implied by the resumption of diplomatic relations’ (HC Debs., vol. 115, WA, col. 1472, 13 May 1919, italics added). See further HL Debs., vol. 233, col. 908, 25 July 1961.

42  Whiteman, n. 13 above, ii, 29.

43  Ibid., passim. On ‘diplomatic recognition’ generally, see also Ch. 2 sect. 3(6) below.

44  Sir Hersch Lauterpacht, examining the distinction between de facto and de jure recognition, writes: ‘It may be maintained that so long as those other conditions [of recognition] have not been complied with there can be no recognition at all, and that full recognition or complete refusal of recognition are the only alternatives. But the necessities of international intercourse do not favour any such rigid dichotomy’ (n. 35 above, 340).

45  HC Debs., vol. 11, col. 1397, 15 June 1824, italics added. On the subjectivity of recognition, see German Interests in Polish Upper Silesia (1926), PCIJ, Series A, No 7,28. See also Suy, n. 19 above, 207.

46  Whiteman, n. 13 above, ii, 48, italics supplied.

47  Ibid., 3. For the distinction between recognition of the fact that the State of the Vatican City exists as an international entity and formal recognition of the State of the Vatican City or of its Government by the USA: see ibid., 542–3. See also the distinction between ‘de facto recognition of the existence of the new régime’ in Manchuria and the ‘general principles in practice in the recognition of new states and new governments’ (ibid., 596).

48  It must be noted that the criteria of a certain status need not necessarily be prescribed by international law. For example, in 1963 the OAU Co-ordinating Committee for the Liberation of Africa laid down conditions for the financial and moral assistance of liberation movements. By ‘recognizing’ a liberation movement the Co-ordinating Committee determines only that, in its opinion, the movement in question fulfils the criteria for assistance. Cf. Jennings and Watts, n. 9 above, 163, n. 6; Ginther, ‘Die völkerrechtliche Stellung nationaler Befreiungs-bewegungen im südlichen Afrika’ (1982) 32 ÖZöRV 131–57 at 140–5; Červenka, The Unfinished Quest for Unity. Africa and the OAU (1977), 46–50; and Wilson, International Law and the Use of Force by National Liberation Movements (1988), 142–6.

49  This seems to be the meaning attributed to the term ‘recognition’ by most textbook writers. Professor Kelsen describes this meaning as the ‘legal act of recognition’ (n. 8 above, at 606–7).

50  UKTS No 28 (1966), Cmnd. 3001, 35 (italics added). See in this connection the statement of the Joint Under-Secretary of State for Foreign Affairs in the House of Lords: ‘Her Majesty’s Government, of course, recognize the Government of the People’s Republic of China as the Government of China’ (HL Debs., vol. 206, col. 190, 7 Nov. 1957, italics supplied). See also the statement of the British Foreign Secretary, Mr Hurd, in Nov. 1991: ‘We recognize the Government of the Republic of Cyprus as the Government of the whole of Cyprus’ (HC Debs., vol. 199, col. 259, 20 Nov. 1991).

51  [1978] 1 QB 205. For a discussion of the ‘recognition’ question in this case, see Crawford (1978) 49 BYBIL 259–61; Lloyd Jones (1978) 37 CLJ 48–51; and Merrills (1979) 28 ICLQ 523–5.

52  [1978] 1 QB 205 at 216 (italics supplied).

53  This non-recognition as the ‘government of an independent de facto sovereign State’ has, for example, the consequence that the authorities of the Turkish part of Cyprus will not enjoy sovereign immunity in the British courts. Cf. The Arantzazu Mendi [1939] AC 256 (HL).

54  HC Debs., vol. 957, WA, col. 247, 8 Nov. 1978; ibid., vol. 50, WA, col. 219, 8 Dec. 1983. Cf. Jennings and Watts, n. 9 above, 190, who speculate whether the UN Security Council by referring to the ‘Turkish Cypriot authorities’ accorded some undefined degree of recognition.

55  HC Debs., vol. 175, WA, cols. 15–16, 25 June 1990.

56  HC Debs., vol. 154, WA, col. 474, 14 June 1989.

57  HC Debs., vol. 46, WA, col. 246, 22 July 1983; ibid., vol. 56, WA, col. 178, 14 Mar. 1984.

58  HC Debs., vol. 102, WA, col. 256, 23 July 1986.

59  The Times, 6 May 1993, 1.

60  Case C–432/92 R. v. Minister of Agriculture, Fisheries and Food, ex parte Anastasiou [1994] ECR I–3116.

61  HC Debs., vol. 49, WA, col. 257, 24 Nov. 1983.

62  HC Debs., vol. 56, WA, col. 221, 15 Mar. 1984; HL Debs., vol. 489, col. 528, 27 Oct. 1987.

63  Thus, Scott LJ held in Polly Peck International v. Nadir (No 2): ‘Northern Cyprus is not recognized by Her Majesty’s government but none the less has had de facto control over its territory since about 1974’: [1992] 4 All ER 769 at 773 (CA). Glidewell LJ in his judgment in Polly Peck International v. Nadir (No 3) even referred to ‘the government of Northern Cyprus’ (The Times, 22 Mar. 1993). On the status of the Turkish Cypriot authorities, see also the decisions of the E. Comm. HR in App. No 8007/77 (Cyprus v. Turkey, 10 July 1978) 13 DR 85 at 148–50 and Apps. Nos 15299/89, 15300/89, and 15318/89 (Chrysostomos and Others v. Turkey, 4 Mar. 1991) 68 DR 216 at 246–8. On the question of statehood of Northern Cyprus, see Blay, ‘Self-Determination in Cyprus: The New Dimension of an Old Conflict’ (1987) 10 AYBIL 67–100 at 89–97, and Necatigil, The Cyprus Question and the Turkish Position in International Law (2nd edn., 1993), 317–30.

64  Great Britain generally seems to have followed this approach since 1924. See the statement of the British Foreign Secretary, Mr Morrison, in 1951: ‘His Majesty’s Government consider that recognition should be accorded when the conditions specified by international law [for government status] are, in fact, fulfilled and that recognition should not be given when these conditions are not fulfilled’ (HC Debs., vol. 485, col. 2411, 21 Mar. 1951), and the speech on the British viewpoint on ‘diplomatic recognition’ delivered by the British Ambassador to the USA, Sir Roger Makins, at the Catholic University of America on 13 May 1954 (Whiteman, n. 13 above, ii, 110–11).

65  See Wengler, n. 8 above, i, 778. After the military coup d’état in Bolivia on 17 July 1980 the German Government declared that it did not ‘recognize’ the new Bolivian Government. On this ‘non-recognition’ Minister of State Dr Hamm-Brücher declared in the Bundestag on 6 October 1980: ‘contact between the German embassy and the Bolivian Government is restricted to humanitarian, human rights and consular questions. It is neither our nor the Bolivian view that this means that we maintain normal diplomatic relations’ ((1982) 42 ZaöRV 538–9, translation supplied). It is of interest to note in this connection that governments and courts regularly refer to unrecognized ‘governments’, thereby implying that it is not the status of government that is in question.

66  Tinoco Arbitration (1923), 1 RIAA 369 at 377.

67  Ibid., 382.

68  HC Debs., vol. 119, col. 348, 6 Aug. 1919, italics supplied.

69  Tinoco Arbitration, n. 66 above, 381.

70  On US non-recognition policy towards ‘the de facto government of General Tinoco’, see Hackworth, n. 17 above, i, 233–7, Baker, ‘Woodrow Wilson’s Use of the Non-Recognition Policy in Costa Rica’ (1965) 22 Americas 3–15; and Murillo-Jimenez, ‘Wilson and Tinoco. The United States and the Policy of Non-Recognition in Costa Rica, 1917–1919’, Ph.D. thesis (San Diego: University of California, 1978).

71  Russia became the Russian Socialist Federative Soviet Republic (RSFSR) in Mar. 1918. On 30 Dec. 1922 the RSFSR formally became part of the Union of Soviet Socialist Republics (USSR) which also included the White Russian, the Ukrainian, and the Trans-Caucasian Soviet Socialist Republics.

72  According to the British Government, by May 1923 the following countries had ‘extended de jure recognition to the Soviet Government: Afghanistan, Esthonia, Finland, Germany, Latvia, Lithuania, Persia, Poland, Turkey (Government of the Grand National Assembly). De facto recognition is understood to have been given by the following countries in addition to Great Britain: Austria, Czecho-Slovakia, Denmark, Italy, Norway’ (HC Debs., vol. 164, col. 22, 14 May 1923). To this list must be added Hungary and Mongolia. For the former, see Makarov, ‘Aufnahme der diplomatischen Beziehungen zwischen Ungarn und der Sowjetunion’ (1934) 4 ZaöRV 315–19 at 315. For the latter, see Makarov, ‘Die Anerkennung der Sowjetregierung durch die Vereinigten Staaten’ (1934) 4 ZaöRV 1–24, at 7, n. 41.

73  See the list in Houghton, ‘Policy of the United States and Other Nations with Respect to the Recognition of the Russian Soviet Government, 1917–1929’ Int. Conc. no 247 (1929), 83–108 at 105, n. 99. See also the table in Int. Conc. no 217 (1926), 114.

74  See ‘Recognition of Soviet Union (List furnished by [US] Department of State)’ (1934) 28 AJIL 97–8, and Makarov, ‘Anerkennung’, n. 72 above, at 4–8. In addition to the countries mentioned in n. 72, these were: Greece, Sweden, China, Denmark, Mexico, France, the Kingdom of the Hejaz and Nejd [Saudi Arabia], Japan, Iceland, Uruguay, Yemen, and Spain. See, generally, Noulens, ‘La reconnaissance du gouvernement soviétique de l’URSS’, Dict. Dipl. (1933), ii, 532–8.

75  On US ‘recognition’ of the Soviet Government, see Hackworth, n. 17 above, i, 194–5, 299–305. For the correspondence between the USA and the USSR concerning the ‘recognition’ of the Soviet Government, see US Department of State, Establishment of Diplomatic Relations with the Union of Soviet Socialist Republics (1933).

76  Department of State, memorandum, 13 Dec. 1940: Whiteman, n. 13 above, ii, 48. For actions implying ‘political recognition’ Mr Hackworth mentioned the ‘exchange of diplomatic and consular officers’ and the ‘negotiation of a treaty’.

77  Hackworth, n. 17 above, i, 303.

78  Whiteman, n. 13 above, ii, 45, italics added. See further the Annex, ‘Illustrative Instances of Recognition in the History of the United States’, to the Memorandum on ‘Recognition of New States and Governments in Palestine’ by Ernest A. Gross, Legal Adviser to the US State Department, dated 11 May 1948 (Cohen (ed.), The Rise of Israel. A Documentary Record from the Nineteenth Century to 1948 (1987), xxxix, 149–50 at 149).

79  HC Debs., vol. 139, col. 2506, 22 Mar. 1921.

80  262 NY 220 at 224 (CA NY 1933).

81  M. Millerand, the French Prime Minister and Foreign Minister, speaking in the Chamber of Deputies on 20 July 1920 recalled the fact that it only depended upon the Soviet Government itself to resume diplomatic relations with the French Republic. M. Millerand repeated his offer that France would at once change her attitude when the Soviet Government had really behaved like a Government and recognized the liabilities of its predecessors (The Times, 21 July 1920, 13, italics added). See also US President Coolidge’s annual message to Congress on 6 Dec. 1923 in which he stated the reasons for the continued refusal to recognize the Soviet Government: ‘Our Government does not propose, however, to enter into relations with another régime which refuses to recognize the sanctity of international obligations’ (Hackworth, n. 17 above, i, 302).

82  The Times, 13 Aug. 1920, 9, italics added. It is interesting to note that President Wilson uses ‘recognize’ and ‘hold official relations with’ as synonyms. For a similar explanation given by the Swiss Federal Council on 24 June 1927, see Klarer, n. 18 above, 119.

83  Salimoff v. Standard Oil Co., 262 NY 220 at 227 (CA NY 1933).

84  DDS XV, no 257; Klarer, n. 18 above, 127–8 at 128. Switzerland regarded the ‘de jure or full recognition’ of the Soviet Government always as a question of re-establishment of diplomatic relations and not of governmental status of the Soviet Government. See Klarer, ibid., 104–34; LNOJ Spec. Supp. No 130, 15; and Feldmann, Die Schweiz und Sowjetrußland (1944).

85  Klarer, n. 18 above, 117.

86  See ‘US Recognition of Angolan Government’, Statement by President Clinton, Washington, DC, 19 May 1993: (1993) 4/21 DSD 375. On recognition of the Angolan Government, see also HL Debs., vol. 545, WA, col. 71, 13 May 1993. On US–Angolan relations during the years of non-recognition, see Nash (ed.), Cumulative Digest of United States Practice in International Law 1981–8 (1994), i, 277–99.

87  (1991) 2/36 DSD 677: ‘Treaty Actions’. It is also interesting to note in this connection that since Jan. 1992 Angola maintained with the Permanent Observer Mission to the OAS a diplomatic mission in Washington (WP, 16 Feb. 1993, Sec. OP/ED, 13). The US was represented in Luanda by a ‘Liaison Office’ (WP, 26 Jan. 1993, Sec. A, 14).

88  See Bin Cheng, General Principles of Law as applied by International Courts and Tribunals (1953), 183–4.

89  It should be noted that access to US courts, which according to ‘a long-standing principle’ has ordinarily been denied to unrecognized governments (Republic of Vietnam v. Pfizer, 556 F.2d 892 at 894 (8th Cir. 1977), and American Law Institute, n. 7 above, §205), in the case of the unrecognized MPLA Government was regarded by the State Department as ‘consistent with the foreign policy interests of the United States’. See Transportes Aereos de Angola v. Ronair, Inc., 544 F.Supp. 858 at 861 (D. Del. 1982); and TAAG Linhas Aereas de Angola v. Transamerica Airlines (ND Cal. 1988), reported in Nash, n. 86 above, i, 298–9; and 915 F.2d 1351 (9th Cir. 1990).

90  WP, 16 Feb. 1993, Sec. OP/ED, 13 (italics added). See also the consideration of 101 H. Con. Res. 203 expressing the sense of Congress that the USA should normalize relations with Angola by the Foreign Affairs Committee of the House of Representatives (Congress, House of Representatives, Committee on Foreign Affairs, Review of US Policy Toward Political Negotiations in Angola (1989), 110–13. See also the joint resolution adopted by the US Congress on 25 Mar. 1993 calling upon the administration immediately to grant ‘diplomatic recognition’ to the MPLA Government of Angola (Guardian, 26 Mar. 1993, 15).

91  West Africa, no. 3064 (22 Mar. 1976), 395. The withdrawal of the Cuban troops was made a public precondition for US recognition of the MPLA Government (ibid., no 3078 (28 June 1976), 934). See also Nash, n. 86 above, i, 277. On the early stages of US non-recognition of the MPLA Government, see also Galloway, Recognizing Foreign Governments: The Practice of the United States (1978), 121–3.

92  (1989) 89/2153 DSB 31–2 at 31; (1991) 2/52 DSD 912–22 at 919. On US non-recognition, i.e. unwillingness to maintain diplomatic relations, see also [1990] AFPCD no 563, 769; and Nash, n. 86 above, i, 277–99.

93  (1993) 4/21 DSD 375. On the reasons for US recognition and non-recognition over the years, see also NY Times, 19 May 1993, Sec. A, 1; ibid., 20 May 1993, Sec. A, 9; WP, 20 May 1993, Sec. A, 28.

94  Compare the judgment of Sir John Donaldson MR in Gur Corporation v. Trust Bank of Africa Ltd. (1986), [1987] 1 QB 599 at 617, which concerned the standing of the (‘unrecognized’) ‘Government of the Republic of Ciskei’ in the English courts: ‘The mere fact that a party to litigation chooses to describe itself as “The Government of the Republic of…” does not of itself create any problem of locus standi. This may be a trade name, a firm name, the title of an incorporated or unincorporated association, a description of what is known in the travel industry as an “affinity group” or simply an example of what I venture to call the “Pimlico Syndrome”, after the classic film “Passport to Pimlico”.’

95  Other sources read: ‘constitute’ or ‘can be regarded as signifying’ instead of ‘indicate’.

96  Bedjaoui, Law and the Algerian Revolution (1961), 139 and 114. See also The Times, 8 Oct. 1960, 5; and [1958–60] XIII FRUS 706. Mr Khrushchev added: ‘The Soviet people has always shown its sympathy for colonial peoples who are struggling for their independence. How can we exclude the people of Algeria? We whole-heartedly salute their struggle and will always give them the maximum aid which will help them to win their freedom’ ([1960] Keesing’s 17832A).

97  On the GPRA, see App. II. For the basic document of the Algerian Republic, the Institutions provisoires de L’Etat algérien, see Die Algerische Revolution (1963), 87–90. On the GPRA’s legal status, see Charpentier, ‘La reconnaissance du GPRA’ (1959) 5 AFDI 799–816 at 801–10; Flory, ‘Algérie et le droit international’ (1959) 5 AFDI 817–44 at 835–9; Oppermann, ‘Die Endphase des Algerienkonfliktes 1959–1962’ (1963) 23 ZaöRV 1–20 at 2; and Belkherroubi, La naissance et la reconnaissance de la République algérienne (1972), 85–98.

98  See e.g. the telegram of Mr Khrushchev to the ‘Prime Minister’ of the GPRA, dated 1 Nov. 1961: [1961–2] Africa Diary 233.

99  Ibid., 473; [1962] Keesing’s 18808.

100  The French National Commissariat of Foreign Affairs announced on 31 Oct. 1941 that the Belgian, Czechoslovak, and Polish Governments in London had recognized the constitution of the French National Committee ([1941] Keesing’s 4855C).

101  85 ILR 53 at 57. See also the Foreign Office certificate in this case: UKMIL 1990 (1990) 61 BYBIL 499–502.

102  BBC, SWB, 3rd series, ME/0334/i, 14 Dec. 1988.

103  (1988) 12 MECS 452.

104  IHT, 2 June 1992, 1.

105  For recognition ‘as a gesture of solidarity’, see the Canadian memorandum on the recognition of the Czechoslovak National Committee, dated 31 May 1940: VII DCER 26–7. On the idea, expressed as early as 1866, of recognition as ‘a mere demonstration of moral support’, see Wheaton, Elements of International Law (8th edn., 1866), 29, n. 15.

106  While all textbook writers mention that implied recognition is a matter of intention, it seems that only Prof. Brownlie has pointed out that the meaning of the term ‘recognition’ itself depends on the intention of the government using it. See Brownlie, ‘Recognition in Theory and Practice’ (1982) 53 BYBIL 197–211 at 199. See also, more general, Schwarzenberger and Brown, n. 15 above, 55.

107  On the distinction between British pre- and post-1924 practice see Whiteman, n. 13 above, ii, 110–12.

108  Cf. the statement made by Foreign Secretary Morrison in 1951: ‘recognition [of a government] should be accorded when the conditions by international law are, in fact, fulfilled and that recognition should not be given when these conditions are not fulfilled’ (HC Debs., vol. 485, col. 2411, 21 Mar. 1951).

109  For a detailed examination of the British recognition policy, see Pattison, ‘The International Law of Recognition in Contemporary British Foreign Policy’, Ph.D. thesis (University of Virginia, 1981).