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ing, but, as in the preceding reports, deals mainly with the recognition of new states.
The United States appears to be the only country in which a more or less definite doctrine of recognition has been developed. For the doctrine and practice of the United States, see especially Moore's Digest, I, 98 53-58, pp. 119-164, in section entitled “Recognition of New Governments," and $$ 72-73 under the caption "Acts Falling Short of Recognition.” Dr. Goebell made a careful study of “The Recognition Policy of the United States" (66 Columbia University Studies), but he deals only with the recognition of the independence of new states.
THE POWER OF RECOGNITION
BY CLARENCE A. BERDAHL
Instructor in Political Science, University of Illinois
“Theoretically," says Hall, “a politically organized community enters of right into the family of states and must be treated in accordance with law, as soon as it is able to show that it possesses the marks of a state.” 1 As a matter of fact, however, the existence of international society, the nucleus of which was formed in the sixteenth and seventeenth centuries from European states then organized, has made necessary the formal reception into it of new members. Hence, as the same authority points out, the commencement of a state, in the eyes of international law, dates from its recognition by other Powers. The states already members of international society judge for themselves whether the right to recognition has been earned. Another distinguished authority has said, therefore, that "recognition is the assurance given to a new state that it will be permitted to hold its place and rank, in the character of an independent political organism, in the society of nations. The rights and attributes of sovereignty belong to it independently of all recognition, but it is only after it has been recognized that it is assured of exercising them. Regular political relations exist only between states that reciprocally recognize them. Recognition is therefore useful, even necessary to the new state.” 2
There are three classes of states that may be thus admitted into the family of nations: (1) states hitherto deemed alien in civilization and ideals, such as Turkey, Japan, and China; (2) states formed by civilized men in hitherto uncivilized countries, such as Liberia; and (3) states formed in consequence of separation from another state. Instances of the first two classes are rare and offer little difficulty, since they involve no complications with other Powers. But instances of the third class are common. New states generally come into existence by breaking off from an actually existing state. Even in such cases the act of recognition of the new state is “a normal act, quite compatible with the maintenance of peaceful intercourse with the mother country, "4 provided the new community has actually won its contest and successfully maintained its independence and separate existence. Authorities agree, however, that premature recognition is a wrong done to the parent state, that it amounts in effect to an act of intervention, and may properly be considered by the parent state as a cause of war to be resented as such. It becomes, therefore, of particular importance to discover where the power of recognition rests and how it may be exercised.
1 Hall, International Law (6th ed.), 82. 2 Moore's Digest of International Law, I, 72. 3 Lawrence, Principles of International Law (6th ed.), 83-89.
According to the best international authority, recognition may take place in these various ways: It may be effected by a formal declaration in a separate and independent document, or by such a declaration included in a convention dealing with other matters as well. It may be accorded, without an express declaration, by merely entering into such relations with the new community as exist only between independent states, such as diplomatic intercourse and treaty negotiations. Finally, recognition may be extended by the official reception of diplomatic agents accredited by the new state, by the despatch of such an accredited agent to it, or even by the grant of an exequatur to its consul.6
The Constitution of the United States does not expressly mention the power of recognition, nor confer that power in terms upon any one department of the government. It provides, however, that the President “shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate shall appoint, ambassadors, other public ministers, and consuls. . "? It further provides that the President “shall receive ambassadors and other public ministers.'' 8
Under the latter provision, recognition through the reception of an envoy is clearly the act of the President alone, and it was in this manner that the first recognition of the independence of a foreign government was accorded by the United States. President Washington, following the unanimous advice of his Cabinet, officially received M. Genet on May 17, 1793, as the minister of the new French Republic, which act was, in the words of Jefferson, "an acknowledgment of the legitimacy of their government.” 10 The precedent so established by Washington has been followed in numerous other instances, 11 and is, in fact, generally considered the usual and proper way of according recognition to a foreign Power.12 The term “ambassadors and other public ministers” has been interpreted to mean "all possible diplomatic agents, which any Power may accredit to the United States," 13 including "all foreign consular agents, who therefore may not exercise their functions in the United States without an exequatur from the President."' 14 Hence the President may accord recognition to foreign Powers through the issuance of such exequaturs, and this method was followed in recognizing the independence of Belgium in 1832, and of several other Powers. 15
4 Lawrence, Principles of International Law (6th ed.), 88. 5 Hall, op. cit., 83; Moore's Digest, I, 73. 6 See Hall, op. cit., 87-88; Lawrence, op. cit., 89-90. 7 Constitution, Art. II, Sec. 2, cl. 2. 8 Ibid., Sec. 3.
Recognition through the despatch of an accredited diplomatic agent to the foreign government has also been extended in numerous instances, notably in the cases of Argentina (Buenos Ayres), Chile, and Mexico in 1823, and of Texas in 1837.16 In this method, under the constitutional provision mentioned above, the President must have the coöperation of the Senate in confirming his nominations, though even here the act of recognition is primarily the act of the President, since he takes the initial step and the Senate can take no part at all until the President has sent in his nomination.
9 Jefferson's Writings (Ford ed.), VI, 217. 10 Ibid., 224.
11 Colombia, 1822; Empire of Brazil, 1824; Central American Federation, 1824; Costa Rica, 1851; Nicaragua, 1849; Greater Republic of Central America, 1896 ; Panama, 1903. Sen. Doc. No. 40, 54th Cong., 2d sess., 2, 4, 5, 11, 12; For. Rel. 1903, LXXXIII.
12 See Sen. Doc. No. 56, 54th Cong., 2d sess., 20.
14 Corwin, The President's Control of Foreign Relations, 46; cf. Moore's Digest, V, 15-19.
13 Venezuela, 1835; New Granada, 1835; Uruguay, 1836; Guatemala, 1844; Dominican Republic, 1866. See Sen. Doc. No. 40, op. cit., 6, 7, 11, 13.
16 Other instances are those of Peru, 1826; Peru-Bolivian Confederation, 1838; Bolivia, 1848; Honduras, 1853; Haiti, 1862. Sen. Doc. No. 40, op. cit., 4, 6, 7, 11, 12, 13.
The method of extending recognition through entering into treaty relations might be supposed to give the Senate a share in such recognition, since treaties cannot be ratified without the advice and consent of the Senate. The President, however, is solely responsible for the conduct of the negotiations. Prior to 1815 the President usually submitted to the Senate for confirmation the names of the commissioners designated to negotiate treaties, and at the same time advised the Senate of the general purpose of the negotiations. Since 1815 the practice has been otherwise, and it has been very exceptional to submit the nominations of negotiators to the Senate.17 As the mere entering into negotiations with a foreign Power amounts to a recognition of that Power as an independent state, the President is through this means enabled to extend recognition on his own authority alone. It was thus that the Kingdom of Hawaii was recognized in 1826, when Captain Jones was sent to negotiate a treaty with the king, while the provisional government was likewise recognized in 1893 by the negotiation of the treaty of annexation. In similar fashion, recognition was extended to Greece in 1837, Liberia in 1862, Korea in 1868, and to others. 18
A common method of according recognition to a new government brought into existence by the overturn of the old is by merely issuing instructions or new letters of credence to the diplomatic agent already accredited to the old government. The issuance of such instructions and credentials being strictly within the sphere of the President, he has the power also in this way to determine upon the legitimacy of such new governments and the proper time for extending recognition. The various changes in the governments of France illustrate this principle. The Empire of 1804 was recognized through the issuing of new credentials to Mr. Armstrong, the American minister at Paris, and similarly with respect to the Monarchy of 1814. When the Republic was proclaimed February 25, 1848, it was recognized only three days later by the American minister, Mr. Rush, through his delivery of an address of congratulation to the members of the new government. That action was without authority and might have
17 Crandall, Treaties: Their Making and Enforcement (2d ed.), 75-76.
18 Ecuador, 1838; Salvador, 1849. Paraguay, 1852; Orange Free State, 1871. See Sen. Doc. No. 40, op. cit., 5, 6, 7, 8, 12.