retained control. Secondly, it was pointed out that the existing régime was "based upon the negation of every principle of honor and good faith, and every usage and convention underlying the whole structure of international law; the negation, in short, of every principle upon which it is possible to base harmonious and trustful relations, whether of nations or individuals." It was declared that in the opinion of the Government, there could not be any common ground upon which it could stand with a power whose conceptions of international relations were so entirely alien to its own, and so utterly repugnant to its moral sense; and that there could be no mutual confidence or trust or even respect, if pledges were to be given and agreements made with a cynical repudiation of their obligations already in the mind of one of the parties. "We cannot recognize," he said, "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; whose spokesmen say that they sign agreements with no intention of keeping them."2 Shortly thereafter the French Government. announced hearty acquiescence in the principles so enunciated.3.

The importance of the views announced by Secretary Colby is believed to be due in large degree to the emphasis laid upon the impossibility of according recognition to a new government essentially incapable of responding to the international obligations of the State which it purports to represent.

1 In this connection he said: "The responsible leaders of the régime have frequently and openly boasted that they are willing to sign agreements and undertakings with foreign powers, while not having the slightest intention of observing such undertakings or carrying out such agreements. This attitude of disregard of obligations voluntarily entered into, they base upon the theory that no compact or agreement made with a non-Bolshevist government can have any moral force for them. They have not only avowed this as a doctrine, but have exemplified it in practice.

"Moreover, it is within the knowledge of the Government of the United States that the Bolshevist government is itself subject to the control of a political faction, with extensive ramifications through the Third Internationale, and that this body, which is heavily subsidized by the Bolshevist government from the public revenues of Russia, has for its openly avowed aim the promotion of Bolshevist revolutions throughout the world.

"Inevitably, therefore, the diplomatic service of the Bolshevist government would become a channel for intrigues and the propaganda of revolt against the institutions and laws of the countries with which it was at peace, which would be an abuse of friendship to which enlightened governments cannot subject themselves."

2 For evidence in support of these charges, see statement of Mr. Colby, Dept. of State, statement for the Press, No. 4, Aug. 18, 1920.

3 See communication from the French Embassy, Aug. 14, 1918, of which an English translation of the French text was given in Dept. of State, statement for the Press, No. 3, Aug. 18, 1920, together with statement of Secretary Colby concerning it.

ACTS NOT CONSTITUTING RECOGNITION

h

[§ 46

§ 46. Acts Falling Short of Recognition of New Govern

ments.

Throughout the life of a State there must exist, in theory, a government exercising supremacy over its territory and competent to deal with foreign affairs. In spite of internal conflicts for the reins of government, there must always be, in legal contemplation, a de facto authority with which foreign States may hold informal intercourse. The latter are obliged to apprise themselves as to what party or claimant is in actual control of various portions of the national domain.

During the conflict such States frequently have occasion to demand that special protection be accorded the persons and property of their respective nationals. Thus the United States reasonably asserts the right to call upon any local authority assuming to exercise actual control over a territorial area, to protect the persons and property of American citizens therein, and to respect rights accorded them by treaty, and that without prejudice to the determination of the ultimate question concerning recognition.1 After a State has come into being and has been accorded recognition, foreign powers which have entered into diplomatic relations with it may be said to retain the right to continue such inter

1

"Pending such de facto entrance into relations, the agents of the United States have the right to demand of any local authority assuming to exercise power and control, protection of American life and property from injury or damage and respect for all American rights secured by treaty and international law, and their so doing is to be held an act of necessity, without prejudice to the ulterior question of international relations as between one sovereign government and another, and equally without prejudice to our sovereign right to exact reparation from the responsible perpetrators of any wrong toward this Government, its citizens, and their interests." Mr. Hill, Acting Secy. of State, to Mr. Hart, American Minister at Bogota, Sept. 8, 1900, For. Rel. 1900, 410, Moore, Dig., I, 138.

See, also, Mr. Hay, Secy. of State, to Mr. Loomis, American Minister to Venezuela, telegram Oct. 23, 1899, For. Rel. 1899, 802, Moore, Dig., I, 153; Same, to Mr. Bridgman, Minister to Bolivia, March 14, 1899, MS. Inst. Bolivia, II, 113, Moore, Dig., I, 155, note; Mr. Gresham, Secy. of State, to Mr. Baker, Minister to Nicaragua, Aug. 15, 1893, For. Rel. 1893, 212, Moore, Dig., I, 239; Mr. Hay, Secy. of State, to the Secy. of the Navy, Oct. 2, 1899, 240 MS. Dom. Let. 353, Moore, Dig., I. 240; Mr. Knox, Secy. of State, to the Nicaraguan Chargé d'Affaires at Washington, Dec. 1, 1909, For. Rel. 1909, 455, 456; Mr. Knox, Secy. of State, to Mr. Furniss, Minister to Haiti, telegram, Aug. 10, 1911, For. Rel. 1911, 288; Mr. Knox. Secy. of State, to Mr. Wilson, Ambassador to Mexico, Feb. 28, 1913, For. Rel. 1913, 747

The message of President Wilson to the people of Russia through the Soviet Congress, and telegraphed in March, 1918, to the American Consul-General at Moscow for delivery, did not constitute recognition of the Soviet Government. Official Bulletin, II, No. 255, March 12, 1918. For the response of the Soviet Congress, March 14, 1918, see Official Bulletin, II, No. 262, March 20, 1918.

course through their existing agencies within its territory in spite of disturbances therein incidental to a contest for governmental control. The United States has frequently availed itself of this right which it has been able to exercise without expressly or impliedly recognizing as a government the parties with which communications have been held. What has prevented such a consequence has been the care taken to refrain from acts stamping communications with an official character.1 Thus there has been no formal presentation of credentials.

Conversely, the attempt to overthrow a de jure government, regardless of the success of the endeavor, does not necessarily prevent the existing agencies of the State established in foreign countries from continuing to exercise their diplomatic or other functions.2 The United States generally takes the position that continued and even official intercourse through such channels does not imply recognition of the particular government which

"In the case of new governments, however, a situation usually exists which does not arise in the case of new States. In the latter case special agents are, where there is occasion for them, employed, since the dispatch of a minister to a new State is one of the acts from which its recognition is necessarily implied; but, in the case of a new government, the question of recognition as a rule practically concerns only the powers that have already recognized the State and established regular diplomatic relations with it. There has thus arisen a certain right of diplomatic representation; and the sending of a new minister or the retention of an old one, while it implies continued recognition of the State, does not constitute a recognition of the new government, so long as there is no formal presentation of credentials and communications bear only an unofficial character." J. B. Moore, I, 235.

See, also, Mr. Seward, Secy. of State, to Mr. Culver, March 9, 1863, MS. Inst. Venezuela, I, 266, Moore, Dig., I, 235; Mr. Gresham, Secy. of State, to Mr. Baker, Minister to Nicaragua, Aug. 15, 1893, For. Rel. 1893, 212, Moore, Dig., I, 239; Mr. Hay, Secy. of State, to the Secy. of the Navy, Oct. 2, 1899, 240 MS. Dom. Let. 353, Moore, Dig., I, 240.

2 Mr. Hay, Secy. of State, to Mr. Loomis, Minister to Venezuela, Nov. 18, 1899, For. Rel. 1899, 809, Moore, Dig., I, 236.

Mr. Seward, Secretary of State, was persistent in his refusal to hold even unofficial intercourse with emissaries of governments not recognized by the United States. See Mr. Seward, Secy. of State, to Mr. Partridge, Minister to Salvador, Jan. 2, 1864, MS. Inst. American States, XVI, 399, Moore, Dig., I, 237; Same to Same, No. 34, Jan. 29, 1864, MS. Inst. American States, XVI, 415, Moore, Dig., I, 237. Nevertheless, Mr. Seward permitted Mr. Arroyo, described as "consul, acting as commercial agent, New York", appointed by the government of Maximilian in Mexico, which was not recognized by the United States, to attest invoices and manifests of vessels bound to Mexican ports from New York. "Such a commercial agent," Mr. Seward said, "can perform no consular act relating to the affairs of his countrymen in the United States." Communication to Mr. Romero, Mexican Minister, Aug. 9, 1865, Dip. Cor., 1865, III, 486-488, Moore, Dig., I, 238. See, also, Mr. Adams, Secy. of State, to the President, Jan. 28, 1819, Am. St. Pap. For. Rel. IV, 413. Moore, Dig., I, 132.

The attitude of the Navy Department on the question of salutes, pending an insurrection, is instructively set forth in Moore, Dig., I, 240, note, with respect to the action of Commodore O. F. Stanton, U. S. N., during a revolt in Brazil, October, 1893.

IN GENERAL

[8 47 may utilize those agencies as its own. Obviously no new credentials emanating from an unrecognized government would be received from individuals already in the diplomatic or consular service and who were disposed to accept the authority of the unrecognized régime.1

i

Recognition of Belligerency

47. In General.

(1)

In case an insurrection has attained a magnitude such that the mode and extent of operations by sea or land, and by whomsoever committed, are deemed sufficiently to concern the interests of a foreign State, it may in fact accord to the insurgents the rights of belligerents.2 Recognition of belligerency emanates from the political department of the State which yields it, and is commonly announced in a formal proclamation.4

3

By such action, the foreign State undertakes to treat both parties to the conflict as belligerents, and also to assume itself in relation to them the position of a neutral with the burdens and rights incidental to such a status.5

1 A diplomatic officer may prove to be unwilling to exercise his functions as such in behalf of a new government to whose methods and purposes he is opposed. See, for example, documents in Moore, Dig., I, 134-135, concerning the attitude of Mr. Barrozo, Portuguese Chargé d'Affaires at Washington, 1828, with respect to the government of Dom Miguel.

Upon the overthrow of the Pardo Government of Peru in July, 1919, through the occurrence of events which he deemed to be a violation of the constitution of that country, Dr. Tudela, the Peruvian Ambassador at Washington, handed over the archives of his embassy to the First Secretary thereof, and duly advised the Department of State. See Statement from Peruvian Embassy, New York Times, July 18, 1919.

2 Fuller, C. J., in the opinion of the Court in the case of The Three Friends, 166 U. S. 1, 63; also Dana's Wheaton, Dana's Note No. 15, Moore, Dig., I, 165; Lawrence B. Evans, Cases on Int. Law, 38, note.

The courts regard themselves as bound by the attitude of the political department in according recognition. United States v. Palmer, 3 Wheat. 610, 643; The Divina Pastora, 4 Wheat. 52, 63; The Nueva Anna, 6 Wheat. 193.

'Mr. Blaine, Secy. of State, to the Atty.-Gen., March 18, 1889, 172 MS. Dom. Let. 228, Moore, Dig., I, 201; Benedict, J., in The Conserva, 38 Fed. 431, 437, Moore, Dig., I, 201.

"The act of recognition usually takes the form of a solemn proclamation of neutrality which recites the de facto condition of belligerency as its motive. It announces a domestic law of neutrality in the declaring State. It assumes the international obligations of a neutral in the presence of a public state of war. It warns all citizens and others within the jurisdiction of the proclaimant that they violate those rigorous obligations at their own peril and cannot expect to be shielded from the consequences. The right of visit and search on the seas and seizure of vessels and cargoes and contraband of war and good

Recognition thus presupposes the existence of what is equivalent to war between the parties in opposition, and serves to clothe each with such rights with respect to the outside State as might be fairly claimed were the conflict being waged between two independent powers. These consequences are such as to confer commonly a distinct benefit upon the insurgents obtaining recognition, increasing proportionally the burden of the government opposing them. For that reason it is constantly maintained that a foreign State is not free thus to aid an insurgent cause, save under special conditions which relieve the former from a normal duty of restraint. Diplomatic discussions have, however, revealed a divergence of opinion as to what conditions so operate. American statesmen have been reluctant to admit that such action is legitimate save when necessity confronts the State making the concession.2 The United States has itself been cautious to avoid precipitation in according recognition,3 and has withheld such a concession whenever its own domestic policies were deemed to oppose such action.4

It may be doubted whether the precise conditions when recognition may be justly accorded by a foreign State are capable of nice statement. The bearing, however, of certain considerations, whether favorable or unfavorable to such action, ought not to remain obscure.

prize under admiralty law must under international law be admitted as a legitimate consequence of a proclamation of belligerency." President McKinley, Annual Message, Dec. 6, 1897, For. Rel. 1897, XVII.

The benefit consists in placing the insurgents on an equal footing as belligerents with the parent State, and in thus conferring upon them a status of political and moral value.

"Where a parent government is seeking to subdue an insurrection by municipal force, and the insurgents claim a political nationality and belligerent rights which the parent government does not concede, a recognition by a foreign State of full belligerent rights, if not justified by necessity, is a gratuitous demonstration of moral support to the rebellion, and of censure upon the parent government." Dana's Wheaton, Dana's Note No. 15. See, also, President Grant, special message, June 13, 1870, Moore, Dig., I, 194; President Grant, Annual Message, Dec. 7, 1875, For. Rel. 1875, I, ix, Moore, Dig., I, 196.

3 Mr. Cass, Secy. of State, to Mr. Osma, Peruvian Minister, May 22, 1858, Senate Ex. Doc. 69, 35 Cong., 1 Sess., 17, Moore, Dig., I, 182; Mr. Adams, American Minister at London, to Lord Russell, Sept. 16, 1865, Dip. Cor. 1865, I, 554, 557, in relation to the action of the United States with respect to the issue between Spain and its American colonies, Moore, Dig., I, 172; Mr. Gresham, Secy. of State, to Mr. Thompson, Minister to Brazil, Jan. 11, 1893, For. Rel. 1893, 99, Moore, Dig., I, 204.

4 See, for example, President Grant, Annual Message, Dec. 7, 1875, For. Rel. 1875, X; President Cleveland, Annual Message, Dec. 7, 1896, For. Rel. 1896, XXXII; President McKinley, Annual Message, Dec. 6, 1897, For. Rel. 1897, XVIII. The foregoing messages, in relation to the point here considered, are contained in Moore, Dig., I, 196-200.