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de facto
.
43
Recognition of the government implies recognition
of the state, but it does not work the other way.
It should be noted that recognition of a government has no relevance
to the establishment of new persons in international law. Where it is
significant is in the realm of diplomatic relations. If a government is un-
recognised, there is no exchange of diplomatic envoys and thus problems
can arise as to the enforcement of international rights and obligations.
Although the effective control doctrine is probably accepted as the most
reliable guide to recognition of governments, there have been other the-
ories put forward, the most prominent amongst them being the Tobar
doctrine or the so-called doctrine of legitimacy. This suggested that gov-
ernments which came into power by extra-constitutional means should
not be recognised, at least until the change had been accepted by the
people.
44
This policy was applied particularly by the United States in re-
lation to Central America and was designed to protect stability in that
delicate area adjacent to the Panama Canal. Logically, of course, the con-
cept amounts to the promotion of non-recognition in all revolutionary
situations and it is, and was, difficult to reconcile with reality and political
consideration. In American eyes it became transmuted into the Wilson
policy of democratic legitimacy. Where the revolution was supported by
the people, it would be recognised. Where it was not, there would be no
grant of recognition. It was elaborated with respect to the Soviet Union
until 1933, but gradually declined until it can now be properly accepted
merely as a political qualification for recognition to be considered by the
recognising state.
45
A doctrine advocating the exact opposite, the automatic recognition
of governments in all circumstances, was put forward by Estrada, the
Mexican Secretary of Foreign Relations.
46
But this suffers from the same
disadvantage as the legitimacy doctrine. It attempts to lay down a clear
test for recognition in all instances excluding political considerations and
43
See e.g. Whiteman,
Digest
, vol. II, p. 168.
44
See e.g. Mugerwa, ‘Subjects’, p. 271, and 2 AJIL, 1908, Supp., p. 229.
45
See e.g. G. H. Hackworth,
Digest of International Law
, Washington, DC, 1940, vol. I,
pp. 181 ff. See also 17 AJIL, 1923, Supp., p. 118; O’Connell,
International Law
, pp. 137–9,
and Whiteman,
Digest
, vol. II, p. 69.
46
See e.g. 25 AJIL, 1931, Supp., p. 203; P. Jessup, ‘The Estrada Doctrine’, 25 AJIL, 1931, p. 719,
and Whiteman,
Digest
, vol. II, p. 85. See also Talmon, ‘Recognition of Governments’, p. 263;
Chen,
Recognition
, p. 116; O’Connell,
International Law
, pp. 134–5, and C. Rousseau,
Droit
International Public
, Paris, 1977, vol. III, p. 555.
458
i n t e r nat i o na l l aw
exigencies of state and is thus unrealistic, particularly where there are com-
peting governments.
47
It has also been criticised as minimising the dis-
tinction between recognition and maintenance of diplomatic relations.
48
The problem, of course, was that recognition of a new government that
has come to power in a non-constitutional fashion was taken to imply
approval. Allied with the other factors sometimes taken into account in
such recognition situations,
49
an unnecessarily complicated process had
resulted. Accordingly, in 1977 the United States declared that:
US practice has been to de-emphasise and avoid the use of recognition
in cases of changes of governments and to concern ourselves with the
question of whether we wish to have diplomatic relations with the new
governments . . . The Administration’s policy is that establishment of rela-
tions does not involve approval or disapproval but merely demonstrates
a willingness on our part to conduct our affairs with other governments
directly.
50
In 1980, the UK government announced that it would no longer accord
recognition to governments as distinct from states.
51
This was stated to be
primarily due to the perception that recognition meant approval, a per-
ception that was often embarrassing, for example, in the case of regimes
violating human rights. There were, therefore, practical advantages in not
according recognition as such to governments. This change to a policy of
not formally recognising governments had in fact taken place in certain
47
See e.g. Peterson, ‘Recognition’, p. 42, and C. Rousseau, ‘Chroniques des Faits Interna-
tionaux’, 93 RGDIP, 1989, p. 923.
48
Warbrick, ‘New British Policy’, p. 584.
49
For example, the democratic requirement noted by President Wilson, President Rutherford
Hayes’ popular support condition and Secretary of State Seward’s criterion of ability to
honour international obligations: see statement by US Department of State, DUSPIL, 1977,
pp. 19, 20. See also
Third US Restatement
, para. 203, note 1. The Organisation of American
States adopted a resolution in 1965 recommending that states contemplating recognition
of a new government should take into account whether that government proposes to hold
elections within a reasonable time, 5 ILM, 1966, p. 155.
50
DUSPIL, 1977, p. 20. See also DUSPIL, 1981–8, vol. I, 1993, p. 295. Note that Deputy
Secretary of State Christopher stated in 1977 that unscheduled changes of government
were not uncommon in this day and age and that ‘withholding diplomatic relations from
these regimes after they have obtained effective control penalises us’,
ibid.
, p. 18. See also,
as regards Afghanistan and the continuation of diplomatic relations, 72 AJIL, 1978, p. 879.
Cf. the special circumstances of the recognition of the government of China, DUSPIL,
1978, pp. 71–3 and
ibid.
, 1979, pp. 142 ff. But cf. Petersen, ‘Recognition’.
51
See 408 HL Deb., cols. 1121–2, 28 April 1980. See also Symmons, ‘United Kingdom Abo-
lition’, p. 249.
r e c o g n i t i o n
459
civil law countries rather earlier. Belgium
52
and France
53
appear, for ex-
ample, to have adopted this approach in 1965. By the late 1980s, this
approach was also adopted by both Australia
54
and Canada,
55
and indeed
by other countries.
56
The change, however, did not remove all problems, but rather shifted
the focus from formal recognition to informal ‘dealings’. The UK an-
nounced that it would continue to decide the nature of dealings with
unconstitutional regimes:
in the light of [an] assessment of whether they are able of themselves to
exercise effective control of the territory of the state concerned, and seem
likely to continue to do so.
57
The change, therefore, is that recognition of governments is abolished
but that the criterion for dealing with such regimes is essentially the same
as the former test for the recognition of governments.
58
In that context,
regard should also be had to the phrase ‘of themselves’.
59
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