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recognize. 58 The United States also has taken the position Italian-Ethiopian War when the United Kingdom recog-
that the adherence of nonrecognized states to a nized the King of Italy as the de facto sovereign of
multilateral treaty is without legal significance. 59 Ethiopia but still extended de jure recognition to the
d. United States policy in recent years has tended to de- Government of Haile Selassie. 65 The United States prac-
emphasize the importance of recognition. Indeed, it has tice has sought to avoid such questions of legitimacy at the
been suggested that the United States may have virtually time of recognition by considefig the government de fac-
abandoned the act of recognition altogether. 60 That to to be the government de jure. 66 Therefore, except on
perhaps is an overstatement, yet recent developments in two occasions, 67 the United States has not distinguished
this country's relations with the Peoples' Republic of between the kinds of recognition it extends.
China at least demonstrate that extensive dealings can (3) As a Substitute for Formal Recognition. The de
take place even in the absence of recognition. Moreover, facto recognitions described above are intentional recog-
in the Panamanian and Peruvian coups of 1968, the nitions by one government or another. 68 However, one
United States took the position that the occurrence of a government may withhold recognition from another, yet
coup did not necessarily mean that a new act of recogni- conduct transactions with that government.. The govern-
tion would be essential to ongoing relations. Instead, the ment which is withholding recognition is sometimes said
government adjusted relations according to the stage of under the circumstances to have recognized de facto the
the coup, the stability of the regime, and the national in- other government. It has been contended that such con-
terests of the United States. The ambassadors to these duct is an implied recognition, with as much weight in in-
countries were not withdrawn, and "full" relations were ternational politics as any express recognition. 69
resumed without any formal acts, such as presentations of
However, governments in practice do not stumble into
credentials. 61 recognition; it is a deliberate political act. Thus, they see
3-10. De Facto and De Jure Recognition. a. When used nothing inconsistent in withholding recognition due to the
in connection with problems of recognition, the terms de failure of the other government to meet some subjective
facto and de jure may have several different meanings. criterion, and at the same time conducting a minimum of
The context in which they are used must be noted transactions with that government.
carefully to determine precisely what is meant. They are
(4) By Courts in Deciding the Effect to be Given the
used principally in the following four meanings: 62 Acts of Nonrecognized Regimes. The term de facto has
(1) The Prospects for Permanency of the State or
Government Recognized. De facto recognition is some- been used by national courts and international tribunals in
times extended to a government whose control is still deciding the legal effect to be given the acts of nonrecog-
tenuous, or to a state whose independence is not yet en- nized regimes that are in actual control of that state. For
example, in the Tinoco claims arbitration Chief Justice
tirely secure. De jure recognition would follow this type of Taft, serving as arbitrator of a dispute involving Great Bri-
de facto recognition once the precariousness of the situa-
tain and Costa Rica, characterized the Tinoco regime as
tion implied in the de facto recognition had passed. 63
the de facto government of Costa Rica, with the result that
(2) The Legitimacy of the State or Government. De the acts of that regime were given binding effect. The con-
facto recognition is sometimes extended to states or
clusion that the Tinoco regime was the de facto govern-
governments where a question of legitimacy exists under
ment of Costa Rica was not altered by the fact that the
either international or municipal law. 64 De jure recogni- United States, Great Britain, and other leading countries
tion is withheld from the usurper until it has legally vali- had not recognized that regime. 70 Other decisions dealing
dated its position, usually by conducting free elections. An with the effect given to acts of states and governments
example of the use of such recognition occurred in the
65. SeeHaile Selassie v. Cable and Wireless, Ltd. (19391 chap. 182.
58.' For examples of this practice, see id. at 176-77. subsequent!^, the United hgdom granted retroactive de jure recogni-
59. See Id. at 177-78, giving examples but indicating this practice tion to the King of Italy while the aforementioned case in the course of
lacks consistent application. being appealed.
60. See Leech, supra note 28, at 810. 66. For early American practice in this regard, see Hyde, supra note
61. ThiS shift toward a "modified Estrada Doctrine" is referred to 2, at 148-97, particularly the citations contained therein; Goebel, The
in Leech, supra note 28, at 813. Recognition Policy of The United States (1 91 5);'and Newman, Recogni-
For a concise statement of the Estrada Doctrine, see note 52 supra. The tion of Governments in The Americas (1947).
Department of State's approach in the Panamanian and Peruvian cases 67. De fact0 recognition was extended to the Carranza Govem-
seems entirely consistent with the later announcement by President ment of Mexico in 1915. De jurerecognition did not follow until 1917.
Nixon, pursuant to his "Low Posture" doctrine, that the United States Similarly, in 1948 de facto recognition was extended to the Provisional
will deal with governments as it fmds them. Government of the new state of Israel. De jure recognition followed in
62. As to varying uses of the term de facto, see Restatement, supra 1949.
note 2, at 8 96, Reporter's Note 2. 68. Brierly correctly points out that de facto and dejure describe the
63. Oppenheim, supra note 2, at 135. thing recognized, and not the act of recognition. Brierly, supra note 2, at
64. This type of de facto recognition is criticized in Brierly, supra 139.
note 2, at 139, and by Moore, Fifty Years of International Law, 50 69. Moore, supra note 46, at 166.
Harv. L. Rev. 395 (1937). 70. Tinoco Claims, supra note 50.