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(recognized and unrecognized) are summarized in para- to recognition by implication. 78 Although the application
graph 3-15, infra. of this rule is clearest when the 'treaty is open for
6. Although the terms de facto and de jure frequently adherence by any state, the rule appears to apply regard-
are used in one or more of the senses mentioned above less of whether the treaty is open for general adherence.
when recognition is discussed, it appears there is little if However, in the case of a closed multilateral treaty negoti-
any difference in legal effect between recognition that is ated with a small number of known parties, a cogent argu-
labeled "de jure recognition" and recognition that is ment for implied recognition could be made by analogy to
labeled "de facto recognition." 71 In current United implied recognition in the case of bilateral treaties.
States practice, when the Government extends recogni- d. The practice of the United States has consistently
tion it is recognition per se, not de facto recognition. 72 afliumed that participation in a multilateral treaty does not
3-11. Actions Constituting Recognition. a. As men- accord recognition to entities that the U.S. has not other-
tioned earlier, 73 recognition is fundamentally a matter of wise recognized. 79 The United States has also taken the
intent, and may be either expressed or implied. Thus far, position that in such cases no disclaimer is necessary in
the discussion has dealt primarily with express recogni- order to avoid recognition. 80 Further, the United States
tion. Under what circumstances may recognition be im- contends that, within the framework of a general
plied? The general test is that recognition can be implied multilateral treaty, it can have dealings with a nonrecog-
only from acts that unequivocally show the intention of a nized regime without thereby recognizing that regime,
government to recognize a state or a regime. 74 More and that any possible implication can be negated by an ap-
specifically, it has been said that recognition of a state or propriate disclaimer. 81 When acting as depositary for a
government may be implied legitimately only on three oc- multilateral treaty, the United States submits that it can
casions: (1) the conclusion of a bilateral treaty between receive and circulate communications from regimes it
the recognizing state and the unrecognized state, such as a does not recognize without thereby extending implied
treaty of commerce and navigation, regulating more or recognition. 82
less permanently relations of a general character between e. It is apparent that entering into diplomatic discus-
the two states; (2) the formal initiation of diplomatic rela- sions (even at a very high level) does not imply recogni-
tions; and (3) the issue by the recognizing state of a certifi- tion. The current relations of the United States and the
cate to a consul of the unrecognized state, accepting his of- Peoples' Republic of China afford and excellent example
ficial character and authorizing him to fulfill his consular of this principle in operation. 83
duties. 75 3-12. Existence or Nonexistence of Duty to Recognize.
6. As previously mentioned, the implication of recog- a. Authority exists for the proposition that international
nition arising from a bilateral treaty can be negated by an law requires the recognition of new states and new
appropriate disclaimer. 76 The overriding question is al- governments that meet the necessary objective criteria. 84
ways whether recognition was intended. In a case of Some states have purported to carry out this requirement
asserted implied recognition based upon entry into a in their policies concerning recognition. 85 It appears,
bilateral treaty, the answer to this question of intention however, that there has been in~~cient
state practice of
will depend largely upon the subject matter of the treaty this asserted requirement to establish it as a rule of
(or other agreement) and the circumstances under which customary international law. Indeed, the Restatement
it was concluded. In general, the more formal the agree- flatly concludes that no such requirement exists. 86 The
ment, the more comprehensive its subject matter, the practice of the United States has been to view recognition
more it involves the establishment of political relations, as being within the sound discretion of the recognizing
and the longer its intended duration, then the greater the government, i.e., as being a privilege and not a right of the
presumption of recognition to which it would give rise. 77 unrecognized state or regime. 87
c. Participation in a multilateral treaty does not give rise
6. There may, however, be a duty imposed by interna-
tional law to not recognize a state or regime when the
71. See Cochran, De Facto and De Jure Recognition: Is There a
Difference?,62 Am. J. Int'lL. 457,459-60 (1968). Butsee Lauterpach~, minimum criteria for recognition are not satisfied. The
supra note 37, at 343-46, suggesting that (1) a government recognized -- -
dejure is entitled, as against the de facto government, to property of the 78. See Lauterpacht, supra note 37, at 374.
state located abroad, and (2) representatives of a government recog- 79. Hearings, supra note 74, at 16.
nized only de facto may not be entitled to full diplomatic immunities. 80. Id.
72. 2 Whiteman, supra note 16, at 3. 8'. Id.
73. See text at notes 33-36, supra. 82. Id. at 16-17.
74. See Opinion of the Legal Adviser, U.S. Dep't of State, Hearings 83. See Schwebel, Is the "Recognition" of Governments Obsolete?,
on the Nuclear Test Ban Treaty before the Senate Committee on Foreign Washington Post, Feb. 23, 1972, 5 A, at 16, col. 3.
Relations, 88th Cong., 1st Sess., at 15-17 (1963) [hereinafter cited as 84. See Lauterpacht, supra note 37, at 32-33, 50-51, 62-63, 73.
Hearings]. 8s. See notes 43-48, supra, and accompanying text.
75. See Oppenheim, supra note 2, at 147-48. 86. Restatement, supra note 2, at 5 99(1). For other authorities
76. See note 35, supra. supporting the Restatement position, see note 46 supra.
77. See Chen, supra note 39, at 192-94. 87. See Dep't of State memorandum cited supra note 54.