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government have been severed, 106 and this apparently is the recognition only if the recognized state no longer
the rule even in cases in which the foreign government meets the minimum criteria necessary for recognition. 115
has not been recognized by the United States. 107 Similarly, the Restatement sharply limits the ability or
However, if the act of the unrecognized foreign govern- right of the recognizing state to withdraw its recognition of
ment purports to destroy title to either real or personal a government, permitting such withdrawal only Zone of
property located outside its territorial jurisdiction, then the three tests is satisfied: (1) the withdrawal involves recog-
courts of a nonrecognizing state will probably not give nition of a successor government; (2) the previously
effect to such an act, especially if the property involved is recognized government is no longer functioning; or (3)
within the territorial jurisdiction of the nonrecognizing the recognizing state announced that the recognition of
state. 108 the government in question was tentative. 116
(2) It has been held that the recognition of a revolu- b. Withdrawal of recognition by any state is a concept
tionary government is retroactive and validates all acts of not known to have been used in modem times. 117 There
that government from the commencement of its exist- being a dearth of state practice to support any asserted rule
ence. 109 Such recognition binds conclusively the courts regarding withdrawal, there is doubt as to the authority of
of the recognizing state. 110 However, when the executive the rules set forth in the Restatement. Moreover, the
branch of the Government has adopted a policy of non- limitations imposed by those rules appear to conflict with
recognition of a specific foreign decree (including those of the admittedly political nature of the decision to extend
a recognized government) regarding property that was not recognition to a state or government. 118 In any event, it
within the territory of the foreign state at the time of the seems likely that national courts would give effect to a
decree in question, U.S. courts have refused to give effect decision by the political branches of government to with-
to such a decree. 111 Likewise, the courts have refused to draw recognition. 119
give extraterritorial effect to the decrees of subsequently 3-16. Continuity of States and Change of Government.
recognized governments, when those decrees are contrary a. In much the same sense in which corporations have
to the public policy of the United States. 112 perpetual duration, states also have perpetual exist-
(3) The retroactivity principle has generated con- ence. 120 Once a state has come into beii, it continues
siderable confusion in both American and British until extinguished through absorption by another state or
courts. 113 Basically, however, retroactivity of recognition by dissolution. 121 A government, on the other hand, is
operates to validate acts of a de facto government that simply the instrumentality through which a state func-
subsequently has become a de jure government, and not tions. 122 Changes of government, whether in the form of
to invalidate acts of a previous de jure government. 114 the government (as from a monarchy to a republic) or in
3-15. Termination or Withdrawal of Recognition. a. the head of the government, do not affect the continuity
The Restatement declares that the binding effect of the or identity of the state as an international person. 123
recognition of a state can be terminated by withdrawal of b. Traditionally, a mere change of government in an
existing state has no legal effect upon the treaty and other
106. Id. international obligations of state; it remains bound by all
107. See Salinofl& Co. v. Standard Oil Co. of New York, 262 N.Y.
220, 186 N.E. 679 (1933), giving effect to confiscatory decrees of the such obligations. 124 The rule to be applied when there is a
then unrecognized Soviet government and the seizure of oil lands change in the state itself, i.e., a change of sovereignty, is
thereunder. less clearly established, two conflicting theories having
108. See Petrogradsky M.K. Bank v. National Ciw Bank of New been advanced.
York, 253 N.Y. 23, 170 N.E. 479 (1930), wherein the court refused to (1) The Theory of "Universal" Succession. This
give effect to decrees of the then unrecognized Soviet government na-
tionalizing Russian banks, where the result of giving effect to such theory is based on the Roman law concept of succession
decrees would have been to divest plaintiff Russian bank of funds on after death, and its application results in the view that the
deposit with defendant New York bank. successor state inherits all the treaties, debts, and con-
109. Oepn v. Central Leather Co., 246 U.S. 297 (1918); U.S. v. tracts of its predecessor. 125
Pink, 315 U.S. 203 (1942).
110. US. v. Pink, supra note 109. 115. Restatement, supra note 2, at 5 96(1).
11 1. See Latvian Stale Cargo and Passenger S.S. Line v. McGrath, 116. Id. at 8 96(2).
188 F.2d 1000 @.C. Cir. 1951); Estonian State Cargo and Passenger 117. Leech, supra note 28, at 825.
S.8. Liner v. U.S., 116 F. Supp. 447 (1953) (both cases dealing with 116. Friedmann, supra note 20, at 199.
Soviet nationalization decrees). 119. See Meeker, Recognition and the Restatement, 41 N. Y.U.L.
112, See Republic of Iraq v. First National City Bank, 353 F.2d (2d Rev. 83, 90 (1966).
Cir.1965), cert. denied, 382 U.S. 1027 (1966). 120. See The Sapphire, 78 U.S. (11 Wall.) 164 (1871); Lehigh
113. See Leech, supra note 28, at 789-90. Valley R. Co. v. State of Russia, 21 F.2d 396 (2d Cir. 1927), cert
114. Guaran@ Trust Co. v. U,S., 304 U.S. 126 (1938) (rejecting denied, 275 U.S. 571 (1927).
argument that valid judgments obtained in United States by Provisional 121. 1 Hackworth, supra note 29, at 127.
Government of Russia, rewgnizedby United States as the dejure repre- '22. Id.
sentative of the Russian State, became invalid upon subsequent recog- 123. Id.
nition of Soviet Government as the successor of prior governments of 124. Friedmann, supra note 20, at 200.
Russia). 125. Id. at 432.