Foreign Relations of the United States, 1948, The Near East, South Asia, and Africa, Volume V, Part 2

701.67N11/6–448

Memorandum by the Acting Secretary of State to President Truman ¹

secret

Washington, May 26, 1948.

Request of Israel for Exchange of Diplomatic Representatives

1. The Secretary of State has received a request from Moshe Shertok,² Foreign Secretary in the Provisional Government of Israel, to approve the establishment of an Israeli Legation in the United States, with Eliahu Epstein as Minister. The same request expressed the hope that the United States would soon establish an American Legation in Israel and send a representative to Tel Aviv with the status of Minister.

2. The President on May 14, 1948 stated that the United States recognized “the provisional government as the de facto authority of the new State of Israel”. The effect of the President’s announcement was that: (1) the United States recognized the existence of the State of Israel as a new state among the community of nations, and (2) the United States recognized the “provisional government” of Israel as the de facto authority in control of the new state. This latter expression did not constitute a recognition of the “provisional government” as the government de jure of Israel. It simply acknowledged that the “provisional government” was actually in control of the new state, and it implied that the United States would deal with this de facto authority concerning matters of mutual interest to Israel and the United States.

3. The establishment of legations and the exchange of accredited diplomatic representatives between Israel and the United States would constitute recognition by the United States of the “provisional government” as the government de jure of Israel. (Oppenheim, International Law, Vol. 1, p. 143). The visit of Dr. Chaim Weizmann would effect recognition de jure, unless the President were to make perfectly clear that Dr. Weizmann’s reception did not constitute recognition de jure. Such recognition is, of course, dependent upon intention. (Oppenheim, International Law, Vol. 1, p. 140).

4. Whether or not the United States is to grant recognition de jure to the “provisional government” of Israel is entirely a matter of policy, to be determined according to the interests of this Government. (Hackworth, Digest of International Law, Vol. 1, p. 161). No legal requirements remain to be met, nor are there any legal reasons calling affirmatively for recognition de jure.

5. The differences in effect between recognition de jure of a government and recognition of a provisional regime as the de facto authority in a state are not of great legal importance in the case of Israel. The principal difference is a political difference of prestige; a government recognized de jure naturally enjoys much greater prestige, with all the political and psychological consequences of prestige.

A government recognized de jure is treated in the recognizing state as the authority entitled to control and dispose of state property, while a “government” recognized only de facto has been held not entitled to the assets of the state which it controls. (Haile Selassie v. Cable and Wireless Ltd. (No. 2), [1939] Ch. 182).

Although state property is entitled abroad to the benefits of sovereign immunity, the representatives of a government recognized only de facto are not accorded personal diplomatic immunity. Recognition by the United States of the “provisional government” as the de facto authority in Israel would, of course, permit practical working relationships between that regime and the Government of the United States, to be carried on by special representatives of the “provisional government” and the United States.

6. United States policy in the past, with respect to the according of recognition de jure, does not furnish any consistent line of precedents. (See Hackworth, Digest of International Law, Vol. 1, pp. 222–318). The element of time between the establishment of a regime and its recognition by the United States has varied greatly. For example, the interval in the case of the Soviet government of Russia was sixteen years, while in the recent case of Pakistan recognition de jure was granted on the same day as the new government and state of Pakistan came into existence. The ascertainment of boundaries of the state controlled by a new regime has never been regarded as determinative in according recognition de jure to the regime. The element of constitutionality in the creation of a regime has sometimes (in the Wilson administration and occasionally thereafter) been mentioned as a criterion for the granting or withholding of recognition de jure. More consistently, mention has been made in official United States pronouncements of (1) actual control by a regime over the state, (2) popular acquiescence and stability, (3) willingness and ability of the new regime to discharge the state’s international obligations.

It can only be concluded from an examination of the precedents in American history that none of the above “standards” have governed United States policy on recognition de jure. From time to time one or more of the “standards” in varying combinations have been invoked to justify a result grounded actually in policy, national interest, or expediency.

[Robert A. Lovett]

1. This memorandum was a copy of a memorandum of May 24 from the Legal Adviser to Mr. Lovett, except that some minor deletions were made in the third paragraph of the earlier memorandum (701.67N11/5–2448).
2. See telegram MH98 of May 19, p. 1012.