895.01/6–148
Memorandum by Legal Adviser (Gross) to the Director of the Office of Far Eastern Affairs (Butterworth)
Recognition of the New Korean Government.
Reference is made to your memorandum of May 25, 1948, in which you raise several questions relative to the possible forms of recognition of the new government of Korea and the legal implications thereof.
In replying to your first question, it is necessary to divide the subject of recognition into two parts, that is, recognition of a state, and recognition of a government thereof. In spite of statements of intent to free the enslaved people of Korea from Japanese domination and declarations to the effect that Korea is a liberated country, no formal action has been taken to effect its permanent separation from the Japanese [Page 1212] Empire. Therefore, the first step would seem to be the recognition of an independent state of Korea. This recognition by the United States coupled with recognition by other major powers will contribute to the establishment of Korea as an international person. The recognition of the state should not be limited but should be a full recognition of Korea as a sovereign independent state. On the question of recognition of the government, under international law recognition may take almost any form which is considered politically expedient by the recognizing state. With respect to the United Nations and its activities in connection with Korea, it is not believed that such activities restrict the right of the United States to grant recognition, either full or limited, to the new government of Korea which will be created as a result of the UN sponsored election. It is possible, therefore, for the United States to grant full recognition to the new government or to grant a limited recognition pending subsequent action by the United Nations. The former is to be preferred, from a legal standpoint, for the legal effect of de facto recognition is somewhat nebulous.
United States policy in respect of recognition, set forth in a paper
of the Policy Planning Staff (PPS 24) dated March 15, 1948 and
subsequently approved, outlines certain criteria, relating to the
character of the government under consideration, which should be
applied in a given case according to United States national
interest. Those are:
Generally speaking, the extent to which the above criteria are met has been taken into consideration in the past in reaching a decision as to whether recognition should be de jure or de facto. The argument for de jure recognition is strengthened the more nearly the criteria are fulfilled.
If it should be decided to adopt a limited recognition, the form might be as follows:
- a.
- full recognition of the state of Korea as a sovereign independent state; and
- b.
- de facto recognition of the government of Korea.
Recognition in the form contemplated in the previous paragraph would not ordinarily be followed by the prompt establishment of a diplomatic mission and the accreditation of an ambassador to the new government since such acts are usually associated with de jure recognition [Page 1213] of the government with whom such representation is established. It would be consistent with de facto recognition to establish in Korea a United States mission headed by a special representative provided it is not called a “diplomatic mission” and the representative is not designated a “minister” or an “ambassador”.
While there is somewhat of a conflict of views on whether a de facto government may conclude agreements of the nature referred to in your question 3(b), the better view seems to be that it may. In any event, the question is more or less academic for if we ultimately accord the government de jure recognition, such recognition will have retroactive effect and will validate any acts done by the government from the date of its inception. In the event that we ultimately recognize de jure another government in Korea which does not have continuity from the de facto government (a change of government by election or other means including revolution would not necessarily preclude continuity) we should be in a position to demand of that government, as a condition of granting recognition, that it agree to carry out the commitments of the de facto government with which the agreements were made.
It will be possible for the Commanding General, United States Army Forces in Korea, to retain jurisdiction over occupation personnel and sufficient controls over transportation and other facilities to insure the successful execution of the withdrawal plan. The question of what authority he retains should be outlined in any agreement effected with the Korean Government. Even in the absence of an agreement, the Commander may retain whatever controls he does not relinquish to the Korean Government. It is possible to have a recognized Korean Government and still maintain some occupational authority as is now the case in Austria. Care must be taken to include necessary language in any agreement or in any unilateral relinquishment of occupational authority.