.‘V

 

INTERNATIONAL LAW, POLITICS, AND
THE RECOGNITION OF REVOLUTIONARY
GOVERNMENTS

Thesis {or H19 Degree of M. A.
MICHIGAN STATE UNIVERSITY

Alvin Magid
1960

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INTERNATIONAL LAW, POLITICS, AND THE RECOGNITION
OF REVOLUTIONARY GOVERNMENTS

BY

Alvin Magid

AN ABSTRACT

Submitted to the College of Business and Public Service
Michigan State University in partial fulfillment of
the requirements for the degree of

MASTER OF ARTS
Department of Political Science

1960

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ABSTRACT

A study of the recognition problem might enable the student
of international affairs to evaluate the role of law and a presumed
legal framework in the activities of states.

A consideration of the question, 'Is It Law~?', involving three
factors, the 'sPiritual' (basic consensus among the states),
'institutional' (development of coercive supranational institutions),
and "real political' (contemporary East-West conflict), points to the
primitive, weak, and decentralized character of International Law. 1
The political nature of recognition supports this conclusion.

The refusal of states to relinquish discretion in recognition
illustrates the limited capacity of International Law. To ensure the
political nature of the recognition act, they have historically relied
upon three criteria, legitimism, willingness and ability to fulfill

2

international obligations, and de factoism. Only de factoism

 

 

approaches an objective, 'legalistic‘ principle; however, the refusal
of states to admit rights to, and duties of, recognition has reduced
it, too, to a political instrument.

In the Twentieth Century, even while creating certain inter-
national institutions, the states have been careful not to grant them
instruments of coercion. Sovereignty has been written into their
constitutions. Acting as sovereigns, the states have denied to these
organizations a function in recognition. Collective, legal recog-

nition has been categorically rejected.3

 

1Chapter I.
2Chapters 11 and III.

3 Chapter IV.
ii

A study of recognition shows that law can assume only a weak
role in an era of great ideological, military, and political conflict.
Even in a relatively stable world environment it is doubtful whether
states will voluntarily strengthen the international rule of law.

The history of recognition demonstrates that, whatever the circurn-
stances, states only reluctantly, if ever, acquiesce in International

Law as a coercive agent.

iii

INTERNATIONAL LAW, POLITICS, AND THE RECOGNITION
OF REVOLUTIONARY GOVERNMENTS

By

Alvin Magid

A THESIS

Submitted to the College of Business and Public Service
Michigan State University in partial fulfillment of
the requirements for the degree of

MASTER OF ARTS

Department of Political Science

1960

ACKNOWLEDGMENTS

I wish to thank Professor Wesley R. Fishel, Chairman of
the Thesis Committee, for his guidance and advice. Professors
Kwan-wai So and Alfred G. Meyer and Mr. Donald W. Urquidi
contributed valuable suggestions and criticism throughout this
undertaking. I also wish to express my appreciation to the staffs
of the Inter-Library Loan Division of the Michigan State University
Library, the International Law Section of the University of Michi-
gan's Law Library, and the Law Library at the State Capitol in
Lansing for their efforts in assisting the author to compile his
materials. Finally, I very gratefully acknowledge the encourage-
ment, sympathetic patience, and typing skills of my wife, Sally
Joy Magid.

:3 z}: 3:: a}: >',< :}< :1}: :1: >:< 3::

TABLE OF CONTENTS

CHAPTER Page
I INTRODUCTION . . ..... . .......... l

A. International Law: Is It 'Law?' ....... l

1. 'Institutional' . . ........... . 4

2. 'Spiritual' . ............... 10

3. 'Real Political' . ............ 13

Conclusion ........... . . . . . . . 17

B. Recognition of Revolutionary Governments:

 

Law and Politics . . . ....... . . . . 19
1. Definition and Purpose of Recognition . 21
2. Combined Legal-Political Recognition . Z4
3. Criteria for Recognition . . . . . . . . 25
4. as Facto and 123 Jure Recognition . . . 27
Conclusion .................. 30

II THE RECOGNITION OF REVOLUTIONARY
GOVERNMENTS IN AMERICAN HISTORY:

(A) THE NATION IN FLUX: 1793-1880 . . . . 32
A. DgFactoism . ........... . . . . 32
B. Legitimism . . . . . .......... . 49
C. International Obligations .......... 55

Conclusion ........ . . ...... . 58

III THE RECOGNITION OF REVOLUTIONARY
GOVERNMENTS IN AMERICAN HISTORY:
(B) A NEW ROLE: 1917-1960 e e e e e e e o o 60

A. The Soviet Case . . . . . . ....... . 61

vi

TABLE OF CONTENTS - Continued

CHAPTER Page

1. Economics and the Great Depression . . 68

2. The Far East ......... . . . .. . 7O
3. Recognition ................ 73
B. The Argentine Case ' ............. 76
C. The Chinese Case . . . . ....... . . . 81
l. Moral Considerations . ..... . . . 82

2. Political and Strategic- Military Con-
siderations.............. 85
Conclusion ..... 91

IV RECOGNITION AND INTERNATIONAL ORGANI-
ZATION (REGIONAL AND WORLD-WIDE) . . . 92

A. The Latin American States . . . . . . . . . . 92

B. The League of Nations . ........... 102

l. Post-World War I ..... . ...... 104
2.TheSovietCase.............106

C. The United Nations. . . . . . ........ 110

l. The Norwegian Proposal ......... 111

2. The Indonesian Case . ........ . 113

3. The Palestine Case . . ..... . . . . 116

4. The Chinese Case ........ . . . . 118

Conclusion . . . ............ . . . 123

V CONCLUSION ................ . . . . 124
BIBLIOGRAPHY . . . . ....... . ........ . . . . 127

vii

CHAPTER I
INTRODUCTION

The problem of the recognition of revolutionary governments
has undoubtedly been significant historically in international relations.
Perhaps more significant, however, has been its relevance to a
broader question of the relative positions of law and politics on the
international plane. A study of the recognition problem may enable
the student of international affairs to evaluate the role of law and a
presumed legal framework in the activities of states. But the actions
of states in the narrower sphere of international recognition cannot
be properly evaluated without a prior understanding of the broader
problem and its implications. Thus, for example, a clearer under-
standing of the contemporary Chinese recognition question may be
facilitated by an appreciation of the nature of international law.

While this writer will not attempt to evaluate present and formu-
late future policies in the current issue, he will at least seek to cut
through a smokescreen of misinterpretation and confusion, in the h0pe
that a clearer understanding of the problem of recognition will have
been fostered. As recognition problems are perennial in the lives
of states, the emphasis will be on their recurring rather than their

present character.

A. International Law: Is It 'Law?‘

 

States historically have at least conceded the existence of inter-

national law. Reaffirmations have been made periodically in municipal

court decisions, national constitutions, and in the charters and
statutes of various international organizations. Chief Justice

John Marshall could assert shortly after the founding of the American
Republic that

the law of nations is the great source from which we derive
those rules . . . which are recognized by all civilized and
commercial states throughout Europe and America. This
law is in part unwritten, and in part conventional. . . .
The decisions of the courts of every country show how the
law of nations, in the given case, is understood in that
country, and will be considered in adopting the rule which
is to prevail in this [case]. . . .1

Mr. Justice Gray, delivering the majority Opinion in the case
of The Paquete Habana of 1900, noted, in part, that

international law is a part of our law, and must be ascer-
tained and administered by the courts of justice of appropriate
jurisdiction, as often as questions of right depending upon it
are duly presented for their determination. For this purpose,
where there is no treaty, and no controlling executive or
legislative act or judicial decision, resort must be had to the
customs and usages of civilized nations. . . .2

Similarly, British courts have on occasion referred to the role
of international law. For example, Chief Justice Lord Coleridge

perceived the law of nations as

. that collection of usages which civilized states have agreed
to observe in their dealings with one another. What these usages
are, whether a particular one has or has not been agreed to,
must be a matter of evidence. Treaties and acts of state are

 

1Herbert W. Briggs, The Law of Nations: Cases, Documents,
Notes (New York: F. S. Croifs and Co., 1944), p. so. ('Thlrty

Hogshead of Sugar vs. Boyle, ' U. S. Supreme Court, 1815, 9 Cranch
191, 198.)

zIbid. , p. 33. ('The Paquette Habana Case, " U. S. Supreme
Court, 1900, 175 U. S. 677.)

but evidence of the agreement of nations . . . it is evidence
of the agreement of nations on international points

to which, when . . .

such points . . . arise, the English courts give effect, as
part of English law . . . 1

State constitutions, such as that of the Federal Republic of
Germany, have also taken cognizance of the existence of international
law. Thus, Article 25 of the Basic Law of May, 1949 declares that

the general rules of public international law form part of the
federal law. They take precedence over the laws and directly
create rights and duties for the inhabitants of the federal
territory.

Entrance of states into international organizations and adherence
to their charters and statutes further suggests acknowledgment of the
existence of international law. 2

The above confirm that states have acknowledged a regulating
phenomenon, termed 'international law,' in their external relations.
Two related questions, both relevant to the problem of law and
politics in recognition, must now be raised concerning this supposed
regulating agent. First, do such rules constitute 'law', properly
so-called? Second, if it is in fact law, does it regulate the act of
recognition?

'13 It Law?’ has long been debated among academicians and
politicians. Even now it remains only unsatisfactorily answered.

Several attitudes appear to be represented in the controversy.

While many optimistically work toward a definitive answer, others

 

1Ibid., p. 1. ('The Queen vs. KeynJ Great Britain, Court for
Crown Cases Reserved, 1876, 2 Exchequer Division 63, 153-154.)

2E. g. , the Introduction to the Covenant of the League of
Nations, the Preamble to the Charter of the United Nations, Article 1
of the Charter, Article 38 of the Statute of the International Court of
Justice, and Article 38 of the Statute of the Permanent Court of
International Justice.

incline to a dismissal of the problem as one inherently insoluble.
As genuinely concerned with the issue as are their more optimistic
colleagues, they nevertheless consider it a fruitless exercise. 1
Such desPair seems to strengthen the claims of those who deny the
existence of international law as law. For to avoid the problem
entirely is to tacitly admit that one cannot say with any degree of
authority just what is the nature of international law. On the other
hand, those who maintain that what exists is genuinely law prolong

the controversy. Consequently, the issue suffers interminable

debate and insolubility.

Rather than attempt to answer the question that has hitherto
defied solution, this writer will proceed from the admittedly negative
end of establishing the nature of the controversy and its implications.
In this way it is h0ped that what will emerge will be a placing of inter-
national law, as it presently exists, in a relative position vis-a-vis
international politics generally, and the problem of the recognition
of revolutionary governments Specifically.

Those who deny the existence of international law as law, or
who emphasize its primitive existence, tend to consider the problem
in the light of any one, or a combination, of three possible factors.

For the purposes of this paper, they might be termed the 'institutional',

'sPiritual', and 'real political' factors.

1 . 'Institutional'

 

Critics of the appellation 'international law, ' by assuming the
'institutional' line of debate, generally seek structure and hierarchy

in law. Jeremy Bentham, for example, defined law as that

 

1Glanville L. Williams, "International Law and the Controversy
Concerning the Word 'Law', " British Yearbook of International Law,
v. 22 (London: Oxford University Press, 1945), p. 163.

 

. . assemblage of signs declarative of a volition conceived
or adopted by the sovereign in a state, concerning the conduct
to be observed in a certain case by a certain person or class
of persons who in the case in question are or are supposed to
be subject to his power: such volition trusting for its accomp-
lishment to the expectation of certain events which it is in-
tended such declaration should upon occasion be a means of
(bringing to pass, the prosPect of which it is intended should
act as a motive upon those whose conduct is in question. 1

 

More simply, its nature is that of an hierarchical relationship between
a superior agency which disPenses the law, and an inferior one which
is duty-bound to receive and acquiesce in it. The expectation of
acquiescence is, of course, based on the prescription of sanctions and
punishments dispensed as an assurance against violations. Hence, in
the final analysis, law rests on the ability to coerce. "Every coercive
law creates an offence , that is, converts an act of some sort, or
other into an offence. It is only by doing so that it can impose

obligation, that it can produce coercion. "2 Thus, it is rooted in the

 

 

union of ”command, duty, and sanction . . . [as]inseparably connected
terms . . . "3 and concepts.

It is somewhat ironic that Bentham, who argued against the
existence of international law as law, should have coined the word

'international. '4 This suggests that he and later his protege,

 

lCharles Warren Everett, ed. , Jeremy Bentham's The Limits
of JurisPrudence Defined: Being Part II of an Introduction to the Prin-
ciples of Morals and Legislation (New York: Columbia University
Press, 1945), p. 88.

 

 

 

2Jeremy Bentham, An Introduction to the Principles of Morals
and Legislation (New York: Hafner Publishing Company, 1948), p. 331.

 

 

3Robert Campbell, ed. , John Austin's Lectures on JuriSprudence,
or the Philosophy of Positive Law, v. I (London: John Murray, 1859),
p. 94.

4Bentham, 22. cit., p. 327.

 

 

John Austin, were keenly aware of the existence of certain rules
operating in the conduct of nations, or, more pr0perly, states.

Yet Bentham was unable to reconcile his traditionalist definition of
law, esPecially applicable in the case of municipal law, to what he
had observed in the relations between sovereign states. For him,
international law was hardly legislation, but rather, customary or
unwritten law which was ". . . but so many autocratic acts or orders,
which in virtue of the more extensive interpretation which . . . [one
is] disposed to put upon them, have somewhat the effect of general

"1

laws. Rather than search for similarities between the traditional

municipal and international concepts of law, he chose instead to
dismiss in brief and sarcastic fashion the pretensions of students of
international law:

Written law . . . is the law of those who can both speak and
write; traditionary law, of those who can Speak but can not
write, customary law, of those who neither know how to
write, nor how to Speak. Written law is the law for civilized
nations: traditionary law, for barbarians: customary law,
for brutes. 2

Indi Sputably,

a law is commonly understood to be such an exercise of power
as . . . is in its nature indefinitely permanent in its efficacy.
For it to be so it must direct itself to the persons and things
that are its objects in sorts: because . . . individuals pass
away and sorts only remain. By the Legislative power is
understood the power of making Laws. At the same time the
Legislative power is the name by which that power is commonly
noticed which is looked upon as the supreme power in the state.3

Thus for Bentham, international law, necessarily impermanent, could

not be defined as law in the true [or traditional] sense of the term.

 

1Everett, _c_>_p_. cit., p. 243.
21bid., p. 244.
31bid., p. 98.

Austin, after having dismissed the laws of Nature as merely
”. . . the standard (be they laws of the Deity, or a standard of man's
imagining) to which . . . human or positive rules Blight; to conform, "1
proceeded to build upon his mentor's teachings. Thus, he too,
defined positive law as that which

. . . is set, directly or circuitously, by a monarch or
sovereign number, to a person or persons in a state of
subjection to its author. 2.

He perceived that which is called 'international law' as a set of
rules based on custom. Such rules, in the final analysis, possessed
obligatory force by virtue only of a general concurrence of sentiments
among sovereigns or a consensus of public opinion among their sub-
jects. Consequently, however analogous they might be to human laws,
they remained canons of positive international morality.3 Only when
transformed by a sovereign or legislature into law, or invoked as
grounds for a juridical decision creating legal precedent, could the
rules be considered positive law.‘ For Austin, the critic, it was
sufficient to assert that

. a law set or imposed by general Opinion is a law im-
properly so called. . . . (It is a law formed by) some
indeterminate (or unassignable) body or uncertain aggregate
of persons (which) . . . indeterminate body opines unfavor-
ably or favorably of a kind of conduct. . . .

The body of whose opinion the law is said to be set,

 

 

 

lCampbeIl, 3p. _c_i_t_., v. 11, p. 591.
ZCampbell, 3p. git” v. I, p. 339.

31bid., pp. 189-190. In both there is a wish that conduct be
forborne or pursued, a penalty for disobedience, and an expectation
that conduct will be fairly consistent.

4Campbell, 3p. <_:_i_t., v. 11, p. 553; similar viewpoint in John
Austin, The Province of JurisPrudence Determined and the USers of
the Study of JurisPrudence (New York: The Noonday Press, 1954),
pp. 11-12.

 

 

does not command, expressly or tacitly, that conduct of the
given kind shall be forborne or pursued. For, since it is
not a body precisely determined or certain, it cannot, as a
body, express or intimate a wish. AS a body, it cannot
signify a wish by oral or written words, or by positive or
negative deportment. The so-called law, or rule which its
opinion is said to impose, is merely the— sentiment which it
feels, or is merely the opinion which it holds, in regard to
a kind of conduct. 1 ———

 

 

 

An indeterminacy of origin reduced international law to a set
of positive moral rules. 2 Prevalence of favorable Opinion rather than
reaction to command ensured the acquiescence of states. Even in
cases where a strong, determinate state commanded the action of a
weaker one, one could not pr0perly Speak of positive international
law. Only if a permanently superior government existed, able to
subject others to its commands, could one Speak of a positive law of
nations.3 Without a superior, determinate body subjecting subordinat-
ing political states to legal commands, duties, and sanctions, inter-
national law remained a misnomer. The concept of the sovereign
equality of states, implicitly rejecting the notion of an hierarchical
structure in international relations, ensured that international law

could not be law, properly so-called.

 

lCampbell, gp_. gi_t., v. I, pp. 187-189.

2Georg Schwarzenberger, Power Politics: A Study of Internation-
al Society (New York: Frederick A. Praeger, 1951), pp. 224-251 and
Briggs, op. cit. , p. 18, both distinguish between positive international
law and ISO-Sit-iv—einternational morality; P. E. Corbett, ed. , Charles
DeVisscher's Theory and Reality in Public International Law (Princeton:
University Press, 1957), pp. 98-100 and Hersh Lauterpacht and C. H.
M. Waldock, ed. , James Leslie Brierly's The Basis of Obligation in
International Law and Other Papers (Oxford: Clarendon PreSS, 1958),
pp. 65, 67, distinguish between law and morality in international rela-
tions, but emphasize that morality is the ultimate source of obligation
in international law; Williams, op: cit: p. 146 ff. , suggests that one
can even call rules of international law 'morality,‘ but admits that this
would not be as strong and effective a word as 'law.‘

 

 

 

 

 

3Campbell, 32. cit., v. I, p. 189.

Significantly, subsequent criticism of Bentham and Austin has
not completely rejected their arguments. On the contrary, those
who would defend the existence of international law, prOperly so-
called, readily concede

. . . that the real difference between [it] . . . and state law
in respect to enforcement lies not in any principle but in
organization. The sentiment that the observance of state law
ought not to be left to the chance of the individual being suf-
ficiently public—Spirited to observe it of his own accord has
gradually become so prevalent in the state society, and the
state law interferes With the individual's freedom of action at
so many points, that in the course of centuries an organized
system for the coercion of the recalcitrant has been built up.
This has not yet happened in the international Sphere. . . . 1

In Spite of this agreement, the controversy over the existence
of international law as law persists. Why? For Bentham and Austin,
law in its pr0per sense, required the implementation of the command-
obedience structure. This prerequisite could under no circumstances
be compromised. Consequently, for them, the issue became one of
extremes, i. e. , either law, with its institutional prerequisites, or
simply no law.

On the other hand, those who continue to insist that international
law is still law, adopt a significantly different line of reasoning. ’-

For them the issue is less a matter of extremes than of evolving

stages. Failure to effectively institutionalize international law

 

lLautterpaeht and Waldock, op. cit., p. 54. On pp. 201-202,
there is the contention that the stajtz-Ss' habitual observance of inter-
national law is proof of the existence of sanctions; Hans Kelsen,
Principles of International Law (New York: Rinehart and Co. , 1952),
p. 21, suggests that obedience is enforced by an obligation, rather than
by sanctions; Schwarzenberger, 0p. cit. , p. 215 and Edwin D. Dickinson,
What Is Wrong With International—Law? (Berkeley: James J. Gillick,
1947), p. 5, tend to agree that there is a lack of effective sanctions and a
reliance instead on the self-help principle.

 

 

ZSee, e. g., Lauterpacht and Waldock, and Kelsen, footnote
1 above.

10

demonstrates the weakness rather than the nonexistence of that law.
Reliance upon the consent of states rather than a supreme supra-
national lawgiver as the creative force in the customary and con-
ventional rule of law among states merely attests to its primitive
character.

Thus, while Bentham and Austin perceived a more highly-
develoPed institutional structure as the creative force of law, their
critics concede to it only a strengthening role in progressive evolu-
tionary deveIOpment. That evolution toward a higher stage of coercive
institutions has to rest on the earlier stage of customary rules to

which states voluntarily agree to conform. 1

Yet even at this early
stage, a delict in international law; i. e. , a violation of an inter-
national norm, may be admissible and commonly accepted.2 As it is
possible, at least in principle. "to interpret the employment of

force directed by one state against another either as sanction or
delict, "3 international law, like national law, must possess a coercive

character. If, in fact, this character is primitive and only irregularly

effective, the evidence is merely one of incomplete deveIOpment.

2 . ' Spiritual'

 

This factor is analogous to Austin's observation of opinion and

consensus as the regulating agents in the relations between states.

 

1T. C. Edgington, The Monroe Doctrine (Boston: Little, Brown
and Co. , 1904), p. 201. (Citing a quote by Lord Russell, "Speech to
the American Bar Association, 1896, " from American and English
Encyclopedia of Law, v. 16, pp. 1124, 1125, note 3.)

 

 

 

zKelsen, pp. cit., p. 19.

3Ibid. , p. 18. See p. 401, for his statement that international
law is mercive order with sanctions. (Compare with Kelsen, foot-
note 1, page 9). For an anti-Austin contention that sanctions do exist,
see A. B. Keith, ed. , Wheaton's Elements of International Law, v. I
(London: Stevens and Sons, Ltd., 1929), pp. 6-7.

 

ll

Twentieth Century students and critics of international law have
tended to deprecate its role in the light of apparently insufficient
consensus among states. Admittedly, such criticism has not gone
to the negative extremes of both Bentham and Austin. Yet observ-
ation of this deficiency presents a serious challenge to international
law at its present stage of development. Indeed, one is tempted to
conclude that

the bulk of international law in its present state is . . . a
book law, it is customary law which is only found in text-
books on International Law; it is, as regards many points,
controversial; it has many gaps; it is in many ways un-
certain. I

It has generally been conceded that what is commonly termed
'international law' is institutionally weak and primitive. Consequently,
any strength that can be attributed to it at its present early stage of
deveIOpment must necessarily rely upon consensus among the states.
As at least one perceptive student of international law and inter-
national politics has concluded:

Public opinion attributing a value to certain individual and
social interests is the ultimate source of law in any society.
Unless there is a relative consensus on some values, standards,
or objectives, there cannot be a society nor can there be a

legal system. 2

Similarly,

. . . international law rests upon values which transcend
those of the particular nation and upon an experience which
transcends that of the particular case.3

 

1L. Oppenheim, The League of Nations and Its Problems
(London: Longmans, Green and Co., 1919), p. 43.

 

zQuincy Wright, Contemporary International Law: A Balance
Sheet (New York: Doubleday and Co. , 1955), p. 54.

 

3Quincy Wright, “The Chinese Recognition Problem, " American
Journal of International Law, v. 49, July 1955, p. 320.

 

 

12

The implication, of course, is that values, society, and law are
interdependent concepts. 1
What one observes, however, is a cohesiveness among societies
organized as states, "in contrast with the weakness of the community
sense in international society as a whole. "2 Emphasis upon the
state as the highest center of human authority and guardian of the
national values, accentuates the deficiencies of an international legal
order not rooted in supreme common values and a sense of community
loyalty.3 As a result, states, "while their public declarations are
generally in accord with the traditional rules of law, " often pursue
"foreign policies [which] are . . . at odds with them. "4 Their
premium upon a competition of acts and attitudes fosters, consequently,
a "very weak perception of the common good, [which] prevents us

from speaking of an international community as something already

established. "5

 

1For similar Opinions, see Georges Kaeckenbeeck, "Diverge.
ences Between British and Other Views on International Law, "
Transactions of the Grotius Society, v. 4, 1919, pp. 214—215 and

 

Lauterpacht and Waldock, _o_p. cit., p. 250.
zLauterpacht and Waldock, _o_p. cit., p. 254.

3Percy E. Corbett, Law In Diplomacy (Princeton: Princeton
University Press, 1959), p. 273ff.; for similar viewpoints, see Kurt
Wilk, "International Law and Global Ideological Conflict: Reflections
on the Universality of International Law, " A. J. I. L. , v. 45 no. 4,
October 1951, p. 658 and University of Michigan Law School, Inter-
national Law and the United Nations, Eighth Summer Institute of
International Law and Comparative Law, June 1955 (Ann Arbor:
University of Michigan Press, 1957), pp. 370-371.

 

 

4'Corbett, op. cit., foreword, v.

5Corbett, ed. , Charles DeVisscher's Theory and Reality in Public

 

International Law, pp. 72, 98-100; Schwarzenberger, _o_p. cit., con-

 

tends that power, not common sentiment, is the driving force in
international relations; Lauterpacht and Waldock, op. cit. , pp. 252-
253, submit that there is abundant evidence of a community sentiment.

13

It is to be emphasized that a community sense, while essential
at the primitive stage, need not necessarily encourage a more-rapid,
or indeed, any further, development of the institutional apparatus of
international law. For states may persist in a reluctance to encour-
age any organized system that would jeopardize their individual
prerogatives and freedom of action. Certainly their attitude toward
international control of recognition, to be seen below, reflects the

jealousy of this prerogative to an extreme.

3 . 'Real Political'

 

This writer perceives the 'real political' factor as that corrosive
agent which, while the other two serve constructive purposes, thwarts
the evolutionary deveIOpment of international law. Attacking the
'Spiritual' content at the same time it subverts any progress in the
development of international institutions. Similarly, attacks on recent
achievements in the latter weaken the role of the former as a founda-
tion for the law.

Basic to the contemporary 'real political' factor is the East-
West struggle. This struggle is manifested most commonly in political,
economic, and military competition. However, its implication for law
runs deeper to a fundamental philosophical conflict. Consequently,
the challenge to international law presents itself at both levels of the
struggle.

At the more subtle philosoPhical level, the conflict is one over
the rule of law in hmnan relationships. A fundamental tenet of Marxism
construes law as an instrument of control, emanating from the oppres-
sive behavior of an exploiting class. Hence, the existence of law
presupposes a class system hierarchically organized. But for its
extreme emphasis upon exploitative behavior, the Marxian system

closely resembles the Benthamian-Austinian prerequisite.

14

Certainly the three share Similar conclusions. For Marx and his
followers, too, international law could not be law, pr0perly so-called,
as it is not rooted in a requisite vertical structure and centralized .
coercive agency on the international plane. 1 One could hope to
attribute a Marxian definition of law to the international order, or
more pr0perly, disorder, only by insisting that the national constitu-
tional autonomy and nonintervention principles of the presumed legal
system guarantee a parochial domination of one class over others. 2
This line of reasoning, adopted by Soviet legal theorists attempting

to reconcile the Marxian class definition with the existence of inter-
national law, proved futile, For example, while Pashukanis conceded
the role of a decentralized international law in the relations of bourgeois
and proletarian states, he failed to reconcile it with the theory of

class law.3 Korovin also rejected a thesis denying the existence of
international law, but was hardly more successful in reconciling it

with Marxist dogma. His contribution to legal thought was a denial of
the existence of a general, universal international law. Rather, he
perceived it as a multi-faceted phenomenon, differing in the relations

of socialist-capitalist, capitalist-capitalist, and colonial-capitalist
states. Thus, Korovin had formulated a theory of pluralistic inter-

national law.4

 

1Hans Kelsen, The Communist Theory of Law (New York:
Frederick A. Praeger, 1955), p. 148.

211.18., p. 149.
31bid., p. 154.

41bid., p. 157; William Beach Lawrence, ed., Wheaton's Ele-
ments OfInternational Law (Boston: Little, Brown and Co. , 1855),
pp. 16-17, denies that there is a universal international law, since the
world is not yet completely civilized; Alejandro Alvarez, American
Problems in International Law (New York: Baker, Voorhis and Co. ,
1909), pp. 98-99, suggests that diversity in the world makes a diverse,
rather than universal international law more useful.

 

 

 

 

 

15

Political exigencies, however, made it imperative that the
Soviet leadership acknowledge the existence of international law,
notwithstanding its incompatibility with both Marxism and an inter-
nationalism embodied in the Comintern. l DeSpite ideological pre-
tensions and a post-revolutionary hostility to law generally, the
Soviets had begun to acknowledge international law after suppression
of communist outbreaks in Hungary and Germany had stemmed the
international revolutionary tide. By the end of the 1920's, both the
contemplation of an indefinite period of socialist-capitalist competi-
tive coexistence preceding the advent of an international communist
society and domestic considerations rendered the doctrine of plural-
ism useless. Thus,

as soon as the Soviet government was aware that it could use
the existing international law in its own interest and that it
was of great importance to be recognized by other govern-
ments as the govermnent of a state in its capacity as a subject
of international law, it could not allow a doctrine which denied
the existence of such a law as common to all states. The fact
firms too evident that international law, by imposing upon all
the states the obligation to resPect mutually their territorial
integrity and political independence and prohibiting them from
intervening in the domestic affairs of other states, protects
its subjects and consequently also the Soviet state. 2

International law was now harnessed to the task of ensuring the un-
obstructed consolidation of 'socialism in one country. '

At first glance, this appears to be a boon to the development
of international law. In reality, however, this was not the case.
For, as one student has observed,

. . Soviet legal theory is characterized by an outSpoken
reactionary tendency. This tendency manifests itself in the

 

1Kelsen, 3p. cit., pp. 151-152.
zlbid., p. 168.

16

fact that the theory is obstinately keeping to that concept of
an absolute sovereignty of the individual state which modern
theory of international law is more and more rejecting.
Soviet theory . . . identifies the cause of Soviet Russia with
that of sovereignty. 1

Moreover, Soviet Marxism insists on the ultimate 'withering
away of the state' and the consequent destruction of law. Hence,
the evolution toward that communist society logically precludes the
progressive evolution of law. That the fulfillment of the Marxist
prOphecy may not transpire, for obvious political reasons, until
after a prolonged interim period of socialism, cannot negate the
significance of this fundamental belief. It ensures that law is but a
tentative political instrument, doomed to ultimate destruction.
Consequently, that which has been termed the 'spiritual' element in
international law, consensus and general opinion, is present in an
expediential rather than an emphathic form. One great bloc weakens
it philosoPhically and politically, while the other, notwithstanding
constructive phiIOSOphical pretensions, attacks it politically. 2
A Marxist definition and the contemporary power struggle assure it
a weak, non-universal character.

Precisely "how much the . . . (Soviet and capitalist law)
differswill depend (ultimately) on how far the field of this antagonism
in policy extends and how sharp the antagonism is at any time.3

Some have insisted that international conflict could be lessened if

 

1Ibid., p. 159. (QuOted from Josef L. Kunz, Sowjet-Russland
und das Volkerrecht, in "Zeitschr. f. Volkerrecht, " xiii, 1926, p.
582); similar viewpoint in Wilk, 92: gig” p. 251.

 

 

2See the many examples, including the US, UK, and USSR
attitudes toward the Declaration on Human Rights, in Corbett,
2p. cit. , p. 11ff.; and Corbett, ed. , pp. cit. , p. 51ff.

3Wilk, pp. 5113.. pp. 664-665.

17

states resPected the international legal principle of nonintervention

1 Others Optimistically believe

with respect to national ideologies.
Mrthat, whereas the ancient East-West religio-political cleavage
ultimately brought progressive development, so, too, could the
present Split prove progressive in the long run. 2 Both speculations,
however, are highly problematic, for ideology has assumed the
character of an exportable commodity not to be confined within
natural or artificial geographic boundaries; in the second instance,
the intensity of conflict has been enhanced by a technological compe-

tition making the cleavage more inherently complex and potentially

destructive than any preceding it.

Conclusion

 

The persistence of the controversy suggests that the question,
'IS It Law?', is inherently more complex than it might at first
glance appear to be. As suggested, various factors or attempts to
establish criteria for a definition of law have been considered, but
with no definitive result. Yet the student of international law is
rewarded for his study of the controversy with a clearer insight into
the present state of that law. He observes that at best it is a primi-
tive regulating agent in the relations of states.3 Consequently, while

he might conceivably argue that international law is law, observation

 

1Quincy Wright, "International Law and Ideologies, " A. J.I. L. ,
v. 48 no. 4, October 1954, pp. 625-626.

zArthur Nussbaum, A Concise History of the Law of Nations
(New York: The Macmillan Co. , 1947), p. 292.

 

3For opinions on the limited capacity of international law, see
Schwarzenberger, op. cit.,'pp. 89-90; Wright, Contemporary Inter-
national—‘Law: A Bangle—Sheet, p. 10; University of Michigan Law
School, g. 9.1.15.2 p. 342.

 

 

18

forces him to a conservative assessment of both its nature and role. 1
Too often a generous assessment has culminated in theoretical
formulations detrimental to it. 2

Legal theory can serve a constructive purpose only when rooted
in objective political reality. An attempt to interpret law through
the colored lenses of a theoretical postulate divorced from such
reality cannot but create illusions as to the meaning and scope of the
law. For example, one is often confronted with the statements:
'Absolute sovereignty is inadmissible'; 'the state is subordinate only
to the law. '3 Such cliches are often confusing and the object of grave
misinterpretation. Implicit is an idea that states exist under the
rule of law in an absolute sense. Nothing could be further from the
truth. To insist upon such absolute statements is to incorrectly
evaluate the development of international law and to misinterpret its
role in the external relations of states.

Primitive, weak, and decentralized international law can operate
only in a very circumscribed capacity. Exaggerating that capacity
engenders false hopes and consequent contempt for inevitably recur-

rent failures.4 Two points need to be emphasized: First, that law

 

‘ 1For a similar view, see Lauterpacht and Waldock, 3p. git. ,
p. 305.

2E. g-, Kelsen, Principles of International Law, pp. 403-404.
His monistic theory of law, conceiving international and municipal
law as parts of a totality, with the former most significant, Opposes
the pluralist view. The pluralist theory has been accepted by most
legal scholars and appears to be most consistent with the nature of
international law vis-a-vis both municipal law and international
politics.

 

3See, e.g., Ibid., p. 442 and H. Lauterpacht, ed., Oppenheim's
International Law: ATreatise. v. I (London: Longmans, Green and
Co., 1948), pp. 118-120.

 

 

4For a similar view, see H. Lauterpacht, "The Principle- of Non-
Recognition in International Law, ” Legal Problems in the Far Eastern
Conflict (New York: Institute of Pacific Relations, 1941). p. 143.

 

19
must be based upon the observation of factual state practice, 1
rather than upon agreement among eminent authorities as to what
will be the content of legal principles;2 second, that one must
appreciate state consent, manifested in custom and convention, as
the real source of international law.3 That "there is a great gap
between international law and international practice, . . . a dis-
parity between law and actual conditions . . ."4 suggests law created
with little appreciation of political reality moulded by state consent.
That states have historically refused to consent to an international
law encompassing the entire range of international political activi-
ties5 attests not to the failure of international law but to a present
state of limited and primitive capacity, with respect to both scope
of activity and practical effectiveness.

B. Recognition of Revolutionary Governments:
Law and Politics

 

 

It has been suggested that awareness of the primitive and

limited character of international law is essential for a comprehension

 

1Pitman B. Potter, A Manual Digest of Common International
Law (New York: Harper and Brothers, 1932), p. 11.

 

2John Eugene Harley, The Legue of Nations and the New Inter-
national Law (New York: Oxford University Press, 1921), p. 8.

 

 

3For concurring views, see P. E. Corbett, ”The Consent of
States and the Sources of the Law of Nations, " B1. Y.I. L. , v. 16, 1925,
p. 25 and Keith, op. cit. , p. 12; for Opposing views, see Robert
Phillimore, Com—m-enEa—ri—es Upon International Law, v. I (Philadelphia:
T. and J. W. Johnson, 1854), pp. 64-69, who holds that positive law
and the consent of states is second to Natural or Revealed Law, as
applied by Reason, and Ti-Chiang Chen, The International Law of
Recognition: With Special Reference to Practice in Great Britain and
the United States (London: Stevens and Sons, Ltd. , 1951), pp. 19-20,
who contends that positivism, encouraging state sovereignty, cannot
be reconciled with the rule of law.

 

 

 

 

l'Wright, Contemporary International Law: A Balance Sheet, p. 52.

 

5For similar Opinions, see Schwarzenberger, pp. cit., pp.
89-90 and Potter, g. c_i_1_:_., p. 133.

20

of the role of law in international relations. Such an awareness
assumes special importance in a consideration of the recognition
problem. For it is here that the present nature of international law
is most vividly illustrated. The problem is but a

. . . reflection of the fundamental cleavage between those
who regard the state as the ultimate source of international
rights and duties and those who regard it as being under a
system of law which determines its rights and duties under
that law. 1

Hence, the usefulness of recognition as a yardstick measuring the
role of law in international relations.

Students of the recognition problem have, paradoxically, been
most consistently influenced by the inconsistencies of state practice.
AS a result, they have occasionally concluded that

. . . the older international law concerning recognition was
somewhat unsatisfactory on all essential points . . . [and]
was never codified in any serious sense of the word . . .

Hence, it could be said that

. the states of the world today are completely free to
recognize or refuse to recognize. . . .2

Implicit in the second point is an assumption that recognition is a
political act. Of greater interest at this point, however, is the evidence
presented in support of such a conclusion. Apparently recognition is
political by virtue of technical irregularities in the law. This writer
submits that, if the political thesis of recognition is correct, then
the nature of recognition is to be found not in any technical inade-
quacies of the law, but rather, in its limited capacity.

In the final analysis, the controversy is essentially the same as

that over the nature of international law. Germane to the problem

 

1Chen, 3p. g., pp. 3-4.

2Pitman B. Potter, "Communist Chinaz. Recognition and Admis-
sion to the United Nations, ” A. J.I. L. , v. 50 no. 2, April 1956, p.
417.

21

are at least four areas of legal-political conflict, each apparently
supported on both Sides by evidence of state practice: (1) Definition
and Purpose of Recognition; (2) Combined Legal-Political Recog-
nition; (3) Criteria for Recognition; (4) De Facto and De Jure

Recognition.

1. Definition and Purpose of Recogfition

 

Perhaps the root of the legal-political controversy in recog-
nition is an unresolved semantic question inherent in it. 1 What is
meant by the term 'recognition' in international relations ?
Historically, two answers have been presented by students of the
problem. On the one hand,

recognition in international law [has been deemed] . . . the
process by which a State admits the validity or existence of
some act, fact, or situation by which its legal interests or
claims are or may be affected. 2

Thus, for the legalist,

the guiding juridical principle applicable to . . . recognition
is that international law, like any other legal system, cannot
disregard facts and that it must be based on them provided
they are not in themselves contrary to International Law.3

Kelsen sought to clarify such a definition by suggesting that

the legal act of recognition, [as it] is the establishment of a
fact, [and] not the expression of a will, . . . is cognition
rather than re-cognition.4

 

1For a similar view, see Louis L. Jaffe, Judicial Aspects of
Foreign Relations: In Particular of the Recognition of Foreign Powers
(Cambridge: Harvard University Press, 1933):fp. 101.

 

 

2John Fischer Williams, ”Some Thoughts on the Doctrine of
Recognition in International Law, " Harvard Law Review, v. 47, 1934,
pp. 793-794.

3Hersh Lauterpacht, Recognition in International Law (Cambridge:
Cambridge University Press, 1948), pp. 91-93.

 

 

4Hans Kelsen, ”Recognition in International Law: Theoretical
Observations," A.J.I.L., v. 35, no. 4, October 1941, p. 608.

22

Lauterpacht has written of the recognition of revolutionary govern-
ments that

. . . [it] is a declaration, on the part of the recognizing State,
that a foreign community or authority is in possession of the
necessary qualifications of . . . governmental capacity. 1

Thus, the purpose of recognition is to effect a harmony of
reality and law. As states are bound by an international law originat-
ing in state life, so must they be prepared to appreciate the legal
dynamics of that life. Consequently, recognition is concerned merely
with perceiving and acknowledging objective facts in international
relations. In a practical situation, it is manifested by a guiding
principle that "we recognize any Government . . . which appear[s]

capable of maintaining its power . . . ”z

The necessary union of fact
and law logically imposes, where the former exists, both a legal
duty to recognize, and a right to be recognized, upon old states and
the new government, resPectively. Consequently, recognition lends
itself to the discretion of states only to the extent that it permits
them to judge when the criterion of factual existence, with a reason-

able expectation of permanence, has been met.3

On the other hand, there are those who perceive recognition as

 

1H. Lauterpacht, ed., Oppenheim's International Law: A
Treatise, v. I (London: Longmans, Green and Co., 1955), pp. 150-
151.

 

zFrancis Wharton, ed. , A Digest of the International Law of the
United States, Taken From Docume—nts Issued by Presidents and Secre-
taries of State, and From Decisions of Federal Courts and Opinions of
Attorneys-General, v. I (Washington, D.C.: Government Printing
Office, 1886), p. 537. (Quoted from letter of Secretary of State Clayton
to Mr. Donelson, July 8, 1849, M55. Inst., Prussia.)

 

 

 

 

 

3Lauterpacht, Recognition in International Law, pp. 32-37.

 

23

. . . nothing else than the declaration of other States that
they are ready to deal with a certain individual or group of
individuals as the highest organ of a particular State. . . , 1

the operation by which another State accepts that [new]

Government as representing the old State in international

intercourse and continues or renews relations accordingly. 2
Here states are also permitted to exercise discretion in their recog-
nition policies. The discretion, however, is of a fundamentally
different kind. For, in effect, it subordinates the objective test of
effectiveness to the political interests of states. This is not to sug-
gest, of course, that the objective test is completely discarded.
Hardly so, for it constitutes a reality which states must consider.
In the final analysis, however, the decision to 'recognize' a fact is
identified with a national political interest either to be fostered or
protected. Here the emphasis is upon subsequent intercourse, in
diverse forms, rather than initial perceptions of fact. Consequently,
recognition, in contrast to that of a strictly legal nature, assumes
the more complex character of a political, diplomatic, and commercial
activity. The political nature of the problem logically precludes

consideration of legal rights to, and duties of, recognition.3

 

1Arnold D. McNair, ed. , Oppenheim's International Law:
A Treatise, v. I (London: Longmans, Green and Co., 1928), p. 153;
for similar views, see Lassa Oppenheim, International Law: A
Treatise, v. 1 (London: Longmans, Green and Co., 1905), pp. 404-
405 and Chesney Hill, "Recent Policies of Non-Recognition, ” Inter-
national Conciliation, October 1933, p. 42.

 

 

 

 

zJohn Fischer Williams, "Recognition, ” Transactions of the
Grotius Society, v. 15, 1930, p. 53.

 

 

3For part of an overwhelming list of publicists who hold that
recognition is essentially a political problem, see Corbett, Op. cit. ,
p. 78; Corbett, ed., op. cit., p. 228; Oppenheim, InternaticESlTa-aTW:
A Treatise, v. I, pp.—404:406; Amos S. Hershey, The Essentials of
International Public Law and Organization (New York: The Macmillan
Co. , 1930), p. 209; Herbert W.rBriggs, "Relations Officieuses and

 

 

 

 

24

2. Combined Legal-Political Recognition

 

Several students of international law, aware of the theoretical
controversy over the nature of recognition, have attempted to
remedy the situation by a reconciliation of both points of view. The
result, unfortunately, has been an equally confused and unsatis-

factory theory of dichotomous recognition. 1

According to this theory,
recognition is, in the first instance, a legal act, whereby states
acknowledge the factual existence of the new government. This in-

cludes a right of the new government to expect, and a duty incumbent upon
old states to grant, recognition. It permits an element of discretion

only to the extent of passing judgment upon the effectivity of that

regime's rule. In the second instance, recognition is political; i. e. ,

it involves such actions as exchanges of diplomatic agents and the

signing of treaties and commercial agreements. As this aSpect of
recognition is extralegal, it involves neither rights nor duties. It may

be granted and su3pended arbitrarily, in either case with conditions

appended.

 

Intent to Recognize; British Recognition of Franco, " A. J.I. L. , v. 34,
no. 1, January 1940, p. 57; International Law Opinions, v. 1. (Cambridge:
Cambridge University Press, 1956), p. 131; Edwin M. Borchard, ed.,
Fiore's International Law Codified and Its Legal Sanction, or the Legal
Organization of the Society of States (New York: Baker, Voorhis arr
Co., 1918), p. 146; Hill, op. cit., p. 42; H. A. Smith, Great Britain
and the Law of Nations: A—Sele-Ot—ibn of Documents Illustrating the Views
of the Government in the United Kingdom Upon Matters of Intgrnational
Law, v. I (London: P. S. King and Son, Ltd., 1932), pp. 77-78; Julius
Goebel, Jr. , The Recognition Policy of the United States (New York:
Columbia University Press, 1915), pp. 66-67; Peter Marshall Brown,
"The Legal Effects of Recognition, ” A.J. I.L. , v. 44, no. 4, October
1950, p. 619; Georg Schwarzenberger, International Law, v. I (London:
Stevens and Sons, Ltd. , 1957), p. 128; Josef L. Kunz,, Die Anerkennung
von Staaten und Regierungen im Volkerrecht (Stuttgart: Verlag von W.
Kohlhammer, 1928), pp. 125-127.

 

 

 

 

 

 

 

 

 

 

1See, .6. g. , Hans Kelsen, General Theory of Law and State
(Cambridge: Harvard University Press, 1946), pp. 223-224 and
Philip C. Jessup, A Modern Law of Nations (New York: The Macmillan
Co., 1948), pp. 45-46.

 

 

25

Admittedly, there have been instances in the history or recog-
nition when such a theory has been tenable. For example, in 1915,
Great Britain recognized the revolutionary Carranza Government as
a diffiregime. It subsequently refused to enter into diplomatic
relations with the £13 £392 regime, because of that Government's
hostile attitude toward British subjects and their prOperty in Mexico.
However, the paucity of such cases tends to weaken the practical

application of the theory. Moreover, it is highly debatable whether,

in View of an irregularity of application, the de facto criterion, though

 

of an objective nature, is a legal principle.z Even assuming that it

is a legal principle, the dichotomous theory leaves much to be desired.
As suggested above, the political theory of recognition does not
completely discard the objective test. Rather, there appears to be an
overlapping of the two, resulting in a submerging of the objective, in

favor of subjective political considerations.3

3. Criteria for Recognition

 

Any one or combination from among three tests have been used
historically in the formulation of recognition and non-recognition

policies: <_1_e_facto, or effective rule; willingness and ability to fulfill

 

international obligations; constitutional legitimacy. Scholars have
debated the significance of each, some suggesting, for example, that

American recognition policy is rooted in a 'legalistic' de facto

 

principle adopted in 1793.4 Others have discerned a vacillation between

 

1Lauterpacht, Recognition in International Law, pp. 344-345.

 

2See Chapter II.
3For a similar view, see Corbett, ed., 32. cit., p. 228.

4Quincy Wright, ”Non-Recognition of China and International
Tensions," Current History, v. 34, no. 99, March 1958, p. 152.
This view is similar to that of Lauterpacht, and differs only in that
Wright implies, rather than explicitly supports, the legal thesis of
recognition.

 

26

it and legitimist considerations, even in particular periods, depend-
ing upon the exigencies of individual situations. 1
The criteria of constitutional legitimacy has generally been

2 as an act of intervention into the domestic

assailed by scholars
affairs of another state. This test was adopted, for diverse reasons,
during the Civil War incurnbency of Secretary of State Seward, and
during the administrations of Wilson, Harding, Coolidge, and Hoover.
Even during these periods, however, it was not adopted with con-
Sistency.

The test of willingness and ability to fulfill international
obligations, applied by Great Britain throughout the Nineteenth
Century, has been adopted regularly by the United States from the
administration of Hayes to the present.3

Scholars have generally, with the exception of such 'pure

de facto-ists' as Professor Lauterpacht, agreed that recognition is

 

concerned essentially with the objective de facto and subjective

 

international obligations principles.4 In one sense, the two are

 

1E. g. .Taylor Cole, The Recognition Policy of the United States
Since 1901 (Baton Rouge: Louisiana State University Press, 1928),
pp. 99-100.

2See, e. g. , Aquiles Navarrete Arias, Los Gobiernos de Facto
ante el Derecho Internacional (Santiago, Chile: Irnprenta "Rapid, "
1939), pp. 85-86; Kunz,, A.J.I.L., v. 38 no. 3, July 1944, p. 438;
Lauterpacht, Recognition in International Law, p. 98.

 

 

 

 

 

3See Chapter 11.

4see, e.g., Arias, loc. cit., pp. 85-86; Charles Bollini Shaw,
E1 Reconocimiento en el Derec-IIO—Internacional Publico (Buenos
Aires: Irnprenta L0pez, 1936), p. 60; Inter-American Juridical
Committee of the Inter-American Council of Jurists, Report and Draft

 

 

 

Convention on Recognition of De Facto Governments, Rio de Janeiro,
September 27, 1949 (Washington, D. C.: Pan American Union, 1950),
pp. 19-20; Charles G. Fenwick, International Law (New York:
Appleton-Century-Crofts, Inc., 1948), p. 161;Kunz, "The Position of
Argentina, " A.J.I.L. v. 38, no. 3, July 1944, p. 437.

 

 

27

inseparable, Since it may be logical to assume that an effective govern-
ment must fulfill international obligations. Therefore, governments,
under normal circumstances, will be satisfied with a declaration by
the new regime that such obligations will be faithfully met. 1

However, the history of recognition is replete with examples of
this test having been applied with great latitude by states. 2 It is some-
what surprising, therefore, that those Latin American scholars who
have vigorously opposed the element of discretion in recognition, have,
while condemning the legitimacy test, nevertheless supported the
international obligations principle.3 This is especially surprising in
view of the fact that the latter has also frequently been used to under-
mine revolutionary regimes.

Only the 11.9. fflprinciple approaches a legal criterion; yet its
irregular use casts serious doubt upon its being such. The legitimacy
principle is clearly interventionist, while the international obligations
test has in fact been utilized independently for political ends. A con-
sistent vacillation between the three has tended to accentuate the

political, rather than legal, character of recognition.

4. De Facto and De Jure Recognition

 

The controversy over this distinction has been encouraged by
diverse state practices. At least three schools of thought, for purposes

of convenience, the 'legitimist, " “conditionalist, " and "negativist'

 

1Charles G. Fenwick, "The Recognition of De Facto Governments, "
A.J.I.L., v. 42, no. 4, October 1948, p. 865.

2See Chapters 11 and 111.

3See footnotes 2 and 4, page 26, for sharp criticism of the inter-
national obligations test, see Amry Vandenbosch, "Recognition as an
Instrument of Policy, " The World Tomorrow, v. 15, no. 4, April
1932, p. 113.

 

 

28

schools, can be identified. For the 'legitimists' the problem is
relatively simple. They hold that the revolutionary government may

be recognized merely as the de facto authority in a state, while the

 

_c_l_e_ £133 government is that which ought legally to rule. 1 Significantly,
most of these writers expounded such a viewpoint in the period after
the Bolshevik Revolution of 1917, an era in which recognition was an
unusually politically-charged issue. In the United States, for example,
the exiled Kerensky Government continued to be recognized as the
_d_e_ j1_1_r_e_government of Russia. It was not until November, 1933, that
the revolutionary Soviet Government was extended similar recognition. 2
On the other hand, the 'conditionalistsg reject the legitimist
viewpoint by associating recognition with international, rather than
constitutional law. They conceive _d_e_ 9.9.19 recognition as being quali-
fied or incomplete, while _c_1_e_ jugs recognition is unconditional and full.3

Provisional de facto recognition is revocable, if conditions attached to y

it go unfulfilled. Here, however, revocation is not to be exercised

 

lKeith, ed. , 22. _£1_t_. , p. 43. (Accepting the definition of Montague
Bernard, Neutrality of Great Britain During the American Civil War, .
London, 1870, p. 108); John G. Hervey, The Legal Effects of Recog-
nition in International Law As Interpreted by the Courts of the United
States( Doctoral Dissertation in Political Science,{ University of
Wylvania, 1928), pp. 12-13. (Accepting the definition of Lord
Justice Warrington, Luther vs. Sagpl, 1921, L.R. 3 K. B. 532 at p.551,
and Wheaton, International Law, 1916, p. 36); N. D. Houghton, "The
Nature and General Principles of Recognition of De Facto Governments, "
Southwestern Social Science Quarterly, v. 13, no. 2, September 1932,
pp. 177-178.

2See Chapter 111.

 

 

 

 

 

 

3Lauterpacht, Recognition in International Law, p. 329ff.; Hersh
Lauterpacht, ”De Facto Recognition, Withdrawal of Recognition, and
Conditional Recognition, " B. Y.I.L. , v. 22, 1945, p. 171; Fenwick,
International Law, 1948, pp. 174-175; Hershey, op. cit., p. 210.
This qualified recognition has also been granted tail—pg—rmanence of
the new regime is certain. (See Chapter III.)

 

 

29

 

arbitrarily, but only when the appended stipulations are ignored by

.-_-:v:.-

P w. '- ' u ' o
3.33% 6 '1"! ‘. - '

the new government. Be 3133, irrevocable recognition will follow as
a matter of course, upon satisfactory adherence to the conditions.

For example, in 1924, the British Government recognized the Soviet
Govermnent as a it: j1_13_e__regime. Presumably the latter had fulfilled
the conditions of the _d_e facto recognition of 1921, by giving assurances
that international obligations with regard to its predecessors' lia-
bilities, confiscated foreign property, and cessation of revolutionary
propaganda abroad, would be met. 1

Two points of view apparently inhere in the 'negativist' school.

One rejects completely any distinction between de facto and de jure

 

 

recognition, holding that

. . . recognition cannot be conditional. It is impossible to
recognize a fact conditionally. Either it is a fact or it is not.
The very essence of recognition is that the recognizing state
thereby declares that it has satisfied itself that the recognized
authority possesses the distinguishing marks of a state. To say
that one recognizes that it has them, subject to their being
subsequently proved, is a contradiction in terms. To say that
one recognizes that it has them, subject to its conduct being
satisfactory in other particulars, is sheer nonsense. It is
like telling a pupil that her sum is right if She will promise '
to be a good girl. 2

 

 

1Lauterpacht, Recognition in International Law, p. 338ff.; also,
see Chapter III, supra.

 

2Thomas Baty, So-Called ”De Facto Recognition" (New Haven:
Yale Law Journal Co. , 1922), p. 470; for similar views see Cesar
Sepulveda, La Toeria y la Practica del Reconocimiento de Gobiernos
(Mexico: Ediciones de la Facultad de Derecho, U.N.A.M. , 1954),
p. 25; Jessup, op. cit., p. 48; Edwin M. Borchard, “The Unrecognized
Government in ARE—m?“ Courts, H A.J.I.L., v. 26, no. 2, April 1932,
p. 262; Herbert W. Briggs, ed. , The Law of Nations; Cases, Docu-
ments, and Notes (New York: Appleton-Century-Crofts, 1952), pp.
128-129. (Quoted from a statement by Henry Clay, in Daniel Mallory,
Life and Speeches of Henry Clay, v. I, 1843, p. 325); Wharton, op. cit.,
v. I, p. 530. (Quoted from letter of Secretary of State Van Bure-n—to‘
Mr. Moore in Colombia, June 29, 1829, M55, Inst. Am. St.)

 

 

 

 

 

 

30

The other attempts to distinguish between legal and political

applications of both difacto and _d_e_ jure recognition,1 holding that

 

historically they have been seriously confused. Indeed,

it seems not to be clear whether the qualifications suggested
by de __j_u__re and de facto are qualifications of the act of recog-
nition or ——of the— Government recognized. Z

 

In the first, or legal, instance, there is no distinction between the
two, for recognition of a government is unconditional and gives rise
to the same legal effects. On the other hand, political recognition,
concerned with the degree and nature of mutual intercourse, may be
conditional and gives rise to no legal effects. Consequently, when

applied to political recognition, the term de jure is a misnomer.3

 

Conclusion

 

The preceding pages have offered some insight into the legal-
political conflict in recognition. Attention has also been drawn to an
analogous conflict in international law and its capacity vis-a-vis
politics in international relations. Although resolution of these
conflicts in the near future is rather unlikely, the contemporary stu-
dent may still acquire some insight into both the application of recog-
nition in state practice and its relation to the nature of international

law. Perhaps then he will be able to differentiate between a frequently

 

1See, e.g., Geobel, op. cit., pp. 66-67; Chen, op. cit., p. 261ff.;
Herbert W. Briggs, "De Fa-Cto—a—n—d De Jure Recognitioi; T11: Arantzazu
Mendi, ”A. J. I. L., v. 33, no. 4, October 1939, p. 690; Kelsen, The
General Theory of State and Law, pp. 225- 226; Kelsen, Principles of
International Law, pp. 275- 277.

 

 

 

2Williams, Transactions of the Grotius Society, v. 15, 1930,

p. 66.

3This differentiation between legal and political recognitions would
seem to involve the same difficulties as those in the dichotomous theory
of recognition. (See section on Combined Legal-Political Recognition.)

 

31

obscured theory rooted in morality and wishful thought, and another
rooted in a base of empirical evidence. Significantly, prominent
scholars on both Sides of the controversy have insisted that the
history of state practice sustains their re8pective theses. 1
Consequently, it is to this common denominator of positive inter-

national law, operating in the relations of states, that the student

must turn.

 

1See, e. g. , Kunz, Die Anerkennung von Staaten und Regierungen
im Volkerrecht, pp. 125-127 and Lauterpacht, Recognition irilnter-
national Law, pp. 158-159, for the political and legal sides of the
controversy, rSSpectively.

 

 

CHAPTER II

THE RECOGNITION OF REVOLUTIONARY GOVERNMENTS
IN AMERICAN HISTORY
(A) THE NATION IN FLUX: 1793-1880

The practice of the United States has, on different occasions,
incorporated the three criteria most Significant in the history of
international recognition. An insight into the nature of recognition,
it is h0ped, will be achieved by a study of their practical application

in the history of American diplomacy. 1

A. De Factoism

 

The United States' first significant experience with the recog-
nition problem came as an aftermath to the French Revolution. An
ally of France by virtue of treaties of alliance and commerce signed
on February 6, 1778, the United States was indebted to it for assist-
ance received during its own Revolution. Upon the overthrow of

Louis XVI in late 1792 and his execution on January 21, 1793,

 

1The primary end of this chapter is an insight into the nature
and implications of recognition policies based on these criteria. Thus,
American history is to be used as a means of identifying and elaborat-
ing upon that nature, rather than as an end in itself or as a basis for
a critique of United States foreign policy. , The chapter will deal
essentially with the recognition of revolutionary governments in recog-
nized states. In rare instances, however, e. g. , the independence of
the Latin American colonies, recognition of states must be considered
for effects upon application of these criteria.

32

 

33

President Washington's administration was confronted with the
question of recognition of France's revolutionary Convention govern-
ment. The ensuing debate over recognition was led by contending
political groups formed about two of the Republic's most eminent
citizens and public servants, the Francophile Secretary of State,
Thomas Jefferson, and the Anglophile Secretary of the Treasury,
Alexander Hamilton. The issue, however, went deeper than senti-
mental attitudes toward Eur0pean powers. For the realist Hamilton,
a concern for the physical security of the young nation was pre-
eminent. 1 Consequently, his belief that a neutral position,
necessarily involving a unilateral renunciation of treaty obligations,
was essential. Apprehensive lest recognition of the new regime be
construed as an act of intervention by those EurOpean powers waging
war against France, 2 he insisted on a policy that was Shortly to be
embodied in the Neutrality Act of 1794.

For Jefferson, on the other hand, sanctity of treaty obligations

was not to be violated. Perhaps more significant, however, was an

 

lPercy E. Corbett, Law In Diplomacy (Princeton: Princeton
University Press, 1959), pp. 50-51. (Based on documents in
"Pacificus, ” no. 2 and no. 3, Lodge, ed. , The Works of Alexander
Hamilton, v. 4 (New York: 1904), pp. 447-451, 456-457.)

 

 

 

2For a detailed study of the British attitude toward the French
revolutionary regime, and the events that led to war with the latter,
by an exponent of the political thesis in recognition, see Herbert
Arthur Smith, Great Britain and the Law of Nations: A Selection of
Documents Illustrating the Views of the Government in the United
Kingdom Upon Matters of International Law, v. 1 (London: P. S.
King and Son, Ltd. , 1932), pp. 80-99; for a c0py in French of the
Convention's call for international revolution, which call constituted
a breach of international obligations re8pecting nonintervention and
the sovereign equality of states, see Robert Phillimore, Commen-
taries Upon International Law, v. 2 (Philadelphia: T. and J. W.
Johnson and Co., 1855), p. 35.

 

 

 

 

34

abiding philosophical belief in the concepts of popular sovereignty

1

and revolution. Thus, Jefferson wrote to Gouverneur Morris, the

American Minister in Paris, on November 7, 1792:

It accords with our principles to acknowledge any Govern-
ment to be rightful which is formed by the will of the nation,
substantially declared. The late Government was of this
kind, and was accordingly acknowledged by all the branches
-of ours; so any alteration of it whichsshall be made by the
will of the nation, substantially declared, will doubtless

be acknowledged in like manner. . . .2

In a letter of March 12, 1793 to Minister Morris, shortly after
the execution of Louis, the Secretary of State elaborated upon the
principle that was to guide his Government's official recognition
policy:

I am sensible that your situation must have been dif-
ficult during the transition from the late form of government
to the re-establishedment of some legitimate authority, and
that you may have been at a loss to determine with whom
business might be done. Nevertheless, when principles are

 

1Julius Goebel, .Ir.., , “The Recognition Policy of the United
States, " Studies in History, Economics, and Public Law at Columbia
University (New York: Columbia University Press, 1915), pp. 98-
111, maintains that, while Hamilton was more attuned to political
realities, it was Jefferson's political philosophical idealism that pre—
vailed in the formulation of policy; Charles G. Fenwick, International
Law (New York: Appleton-Century-Crofts, 1948), p. 163, suggests
that Jefferson either took it for granted that the Convention would
respect international obligations, was unaware of, or didn't take into
account the revolutionary government's intervention into the domestic
affairs of foreign states, or, in any event, was averse to defending
autocracy supported even by International Law. This student must
submit that, in view of the dates of the Jefferson-Morris corresPond-
ence, it is unlikely that by the latter part of January 1793 the
Secretary was unaware of France's intention to violate International
Law. Consequently, his advocacy of recognition suggests a desire to
implement political principles favorable to a regime contemplating
such illegal actions, with full awareness of the possibility of their
being undertaken.

 

 

 

zJohn Bassett Moore, A Digest of International Law, v. I
(Washington, D. C.: Government Printing Office, 1906), p. 120.
(Quoted from Washington, ed., Jefferson's Works, v. 3, p. 489.)

 

 

 

35

well understood their application is less embarrassing.

We surely cannot deny to any nation that right whereon our
own government is founded--that everyone may govern it-
self according to whatever form it pleases, and change
these forms at its own will; and that it may transact its
business with foreign nations through whatever organ it
thinks proper, whether king, convention, assembly, com-
mittee, president, or anything else it may choose. The
will of the nation is the only thing essential to be regarded. 1

Jeff erson's policy, rooted in a philosophical rather than
practical political base, assisted those who were henceforth to mould
American recognition practice along political, rather than legal lines.
Such freedom of action appears to have originated in two observations
that can be made of that first policy. First, its effect upon the legal
thesis of recognition has been great, although somewhat misleading.
When enunciated, the Jeffersonian policy was concerned neither with
duties of, nor rights to, recognition.2

Yet scholars have sometimes seized upon this occasion as one
initiating an objective _d_e 92:2 principle in recognition, based merely
on consideration of effectiveness in the rule of governments.3
A reading of the letters to Minister Morris suggests, however, that
such a conclusion is not altogether tenable. For the Secretary of

State appears rather to have devised a new content for the subjective,

interventionist principle of legitiznacy.4 As one Scholar has noted,

 

 

1Ibid., p. 120. (Quoted from Ford, ed., Writings of
Jefferson, v. 6, p. 199.) .

 

2Concurring opinion in Stanley K. Hornbeck, "Recognition of
Governments, ” Proceedings of the American Society of International
Law, 1950, p. 182.

 

3See, e.g., Goebel, _o_p_. cit., p. 111.

4For concurring Opinions, see Herbert W. Briggs, ed. , The
Law of Nations; Cases, Documents, and Notes (New York: Appleton-
Century-Crofts, 1952), pp. 128-129; Louis L. Jaffe, Judicial ASpects

 

 

 

of Foreigll Relations: In Particular of the Recognition of Foreign

_’m

Powers (Cambridge: Harvard University Press, 1933), p. 107.—

 

 

36

the Jeffersonian doctrine appears to foster the substitution of
". . . a principle of 'democratic legitimacy' for the abhorred

"1 As revolution and diverse forms

principle of dynastic legitimacy.
of government were to be acknowledged when effected by a 'will of
the nation, substantially declared, ' Jefferson was apparently less
concerned with effective rule than with the means by which new

regimes held power.

By definition, the de facto test is concerned merely with the

 

observable fact of effective governmental authority.2 Consequently,
Jefferson's concern with something more than that was both a
qualification of the d: 139.132. principle, and a reaffirmation of the
legitimacy test with fresh content. Only to the extent that he fore-
saw the possibility of having to deal also with new d_e_ £3232 regimes
of an undemocratic character could it be said that he considered
effectiveness of rule.3 Yet, even here one discerns a distinction
between recognition of democratic regimes of revolutionary origin
and the practical necessity of dealing with those of a different
character on a more limited basis. Hence, by associating recog-

nition with a rightfulness based on the 'will of the nation,

 

1Briggs, loc. cit., pp. 128-129.

zFor a rejection of the"will of the nation, substantially declared,"'
as germane to the de facto test, see Ti-chiang Chen, The International
Law of RecognitioriT- With Special Reference to Practice in Great
Britain and the United States (London: Stevens and Sons, Ltd., 1951),
pp. 123-124.

 

 

 

3In his first letter to Morris, Jefferson also stated that in the
case of a regime formed by the 'will of the nation, substantially de-
clared, ". . . every kind of business may be done. But there are some
matters which I conceive might be transacted with a Government
is: facto, such, for instance, as the reforming of the unfriendly

restrictions on our commerce and navigation, such as you will readily
distinguish as they occur. " (Moore, op. cit., p. 120.)

 

37

substantially declared, " such recognition being that of the dgjure

 

government alone, he had compromised the test of pure is factoism. 1
The second observation, closely related to the first, is that

Jefferson's failure to treat the recognition problem as one inherently
of a legal character, encouraged the discretionary element in
practice. That the United States recognized the revolutionary regime
in France only several months after the downfall of the royal govern-
ment was not to be interpreted as a precedent establishing the period
to elapse prior to granting of recognition. Herein, then, lay the

political nature of Jefferson's, or for those who insist, the de facto

 

criterion. Each state, in retaining the prerogative of deciding when
the 'democratiC' or any other type of regime is in effective govern-

mental control, almost inevitably falls back on subjective consider-
ations of a national interest to be promoted. In this political sense

alone, then, can it be maintained that the £13 f_a_._c_t_o_ principle has

2

generally been accepted in the practice of states. Hence, it is to

 

1Thomas Baty, "'De Facto' States: Sovereign Immunities,"
A.J.I.L., v. 45, no. 1, January 1951, pp. 166-167, uses Jefferson's
recognition principle to substantiate his thesis that there is no dis-
tinction between de facto and de jure recognition; Briggs, op. cit. ,
pp. 128-129, take-S an identica—lposition. '_ ‘—

2"Hersh Lauterpacht, Recognition in International Law (Cambridge:
Cambridge University Press, 1948), pp. 158-159, 166-174, concedes
that there is an element of discretion in ascertaining the factual exist-
ence of new governments, but denies that it is an act of policy. He
contends, rather naively, that evidence of the legal nature of recog-
nition is to be found in the fact that states generally relate their acts
of recognition to some objective test which they claim possesses
general validity. This student submits, however, that under positive
international law, and by the deliberate timing of recognition, the
interests of states may be promoted as effectively as might be the case
with application of a subjective test. Lauterpacht's contention that
states only occasionally pursue recognition as an act of policy and his
subsequent call for international administration of the recognition pro-
cedure, because of abuses inherent in decentralization, seem to em-
barrass each other. For if recognition has generally been

 

38

the circumstances under which the principle has been invoked, that
one must turn for evidence of its political nature.

The 'politics of_c_l_e_ factoism' were to become evident within two
decades after enunciation of the J effersonian principle. Revolutionary
activity in the Latin American colonies of Spain, having commenced
during the Napoleonic Wars, was clearly successful by the latter part
of 1817. Yet, in Spite of both this success and the fact that the United
States had diSpatched agents to Buenos Aires as early as 1810, l the
American Government did not begin to recognize the independence of

the former colonies until 1822. The gap between the fait acompli of

 

independence and recognition of that status suggests a play of forces

extraneous to application of the pure £13 f_a_g_tp_ principle. Consideration

of those forces, namely, the early stages in the development of both

the Monroe Doctrine and Manifest Destiny concepts, were to result

in a tentative subordination of the recognition issue to a more im-

mediate promotion of United States interests in the Western HemisPhere. 2
President Madison, upon learning of Great Britain's intention

to purchase Florida from Spain, declared in his message of January

3, 1811 to Congress:

Taking into view the tenor of these several communi-
cations, the posture of things with which they are connected,
the intimate relations of the country adjoining the United
States eastward of the Perdido River to their security and

 

satisfdctorily handled, from a legal point of view, why the urgency
of international control? Such a call suggests, rather, that the
recognition act has been essentially political in nature.

1Goebel, pp. cit., pp. 117-119.

2For an insight into Great Britain's economic interests in
Brazil and Spanish America, and its fear of antagonizing the legiti-
mist Holy Alliance, the latter causing her to delay recognition of
the colonies until 1825, see Smith, gp_. C}_t__., pp. 115-187 and Corbett,

23. cit., p. 71.

39

tranquillity, and the peculiar interests they have in its
destiny, I recommend to the consideration of Congress the
seasonableness of a declaration that the United States could
not see without serious inquietude, any part of a neighboring
territory in which they have, in different respects, so deep
and so just a concern pass from the hands of Spain into those
of any other foreign power. 1

Congress responded immediately with a joint resolution to that
effect. 2

Not until November 5, 1811, in another message to Congress,
did the President express general sentiments of goodwill toward the
rebelling colonies.3 Subsequently, a Congressional committee, to
which the message had been referred, publicly declared that evidence
of effective rule would result in recognition.4 However, the outbreak
of war with Great Britain and Spanish victories in Venezuela combined
to delay consideration of the Latin American problem. On July 9,
1816, when the United Provinces of Rio de la Plata proclaimed inde-
pendence, the United States again took cognizance of developments
to the South. Consequently, in October, 1817, Secretary of State
Monroe, in a memorandum to the Cabinet, asked, in part:

. . Is such an acknowledgment [of the independence
of the colonies] a justifiable cause of war to the parent
country? IS it a just cause of complaint to any other power?

Is it expedient for the U. States at this time to
acknowledge the independence of Buenos Ayres or any other

 

 

 

1J. D. Richardson, A Compilation of the Messages and Papers
of the Presidents, v. 2 (Washington, D.C.: ?, 1896-1899), p. 488.

 

 

2T. B. Edgington, The Monroe Doctrine (Boston: Little, Brown
and Co. , 1904), p. 92. (Quoted from United States Statutes at Large;
v. 2, p. 666.)

 

 

3Goebel, pp. cit., p. 117. (Quoted from Hunt, ed., Writings
of James Madison, v. 8 (New York: ?, 1900?1910), p. 162).

 

41bid. , p. 118. (Quoted from American State Papers, Foreign

Relations, v. 3 (Washington, D.C.: ?, 1832-1861), p. 538.)

 

40

part of the Spanish dominions in America now in a state of
revolt?I

 

While the question of expediency was never explicitly answered, 2
its mere consideration is of interest in the light of both Specific

developments that were to follow, and of support that it possibly
renders to the political thesis of recognition.

On December 16, 1817, an agent of the Rio de la Plata formally
demanded recognition from the United States. The latter, however,
insisted that no action could be taken until commissioners sent to
the rebellious states had returned with reports on conditions there.
Perceiving the Administration's delaying tactics, Congress began
discussions of the recognition question. On March 24, 1818, Henry
Clay moved that a provision for $18, 000 to support a minister to the
Provinces for one year be included in the appropriations bill.3 He
also Spoke eloquently of the United States' traditional refusal to dis-

tinguish between de facto and de jure sovereigns, so long as a party

 

had established stable, effective rule.4 His motion was defeated by
a vote of 115-45.

General Jackson's incursion into Florida in pursuit of maraud-
ing Seminole Indians, his capture of several towns, and Spain's
indiscriminate piratical acts against American commercial vessels
along the coasts of South America resulted in strained Spanish-

American relations. President Monroe now adOpted a more

 

1Ibid., p. 120. (Quoted from Hamilton, ed., Writings of James
Monroe, v. 6 (New York: ?, 1898-1903), p. 31.) Italics added.

2Ibid., p. 135. (Based on John Quincy Adams, Memoirs, v. 4
(Philadelphia: ?, 1874-1877), p. 15.)

3Ibid. , p. 123. (Quoted from Annals of the Congress of the
United States, 15th Congress, lst Session, v. 2, p. 1468.)

 

 

 

4Goebel, loc. cit., p. 123. (Quoted from Annals, p. 1468.)

41

conciliatory attitude. Henceforth, any attempt to recognize the
independence of Latin America was to be made only in concert with
Europe. 1

In the meantime, however, Spain was aware that American
occupation of Florida would lead inevitably to loss of that territory.
Consequently, She offered to negotiate its cession. With this offer
she h0ped to divert United States attention away from the recognition
problem. On February 22, 1819, a treaty ceding Florida to the
United States was signed. It conSpicuouSly omitted reference to the
Latin American issue. After much debate in the United States, the
treaty was finally ratified on February 22, 1821.

The American Government was able again to consider the
recognition question. Accordingly, in a message of March 8, 1822
to Congress, President Monroe, after observing that the wars of
independence had been brought to a close, called for recognition. 7‘
On March 19, 1822, the Senate Committee onForeign Affairs con-

curred with a unanimous expression of the justice and expediency

 

lMonroe's attempt to effect a concerted recognition was doomed
to failure, however, in view of the legitimist principle cementing the
Holy Alliance; for information on the Alliance and its legitimist views,
eSpecially in respect to the Conferences at Aix-la-Chapelle (late 1818),
Laybach (May 1821), and Verona (1822), and its suppression of
rebellions in Spain, Naples, and Sardinia, see Roland Hall Sharp,
Non-Recognition as a Legal Obligation, 1775-1934, Ph. D. dissertation
in Political Science at the University of Geneva, 1934 (Liege, Belgium:
Irnprimerie Georges Thone, 1934), p. 23ff. and Theodore D. Woolsey,
Introduction to the Study of International Law (New York: Charles
Scribner and Co. , 1871), pp.66-67; for the British attitude of hostility
to the Alliance's legitimist pretensions and sympathy for recognition
of the Latin American colonies, see Lord Castlereagh's Circular Note
of January 19, 1821, in Woolsey, op. cit., p, 67; Sharp, op. cit.,
pp. 28-29, and the Despatch of MaECh 25, 1825, to Spain, Efor-ming
it of Great Britain's intention to extend recognition. (British Foreign
and State Papers, v. 12, pp. 909-915.) _

 

 

 

 

ZGoebel, gp. cit., p. 135. (Quoted from Hamilton, ed., pp: cit.,
v. 6, pp. 207 e_t seq.)

42

of such a grant. 1 Recognition was subsequently extended to Colombia
(June 19, 1822), Buenos Ayres, Chile and Mexico (January 27, 1823),
Peru (August 4, 1824), and Central America (May 21, 1826).

The Latin American case presents to the student of recogni-
tion an unusually frank example of the manner in which political
considerations tend to compromise the fig ffl-legal thesis.
President Madison2 and Secretary of State Adams3 h0ped to create
the illusion of recognition being a matter of lofty principles and legal
obligations, reSpectively. However, the coincidence of Monroe's
memorandum to the Cabinet, ratification of the treaty of cession,
tacit British support, and recognition in 1822, appears to haveplaced
the question essentially within the Sphere of political interest.4

As early as 1811, the United States, anticipating a threat from
British occupation of contiguous Florida, moved to thwart cession
of the territory by Spain to any other EurOpean Power. In 1817,
diplomatic and military developments rendered American acquisition
likely; however, on condition that it 'moderate its interest in Latin
American independence and recognition. Consequently, the necessity
of diplomatic tact relegated the question of recognition to a position
of secondary importance. Only when the treaty had been consummated
could the United States again actively pursue its interests in Latin

America.

 

1Ibid., p. 136. (Quoted from Annals, 17th Congress, 1st
Session, p. 1382).

zGoebel, 91?: cit. , p. 142. (Quoted from letter sent by Madison

to Monroe, May 6, 18.22, in Hunt, ed., op: cit., v. 9, p. 29.)

3Corbett, op: cit., p. 70. (Based on Manning, Diplomatic
Correspondence of the United States Concerning the Independence of
the Latin American Nations (New York: ?, 1925), p. 157.)

 

 

 

4For concurring Opinions as to the political character of the
Latin American recognitions, see Goebel, op. cit., p. 142 and
Corbett, loc. cit., p. 70.

43

The French and Latin American cases laid the groundwork
for a United States recognition policy, based on discretion applied
to the _<_l_e factoism-legitimism principle, that was to persist until
the last quarter of the Nineteenth century. 1 Thus, President Jackson,
in his annual message of December 6, 1830, referring to recog-
nition of the regime of Louis Philippe in France, asserted that

the American people, while assured of 'the high character
of the present king of the French, ' a character which, if
sustained to the end, would 'secure to him the proud appel-
lation of the Patriot King, ' yet rejoiced not in his success,
but in that of the great principle which has borne him to the
throne-the paramount authority of the public will. 2

By 1833, however, the United States, cognizant of both the
inevitability of undemocratic regimes and the flexible character of
the Jeffersonian doctrine, appears to have effected a shift from the
original spirit of the latter in order to accommodate the existence
of the former. Thus, Secretary of State, Edward Livingston, in a
note to the British Minister, Charles Vaughan, on April 30, 1833,
could assert:

It has been the principle and the invariable practice
of the United States to recognize that as the legal Government
of another nation by which its establishment in the actual

 

1The international obligations principle was invoked by Henry
Clay in the Texas recognition case of 1833. (See excerpts from
Senate Document 406, 24th Congress, 1st Session, p. 1, in Goebel,
op. cit. , pp. 149-150. This principle was applied frequently only
EeF-IS77, however. Great Britain, of course, invoked it in
registering hostility to the French Convention's international revolu-
tion program of 1792.

 

zMoore, op. cit., p. 123. (Quoted from Richardson, op. cit.,
v. 2, p. 501); STnitE—op. cit., p. 101, submits that the Brit-i-STh
recognized Louis Phil'i—ppersT-regime not out of sympathy for repre-
sentative govermnent, but rather, in an effort to ensure European
peace and stability. Consequently, recognition was used as a

political instrument .

 

44

experience of political power might be supposed to have
received the express or implied assent of the pe0ple.T

 

 

Only forty years after enunciation of the traditional policy
based on the "will of the nation, substantially declared," political
necessity demanded a new interpretation. Two points in this develop-
ment are significant: First, the implication that, since political
reality is a constantly changing phenomenon, so, too, must national
policy be subjected to re-evaluation and, where necessary, modifi-
cation. The United States found it desirable to effect a change within
the framework of an older, sanctified policy. Thus, while nominally
adhering to a traditional policy, the philosophical-idealistic substance
was progressively abandoned.

Second, the question of legal obligation in recognition was as
alien to the new as it was to the old interpretation of the Jeffersonian
principle. The former, too, did not attempt to obviate that element
of discretion only recently affirmed by the Latin American experience.
Indeed, it would be somewhat naive to expect that, after having
exercised political discretion, a government would voluntarily admit
a legal interpretation of the recognition act.

While continuing to encourage govermnents established on the
basis of principles with which it was in accord, the expanded policy
permitted the United States to deal simultaneously with those of another
bent. Thus, for example, Secretary of State Clayton's letter of July 8,
1849 to Minister Donelson in Prussia, asserting that

we, as a nation, have ever been ready and willing to recognize
any Government, de facto, which appeared capable of maintain-
ing its'power; and-silould either a republican form of govern-
ment, or that of a limited monarchy (founded on a popular and
permanent basis) be adopted by any of the states of Germany,

 

1Moore, 22. <_:_i_t., p. 129. (Quoted from MS. Notes to Foreign
Legations, V, p. 102. Italics added.)

 

45

we are bound to be the first, if possible, to hail the birth of
the new Government, and to cheer it in every progressive
movement that has for its aim the attainment of the priceless
and countless blessings of freedom, 1

was, in light of the broader interpretation, consistent with the
American attitude toward a new regime in France.

On December 2, 1851, Louis Napoleon, President of the French
Republic, dissolved the National Assembly and Council of State,
called fOr elections based on universal suffrage, convoked the people
in primary assemblies, and initiated a state of siege. Secretary of
State Webster wrote to Minister Rives in Paris of Louis' attempt to
prolong and enlarge the powers of the Presidency:

. . . From President Washington's time down to the present
day it has always been a principle, always acknowledged by

the United States, that every nation possesses a right to govern
itself according to its own will, to change institutions at dis-
cretion, and to transact its business through whatever agents
it may think proper to employ. . . . If the French people have
now substantially made another change, we have no choice but
to acknowledge that also; and as the diplomatic representative
of your country in France, you will . . . Conform to what
appears to be settled national authority. And while we deeply
regret the overthrow of popular institutions, yet our ancient
ally has still our good wishes for her prosPerity and happiness,
and we are bound to leave to her the choice of means for the
promotion of those ends. 2

In Latin America, an area rapidly becoming an economic Sphere
of interest of the United States, the discretionary de facto principle

was most profitably invoked. Thus, for example, our relations with

 

1Francis Wharton, ed. , A Digest of the International Law of the
United States, Taken from DocumeJrits Issued by Presidents and Secre-
taries of State, and from Decisions of Federal Courts and Opinions of
Attorneys-General, v. 1 (Washington, D. C.: Government Printing
Office, 1886), p. 537. (Quoted from MSS, Inst., Prussia.)

 

 

 

 

 

2Moore, loc. c_i_t., p. 124. (Quoted from S. Ex. Document 19,
32nd Congress, lst Session, p. 19.)

 

46

Mexico just prior to the outbreak of the American Civil War, illus-
trates the political character of recognition.

In July, 1857, a constituent congress drew up a new constitution,
under which General Comonfort was elected President for a four year
term. A 1on, led by General Zuloaga, overthrew the Comonfort
government in August. Subsequently, a civil war broke out between
the new Zuloaga Government and Benito Juarez' republican faction.

AS a result, the former was overthrown in favor of a new government
under Miramon. The American Minister, having recognized the
Zuloaga Government without permission from the State Department,
was now instructed to enter into relations with Miramon. Meanwhile,
Juarez had established his own government at Vera Cruz, in opposition
to that at Mexico City.

A crisis developed when Miramon decreed a pro rata contribution

 

on all capital in Mexico valued at certain amounts, including that of
foreigners. The American Minister in the capital, Mr. Forsyth,
promptly condemned it as a forced loan and advised Americans to
ignore the levy. Relations between the two governments deteriorated
rapidly until finally, in June 1858, relations with Miramon were
suSpended and the American Minister recalled.

In the ensuing civil war between the Miramon and Juarez factions,
it soon became apparent that the latter would emerge triumphant.
Consequently, President Buchanan dispatched Mr. William M. Church-
well as confidential agent to investigate conditions in Mexico. His
reports of February 8 and 22, 1859 were favorable to Juarezr party

and urged the President to recognize his government.l

 

1Stuart A. MacCorkle, American Policy of Recognition Towards
Mexico (Baltimore: Johns Hopkins University Press, Ph. D. disser-
tation, 1933), pp. 48-54. (Quoted from Despatches from the Ministers
in Mexico, Department of State, v. 23, Despatches no. l-C.)

 

 

 

47

When Juarez agreed to settle all claims of American citizens

against Mexico, to permit free trade between the two countries on

the basis of reciprocity, and to protect American citizens and property
involved in such intercourse, 1 a new Minister, Mr. Robert M. McLane,
was diSpatched to Mexico. McLane was authorized to recognize the

Juarez Government if ". . . he should find it entitled to such recog-

nition according to the established practice of the United States. "7‘

Secretary of State Cass, after emphasizing the irrelevance of
legitimacy, advised the Minister that

the question whether there is a government in any country

is not a question of right, but of fact, and in the ascertainment
of this fact in Mexico very much must be left to your discre-
tion. Undoubtedly, however, the sympathies of the United
States have been enlisted in favor of the party of Juarez which
is now established at Vera Cruz, and this government would
be glad to see it successful. This arises not only from the
fact that it is believed to be a constitutional party, but because,
also, its general views are understood to be more liberal than
those of the party Opposed to it, and because, moreover, it is
believed to entertain friendly sentiments toward the United
States. . . . The simple fact that it is not in possession of

the city of Mexico, ought not to be a conclusive consideration
against it. If its authority is obeyed over a large majority of
the country and the people, and is likely to continue, it would
be extremely unjust to delay an acknowledgment of it, because
its opponents are in possession of the capital. On this subject,
however, your own judgment must be your best guide.3

Perhaps most significant, in the light of future deveIOpments in

the Mexican case, is Secretary Cass' emphasis upon the discretionary

 

1MacCorkle, loc. cit., pp. 48-54. (Quoted from Instructions to
American Ministers in Mexico, v. 17, p. 206.)

 

 

ZMacCorkle, loc. cit., pp. 48-54. (Quoted from DeSpatches,
loc. cit., v. 23, Despatch no. 1-C.)

 

 

3MacCorkle, loc. cit., pp. 48-54. (Quoted from Instructions,
.°_P' cit., v. 17, pp. 209-213.)

 

48

character of recognition. Undoubtedly, the United States' attitude
toward the Juarez regime played some part in Minister McLane's
decision to recognize the Mexican Republic on April 7, 1859.
However, in view of a memorandum enclosed in Mr. Churchwell's
reports, pertinent to economic benefits to be derived from recog-
nition of Juarez, 1 it is apparent that the promotion of a Specific
national interest influenced both the timing and object of that recog-
nition. Indeed, Minister McLane's reasons for extending recognition,
as explained to Secretary Cass, confirm that conclusion:

In any other country than Mexico, I should have had grave
doubts in coming to the conclusion at which I have arrived,

but a view of the very large interest, political and commercial,
already involved in the right of way over the Isthmus of
Tehuantepec, and'with the knowledge that this transit was the
subject of present legislation or decrees by both governments,
and the State of Louora also which offered so desirable a route
from the Pacific Ocean to our territory of Arizona, was now
engaged in a contest with the central government in relation to
its public domain in that state, in which contest the rights

and property of American citizens were deeply involved, I

felt it to be my duty to act promptly in Opening political rela-
tions with some power, if such could be found consistent with
those principles by which I had been instructed to govern
myself. 2

One student of American-Mexican relations3 has submitted
that the presence of English and French fleets in the harbor at Vera

Cruz, demanding the performance of commercial treaties signed

 

1MacCorkle, .1_q_c_. cit., pp. 48-54. (Despatches, 1_o_c; cit., v.
23, DeSpatch no. l-C.) TI-liarez agreed to cede not only lower California,
but also a perpetual right-of-way over Tehuantepec and from Rio
Grande to Guaymas and Matzatlan, reSpectively.

 

zMacCorkle, loc. cit., pp. 48-54. (Quoted from DeSpatches,
loc. cit., v. 23, DeSpatch no. l-April 7, 1859.)

 

 

 

3MacCorkle, loc. Ei_t., pp. 48-54.

49

with various, Mexican governments, was the most significant factor

in hastening United States action. This conclusion is tenable,
e5pecially in view of the Monroe Doctrine and the United States'
traditional hostility to expanded EurOpean influence in the hemis-
phere. However, the coincidence of agent Churchwell's memorandum,
Secretary Cass' instructions, no doubt given with prior knowledge

of concessions that Juarez was prepared to grant, and Minister
McLane's explanation suggests a preoccupation with more immediate
economic interests. In any event, whatever the degree of their
Significance, both conclusions suggest the primacy of national

interests in the execution of a de facto recognition policy.

B . Legitimism

 

Civil war brought an expediential, if only brief, change in
United States recognition policy. It was first seen in the attitude of
the Federal Government toward the insurrentionary Confederacy. 1
As early, as February 1861, Secretary of State Seward, reSponding to
a Confederate effort to dispatch commissioners to Washington,
reflected that attitude:

Of course . . . the Secretary of State cannot act upon
the assumption or in any way admit that the so-called
Confederate States constitute a foreign power, with whom
diplomatic relations ought to be established. Under the cir-
cumstances, the Secretary of State, whose official duties
are confined, subject to the direction of the President, to
the conducting of the foreign relations of the country and do
not at all embrace domestic questions or questions arising
between the several States and the Federal Government, is
unable to comply with the request of Messrs. .Forsyth and
Crawford. . . . On the contrary he is obliged to state . . .

 

1For an insight into the implications of the Civil War experi-
ence for United States recognition policy, see Goebel, 92. (3.11:. , pp.
171-218.

50

that he has no authority, nor is he at liberty to recognize
them as diplomatic agents or hold correspondence or other
communication with them. 1

The Supreme Court of the United States, having held that,

when a civil war rages in a foreign nation, one part of which
separates itself from the old established government and
erects itself into a distinct government, the courts of this
country must view such newly-constituted government as it
is viewed by the legislative and executive departments of the
Government of the United States,2

was obliged to conclude that

the government of the Confederate States . . . had no exist-
ence, except as a conSpiracy to overthrow lawful authority.
Its foundation was treason against the existing Federal
Government. Its single purpose, so long as it lasted, was
to make that treason successful. . . .3

The Federal Government, by ignoring its traditional sympathy

for revolution,4 attempted to convince other powers that the conflict

 

1Ibid., p. 174. (Quoted from J. D. Richardson, A Compilation
of the Messages and Papers of the Confederacy, v. 1 (Nashville: ?,
1906), pp. 85 21: seq.)

 

 

2U. S. Department of State, Digest of the Published Opinions of
the Attorneys-General, and of the Leading Decisions of the Federal
Courts, With Reference to International Law, Treaties, and Kindred
Subjects (Washington, D. C.: Government Printing Office, 1877), p.
40. (Quoted from United States vs. Palmer, 3 Wheaton, p. 610.)

 

 

 

 

31bid., pp. 79-80. (Quoted from sprott vs. United States, 20
Wallace, pp. 459, 464, 465.)

 

4Jefferson, as early as 1787, had written: "I hold it that a
little rebellion now and then is a good thing and as necessary in the
political world as storms in the physical. " (Quoted from Ford, ed. ,
Jefferson's Works, v. 4, pp. 362-363, by John L. McMahon,
Recent Changes in the Recognition Policy of the United States (Ph. D.
dissertation, Washington, D. C.: Catholic University of America,
1933), p.) 29; Taylor Cole, The Recognition Policy of the United
States Since 1901 (Baton Rouge: Louisiana State University, 1928),
p. 26, claims that Seward never denied either the right of revolu-
tion or the right of a pe0p1e to set up governments according to their
own tastes.

 

 

 

 

 

51

was domestic as a result of the illegal insurrection. Despite
Federal pretensions, Great‘ Britain declared its neutrality on May
13, 1861, after President Lincoln had decreed a blockade of the
Confederate coast. Thus, the Confederacy became a belligerent
power under international law.

The effect of both the insurrection and British recognition
upon United States policy was Significant. In reverting expedientially
to the legitimacy aspect of the Jeffersonian doctrine, the Federal
Government had rejected the later interpretation based on effective-
ness and popular acquiescence. Consequently, in order to avoid
embarrassment in the eyes of the world, it sought consistency
through adoption of the older test as the keystone of its recognition
policy.

The test of constitutional legitimacy, generally considered to
have been encouraged by Secretary of State Seward, was most
prominently applied in relations with Latin America. The Secretary
first suggested a reversion to the old test in a letter of November
19, 1862, to Minister Culver in Caracas, wherein he stated that

a revolutionary Government is not to be recognized until
it is established by the great body of the population of the
state it claims to govern. 1

In a letter of April 21, 1866 from Seward to the American
representative in Bolivia, stating that

hitherto your instructions have been not to recognize any
government in Bolivia which was not adopted through the free
will and the constitutionally expressed voice of the peOple of
that republic: but, nevertheless . . . the President deems it
expedient under the exigencies of the present condition of
affairs in that region to recognize the actual government of

 

lWharton, c_>p_. c_i_t_., p. 542. (Quoted from MSS. Inst.,
Venezuela.)

 

 

52

Bolivia if that government has become truly and in fact
consolidated. . . , 1

both the legitimacy and discretionary characteristics of the Civil
War policy and recognition generally were emphasized.

The Peruvian case of 1866-1868 serves as perhaps the best
illustration of Seward's policy. The Secretary had dispatched General
Hovey to Peru to continue relations with the government of General
Pezet. En route, however, the Pezet government was, overthrown
and supplanted by the regime of General Conseco. Subsequently,
the entire diplomatic corps, except the American Minister, recognized
the Conseco government. Shortly thereafter, a c_zgl_1_p_, headed by
Colonel Prado, brought a military dictatorship to power. On March
8, 1866, influenced by the experience of his own country, Seward
wrote of the latest development in Peru:

The policy of the United States is settled upon the
principle that revolutions in republican states ought not to
be accepted until the people have adopted them by organic
law with the solemnities which would seem sufficient to '
guarantee their stability and permanency. This is the result
of reflection upon national trials of our own. 2

The Prado regime was overthrown by General Conseco in
May 1868, whereupon the latter claimed, by virtue of his earlier
recognition, a right to continued recognition. Secretary Seward

responded on May 7, 1868:

 

1Goebel, Op. cit., p. 199 and Charles Cheney Hyde, Inter-
national Law, Chieny—as Interpreted and Applied by the United States,
v. 1 (Boston: Little, Brown and Co., 1922), p. 44. (Quoted from
Diplomatic Corre8pondence, 1866, v. 2, p. 330); for a reaffirma-
tion of the discretionary element in recognition, see the case of the
Iglesias regime in Peru. (Quoted by Green Haywood Hackworth,
Digest of International Law, v. 1 (Washington, D.C.: Government
Enting Office, 1940), pp. 158-159.)

 

 

zGoebel, loc. cit., p. 199. (Quoted from Diplomatic Corres-

pondence, 1866, v. 2, p. 630.)

 

53

What we wait for in this case is the legal evidence
that the existing administration has been deliberately accepted
by the people of Peru. . . . We do not deny or question the
right of any nation to change it[s][government] by force,
although we think that the exercise of force can be justified in
rare instances. What we do require, and all that we do require,
is when a change of administration has been made, not by
constitutional process, but by force, that then the new adrninis-
tration shall be sanctioned by the formal acquiescence and
acceptance of the pe0ple.

We insist upon this because the adoption of a different
principle in regard to foreign states would necessarily tend
to impair the constitutional vigor of our own government, and
thus favor disorganization, disintegration, and anarchy through-
out the American continent. In our own late political convul-
sions, we protested to all the world against any recognition of
the insurgents as a political power by foreign nations, and we
denied the right of any such nation to recognize a government
here independent of our constitutional republic until such new
government should be not only successful in arms, but should
also be accepted and proclaimed by the people of the United
States. 1

By late 1868, however, Secretary Seward apparently realized,
as had Secretary Livingston in 1833, that a strict, constitutional
interpretation of the J effersonian principle was impractical in the
light of political realities. Thus, for example, when a bloodless,
unresisted revolution occurred in Costa Rica, supplanting the Castro
government with that of Provisional President Jimenez, Minister
Blair recognized the new regime. Secretary Seward, informed that
the provinces had acquiesced in suspension of the old constitution
and the call for a national convention to adopt a new one, wrote to
Minister Blair on December 1, 1868:

It does not belong to the Government or people of the
United States to examine the causes which have led to this
revolution, or to pronounce upon the exigency which they
created. Nevertheless, great as that exigency may have

 

1Ibid., p. 202. (Quoted from Diplomatic Corre3pondence, 1868,
v. 2, pp. 863 e_t seq.); quoted, in part, in Cole, op. cit., p. 29.

 

54

been, the subversion of a free republican constitution, only
nine years old, by military force, in a sister American
Republic, cannot but be an occasion of regret and apprehension
to the friends of the system of republican government, not
only here, but throughout the world.

It only remains to say that the course which you have
pursued is approved, insomuch as it appears that there is
not only no civil war, but no Government contending with the
one which has been established. 1

Seward's policy, contrary to the opinion of some scholars, 7‘
appears to have been consistent with the traditional practice of the
United States in at least two senses.3 On the one hand, it appears
to have come closer in spirit to the original Jeffersonian principle
than did the later' interpretation recognizing acquiescence and
effectiveness as a more feasible test. Indeed, the interventionist
Civil War policy could be traced to Jefferson's inherently interven-
tionist doctrine of 'democratic legitimacy. ' Both men suffered the
same dilemma: simultaneous reSpect for the right of revolution
and insistence upon a democratic and constitutional legitimacy.
That the latter tended both to circumscribe the former and to hamper
American foreign policy formulation and execution appears to have
been appreciated more by Seward than Jefferson. Hence, his post-
war reversion to the later interpretation of the Jefferson doctrine.
The Civil War policy may also be viewed as . consistent with

traditional practice in that both were based upon the political,

 

lWharton, pp. p_i_t_.,ipp. 543-544. (Quoted from MSS. Inst.,
Costa Rica, Diplomatic CorreSpondence, 1868.)

 

 

ZSee, e.g., Hyde, loc. cit., p. 44 and Goebel, pp. pit” p.
200.

3Cole, loc. cit. , p. 26, suggests that, since Seward never
denied the right of revolution, his policy was not fundamentally
different from that traditionally pursued by the United States.

55
rather than legal thesis of recognition. Neither considered recog-
nition in terms of objective legal obligation, but rather, of dis-

cretion and national interest.

C. International Obligations

 

By the last quarter of the Nineteenth Century, [American
interests abroad, aSpecially those in Latin America, gave rise to
the need for a new, subjective criterion in our recognition policy.
Hence, the test based on a regime's ability and willingness to fulfill
the state's international obligations. l Initiated in 1877, when
President Hayes, in his first Annual Message, asserted that

it has been the custom of the United States, when such
[revolutionary] changes of government have heretofore
occurred in Mexico, to recognize and enter into official
relations with the de facto Government as soon as it shall
appear tohave the'zpproval of the Mexican people, and
Should manifest a diSposition to adhere to the obligations
of treaties and international friendship, 2

it has remained a key test in the United States' recognition policy.
Thus, the Acting Secretary of State, F. W. Seward, wrote to the
American Minister in Mexico on May 16, 1877:

The Government of the United States, . . . in the
‘ present case . . . waits before recognizing General Diaz
as the) President of Mexico until it shall be assured that his
. election is approved by the Mexican pe0p1e, and that his

 

1See footnote 1, page 43; MacCorkle, op. cit., p. 102, submits
that the international obligations criterion w-a-S pFO-bably inherent in
the traditionalide3facto principle, and has become independently sig-
nificant only w'i—th the expansion of American interests abroad; for a
concurring view, see Green Haywood Hackworth, "The Policy of
the United States in Recognizing New Governments During the Past

Twenty-five Years, " Proceedings of the American Society of Inter-
national Law, 1931, p. 123.

 

tharton, pp. pit” p. 546.

56

administration is possessed of stability to endure, and of
disposition to comply with the rules of international comity
and the obligations of treaties.

. . . recognition, if accorded, . . . would imply a
belief that the Government so recognized will faithfully exe-
cute its duties and observe the Spirit of its treaties. The
recognition of a President in Mexico by the United States
has an important moral influence which, as you explain, is
appreciated at the capital of that Republic. It aids to
strengthen the power and lengthen the tenure of the incumbent,
and if, as you say, the example of the United States in that
regard is one that other nations are diSposed to follow, such
recognition would not be without effect upon the internal and
the external peace of Mexico. 1

Seward's note illustrates both the application of the new test
and the significance of United States recognition in inter-American
relations. By 1877, American influence in the hemisphere had grown
to a point where its will [could directly affect the existence of neighbor-
ing governments. Its action in Mexico was a testament to both that
power and that will.

A. Venezuelan revolution, returning Senor Blanco to power,
was quickly recognized by England, France, Italy, Germany, Spain
and Brazil. The United States, however, after observing both the

illegitimate origin and de facto existence of the new government,

 

decided to defer recognition until Blanco had clearly gained popular
support. More important, however, recognition would be contingent
on its observance of international obligations, namely, payment of a

defaulted indemnity and protection of American citizens in Venezuela. 2

 

1Ibid., pp. 546-548. (Quoted from MSS. Inst. Mexico; Foreign
RelatiOh—ST 1877.) The letter specifies the Mexican govermnent's ap-
parent indisPOSition to halt border raids, forced loans against Ameri-
can citizens, etc. , in invoking the international obligations test.

 

 

2"Moore, op. c_i_t_., p. 150.

57

Its position on fulfillment of obligations was elaborated upon by
Secretary of State Evarts, in a letter of June 14, 1879 to Minister
Baker:

The capacity of a state, in itself, for recognition, and
the fact of recognition by other states, are two different things.
Recognition is not . . . infrequently influenced by the needs of
the mutual relations between the two countries. When radical
changes have taken place in the domestic organization of the
country, or when they seem to be contemplated in its outward
relations, it is often a matter of solicitude with this Govern-
ment that some misunderstanding should exist that the rights
acquired by our citizens through the Operation of treaties and
other diplomatic engagements, shall not be affected by the
change. . . . 1 '

Furthermore,

as a general rule of foreign policy, obtaining since the founda-
tion of our Government, the recognition of a foreign Govern-
ment by this is not dependent on;right, button facf . . . ‘When
a change occurs in the administration of a nation, and the new
authorities are in unopposed possession of the full machinery
of Government, . . . and evincing the purpose aswell as the
power to carry out the international obligations of the state,
recognition would follow, as a matter of course, . . . so long
as no considerations of policy directly affecting the relations
betweep his country and this intervene to posgone such a
result.Zr

 

 

 

 

 

 

1Wharton, pp. cit__._, pp. 548-549. Secretary Evarts referred also
to the ability to conduct customary business relations with an unrecog-
nized government. This may be an implementation of Jeffersonls
distinction betWeen the recognized government, and one, though unrecog-
nized, with which limited business could be transacted. TheUnited
States has made such a distinction on many occasions, in order to
effect a continuity of Commercial intercourse and protection of
American citizens and property in states with unrecognized govern-
ments.

ZIbid. , p. 549. (Quoted from Acting Secretary of State Hunter's
letter to Minister Baker, October 3, 1879, MSS. Inst. , Venezuela,
Italics added.)

 

58

C onclusion

 

American recognition practice in the Nineteenth Century serves
as an instructive commentary on the nature of recognition in inter-
national relations. It has been observed that application of a legitimacy
principle, whether democratic, constitutional, or monarchical, can-
not but constitute an act of intervention into the domestic affairs of
sovereign states. It is not surprising, therefore, that such a criterion
has been almost universally condemned in legal and political circles.
Yet, in Spite of such condemnation, it has not become a dead-
letter in international relations. President Wilson's implementation
of the constitutional legitimacy test1 doubtless confirms its powers of
survival. I

Application of the international obligations criterion is often
less antagonistic to an unrecognized govermnent than the legitimacy
test. Nevertheless, when invoked independently of the pip faflp principle,
it too, is inherently subjective and political. In this case it repre-
sents an inquiry into the degree of a regime's ability and disposition
to fulfill obligations of an international character. Such inquiries
have also transcended the reasonable limits of concern for observance
of treaties to the consideration of national ideologies. The cases of
Great Britain during the French Revolution and the United States
vis-a-vis hostile regimes in the Soviet Union, Argentina, and Com-
munist China, offer illustrations of the elastic political character of
such a test. 1

Of the three tests, dpfactoism alone approaches an objective
legal character. This writer has been reluctant to consider it a legal

criterion, however, for the gap between theory and practice has

 

1See Chapters III and IV.

59

historically been too great to support such a claim. As the practice
of the United States and positive international law demonstrate, the
£13pr principle has been utilized essentially as another political
test. Until the states renounce their prerogative of discretion in
the recognition act, this criterion also must remain an instrument

of national interests, rather than of legal obligation.

CHAPTER III

THE RECOGNITION OF REVOLUTIONARY GOVERNMENTS
IN AMERICAN HISTORY
(B) A NEW ROLE: 1917-1960

An understanding of the American attitude toward recognition
in this century requires an awareness of the changes that the nation
has undergone since its founding. As a young, weak nation, the
United States tended to identify most situations involving recognition
with the ideals upon which its founding was based. Consequently,
it seemed to intuitively support the pip fpppp principle. 1 In the
Twentieth Century, however, the United States has become a great
power with spheres of interest throughout the world. As a result,
it appears that this country, moulding its diplomacy as a power, will
emphasize expediency and national interests in each case of recog-
nition in which it is involved. Thus, it is difficult to Speak of
American recognition practice in terms of any general policy.2

3

Three cases, especially illustrative of its new role in an era

of great international rivalry and strife, throw light on the

 

1Stuart A. MacCorkle, American Policy of Recognition Towards
Mexico (Ph. D. dissertation, Baltimore: Johns H0pkinS University
Press, 1933), p. 23; also, see Chapter II, supra, for political quali-
fications of this principle.

 

2MacCorkle, loc. cit., p. 23.

3The many cases of recognition involving the United States in
the Twentieth Century suggest that it has placed different emphases
on the several recognition tests under varying conditions. Further-
more, policies of the United States and other nations have been based

60

61

United States' discretionary behavior. Before reviewing the Soviet,
Argentine, and Chinese cases of 1917-1933, World War II and 1949- ?,
respectively, a statement on the relevance of the nature of recog-
nition to them would seem appropriate.

American practice in the Twentieth Century has followed that
of the Nineteenth in that it has adhered to the political, rather than
the legal, thesis of recognition. Consequently, a distinction between
the two eras must be sought in evolving American interests. Survival
of the traditional tests ought not to create the illusion of similarity
between the two centuries. Communism, Fascism, Nazism, World
War, and Cold War have undoubtedly given new meaning and purpose

to traditional principles.

A. The Soviet Case

 

The United States' attitude toward the Soviet regime in the
sixteen years prior to its grant of recognition was influenced by both
traditional principles and the international situation. Its earliest
hostility was engendered by the regime's actions during the First
World War. Signing, on March 3, 1918, of the Treaty of Brest-

Litovsk with enemy Germany took Russia out of the war. This

 

upon a de facto-de jure distinction, whereas in the last century,

de jure-—recognit_iOn alone was generally accorded. (E. g. , the United
—S_t-ates extended de facto recognition to Mexico's Carranza regime in
1915, and de jur—S—recognition in 1917.) This change has also tended
to foster tliz-discretionary political element in recognition. For
-illustrations of the emphasis placed on discretionary recognition, see
the case of Huerta in Mexico (Foreign Relations, 1913, p. 725ff.),
the Wilsonian legitimacy test in the Tinoco (Costa Rica) case (Foreign
Relations, 1917, pp. 301-307) and vis-a-vis Portugal's revolutionary
junta in December 1917 (Green Haywood Hackworth," Digest of Inter-
national Law, v. I (Washington, D. C. : Government finting Office,
1940), p. 293.), Ahmet Zog in Albania (Hackworth, op. cit., p. 283.),
and Obregon in Mexico (Foreign Relations, 1923, v.-_2-, p-pT—536-548.)

 

 

 

 

 

 

 

62

alienated American public Opinion and threatened to complicate

future peace conferences. 1

It is probable that deveIOpmentS Closer to home also shaped
this hostile attitude. A 'Red Scare, " culminating in association of
the American Communist Party with the subversive Moscow-based
Comintern, the raids and deportations promoted by Attorney-General
Mitchell Palmer from 1919-1921, and the Sacco-Vanzetti Case,

which dragged on from May 5, 1920 until April 9, 1927, undoubtedly

exacerbated the already popular resentment of the Soviet regime.a

AS one student of public Opinion has observed,

. the American people from 1917 to 1921 did not know
what was really going on in Russia. They did not understand
the significance of the change in Russia, nor did they appre-
hend the meaning Russia could have as an economic symbol
and social experiment. They interpreted the few economic
ideas they did perceive in the simple terms of a minority rul-
ing by violence and bloodshed. They weighed the possibilities
of Communist effort in the United States not by its essential
philos0phy but by its apparent results.3

By the end of the Russian Civil War, in 1920, one American
objection to recognition had become untenable.4 The Soviet govern-

ment had been able to meet the test of de facto, effective rule, and

 

 

1Robert Paul Browder, The Origins of Soviet-American
Diplomacy (Princeton: Princeton University Press, 1953), p. 7.

 

 

2For an excellent insight into the nature and extent of the 'Red
Scare, ' see Irving Howe and Lewis Coser, The American Communist
Party: A Critical History, 1919-1957 (Boston: Beacon Press, 1957),
pp. 59-60.

3Meno Lovenstein, American Opinion of Soviet Russia (Wash-
ington, D. C.: American Council on Public Affairs, 1941), p. 50.

 

 

 

4Browder, op. cit. , p. 16, is of the Opinion that the American
Government beligvgd that the Soviets would soon lose power. Un-
doubtedly, too, Wilson's Opposition to recognition was based on his
constitutional legitimacy test.

Louis L. Jaffe, Judicial A8pects of Foreign Relations; In
Particular of the Recpgnition of Foreign POWBT—S‘ (Cambridge:

 

 

 

63

was rapidly consolidating its power. Yet the United States continued

1

to refuse recognition. Thus, in a declaration of policy reminiscent

of the interventionist legitimacy principle, Secretary of State Colby
asserted on August 10, 1920 that.

. . . the present rulers of Russia do not rule by the will or
the consent of any considerable proportion of the Russian
people . . . they have not yet permitted anything in the way
of a popular election . . . the Bolsheviki, although in number
an inconsiderable minority of the Russian pe0p1e, by force

 

Harvard University Press, 1933), p. 109, contends that the whole
world went off the de facto standard in the Soviet case. In view of

the nature and histgy of recognition, this observation appears to be
inaccurate. It seems improper to measure the world's actions merely
by the United States' sixteen year non-recognition policy. Great
Britain had extended de facto recognition to the Soviets, through a
Trade Agreement, as-Shrly as March 16, 1921. Both the British and
French Govermnents recognized it de jure in 1924, while Japan did so
in 1925. Indeed, by November 1926-:_twenty-two powers had recognized
the Soviets. Recall that the interim between British and American
recognition of the Latin American colonies, in the name of the de facto
principle, and their actual independence, was not much shorter-.—
In fact, only two differences, Significant, of course, appear to dis-
tinguish the two cases. First, in the Soviet, a greater emphasis was
placed upon the international obligations test as an independent con-
sideration. This is not to suggest that the de facto principle was com-
pletely ignored. Thus, for example, while-the British emphasized
international obligations in 1921, it was still greatly influenced by the
Communists' ability to rule. (For evidence of both tests being applied
in the British case, see H. A. Smith, Great Britain and the Law of
Nations: A Selection of Documents Illustrating the Views of the Govern-

 

 

 

ment in the United Kingdom Upon Matters of International Law, v. 1
(London: P. S. King and Son, Ltd. , 1932), pp. 237-245.) Second, the
most significant difference appears to have been the nature of the
national interests involved. (See N. D. Houghton, ”Policy of the United
States and Other Countries With ResPect to Recognition of the Soviet
Government, 1917-1929, ” International Conciliation, 1929, no. 247,

pp. 18, 29 for information relevant to British, French, and Japanese
political interests in the Soviet case.)

 

 

LActing Secretary of State Davis (Foreign Relations, 1920, v. 3,
p. 717) emphasized that lifting of the trade embargo against Russia
did not imply recognition of the Soviet regime. This writer must sub-
mit, however, that while recognition was being withheld, the rescind-
ing order at least suggested the existence of an effective government
in Russia.

 

64

and cunning seized the powers and machinery of government
and have continued to use them with savage oppression to
maintain themselves in power. 1

Upon leaving office, the Secretary reiterated his administration's
attitude on the recognition question:

Refusal to recognize the Soviet Government was due in
the first place to the fact that it was itself the denial of self- .
determination of the Russian pe0p1e, being a rule by men who
violently usurped power and destroyed the democratic char-
acter “of the Russian pe0ple's government. 2

Harding's Secretary of State, Charles Evans Hughes, suggested
a new consideration in the Soviet case. (Implying the international
obligations test, he insisted that Russia's desire to exchange trade
for recognition could not satisfy a United States interested only in
the protection of its citizens and property in that country.3 In a letter
of July 19, 1923 to Samuel Gompers, President of the American

Federation of Labor, Hughes, conceding Soviet dgfacto rule, elabor-

 

ated on its failure to meet the international obligations test:

.' . . while a foreign regime may have securely estab-
lished itself through the exercise of control and submission
of the people to, or their acquiescence in, its exercise of
authority, there still remain other questions to be considered.
Recognition is an invitation to intercourse. It is accompanied
on th; part of the new government by the clearly implied or
express promise to fulfil the obligations of intercourse. These
obligations include, among other things, the protection of the
persons and property of the citizens of one country lawfully
pursuing their business in the territory of the other. In the
case of the existing regime in Russia, there has not only been

 

lInternational Conciliation, no. 155, October 1920, pp. 5-11.

 

2John L. McMahon, Recent Changes in the Recognition Policy
of the United States (Ph. D. dissertation, WasMngtonfD. C.:
Catholic University of America. . Press, 1933), p. 78. (Quoted from
New York Times, January 30, 1921.)

 

 

 

3Foreign Relations, 1921, v. 2, p. 768.

 

65

the tyrannical procedure . . . which has caused the question
of submission and acquiescence of the Russian people to
remain an open one, but also a repudiation of the obligations
inherent in international intercourse and a defiance of the
principles upon which alone it can be conducted. . . .

What is most serious is that there is conclusive evidence
that those in control at Moscow have not given up their original
purpose of destroying existing governments wherever they can
do so throughout the world. . . .

While this Spirit of destruction at home and abroad re-
mains unaltered the question of recognition by our Government
of the authorities at Moscow cannot be determined by mere
economic considerations or by the establishment in some degree
of a more prosPerous condition, . . . or simply by a consider-
ation of the probable stability of the regime in question. 1

Clearly, for the Harding Administration,

the fundamental question in the recognition of . . . [the Soviet]
government . . . [was] whether it show[ed] ability and the dis-
position to discharge international obligations. 7‘

When the President died on August 2, 1923, the conservative
Calvin Coolidge entered the White House. In his first Annual Message
to the Congress, on December 6, 1923, Coolidge sounded a familiar
note:

Our Government does not propose . . . to enter into
relations with another regime which refused to recognize the

 

lHackworth, op. cit. , pp. 177-179. (Quoted from MS. Depart-
ment of State, file ESL-(717623. Italics added. Cited, in part, by
McMahon, op. Cit. , p. 79. (Quoted from full text in American Federa-
tionist, v. 31-, pp— 155-156.) The italicized statement may throw some
light on the function of recognition. It suggests that for the United
. States recognition signifies an intention to pursue relations, rather
than mere appreciation of an objective fact. Thus, Kelsen's dichotomous
theory appears to be consistent in principle only, while in fact,
DeVisscher's argument, that the legal and political aspects cannot be
distinguished, is more tenable.

 

 

 

zTaylor Cole, The Recognition Policy of the United States Since
1901 (Baton Rouge: Louisianfitate University Press, 1928), p. 88.
(Quoted from a statement by Secretary Hughes in the New York Times,
March 22, 1923, p. 1.)

 

 

66

sanctity of international obligations. . . . Whenever there
appears any disposition to compensate our citizens who were
despoiled and to recognize that debt contracted with our
Government not by the Czar, but by the newly formed
Republic of Russia; whenever the active Spirit of enmity to
our institutions is abated; whenever there appear. works . . .
showing repentance, our country ought to be the first to go

to the economic and moral rescue of Russia. 1

Chicherin, Soviet Commissar of Foreign Affairs, apparently
interpreting the message as an invitation to negotiate recognition,

promptly telegraphed that

. . . Soviet Government sincerely anxious to establish at last
firm friendship with pe0ple and government U. S. , informs you
of its complete readiness to discuss with your govermnent all
problems mentioned in your message, these negotiations being
based on principle mutual non-intervention internal affairs.

. . . As to question of claims mentioned your message Soviet
Government is fully prepared to negotiate with view its satis-
factory settlement on assumption that principle reciprocity
recognized all round. . . . [Sic'. ]2

The United States replied peremptorily that it

. . . is not proposing to barter away its principles. . .

It requires no conference or negotiations [for the Soviet
authorities to fulfil its obligations] . . . [This] can and
should be achieved at Moscow as evidence of good faith.
The American Government has not incurred liabilities to
Russia or repudiated obligations. Most serious is the con-
tinued prOpaganda to overthrow the institutions of this
country. This Government can enter into no negotiations
until these efforts directed from Moscow are abiejidoned.3

 

 

 

1New York Times, December 7, 1923, p. 4.

 

zForeign Relations, 1923, v. 1, p. 7.

 

3Hackworth, op. cit., p. 303. (Quoted from Secretary Hughes'
message of Decembe—T-r 18,—1923, to the American Consul, Mr. Quarton,
in Tallinn, to be read to the Soviet representative there. MS. Depart-
ment of State, file 711.61/71. Italics added. For complete text, see
Corggressional Record, December 20, 1923, LXV, p. 451.)

 

 

67

The American attitude, ostensibly resting on a traditional
interpretation of the international obligations principle, was in fact
shaped by an expanded application of that test. Chicherin's telegram,
as had previous Soviet advances, left little doubt that questions of
outstanding debts and confiscated property could be settled through
negotiation. Consequently, the Russian Government appears to have
demonstrated a diSpositiOn to meet-the traditional test. This, however,
seemed to be only of secondary importance to the United States. The
real issue, that of hostility toward the Soviet system and its ideology
fostering international subversion, was inherently more complex
and irreparable. The Soviet government, dedicated to the overthrow
of capitalist institutions, presented a threat to the established order. 1
This was clearly a violation of the rule of international law safe-
guarding sovereign, equal states from foreign intervention; hence,
an unwillingness on the part of the Soviets to meet the obligation. to
uphold that rule. It appears that this continued indiSposition remained

the basis for the United States' non-recognition policy until 1933.2

 

lThis threat was not unlike that perceived by Great Britain in the
Declaration of the. French Convention in late 1792.

2While it is true that the Soviets had decreed, (in January 1, 1918,
the annullment of foreign debts (See relevant text in Leo Pasvolsky
and H. G. Moulton, Russian Debts and Russian Reconstruction
(New York: ?, 1924), pp. 197-198), and that, in a note of October 28,
1921, to England, France, the United States, Italy, and Japan,
Chicherin insisted on the justice of this repudiation (Cited in McMahon,
op. cit. , p. 85), the Russians were prepared shortly to negotiate a
-s—ettlement. (This was emphasized in Chicherin's note to the powers.)
At the Genoa Conference, in 1922, which the United States refused to
attend, the Soviets revealed the concessions that it was willing to make.
On April 24, 1922, its counterpr0posals to the Expérts Committee
agreed that, in return for immediate and adequate assistance, and
de jure recognition, it would settle the question of financial obligations.
(For an elaboration upon the Soviet proposals, see Jane Tabrisky
Degras, Soviet Documents on Foreign Policy, v. 1 (London: Oxford

 

 

 

68

By early 1933, when Franklin Delano Roosevelt assumed the
Presidency, the economic Depression and Japan's politico-military
movements in the Far East had already begun to throw new light

on the Soviet recognition case. I

1. Economics and the Great Depression

 

After the American Government rescinded the trade embargo
in 1920, commerce between the two countries increased substantially,
if only in an unbalanced fashion. Thus, in the period 1921-1930
exports to the Soviet Union rose from $15, 584, 000 to $114, 399, 000,

while Soviet exports to this country increased from $1, 311, 000 to

 

University Press, 1951), pp. 301-303.) On May 22, the Conference
demanded that fulfillment of international obligations, restitution for
confiscated foreign property, and termination of revolutionary prOpa-
ganda abroad precede assistance. (Cited by Houghton, op. cit. -, p.
14, from New York Times, April 29 and May 3, 1922. )—The-f’owers
ignored the question of recognition. In a note of May 11, 1922, the
Soviets restated the justice of their stand. It failed to promise
termination of prOpaganda abroad, and denied reSponsibility for the
acts of foreign political parties and labor organizations. (Cited in
Houghton, op. cit. , pp. 14-15.) One student of the Russian liability
question hag-supported the approximately $60 million counter-claim
against the Allies. (Frederick L. Schuman, American Policy Toward
Russia Since 1917 (New York: ?, 1928), p. 309), which the United
States, notwithstanding its own part in the Civil War, rejected surnmar-
ily. Thus, it appears that the United States, because of the Soviet
system and its international program, more than any other factor,
was not prepared, prior to the early '30'S, to consider re-establish-
ment of normal relations. '

 

 

 

1For evidence of the import of these two factors, see the pro-
recognition statements of Senators Borah, Johnson, Wagner, and Cutting,
Representative Rainey, Dr. Frederick L.Schuman, and Mr. Louis
Fischer, in "Should the United States Recognize Soviet Russia? Pro and
Con, ” Congressional Digest, v. 12, 1933, pp. 238-252; for Opposition
arguments based on the traditionally limited degree of Russo-American
trade, aversion to alleged Soviet immorality and its system of govern-
ment, and its failure to meet international obligations, see statements
by Senator Robinson, Representative Fish, Mr. William A. Green,
Reverend Dr. Edmund A. Walsh, S. J. , and Mr. Philip Marshall Brown.
(pp. 237-247.)

 

69

$24, 386, 000.1 The latter constituted a relatively small fraction
of the American import trade. I

When the stock market fell in October, 1929, businessmen
in the United States turned to the Russian market with even greater
interest. The Soviet Union, in the midst of an industrializing 5-year
Plan, was perceived, ironically, as a protector of the American
eConomy?‘ When Soviet purchases jumped from $74, 091, 000 in 1928-
to $84, 011, 000 in l929-to a post-War peak of $114, 399, 000 in 1930,
American business was jubilant about the prosPectS for even greater
commercial intercourse.

However, the years 1931-1932 brought a disillusioning drop in
Russo-American trade. From the peak year of 1930, the decrease
was to $103, 717, 000 and $12, 641, 000, respectively. This develop-
ment could be traced to the Soviet Union's program of increased
exports, in order to raise foreign exchange to pay for its imports.
For the American market, however, the effect was similar to that
resulting from 'durnping'. Competition was increased, labor was
apprehensive, and protests emanated from the business community.3
Instinctively, this turn for the worse in economic relations was
attributed to our nonrecognition policy. New debate over the issue

ensued.4 That the recognition-trade issue had changed significantly,

 

1Browder, pp. pi}, Table 111, pp. 224-225. (Quoted from Foreign
Commerce and Navigation of the United States, 1922-1939.)

 

2Lovenstein, op. cit. , p. 149 and Browder, op. cit. , pp. 30-32.
Both maintain than-iii Epite of alleged violence in the SExTi'et planning
system, reSpect for its determination and achievement was growing
in the United States.

3Browder, pp. cit., pp. 33-34, 224-225.

4E. g. , Representative Sabath and Senator Johnson called for
immediate recognition. (Congressional Record, 72nd Congress, lst
Session, p. 8741, and the New York Times, April 24, 1932,
reSpectively. )

 

 

70

hOwever, was lost sight of by many critics of American- foreign
policy. Clearly, conditions in the periods 1929-1930 and 1931-1933
had changed for both countries. As Browder has pointed out,

I an examination of the influence of economic factors on
Soviet-American relations from 1929-1933 reveals two Oppos-
ing curves of interest. In the earlier period, the Russians
were primarily in search of an economic modus vivendi with
the United States, in order to facilitate their purchasing there.

' Political relations were desirable and would probably follow,

' - but they were not the primary objective. America, on the
other hand, though interested in the Soviet market during the
first years of the 5-Year Plan, did not reach the peak of her
interest in economicrelations until the end of the period,

‘ when the depression deepened and Soviet orders declined.
Bythat time the Soviet Union had a greater desire for political
than for economicinterCourse and‘ was fundamentally concerned
with recognition by the United States, though it continued to
use the trade argument as a weapon in its campaign. Inter-
national developrrients, esPecially in the Far East, injected a

- new urgency in the appeals of Moscow for a diplomatic
rapprochement. 1

 

That new urgency was equally present in the AInerican capital.

2. The Far East

 

Japan, the most powerful state in Eastern Asia, was, by the
early '30'S, threatening the interests of [both the United States and the
Soviet Union. American attempts since World Warl to ensure the
Open Dodr Policy. and to halt Japanese aggrandizement had made it

the prime enemy of Tokyo's aspirations.Z For Russia, these

 

m

lBrowder, pp. cit., p. 48.

2Recall the traditional racial animosity between the two and its
relevance to the Versailles Conference, American opposition to the
Twenty-one Demands on China, in January 1915, in order to avert
collapse of the Open Door (See Secretary Bryan's nOte to.China_and
Japan, Foreign Relations, 1915, p. 146), opposition to the large Japan-
ese contingent in Siberia during the Russian Civil War, for fear of
Tokyo's covetousness, the naval race, and Japan's disadvantageous
end of the 5: 5:3 ratio and reaffirmation of the Open Door Policy at the
Washington Conference in 1922.

 

71

aspirations threatened the peace, and, in turn, the security of the
socialist state and the success of its 5-Year Plan. By 1931,
'Socialism in One Country' and an expediential emphasis on inter-
national peace and stability had become a keystone of both its
domestic and foreign policies.
Japanese aggression against Manchuria in September 1931 made
its challenge to the United States and the Soviet Union more serious
than had previously been the case. Russia, apprehensive about
Tokyo's designs on its comparatively undeveloped Far Eastern territory,
offered the Japanese a nonaggression pact in December. 1 While Japan
delayed its reSponse until December 1932, Russo-Japanese relations
grew more tense. 2
When the appeasement policy failed, Moscow turned to rappro-
chement with the United States as a means of thwarting the common
'enemy. ' Thus, in February 1932, M. Korskii, Soviet envoy to
Lithuania, suggested to Mr. Fullerton, the American Charge, that

the most salutary thing that could happen in the Far East right
now was for Russia and the United States to join in a common
pressure upon Japan, if necessary breaking that country as
between the two arms of a nutcracker.3

 

1Harriet Moore, Soviet Far Eastern Policy, 1931-1945
(Princeton: Princeton University Press, 1945), p. 11.

 

2Browder, op. cit. , p. 51. Tension increased over use of the
Chinese and Eastgn Railway in Manchuria, and over Japanese
recruitment of auxiliaries from White Russian emigre colonies in
Mukden and Harbin.

 

3Ibid. , p. 55. (Quoted from the message of the American Charge,
Mr. Fufiton, to Secretary Stimson, on February 26, 1932, MS.
Department of State, file 760N. 00/23.); pp. 51-53, Browder maintains
that the Soviets changed their policy in order to promote the peace
necessary for success of its. Plan. Furthermore, aware of American
Opposition to Japanese activities in Manchuria, (such as the Stimson
Doctrine and the League's condemnation of Japan), it hoped to foster
what it believed to be an inevitable American—Japanese war.

 

 

72

In the latter part of 1932, a relative calm prevailed in both
international and Russo-Japanese relations. That this was destined
to be short-lived, however, was reflected in diSpatches from
Ambassador Joseph Grew in Tokyo to the State Department. On
August 13, 1932, he warned that the

. . . military machine . . . has been built for war, feels
prepared for war, and would welcome war. . . . I am not an
alarmist, but I believe that we should have our eyes open to
all possible future contingencies. The facts of history would
render it criminal to close them. 1

He wrote again in February 1933:

We must bear in mind that a considerable section of the
public and the army, influenced by military propaganda,
believes that eventual war between either the United States or
Russia, or both, and Japan is inevitable. 2

In spite of the Far Eastern crisis, the United States continued
to entertain qualms about extending recognition. Thus, Secretary
Stimson wrote to Senator Borah, a leader of the pro-recognition

forces, that

if under these circumstances and in this emergency we recog-
nize Russia in disregard to her very bad reputation reSpecting
international obligations and in disregard of our previous
emphasis upon that aSpect of her history, the whole world and
particularly Japan, would jump to the conclusion that our
action had been dictated solely by political expediency and as
a maneuver to bring pressure upon Japan. . . . I felt that the
loss of moral standing would be so important that we could not
afford to take the risk of it. However innocent our motives

 

1Ibid. ,' p. 59ff. TrooP concentrations had been decreased along
the Russo-Japanese border, a fisheries agreement reached, Sino-
Soviet diplomatic relations resumed, and, in June 1932, at the World
Disarmament Conference, the United States and Russia together called
for international disarmament. (The Ambassador's statement, cited
in Browder, pp. 67-68, was quoted from Joseph C. Grew, Ten Years
in Japan (New York: ?, 1944), pp. 64-65.)

 

21bid., p. 68. (Quoted from Grew, pp. c3” p. 77.)

73

might be, they would certainly be misunderstood by the world
at large and particularly by Japan. . . . 1

By 1933, however, it appears that American public Opinion had begun

to View the non-recognition policy as anachronistic. 7'

3 . Recognition

 

President Roosevelt was determined to end the sixteen year old
hiatus between the two powers.3 Consequently, on October 10, 1933,
he wrote to Mikhail Kalinin, Chairman of the All-Union Central
Executive Committee of the USSR, of his desire to negotiate a settle-
ment of all outstanding issues and to renew normal relations.4

Kalinin, on October 17, replied that the Soviet Union was prepared to

diSpatch Maxim Litvinoff as its negotiator.5 After a month of difficult

 

1Foreign Relations, 1932, v. 3, p. 778. This may also be in-
terpreted as a statement of political interest in non-recognition, i. e. ,
an attempt to avoid embarrassment before other states, and a desire
to mollify Japan.

 

zLovenstein, op. cit., p. 149, maintains that this change resulted
from a new reSpect—fOr SOs—Iiet planning, trade possibilities, Russia's
increased international political power and respect for its international
peace posture, and a feeling that non-recognition was untenable. These
may be interpreted as a commentary on the spirit of isolationism in
America. Significantly, Lovenstein has found no great concern among
the populatiOn with the Far Eastern issue. Consequently, the Roosevelt
Administration, working toward a rapprochement with Russia, empha-
sized these factors as justification for recognition, while avoiding
publicity over the implications of recognition for the Far Eastern situ-
ation. For a similar opinion, see Browder, p_p. p_it_. , p. 108.

3Henry Morgenthau, Jr. , "The Morgenthau Diaries, ” Part III,
Collier's Magazine, October 11, 1947, p. 20, submits that the
President viewed prolonged non-recognition as an outmoded diplomatic
device, possibly contributing to international unrest.

 

4For complete text, see Hackworth, op. c_i£., p. 303. (Quoted
from MS. Department of State, file 711. 617287A.)

5For complete text, see Ibid. , pp. 303-304. (Qumed from
MS. Department of State, file 711. 61/287%-.)

 

 

74

discussions, the President and Litvinoff exchanged notes calling for

the re-establishrnent of relations. 1

While it may be argued that

 

1For complete text, see Ibid. , p. 305. (Quoted from MS. Depart-
ment of State, files 711.61/343X—711.61/343%-.) The Soviets agreed
to respect United States sovereignty and to refrain from intervening in
its internal affairs. (Complete text in Hackworth, op. cit. , pp. 304-305,
as quoted from MS. Department of State, file 711. (YT/343,27.) A final
exchange of notes called for the right of Americans to worShip freely
in Russia, a consular convention according most-favored-nation treat-
ment to the United States, and referred to prosecution for economic
espionage, as Sigmnent of certain claims and property rights by the
Soviet Union to the United States, and to renunciation of all Soviet claims
arising out of American military activities in Siberia after January 1,
1918.

The United States was apparently satisfied with Soviet promises
to uphold the rules of international law concerning sovereign equality
of states and non-intervention. To that extent, the international obli-
gations test was met. But what of its relevance to financial obligations ?
The total debt was estimated at $187, 729, 750. (Browder, op. cit. ,
p. 135, citing "Leffingwell Memorandum, " June 28, 1919, 176an
Foreign Governments, Senate Document no. 86, 67th Congress, 2nd
Sessial, pp. 92-94.) In view of Soviet losses during the Civil War,
America was willing to cut the debt. (Foreign Relations, 1933, v. 2
pp. 800-801.) The debt to American citizens, including pro-Revolu-
tion bonds and properties, totalled (excluding interest) $440, 575, 928.
(Ibid., pp. 787-788.). The State Department, recalling the British
and French cases of 1924, when de jure recognition was extended
before a settlement of the outstanding—d-t-ebt issue was reached (See text
of letter from Rakovsky, Soviet representative in London, to Prime
Minister MacDonald, in reply to notification of the British grant of
recognition, in Degras, op. cit., p. 426. Rakovsky promised to settle
the debt question after re-COgn-i-t-ion was granted, ), had recommended
earlier that the debt question be settled prior to the grant of recognition
by the United States. (Foreign Relations, 1933, v. 1, pp. 785, 789,
793.) AS in the French and British cases, however, America extended
recognition first. In all three, the debt issue was never resolved.
The negotiators merely agreed to consider a settlement between $75-
150 million sometime. after Russia had been recognized. (Foreign
Relations, 1935, v. 2, p. 804.)

 

 

 

 

 

 

 

75

the . . . situation in which one of the most important states
of the world was not maintaining diplomatic relations with
the United States while recognized by other states was an
anomaly in international law, . . . 1

it appears rather unlikely, in view of the evidence presented, that
recognition was extended in late 1933 merely to rectify that circum-
stance. 2 For fifteen years the United States, by invoking the three
tests, had been able to forestall recognition of an ideologically
antagonistic government. By 1933, only the international obligations
criterion remained as a justification for its non-recognition policy.
AS a result of the Roosevelt-Litvinoff talks only one aspect of that
test, pertinent to the principles of the sovereign equality of states and
to non-intervention in international law, had been met. A key issue
of the 1920's, Russia's indiSposition to meet its financial obligations
without benefit of preliminary negotiations, was not resolved. Yet
recognition was granted.

This suggests that for the Roosevelt Administration traditional
criteria in the Soviet case were merely of secondary importance.
Conditions of a domestic and international character had apparently
assumed a more significant, if less prominent, role in the recognition
question. Indeed, as one American diplomat has aptly remarked, it

had become both "reasonable and advantageous to accord . . .

 

1Charles G. Fenwick, International Law (New York: Appleton-
Century-Crofts, 1948), p. 167.

 

2That the United States attempted to avoid publicity of the
political implications of recognition, even to the extent of denying the
I influence upon it of the trade question, was evident even after recog-
nition was granted. (See, e. g. , the very coy radio address by
Assistant Secretary of State Moore, on November 22, 1923, in U. S.
Department of State, Eastern EurOpean Series, no. 2 (Washington,
D. C.: Government Printing Office, 1834), pp. 3-4.) Moore ignored
the Far Eastern issue in his address.

 

76

recognition"1 to the Government of Soviet Russia.

B. The Argentine Case

 

Upon initiating the Good Neighbor Policy in March 1933,
President Roosevelt asserted that

the maintenance of constitutional government in other countries
is not a sacred obligation devolving upon the United States

alone. The maintenance of law and orderly processes of govern-
ment in this hemisphere is the concern of each individual

nation within its own borders first of all. . . . The Monroe

Doctrine confers no superior position upon the United States.
2

However, even while renouncing the Wilsonian doctrine of legitimacy
Roosevelt was quick to add that

. . . if and when the failure of orderly processes affects the
other nations of the continent . . . it becomes their concern;
and the point to stress is that in such an event it becomes
the joint concern of a whole continent in which we are all
neighbors.3

 

1Stanley K. Hornbeck, "Recognition of Governments, ” Proceed-
ings of the American Society of International Law, 1950, p. 185; there
has been some debate as to the relative importance of the trade and
Far Eastern issues in America's decision to grant recognition.
Browder, op. cit. , p. 219, suggests that our government did not dis-
courage hc;p_es Ofgreater trade for fear that this would alienate a
growing section of the population sympathetic to recognition. However,
he suggests that the government was aware that, in view of the 1931-
1932 decline, these h0pes were mere pipedreams. Statistics (pp.
224-225) appear to corroborate this view. The peak year between 1933-
1939, the year 1938, brought a disappointing $69, 691, 000 in exports to
Russia. In view of this, it appears that the American and Soviet
governments were primarily concerned with the international situation
(Japan's aSpirations and secondarily, the rise of Hitler) and the pacify-
ing effect that recognition would have upon it.

 

zGeorge I. Blanksten, Peron's Argentina (Chicago: University of
Chicago Press, 1953), pp. 8-9. (Quoted from Samuel S. Morrison
and Henry S. Commager, Growth of the American Republic, v. 2
(New York: Oxford University Press, 1937), p. 513.)

 

 

3Blanksten, loc. cit., pp. 3-9. (Quoted from Morrison and

Commager, loc. cit., p. 513.

 

77

The Japanese attack on Pearl Harbor brought the United States
and nine Latin American nations into World War II. 1 It also threw
light on the pro-Axis sympathies of neighboring Argentina and
created a situation in which the President's earlier qualification
seemed to be apprOPriate.2

As early as 1938, the United States had been introduced to a
diSplay of Argentine sympathies. In December of that year,
Washington, sensitive to Nazi-Fascist propaganda and commercial
inroads in the hemisPhere, attempted to form a-twenty- one nation
anti-Axis bloc at the Eighth International Conference of American
States at Lima. Argentine opposition, however, thwarted that effort.
Consequently, the innocuous Declaration of Lima, adOpted on December
24, 1938, merely reaffirmed faith in international law and promised
common action to assist American states threatened by external

invasion. 3

 

1Within one month, Costa Rica, the Dominican Republic,
Guatemala, Haiti, Honduras, Panama, Cuba, Nicaragua, and El
Salvador entered the war.

zFor an insight into the nature and extent of Nazi influence in
Latin America generally, and in Argentina's political, military,
economic, socio-cultural, and educational life, see U. S. Department
of State, ”Consultation Among the American Republics With ResPect
to the Argentine Situation, “ Inter-American Series 29, Publication
2473 (Washington, D.C.: Government Printing Office, 1946), pp. 1-86.

It is to be emphasized, however, that even independently of its
pro-Axis sentiments, Argentina harbored an old hostility toward
America. This was undoubtedly exacerbated by its large German and
Italian populations. The hostility may be traced, however, to its
EurOpean orientation, meat and wheat competition with the United
States (it also feared alienating approfitable Italo-German market
during WW II), and rivalry over hemisPheric leadership. Hence, the
hostility antedated the Nazi-Fascist era. For a review of this old
hostility, see Thomas A. Bailey, A Diplomatic History of the American

 

 

People (New York: Appleton-Century-Crofts, 1955), pp. 834-835 and
Arthur Whitaker, The United States and Argentina (Cambridge:
Harvard University Press, 1954), pp. 84-108.

 

3U. S. Department of State, Press Releases, December 24,
1938, pp. 474-475. (Cited by Bailey, op. cit., p. 749.)

 

78

Within the next one and one-half years, the Axis Powers,
having conquered most of the EurOpean continent, began to contem-
plate control of the vanquished powers' colonies in the Western
HemisPhere. In an attempt to prevent this, the Second Meeting of
American Foreign Ministers at Havana, in June 1940, decided that
such holdings were to be administered by American governments only.
Thus, as one historian has suggested, the United States had effected
a "multilateralization" of the Monroe Doctrine. 1 In spite of this move
and United States efforts to ensure hemisPheric solidarity against
the Axis by pouring millions of dollars into Latin America, 2 Nazi-
Fascist subversive activities continued to flourish. Action against
the prime base for these operations, Argentina, was now essential.

The Argentine Government, headed by the pro-Axis dictator-
Acting President (and later, President) Ramon S. Castillo, with the
assistance of an even more blatantly pro-Axis Minister of War,
General Pedro Ramirez, was ostensibly pursuing a neutral policy.3
As the fiction of Argentina's 'neutralist' policy and its service as an
Axis base in the Western Hemisphere became more evident, the
United States inclined to drastic measures in the h0pe of forcing the
former into its American front against the enemy. In June 1942,
at the Third Meeting of the American Foreign Ministers at Rio de
Janeiro, the United States attempted to make mandatory the severance

of relations with the Axis Powers, if any American nation had been

 

1Bailey, _op. cit., p. 767.

2Bailey, 9p. cit. , p. 799. E. g. , in December 1940, America
advanced $50 million to Argentina, and in October 1941, announced
that it was prepared to lend $70 million per month to Latin America.

3See footnote 2, page 77, and Whitaker, pp. c_i_13., pp. 108-113,
for evidence of Argentina's pro-Axis activities under a guise of
'neutrality. '

79

attacked by them. However, Argentine and Chilean resistance
proved sufficient to ensure that severance was recommendatory,
rather than mandatory. 1 By the end of 1943, only intransigent
Argentina had continued relations with the Axis govermnents.

On June 4, 1943, an uprising of Peron's Colonels' Clique in
Buenos Aires brought General Arturo Rawson to power. Rawson
resigned two days later, before the United States could extend recog-
nition to his government. General Pedro Ramirez succeeded him,
and, in Spite of his pro-Axis sympathies, was recognized by the
United States on June 11. Antipathy to the new military dictatorship
was soon manifested, however. When, in August, Ramirez requested
lend-lease aid from the United States, Secretary of State Cordell
Hull issued a Sharp rebuff. 2 Ramirez was now in a difficult position.
His pro-Axis activities in Bolivia, while successful, raised (the ire
of the United States. Consequently, two United States-promoted
countermeasures worked to ensure his political collapse. The first
was adoption of the Guani Doctrine“. by almost all of the Republics.

It held that no new regime established by force in the hemisphere
was to be recognized until the American governments consulted with
each other to ascertain whether it was pro-Axis. This endangered
the success of Ramirez' movements throughout Latin America.

The second, and perhaps more effective, was Washington's
threat to publish evidence of Argentina's pro-Axis activities in

Bolivia unless it immediately broke with the Axis powers.3

 

1Bailey, pp. 5:33., p. 831.

2For the texts of Ramirez' note of August 5, 1943 and Hull's
reply, see U.S. Department of State, Bulletin, IX, pp. 159-166.

3Whitaker, op. cit., p. 127; see footnote 2. . Chapter IV, on
the Emergency Adv-iscfir Committee for Political Defense of the
Continent and its assertion that this move for consultation on the
character of a new regime was made merely for wartime purposes.

80

After Ramirez severed relations with Berlin, Rome, and Tokyo in

late January 1944, and suppressed the pro-Axis paper, El Pampero,

 

for criticizing this action, Peron's clique, on February 24, forced
him into retirement. General Edelmiro J. Farrell, Ramirez' Vice-
President, was made chief executive. Only Chile, Ecuador, Bolivia,
and Paraguay recognized the new regime, as the United States led a
move to isolate Argentina diplomatically through adOption of a non-
recognition policy. Thus, as an expedient measure,

the Roosevelt Administration . . . was now falling back

on Wilsonian non-recognition, moral castigation, and diplo-

matic quarantine in an effort to bring about a regime to its

liking. 1

It was not until April 1945, after Argentina had reluctantly
acceded to the Act of Chapultepec, that the United States extended

recognition to the Farrell government.Z

 

1Bailey, op. cit. , p. 836; for a criticism of America's nonrecog-
nition policy viS-—a-_v—iS Argentina, see Sumner Welles, The Time For
Decision (New York: ?, 1944), p. 237ff.; Josef Kunz, "The Position
of Argentina, " A.J.I.L., v. 38, no. 3, July 1944, pp. 437-444, while
sympathetic to WelleS'criticism, nevertheless appreciates the expediency
of such a policy. He suggests that recognition as an act of policy be
abandoned. In its place, the Estrada Doctrine might be considered (see
Chapter IV), subject always, of course, to the possibility of breaking
off diplomatic relations.

 

ZFrom February 21-March 8, 1945, the Inter-American Con-
ference on Problems of War and Peace was held in Mexico City, to
strengthen hemispheric solidarity, intensify the war effort, and prepare
for post-war stability. Argentina was conSpicuouSly absent. A resolu-
tion concerning Argentina was passed. It stipulated that Argentina
could join the United Nations if it: (a) declared war against the Axis;

(b) agreed to stamp out the remnants of Axis influence in the hemisphere;
(c) agreed to the inter-American endorsement of the Dumbarton Oaks
proposals as the basis for the San Francisco Conference's United
Nations Charter discussions; (d) agreed that the Act of Chapultepec was
merely a temporary wartime instrument to stifle aggression in the
Americas; (e) agreed to the reorganization and strengthening of the
inter-American system; (f) agreed to a series of economic measures

to raise living standards in the hemisPhere. Consequently, on March
27, Argentina reluctantly declared war against Germany and Japan.

On April 30, in a package deal, Poland and Argentina were admitted into
the United Nations.

81

The United States had already acknowledged that its actions in
the hemisphere, esPecially in regard to Argentina, were motivated
only by the expedience necessary for victory in a great war. While
Washington's non-recognition policy was adopted in extreme circum-
stances, the fact remains that the nature of the recognition act itself

had enabled such action on the part of the American Government.

C. The Chinese Case

 

The American attitude toward the mainland Communist regime
also demonstrates the discretionary character of recognition. 1
That the Communist regime has met the traditional test of
_d_e_ fpppp, effective authority need) not be debated. In little more
than a decade it has achieved the active support and/or acquiescence
of some 650, 000, 000 Chinese, and recognition from Communist,
'neutralist, ' and Western powers. 2 The United States itself, in
negotiating with the Communist Chinese at Pamnunjom, Geneva,

and Warsaw, has at least manifested an awareness of its existence,

if not a disposition to accord it recognition. The other traditional

 

1Georg Schwarzenberger, "The Impact of the East-West Rift
on International Law, " Transactions of the Grotius Society, v. 36
(London: Longmans, Green and Co., 1951), p. 254.

 

2It appears that even Chiang Kai-Shek has alluded to this de
facto rule. Thus, in an interview with the American syndicated—-
columnist, Mr. Drew Pearson (Youngstown, Ohio Vindicator, January
2, 1960, pp. 8 and 10), Chiang asserted: "In the next year or two the
situation on the mainland may come to the explosion point. . . . Then
will be the time for action. Failing that, the Communists may be
able to hang‘ on and consolidate their position. " It appears rather un-
likely that the mainland will 'explode' within two years. Indeed, it is
more probable that consolidation has already been effected. In view
of this, implicit in Chiang's statement is an awareness that the
Communists will govern at least in the foreseeable future.

 

82

tests, legitimacy and international obligations, have influenced the
American position. The latter was also raised when the United
Nations branded Communist China an aggressor in Korea. However,
the factors ultimately influencing United States policy appear to
reside in an area of national interests only peripherally concerned
with Specific tests. To that area, including moral and political-
strategic-military considerations relevant to the East-West conflict,

this writer must now turn.

1. Moral Considerations

 

The Chinese case has thrown into bold relief what might be
termed an American 'moral-political schizophrenia. ' While rejecting
morality and approval as factors in political recognition, it has
insisted that the Communists conform to supposed American standards
of behavior. On September 19, 1949, only days before completion
of the Nationalist rout, Secretary of State Acheson, alluding to possible
future recognition of the Communist regime in a Speech before the
Pan American Society, reminded his audience that

we maintain diplomatic relations with other countries primarily
because we are all on the same planet and must do business
with each other. We do not establish an embassy or legation in
a foreign country to Show approval of its govermnent. We do so
to have a channel through which to conduct essential govern-
mental relations and to protect legitimate United States interests.
. . . Since recognition is not synonymous with approval,

. . our act of recognition need not necessarily be understood
as the forerunner of a policy of intimate co-0peration with the
government concerned. 1

Similarly, Mr. John Foster Dulles, a member of the American

Delegation to the United Nations General Assembly, writing of that

 

1U. S. Department of State, Bulletin, no. 534, September 26,
1949, pp. 463-464.

83

organization shortly after the Communist victory in China, observed
that

membership in the United Nations is Open to all . . . peace-
loving states which accept the obligations contained in the
present Charter and, in the judgment of the Organization, are
able and willing to carry out these obligations. . .

Mr. Dulles added, however, that he .had

. . . now come to believe that the United Nations will best
serve the cause of peace if its Assembly is representative of
what the world actually is, and not merely representative of
the parts which we like. Therefore, we ought to be willing
that all the nations should be members without attempting to
appraise closely those which are 'good' and those which are
'bad. ' Already that distinction is obliterated by the present
membership of the United Nations.

Some of the present member nations, and others that
might become members, have governments that are not repre-
sentative of the people. But if in fact they are 'governments'--
that is, if they 'govern'--then they have a power which should
be represented in any organization that purports to mirror
world reality.

If the Communist government of China in fact proves its
ability to govern Chinafithout serious domestic resistance,
then, it, too, should be admitted to the United Nations. . . .

If the United Nations membership were made substantially
universal, that might end a preponderant voting superiority of
the United States and its friends which, while pleasant, is some-
what fictitious.

Communist governments today dominate more than thirty
per cent of the population of the world. We may not like that
fact; indeed, we do not like it at all. But if we want to have a
'world' organization, then it Should be representative of the
world as it is.1

 

 

 

 

 

 

 

 

However, the moral factor, in spite of such practical political
views, appears definitely to have infiltrated the recognition question.

Thus, in January 1950, the American delegate to the United Nations,

 

1John Foster Dulles, War or Peace (New York: The Macmillan
Co., 1950), pp. 188-191. Italics added.

 

84

Dr. Philip C. Jessup, in language reminiscent of the interventionist
legitimacy doctrine, explained that

the United States believes that the people of any country have
the fundamental right to determine their own forms of govern-
ment without foreign dictation. People do have the right to
change their form of government but we believe that change
must be brought about by the freely expressed will of the
people themselves--not by force. We know of no way in which
people can determine and establish their own governments
except by free and recurring elections in which people vote

by secret ballot for their own choices among the several
candidates . 1

Moral indignation has also been expressed over the regime's
alleged brutal treatment of its pe0ple. Thus, former Senator William
Knowland of California insisted that since

morality inevitably affects the foreign policy of states having
representative governments. . . , Communist China, . . .
a symbol of slavery, regimentation and irreligion [ought not
to be recognized.] . . .

. . . The interests of the United States lie in the build-
ing of a world system based on rules of law and morality.
It cannot subscribe to a policy of expediency without destroy-
ing the very structure of such a system. It is my firm hope
that China will one day be united under a government selected
by free elections and devoted to freedom. When that day
comes, recognition will be no problem. 7‘

 

1Ti-chiang Chen, The International Law of Recognition; With
Special Reference to Practice in Great Britain and the—United States
(London: Stevens and Sons, Ltd., 1951), p. 112. (Quoted from U. S.
Information Service, Daily Wireless Bulletin, no. 183, January 19,
1950); Charles G. Fenwick, “The Recognition of the Communist Govern-
ment of China, " A. J.I. L. , v. 47, 1953, pp. 660-661, submits that the
regime could meet neither the subjective international obligations test
as a result of its role in the Korean War, nor the objective test, since
its one-party system denies the free expression that alone could estab-
lish 'the will of the nation . . .' He adds that insistence upon an ability
to meet these tests, while expedient now, may not be so in the future.

 

 

 

zWilliam F. Knowland, "The United States Should Not Recognize
Communist China, " Journal of International Affairs, v. 11, no. 2,
1957, pp. 168, 170; for further criticism of the regime and sympathy

 

85

Moral. considerations have not been unknown in America's
recognition practice. In the Chinese case, as in the Soviet case,
however, they have assumed an importance unprecedented in the
history of that practice. Consequently, no government can completely
disregard a public Opinion which, even if perhaps unsound and embar-
rassing to the nation before the eyes of the world, identifies the

recognition act with approval of foreign regimes. 1

2. Political and Strategic-Military Considerations

 

A part of China remains within the so-called 'Free World' orbit.
That part has been hailed as a political and military force opposed to
the Spread of Communism throughout Asia, and hence, one which this

country is obliged to support both morally and materially. 7‘

 

for the non-recognition policy, see publications by The Committee of
One Million (Against the Admission of Communist China to the United
Nations), e. g. , Edward Hunter, The Continuing Revolt: The Black Book
on Red China (New York: The Bookmailer, 1958), pp. 7.172. This
group is supported at least nominally by Americans from all walks of
life, many prominent, and representatives of both major parties; for
an emphasis upon the regime's alleged brutality and a thesis that a
communist society cannot be a state under an international law which
it has repudiated, see the anti-recognition stand of Gray L. Dorsey,
"The State, Communism, and International Law, " Washington Univer-
sity Law QuarterlX, v. 1955, no. 3, February 1955, pp. 1, 35-36;

for an excellent study of American attitudes toward the Chinese
generally, see Harold R. Isaacs, Scratches On Our Minds; American
Imagps of China and India (New York: The John Day Co. , 1958), p.
215ff.

 

 

 

 

 

 

1Laurence Lafore, "The Problem of Diplomatic Recognition, "
Current History, v. 30, no. 175, March 1956, p. 158, submits that,

 

while such attitudes may be uninformed and unsound, they may perhaps
be most suitable "to the character and traditions of our Sprawling
democracy. ” Be that as it may, such considerations are interventionist
and perhaps restrictive of the Government's freedom of action.

2From 1937-1949, America extended $3,523,000, 000 in grants
and credits to the Chiang Government. About 60% was extended after
V-J Day. (U. S. Department of State, United States Relations With
China; With Special Reference to the Period 1944-1949 (Washington,

 

 

86

Perhaps the most difficult question in the recognition case has
been that concerning the future of Taiwan. While the Nationalists
rule it, with United States support, 1 the Communists have refused to

accept a stabilization of the status quo. Thus, on June 28, 1956,

 

Premier Chou En-lai reaffirmed that ”the Chinese people are deter-
mined to liberate Taiwan. This is the unshakable common will of
the 600, 000, 000 Chinese. ,,2 President Eisenhower, supporting the

status quo, replied on July 7 in a message to President Chiang: "Let

 

there be no misapprehension about our own steadfastness in continuing
to support the Republic of China. ”3

The issue is complicated further by lingering Nationalist aSpira-
tions of a future return to the mainland. Hence, of the parties

directly concerned with the future of the island, only one, the

 

D. C.: Publication 3573, Far Eastern Series 30, Division of Publica-
tions, Office of Public Affairs, August 1949), p. 1042; from 1951-1956,
economic aid to the Nationalists on Taiwan, excluding the military
program, amounted to $643, 664, 000, and averaged (at the time of
writing, in 1956) $200-300 million per annum. (Allen S. Whiting,

”The United States and Taiwan, " The United States and the Far East
(New York: The American Assembly of the Columbia University School
(Graduate) of Business, December 1956), pp. 182-183.)

A 'Red Scare' in the '40's and '50's probably influenced the turn
of American opinion against the Communist Chinese. Recall the House
Un-American Activities Committee's actions beginning with the subpoena
of the American Communist, William Z. Foster, in September 1945,
the McCarthy era of October 1950 (when Communist China entered the
Korean War)--his death in 1957, McCarthy's charge on June 30, 1951
that General Marshall had betrayed the Nationalists, and the famous
Rosenberg atomic Spy affair from July 1950--their execution on April
6, 1951.

 

1See preceding footnote. There is still great controversy over
the legal status of Taiwan Since the Japanese surrender. For an excel-
lent article on the tactics of political evasiveness by the West, see D. P.
O'Connell, "The Status of Formosa and the Chinese Recognition Problem, "
A.J.I.L., v. 50, no. 2, April 1956, p. 415ff.

2Cited by Whiting, pp. cit., p. 173.
3Ibid.

 

87

United States, has manifested any desire to stabilize the present
Situation. 1
The United States has attempted to bolster the Nationalist

Government politically by maintaining the validity of its occupation
of China's United Nations seat. 7‘ In Spite of a growing sentiment in
that organization favoring seating of Communist representatives, the
United States has been successful in averting this development each
year since 1950. Should the United States be outvoted in the future in
the General Assembly, the likelihood is that the Nationalists would
also lose their place on the Council. While a United States veto could
conceivably block the Communists, the majority vote in the Assembly

would undoubtedly circumscribe America's prerogative.3

 

1For views favorable to a stabilization of the status quo, see
A. Doak Barnett, "The United States and Communist China, " The
American Assembly, op. cit., p. 167 and Herbert Feis, "When To
Recognize and When N—O_t TOT" New York Times Magazine, March 1,
1959, p. 24; two scholars, Karl W. Deutsch and Lewis J. Edinger,
Germany Rejoins The Powers: Mass Opinion, Interest Groups, and
Elites in Contemporary German Foreign Policy (Stanford: Stanford
University Press, 1959), pp. 234-2357‘ suggest a 'deal' between East
and West, whereby both Communist China and the German Federal
Republic are admitted to the United Nations at the same time, each
with permanent seats on the SeCurity Council.

 

 

 

 

2For Congressional Opposition to Communist China occupying the
United Nations seat, see S. Res. 36 and H. Res. 96 in the 82nd
Congress, H. Res..4974, H. Res. 627, and H. Res. 9678 in the 83rd
Congress, and S. 2090, H. Res. 10721, and H. Con. Res. 265 in the
84th Congress. (Cited by Knowland, pp._pi_t_., pp. 168-170.)

3Whiting, op. cit. , pp. 164-165, submits that opposition to Peking's
admission may WIS—aka? the non-Communist position even more than its
admission. Admission would give the Communists one more veto than
they already have and need. Whiting also fears that those in the United
States who Oppose the United Nations may use this issue to urge our
withdrawal; Schwarzenberger, op. cit., p. 233, contends that a Chinese
veto in the Security Council wodId enable Russia to use it as a proxy
against the West when it becomes involved in a controversy.

88

The United States has also committed itself to the military
defense of Taiwan. By virtue of a Mutual Defense Treaty, signed
in December 1954, it

recognizes that an armed attack in the West Pacific area on
the territories of either of the Parties would be dangerous to
its own peace and safety and declares that it would act to meet

the common dangers in accordance with its constitutional

processes.1

According to Article 7, the United States is granted ”the right to dis-
pose . . . land, air and sea forces in and about Taiwan and the
Pescadores. ”2 Strategically, Taiwan, only three hundred and fifty
miles from the American base at Okinawa, provides a flank for its
protection, an obstacle to Communist advances toward the Philippines
and Southeast Asia, and a possible base from which to attack the
mainland in any future war against the Chinese Communists.3

Thus, morally, politically, economically, and militarily, the
United Stateshas committed itself to support of the Republic of China.
Such support needn't, of course, necessarily involve continued non-
recognition of the Communist govermnent on the mainland. However,
hostility of both Chinese regimes to permanent acquiescence in the

status quo ensures that this issue will remain an important factor in

 

the United States' future policy vis-a-vis Peking.
The problem of relations with our allies in EurOpe and Asia and
with the Afro-Asian 'neutralist' block has also been significantly

relevant to the United States' policies toward both Chinas. On the one

 

1Quoted by Whiting, pp. cit., p. 190.
31bid.

 

3However, it is possible that technological advances in weapons,
e. g. , in missiles, have greatly reduced, if not completely disqualified,
Taiwan's strategic value.

89

hand, such countries as South Korea, South Viet-Nam, and the
Philippines, dependent also on United States support, favor the
American policy. Thus, continued moral and material support is
assured them. On the other hand, Pakistan, a member of CENTO,
having recognized the Communist Chinese government, is unsym-
pathetic to the American attitude. Most significant, however, the
NATO allies are not enthusiastic about American defense commit-
ments so far from Europe. In fact, the United Kingdom, Canada, and
France have already informed the United States that they will not
support the defense of Quemoy and Matsu, Nationalist-held offshore
islands. Furthermore, the United Kingdom, Norway, the Netherlands,
and Demnark, NATO members, have recognized the Communist
regime.

Opposition to American policy vis-a-vis China is perhaps
strongest in the Afro-Asian bloc. Included are the United Arab Republic,
Yemen, Afghanistan, India, Burma, ‘Ceylon, Nepal, and Indonesia,
each of whom has already recognized the Peking government. The bloc
has also persistently worked for acceptance of Communist credentials
by the United Nations. In April 1955, it left no doubt as to where it
had placed its sympathies when it invited Chou En-lai, rather than a
Nationalist delegation, to the Bandung Conference. Hostile to support
of a vanquished and discredited regime on Taiwan, and fearful of
antagonizing a powerful Communist China, it has taken sides with the

latter. 1

 

lWhiting, op. cit. , p. 191. Also, Feis, op. cit. , p. 24, suggests
that stabilizatioii—will—bring us closer to our All-i—e-S iii—Europe and align-
ment with a policy of reality; for opinions that non-recognition has
increased international tensions, see Quincy Wright, “The Status of
Communist China, " Journal of International Affairs, v. 11, no. 2, 1957,
pp. 185-186 and Quincy Wright, "Non-Recognition of China and Inter-
national Tensions, " Current History, v. 34, no. 99, March 1958, pp.
152-154. In the latter, he calls for recognition and then a settlement

 

 

90

As one scholar has suggested, “the issue of recognizing
Communist China will not, of course, be decided on mere legal
grounds. "1 Indeed, the complexity of United States interests and
commitments throughout the world ensure that it will not relinquish
a prerogative to legal compulsion. AS Secretary of State Dulles
observed in July 1957:

There are some who say that we should accord diplomatic
recognition to the Communist regime because it has now been
in power so long that it has won the right to that.

This is not sound international law. Diplomatic recog-
nition is always a privilege, never a right.

. . . Always, . . . recognition is admitted to be an

 

on Taiwan. He concedes that this might result in Communist hegemony
over the island; Barnett, op. cit., pp. 165-166, emphasizes the hos-
tility of America's allies,_g. git—Britain and Japan, to the China trade
embargo that was imposed upon them during the Korean War, as a
prerequisite for United States aid. They feel that such trade would
benefit them and possibly draw Peking away from dependence on Moscow.

1Philip C. Jessup, "The Two Chinas and United States Recogni-
tion," Reporter, v. 11, no. 1, July 6, 1954, p. 24; Political consider-
ations appear also to have prevailed in the United Kingdom's decision
to recognize the Communist regime on January 6, 1950. Objective de
factoism, despite British pretensions, does not appear to have pre:—
vailed. (see, e.g., Chen, op. cit., pp. 119-120, quoted from L. C.
Green, "The Recognition of-TS-om—m-‘unist China, ” 3 International Quarterly,
1950, p. 418 and part of Speech by Foreign Secretary Herbert Morrison,
House of Commons, 1950-1951, Parliamentary Debates, v. 485, pp.
2410-2411, as quoted by Percy E. Corbett, Law in Diplomacy
(Princeton: Princeton University Press, 1959, p. 80.); for Suggestions
and Opinions of Great Britain's political, economic, and strategic
interests in recognition, see House of Commons, Parliamentary Debates,
May 5, 1949, v. 464, col. 1347 and November 16, 1949, v. 469, col.
2013, as quoted in Chen, op. cit. , p. 119. Also see Peter Marshall
Brown, "Cognition and Rte-CTagn-itgn, " A.J.I.L., v. 47, no. 1, January
1953, p. 88, Hardy Cross Dillard; . ”The United States and China: The
Problem of Recognition, " Yale Review, v. 44, no. 2, December 1954,
pp. 180-181, and Percy E. Corbett, ed., Charles DeVisscher's Theory
and Reality in Public International Law (Princeton: Princeton University
Press, 1957), pp. 231-232.

 

 

 

 

 

 

 

91

instrument of national policy, to serve the national
interest. 1

Conclusion

 

The Soviet, Argentine, and Chinese cases share a coincidence
that would be difficult to miss. The three originated in periods of
international crisis, were and undoubtedly will be resolved on the
basis of discretionary recognition promoting specific national inter-
ests, and were involved in the problem of recognition in international
organization. Thus, it would seem appropriate at this point to turn
to that problem for a final insight into the nature of the recognition

of revolutionary governments .

 

1U. S. Department of State, Bulletin, July 15, 1957, pp. 93-94.

CHAPTER IV

RECOGNITION AND INTERNATIONAL ORGANIZATION
(REGIONAL AND WORLD-WIDE)

A study of the recognition problem in international organization
may serve at least two related purposes: First, to reveal the political
nature of the problem. Second, to present an insight into the primitive
character of what this writer has termed the 'institutional' in an inter-
national law based upon the consent of states.

During the first half of the present century, recognition has been
the concern of both regional and world-wide international organizations.
On the former level, the American states have played a prominent
role, while on the latter, the League of Nations and United Nations
have broached the problem. To the detriment of both international
law and international institutions, states have on both levels periodically
thwarted attempts to remove the problem from the arena of policy
control. Future success on the regional level may support Alvarez'
contention some fifty years ago that international law may be rendered
more meaningful as a limited geographic, rather than universal
phenomenon. 1 In nineteen-hundred-and- Sixty, however, this thesis is

hardly less Speculative than it was originally.

A. The Latin American States

 

Periodic attempts by these states to reduce the element of dis-

cretion in recognition may be viewed as a persistent reaction against

 

1Alejandro Alvarez, American Problems in International Law
(New York: Baker, Voorhis, and Co., 1909), pp. 98-99.

 

92

93

l

the frequently overbearing behavior of the United States. From their

point of view, recognition has been employed by the United States as
an indirect form of intervention. 2

The elastic international obligations criterion tended to accent
the economic (and more peripherally, the political) value of recog-
nition in the latter quarter of the Nineteenth and first quarter of the
Twentieth Centuries. Four developments in the latter period, however,
tended to emphasize the political (and more peripherally, the economic)
effect of granting or withholding recognition.

In March 1907, Senor Tobar, Foreign Minister of Ecuador,
suggested that the American Republics intervene indirectly in the
internal affairs of Sister republics in a state of revolutionary upheaval.
This might be effected through a policy of non-recognition of unconsti-
tutional pp f_a_p_tp. regimes, but only to serve humanitarian and altruistic
ends.3

On December 20, 1907, the five Central American Republics

incorporated the Tobar Doctrine into a convention appended to their

General Treaty of Peace and Amity. Article I declared:

 

1See Chapter II, for United States recognition policy vis-a-vis
Latin America.

zWilliam L. Neumann, Jr. , Recognition of Governments in the
Americas (Washington, D.C.: Foundation for Foreign Affairs, 1947),
Introduction, ii-iii.

 

 

3Inter-American Juridical Committee of the Inter-American Coun-
cil of Jurists, Report and Draft Convention on Recognition of De Facto
Governments (Washington, D.C.: Pan American Uri-15:1, February 1950),
p. 7; Luis Anderson, "El Gobierno De Facto, " Trabajo Presentado a la

 

 

 

Sub-Seccion De Derecho Internacional del Congreso Cientifico de Lima
(San Jose, Costa Rica: Irnprenta Lehmann, 1925), p. 30. The author,
a prominent Latin American student of international law and the recog-
nition problem, while praising the high, generous, and pacifist aSpects
of the Doctrine, nevertheless assails it as an intervention into the
domestic affairs of independent states.

 

94

The governments of the high contracting parties shall
not recognize any other government which may come into
power in any of the five republics as a consequence of a
coup d' etat, or of a revolution against the recognized govern-
ment, so long as the freely elected representatives of the
people thereof have not constitutionally reorganized the
country. 1

 

While some have maintained that

. . . this policy of non-recognition . . . is based on the
recognized right of the pe0p1e of each country to have a govern-
ment elected freely and fairly in accordance with their Consti-
tution and laws [and that] this principle is firmly imbedded in
every republican form of government, and the right to refuse
recognition prevails in international law, independently of any
treaty stipulations, 7‘

learned Opinion has generally opposed such a claim.3 Interestingly,
this document also engendered a conflict within the body of international
law. Here was a treaty, presumably a part of conventional (particular)
international law, directly contradicting the principle of customary
(general) international law acknowledging the right of revolution against
an oppressive authority.

A third deveIOpment was the doctrine of constitutional legitMacy

enunciated by President Wilson in 1913. This test incorporated the

 

1A.J.I.L., Supplement, 1908, p. 229.

ZChandler P. Anderson, "The Central American Policy of Non-
Recognition, " A.J.I.L., v. 19, no. 1, January 1925, p. 166. Anderson
appears to be inconsistent six years later when he condemns the de jure
principle as interventionist. (”Our Policy of Non-Recognition in—
Central America," A.J.I.L., v. 25, no. 2, April 1931, p. 298.) In em-
bracing both Sides of a contradictory argument, Chandler appears to
have overlooked the fact that international law is impartial insofar as
forms of government are concerned. Governmental forms are to be
regulated by constitutional law only.

3See Chapter 1, section on criteria for recognition, Chapter II,
and Luis Anderson, op. cit. , p. 30, who also assails it for failing to
prevent revolutions.

95

provisions of both the Tobar Doctrine and Central American Treaty
of 1907 into official United States practice. This served to further
exacerbate the hostility of Latin American scholars and politicians
toward this country. 1

A second Treaty of Peace and Amity was concluded in the
absence of Panama and Honduras, by Nicaragua, Guatemala, and
Costa Rica on February 7, 1923. It reaffirmed and extended the pro-
visions of the Treaty of 1907, and incorporated the doctrines of both
Tobar and Wilson. 2 The United States, though not a signatory power,
felt obliged, as a Sponsor of the conference, to acquiesce in the
convention. It may be suggested that the United States was bound
morally and by peculiar regional circumstances to adhere to the
Treaty of 1923.3 However, most of Latin America undoubtedly per-
ceived this as one more in a line of recent reversions to an unaccept-
able criterion of legitimacy.

In view of the above, Latin American politicians and students
of international law undertook to curtail the political and intervention-
ist character of the recognition procedure. They sought agreement
in the hemisphere on criteria to be utilized in pursuit of the desired
end. Agreement was to be achieved through convention rather than
formal international institutions.

In 1925, the American Institute of International Law, drafting

a resolution on recognition for the American Republics, stipulated that

 

1See Chapter II, for cases of American practice and criticism
emanating from both Latin American and United States sources; see
Estrada Doctrine, p. 97ff.

2For complete text of the treaty, see A. J.I. L. , v. 17, Supple-
ment, 1923, pp. 118-119.

3Philip Marshall Brown, "The Recognition of New Govermnents, "
A.J.I.L. , v. 26, no. 2, April 1932, p. 337.

96

. . Article I . . . the recognition of the government of a
nation has for its object merely to enter into diplomatic re-
lations with the said nation, or to continue the relations
existing. . . .

. . . Article V. Every abnormally constituted government

may be recognized if it is capable of maintaining order and
{Fafiquillity and is disposed to fulfil the international obliga-
tions of the nation. 1

This early proposal reinforced rather than modified the political
character of recognition. First, it identified recognition with entrance
into diplomatic intercourse; second, it encouraged the subjective
international obligations criterion, and; third, it stipulated that recog-
nition should be left to the discretion of individual states.

This conservative draft was submitted to the Pan American
Union during that year, and, in 1927, was forwarded to the meeting
of the International Commission of American Jurists at Rio de Janeiro.
The latter body adOpted its own draft convention. 2

The Commission draft, compared to that of the Institute, was
both conservative and progressive. It identified recognition with
diplomatic relations. However, by substituting 'capacity' for 'di8position'
to fulfill the international obligations criterion, it substantially modified
this test. Thus it tended to merge this test with the pp facto principle.
Most significant was the implication that a right to recognition existed
when both tests had been met.

This draft was submitted to the Sixth International Conference of

American States at Havana in 1929. United States Opposition to

 

1Committee Designated at Lima to Codify American International
Law of the American Institute of International Law, "Project 6:
Recognition of New Nations and of New Govermnents, " A.J.I. L. ,
Supplement, v. 20, July and October 1926, p. 310. Italics added.

 

2"Complete text of draft in A.J.I.L. , v. 22, 1928, Special Sup-
plement, p. 240.

97

recognition as a legal obligation prevented the Conference from
taking action upon the prOposal. 1

At this point, the problem of recognition was removed from the
realm of active regional concern to that of a specific national inter-
est. On September 27, 1930, Senor Genaro Estrada, Foreign
Secretary of the Republic of Mexico, enunciated a doctrine Which
was henceforth to carry his name. 2 He recalled both Mexico's and
Latin America's sufferings under a policy of recognition based upon
the test of legitimacy. Considering such a policy both insulting and
interventionist, the Foreign Secretary proceeded to announce a new
Mexican policy in regard to revolutionary regimes. The Mexican

. . Govermnent . . . [would] confine [. . .] itself to the
maintenance or withdrawal, as it may deem advisable, of
its diplomatic agents, and to the continued acceptance, also
when it may deem advisable, of such Similar accredited
diplomatic agents as the reSpective nations may have in
Mexico; and in so doing, it dOeS not pronounce judgment,
either precipitately or a posteriori, regarding the right
of foreign nations to ac-c—ept, maintain or replace their
governments or authorities.3

 

Enunciation of this policy was received with enthusiasm in some

Latin American circles.4 However, many students of international

 

1Inter-American Juridical Committee of the Inter-American
Council of Jurists, pp. pi_t., p. 6; Charles G. Fenwick, International
Law (New York: Appleton-Century-Crofts, 1948), p. 170.

 

2English text in A. J. I. L., Supplement, v. 25, 1931, p. 203;
Spanish text in Arturo Enrique Sampay, "El Reconocimiento de los
Gobiernos Revoluccionarios y la Doctrina Americana de 'Pure De
Factoism, '" en El Estado y Sus Atributos Segun la Convencion
Inter-americana de Montevideo (Buenos Airgz Editorial ”Surco, "
1946), pp. 69-70.

 

 

38ee preceding footnote for English and Spanish texts.

4E. g. , favorable press comment in El Comercio of Lima, Peru,
and La Razon of Bolivia, "The Recognition of Revolutionary Govern-
ments, " in Pan American Magazine, December 1930, v. 43, no. 6,

 

 

98

law perceived the Doctrine as little more than a modification in the
manner of granting recognition, from express to tacit. 1

From a theoretical point of view, it possessed some value.
Its implication that diplomatic agents were accredited to states
rather than governments, and that pip facto governments must be
dealt with, tended to support the legal thesis of recognition.
However, practically speaking, it did not eliminate the recognition
procedure. For in the event of a civil war, foreign governments
had still to choose the recipient of their diplomatic representatives.
Even in cases where a revolutionary party was in complete control
of the governmental machinery, the decision to accredit representa-
tives to it was in fact an act of recognition. Consequently, the
Estrada Doctrine was little more than a modification of technique in
recognition.

The first regional meeting held to consider the problem of
recognition after enunciation of the Estrada Doctrine was that of the
International Conference of American States at Montevideo in 1933.
The states agreed only on a general principle of nonintervention, a

spiritual companion of the United States' new Good Neighbor Policy. 2

 

pp. 440-441; Carlos Bollini Shaw, El Reconocimiento en el Derecho
Internacional Publico (Buenos Aires: Irnprenta L0pez, 1936), p. 116;
Gabriela Arevalo Blumenkron, La Doctrina del Reconocimiento en la
Teoria y en la Practica de los Estados (Mexico, D. F. , 1954), p. 132.

 

 

 

 

1Inter-American Juridical Committee of the Inter-American
Council of Jurists, op. cit. , p. 10; Gustavo Gomez Tagle, "Los Sis-
temas de 'Reconocim-i—entg'. y la Doctrina Estrada, " en La Opinion
Universal Sobre La Doctrina Estrada (Mexico: Institute de Derecho
y Legislacion Comparada, 1931), p. 211; Herbert W. Briggs, ed.,
The Law of Nations; Cases, Documents, and Notes (New York: Apple-
ton-Century-Crofts, 1952), pp. 122-124; Fenwick, op. cit., p. 171;
Philip C. Jessup, A Modern Law of Nations (New YER—fie Macmillan
Co., 1948), pp. 61-62.

 

 

 

 

zInter-American Juridical Committee of the Inter-American
Council of Jurists, pp. cit., p. 6.

99

During World War II, considerations of hemiSpheric security
placed a premium upon discouraging the rise of potentially pro-Axis

revolutionary governments in the Americas. 1

Consequently, in
1943, the Emergency Advisory Committee for Political Defense of
the Continent took action. It resolved that members delay recog-
nition of a revolutionary regime until they had collectively determined
both the circumstances leading to its establishment and its attitude
toward defense of the hemiSphere. The Committee emphasized
Simultaneously the expediential character of this measure. 2
With the war emergency ended, the Eighth Inter-American
Conference of States was held in Mexico City in 1945. It considered,
among other questions, the old problem of recognition. The United
States reaffirmed its adherence to the principles of non-intervention
and the juridical equality of sovereign states.3
The Guatemalan Delegation, influenced by measures of the
Emergency Advisory Committee, proposed that the Republics adopt
a uniform policy of non-recognition of undemocratic revolutionary
regimes. This proposal was submitted, in accordance with Resolution
38 of the Conference, to the Inter-American Juridical Committee for
an Opinion. That body recommended that Guatemala's prOposal be
rejected, as it constituted an intervention into the domestic affairs

of sovereign states.4

 

1See Chapter III, on the United States vis-a-vis the Farrell regime.

ZInter-American Juridical Committee of the Inter-American
Council of Jurists, op. cit., pp. 8-9.

3Inter-Arnerican Conference on Problems of War and Peace,
”Act of Chapultepec" (Washington, D.C.: 1945), pp. 30-33.

4Inter-American Juridical Committee of the Inter-American
Council of Jurists, op. cit., p. 9.

100

An Ecuadorian resolution denounced the recognition procedure.
It insisted instead on implementation of the Estrada Doctrine. The
Juridical Committee, upon considering the Ecuadorian prOposal,
failed to agree on a constructive permanent formula. However, it
did conclude that an abolition of recognition in international relations
was impractical. 1

In January 1948, the Ninth Inter-American Conference of
American States sat at Bogota. Mexico submitted a draft of the
Estrada Doctrine for consideration, but was no more successful than

was Ecuador in 1945.2 Subsequently, however, the Conference made

greater progress on the matter of recognition than did its predecessors.

Resolution 35 declared:

( 1) That continuity of diplomatic relations among the American
States is desirable.

(2) That the right of maintaining, suSpending, or renewing
diplomatic relations with another govermnent shall not be
exercised as a means of individually obtaining unjustified
advantages under international law.

(3).That the establishment or maintenance of diplomatic rela-
tions with a government does not imply any judgment upon the
domestic policy of that government.3

Having established these guiding principles, the Conference, in
Resolution 36, instructed the Juridical Committee to prepare a report
on them.4 The report, based on the controversial assumption that
the problem was inherently juridical, concluded that recognition was

5

a matter of both rights and duties. At Rio de Janeiro, on September

 

1_I_b_i_<_i., p. 11.
22251;, p. 10.
3_I_b_i_._c.1_., pp. 13-14.
4%, p. 1.
512151;, p. 14.

101

1

27, 1949, the Committee drafted a convention.

On the surface, this document appears to render a legal char-
acter to the problem of recognition. However, a closer scrutiny
reveals that it is in fact highly conducive to political considerations.

(First,- while the objective dpfpppp principle has been enunciated,
the subjective international obligations test has been incorporated
as an independent criterion. Consequently, this latter test may
seriously compromise the provisions of Articles 3 and 9.

Second, Article 4 perpetuates an illusion created by juristic
logic, namely, that recognition is a legal function since a severance
of diplomatic relations cannot revoke it. This logic, however, obscures
the very real and significant dispute over the definition and function of
recognition.3

Third, Article 8, permitting individual recognition, necessarily
encouraged discretionary political behavior. Thus the legal right to
recognition appears to be compromised by the inherently political
character of a great portion of the document.

The Report was then submitted for consideration to the parent
Inter-American Council of Jurists meeting in Rio de Janeiro from
May22-June 15, 1950. Unable to reconcile doctrinal divergencies and
to reach a formula acceptable to an absolute majority of the member

states, the matter was referred to the Council's second meeting.3

 

1For complete text, see Ibid. , pp. 19-20.

2See Chapter 1, section on the definition and function of recog-
nition and the controversy that surrounds it.

3Inter-American Council of Jurists, Final Act of the First Meet-
i_I_1_g, May 22-June 15, 1950, at Rio de Janeiro (Washington, D.C.:
Department of International Law, Pan American Union, 1950), p. 23.

 

 

102

At Rio de Janeiro, the United States apparently went far in sub-
verting attempts to reach a legal formula. It insisted that a legal
basis was alien to international law, since it contravened the dis-
cretionary power granted by it. The American delegate maintained
that a decision to grant or withhold recognition was one within the
exclusive jurisdiction of the recognizing state. 1

At the Council's second meeting in Buenos Aires, from April
20-May 9, 1953, the states decided that a convention on the matter
would be premature. They merely reaffirmed adherence to the
sound and constructive (and politically innocuous) principles of
Resolution 35, and agreed to transmit all relevant documents to the
Tenth Inter-American Conference. 2 In fact, a twenty-five year
attempt to resolve the problem in favor of limited political dis-

cretion, if not always of law per se, was abandoned.

B. The League of Nations

 

Perusal of the League Covenant for passages relevant to recog-
nition offers explicit statements on neither the problem nor its rela-
tionship to admission. Article 1, Paragraph 2, merely stipulates
that i

any fully self- governing State, Dominion, or Colony not
named in the Annex may become a Member of the League if
its admission is agreed to by two-thirds of the Assembly,
provided that it shall give effective guarantees of its sincere
intention to observe its international obligations, and Shall

 

1Alwyn W. Freeman, ”The First Meeting of the Inter-American
Council of Jurists, " A.J.I.L., v. 44, no. 2, April 1950, p. 379.

2Inter-American Council of Jurists, Final Act of the Second Meet-
ing, April 20-May 9, 1953, at Buenos Aires (Washington, D. C.:
Department of International Law, Pan American Union, August 1953),
p. 10.

 

 

103

accept such regulations as may be prescribed by the League
in regard to its military, naval and air forces and armaments.

Article 3 paragraph 3 and Article 4 paragraph 4, asserting
that the Assembly and Council, respectively,

may deal with any matter within the Sphere of action of the
League or affecting the peace of the world,

also avoided any Specific reference to recognition. Consequently,
Article 20 paragraph 1, stating that

the Members of the League severally agree that this Covenant
is accepted as abrogating all obligations or understandings
inter se which are inconsistent with the terms thereof, and
solem-rIl-y undertake that they will not hereafter enter into any
engagements inconsistent with the terms thereof,

appears to have been inapplicable to the recognition act.
In view of both the Covenant and the practice of members, it
would seem prOper to conclude that the states had not surrendered

1 This view, however, has been

their initiative in recognition.
severely criticized. 2

Having established the nature of the problem in the League, one
must turn to state practice. It will be observed that the thesis of

implied recognition was academic. Insistence upon the individual

 

1For concurring opinions, see ”Implied Recognition, " B. Y.I. L. ,
v. 21, 1944, pp. 145-148; John Fischer Williams, "Recognition, “
Transactions of the Grotius Society, v. 15, 1930, pp. 62-63; Hersh
Lauterpacht, Recognition in International Law (Cambridge: Cambridge
University Press, 1948), pp. 401-404.

 

 

2See, e. g. , Hans Kelsen, General Theory of Law and State
(Cambridge: Harvard University Press, 1946), p. 229; Hans Kelsen,
"Recognition in International Law: Theoretical Observations, "
A.J.I.L., v. 35, no. 4, October 1941, p. 614; Carlos Bollini Shaw,
El Reconocimiento en el Derecho Internacional Publico (Buenos Aires:

 

 

Irnprenta Lopez, 1936), pp. 165-166; Malbone W. Graham, The League
of Nations and Recognition of States (Berkeley: University of California

 

Press, 1933), p. 1fft. Graham rejects the notion that the League
recognizes for intramural purposes alone; Arnold D. McNair, ed. ,
Oppenheim's International Law: A Treatise, v. 1 (London: Longmans,
Green and Co., 1928), pp. 145-146.

 

104

political and diplomatic character of recognition appears to have

prevailed.

l. Post-World War I

 

Recognition had been a problem at the Paris Peace Conference,
where the Russian Succession States, Latvia, Estonia, Lithuania,
the Ukraine, Azerbaidjan, and the Kuban Republic, among others,

had sought international reSpect for their independence. 1

The League
itself did not actively consider the problem until late 1920.

The Fifth Committee of the First Assembly met to evaluate
the applications for admission of the new post-World War I states.
At its first meeting on November'20, M. Van Karnebeek of the
Netherlands raised the question of the juridical consequence of
admission, wishing to know if this implied pp jp_1_'_e__recognition of all
members. Lord Robert Cecil of the Union of South Africa, responding
with a literal interpretation of Article I, concluded that the liberty of
action of individual states was not affected by admissions. M. Politis
of Greece, on the other hand, suggested that it might imply d_e_2_1_1:p_

recognition by all League members. 2

 

1Graham, op. cit. , pp. 1-22. Significantly, as was also to be
the case in the UTi—ited—N-ations, early drafts dealing with the problem
of recognition were revised in order to drOp the matter. For example,
President Wilson's final draft of February 3, 1919 at Paris ignored
recognition of states, while several of his earlier documents had
dealt with it. (See especially p. 14ff.) Thus, the League at its incep-
tion had no legal guidelines to follow in relation to the problem. Rather,
it had state traditions rooted in political considerations. Subsequent
League experiences were to follow those traditions.

2League of Nations, Records of the First Assembly: Meetings
of Committees, II, 1920, Fifth Committee (Geneva: 1920),
p. 157.

 

 

105

Failing to resolve the issue, the Committee agreed to ask a
group of learned international jurists, consisting of Anzilotti, van
Hamel, and van Karnebeek, for a legal opinion. M. Viviani of
France suggested that the group was similar to a court of justice.

It had to base its conclusions on established law and to judge facts
in the light of the Covenant. Mr. Millen of Australia and the
Maharajah of Nawanagar insisted that the jurists should examine
the problem not merely in the interests of the League, but also
with a concern for justice and the interests of the applicants. 1
Thereupon, the group commenced its deliberations.

It made its report to the Political Committee on November 30.
The chairman of the Political Committee disclosed that two opinions

had been rendered:

. . . one view held that admission to the League involved
the recognition of the State requesting admission by all
States Members of the League; the other view was that it
only entailed observation of the conditions expressly laid
down by the Covenant. z

The jurists, unable to resolve the recognition-adrnission question,
sent the problem back to the Political Committee for further dis—
cussions. There Lord Cecil insisted that it was useless to discuss a
legal question which lent itself to an infinite number of interpre-
tations and interminable debate. He preferred to consider the individual
applic ations .

M. Viviani was in essential agreement with Lord Cecil, and
subInitted that it was wrong for the Committee to treat a fundamentally
political problem as a legal question. He also feared that in a practical

situation those members that had voted against admission of a state

 

lIbid., p. 158.
ZIbid., p. 160.

106

would be reluctant to defend it in a crisis. Consequently, the best
solution would be, as Lord Cecil suggested, immediate consideration
of individual applications.

M. Poullet of Belgium, linking recognition with political
interest rather than law, supported the delegate from South Africa.
Dr. Nansen of Norway followed suit, Since he felt that recognition
would remain a privilege of states, whatever the Committee decided.
Chairman Gana of Chile then observed that the majority were pre-

p ared to terminate the debate in favor of a consideration of individual
applications and the reports of the sub-committees upon them. 1

Thus the League's earliest experience with the problem of law
and politics in recognition resulted in a reaffirmation of the political
thesis. A precedent restricting the organization's activities to the
prescriptions of the Covenant had also been established. As Dr.
Nansen suggested, and the final reaction against a collective, legal
interpretation of the recognition act confirmed, neither juristic logic

nor philanthrOpic pretension could extend that Sphere of activity. 2

2. The Soviet Case

 

Perhaps the most significant issue of recognition to be con-
sidered by the League of Nations was that resulting from the Soviet
Union's application for admission in 1934. That application was subse-

quently forwarded to the Assembly's Sixth Committee for consideration.

 

1Ibid., pp. 160-161.

2E. g. , Graham, op. cit. , p. 31-33, submits that the admission
of Lithuania, Latvia, and—EstOr-Iia in 1921 proved that antecedent recog-
nition was not necessary for admission into the League and that these
states had been collectively recognized. In view of the Wilson docu-
ments, the discussions of the Fifth Committee, and the future Soviet
case, this conclusion appears both unrealistic and untenable.

107

The result was a roll-call vote of 38-3-7 in favor of recommending

to the Assembly that the USSR be admitted. The one-Sided character
1

of the vote, however, obsCured the real issue, that of recognition.
Here the principle of individual political recognition, defended by
the minority, was acquiesced in by the majority. A brief review
of that committee's work would appear appr0priate and essential.
M. Caeiro Da Mata of Portugal, after contrasting the economic,
juridical, political, and moral character of the Western world with
that of the Soviet Union, and asserting that his delegation intended to

vote in the negative, broached the problem of recognition:

. . . how is the fact of admission into the League to be
reconciled with practice, or rather with the international tech-
nique in force in the matter of the recognition of States ?

Are we to have recognition at Geneva and non-recognition
elsewhere? Is there to be international co-operation in the
League, which implies the most serious international under-
takings, and abstention outside it? Will not the admission of
the Soviet Union into the League logically and necessarily
involve the de jure recognition of the Soviet Government by
the various-States ? What will be the position of those who do
not wish or are unable at present to adopt that attitude ?2

M. Motta of Switzerland, after elaborating upon the distinction
between East and West, and the subversive character of the Soviets,
noted that

the position adOpted by the Swiss Federal Council with regard
to the application of the USSR is generally known. Criticized

 

1In view of the state of international life after the Japanese
invasion of Manchuria in 1931, United States recognition of the
Soviet Govermnent in 1933, and the rise of Hitler to power in 1933,
admission of the U. S. S. R. was a foregone conclusion. (See Chapter
III, on the United States and recognition of the Soviets.)

zLeague of Nations, "Records of the Fifteenth Ordinary Session
of the Assembly, Meeting of the Committees, Minutes of the Sixth
Committee (Political Questions), " Official Journal, Special Supple-
ment no. 130 (Geneva: 1934), pp. 17-18.

 

108

by some, defended by others, this position . . . is contrary

to the expressed policy of the greater number of delegates

and eSpecially of the three great powers represented among
1

us.

He continued:

In Spite of its constant and warm friendship for the
Russian pe0p1e, the Swiss Government has, however, never
felt able to recognize de jure their present regime. It is de-

termined to maintain this negative and expectant attitude.
2 l

 

M. Motta had suggested that recognition was a concern of
individual governments rather than an effect of admission.

In addition, he had associated recognition with an intention to enter
into direct diplomatic intercourse. Conscious of its minority position,
Switzerland nevertheless continued to insist that, as such intercourse
was presently impossible, recognition could not be granted.

Belgium, on Similar grounds, and also without previous diplo-
matic relations with the Soviet Union, chose to abstain. M. JaSpar
explained that Soviet refusal hitherto to make restitution or repara-
tion, or even offer an apology, for Spoliation of Belgian property
also contributed to his country's decision. Abstention was ostensibly
motivated by a desire not to offend the Big Three favoring admission,
and an attempt to promote European order and international peace. 3
Thus Belgium, supporting the Swiss conception of a political dis-
tinction between admission and recognition, also based her position
on considerations of national policy.

M. Cantilo of the Argentine Republic took a stand Similar to

that of his Belgian colleague. He explained that maltreatment of

 

1Ibid., p. 18.
2Official Journal, loc. cit., p. 18. Italics added.

3Ibid., p. 20.

109

Argentine interests in Russia in 1917, and outrages against an
Argentine official and legation offices in 1920, both perpetrated with-
out explanation or compensation, had motivated a refusal of diplo-
matic recognition. However, since Argentina's desire for impartiality
impelled it to rise above national grievances, “which [its] . . .
honor and dignity [did] . . . not allow [it] . . . to forget, "I M. Cantilo
was instructed merely to abstain from voting. Thus, in the Argentine
case, too, past refusal to extend recognition had been influenced by
a consideration of national interests. Consequently, until such time
as "honor and dignity" were assuaged, recognition was to be withheld,
notwithstanding admission of the Soviet Union into the League.

M. De Graaf of the Netherlands, expressed his intention of
voting against Soviet admission.

For the majority, M. Barthou of France emphasized the organi-
zation's aspirations to universality. M. Benes of Czechoslovakia
and Mr. Skelton of Canada emphasized the importance of Soviet admis-
sion for the preservation of international peace. 7‘ Significantly, the
Czechoslovak delegate added, in apparent appreciation of Swiss and
Belgian motives, that his country

. . . had no interests which conflict[ed] with those of the
Soviet Union, [but] on the contrary, that there [were] . . .
a number of points in the policies of the two countries which
[were] . . . concordant and complementary.

C ons equently, C zecho Slovakia

desire[d] to co-0perate loyally and amicably with the Soviet
Union in maintaining peace.3

 

libid., p. 21.
2Ibid., pp. 21-24, 25.
31bid., pp. 24-25.

110

The League case demonstrated that recognition, political in
nature, fell within the Spheres of interest and competence of the
individual states. Both a literal approach to the Covenant and the
actions and pronouncements of the members on various occasions,
supported the thesis of individual recognition and helped shape the

deficiencies of that organization.

C. The United Nations

 

Concern with the problem of recognition in the United Nations
has been as great as that in its ill-fated predecessor. In both the
significance to be attached to a principle of implied recognition was
the key issue; in both that principle was denied by the practice of
states. The United Nations' experience with the problem offers an
even greater insight into the extent of that rejection.

The Charter offers no explicit statement on the recognition
process. Consequently, its assertion that

the organization is based on the principle of the sovereign
equality of all its Members,

and that

nothing contained in the present Charter shall authorize

the United Nations to intervene in matters which are essential-
ly within the domestic jurisdiction of any state or Shall require
the Members to submit any such matters to settlement under
the present Charter. . . , 1

may be construed as an appreciation of state competence. 2

 

1Charter of the United Nations, Article II paragraphs 1 and 7.

2For confirmation of United Nations acknowledgment of state
sovereignty, see International Court of Justice, ”Advisory Opinion of
April 11, 1949 on Reparation for Injuries Suffered in the Service of
the United Nations, " Reports of Judgments, Advisory Opinions, and
Orders, 1949, p. 179. The Court emphasized that the United Nations,
while an International Person, was neither the same as, nor superior
to, the member states.

Significantly, an Opinion of the Court on the question of admission
into the United Nations considered only the literal provisions of

 

111

However, a case for implied recognition may be made. For
example, a broad interpretation of Article 34, stating that

the Security Council may investigate any diSpute, or any
Situation which might lead to international friction or give
rise to a dispute, in order to determine whether the continu-
ance of the dispute or situation is likely to endanger the
maintenance of international peace and security, i

may be invoked as evidence of such organizational jurisdiction.
The United Nations' early considerations of the problem, however,
appear to have answered the question of recognition in international

organization.

1. The Norwegian Proposal

 

The United Nations Conference on International Organization
was held at San Francisco, from April 25-June 26, 1945, to consider
the Dumbarton Oaks proposals. In Committee II/2, the Norwegian

delegation submitted that, as

 

Article 4. It did not mention recognition. (See International Court
of Justice, ”Conditions of Admission of a State to Membership in the
United Nations (Article 4 of the Charter), " Reports of Judgments,
Advisory Opinions, and Orders, 1948, p. 65. 4

Herbert W. Briggs, ”Community Interest in the Emergence of
New States: The Problem of Recognition, ” Proceedings of the Arneri-
can Society of International Law, 1950, p. 170, suggéEts that the
Assembly's resolution (to the effect that the Republic of Korea existed
after the holding of United Nations-supervised elections, and that
states establishing relations with the Korean government should take
these facts into consideration) constituted an 'international birth
certificate.' (See United Nations General Assembly, Official Records,
3rd Session, Part I, Plenary Meetings, 187th Meeting, December 12,
1948, p. 1042; United Nations General Assembly, Resolutions, 3rd
Session, Document A/810, December 1948, pp. 25, 27. The vote on
the resolution was 48-6-1.) This does not appear to be an example of
collective legal or political recognition. Rather, it simply observes
the existence of the Republic, but acknowledges that the members
themselves must consider the question of relations.

 

 

 

 

 

 

112

the obligations of a State cannot be prOperly assumed nor
can its rights be exercised except by a recognized govern-
ment, 1

the General Assembly

. should . . . have the right to present recommendations
to member states with regard to the recognition of new govern-
ments or new states.2

The Norwegian amendment was withdrawn, suggesting that the
authors of the Charter were averse to a linking of admission or
seating of new governments with recognition.3

As a result of the Conference, Article 4 paragraphs 1 and 2
were formulated. They stipulated that, upon having met the pre-
requisites of peace-loving behavior, acceptance of the obligations of
the Charter, and demonstration of ability and willingness to fulfill

these obligations,

the admission of any such State to membership in the United
Nations will be effected by a declaration of the General
Assembly upon the recommendation of the Security Council.

In view of the withdrawal of Norway's proposal and final draft-
ing of the Charter, both apparently in accord with the attitudes of
member states, the principle of implied recognition would seem to

be irrelevant.4 Yet some have continued to insist that it is applicable

 

1United Nations, " Dumbarton Oaks PrOposals, Comments, and
Proposed Amendments, " Conference on International Organization,
1945, at San Francisco, v. 3 (New York: United Nations Information
Organizations, 1945), p. 367. (Quoted from Document 2, G/7, (n)(1).)

 

 

 

2United Nations, Conference on International Organization, April

 

25-June 26, 1945, at San Francisco: Selected Docum—e-Iizs (Washington;
D.C.: Government Printing Office, 1946), pp. 119-120.

 

3For a concurring Opinion, see Hans Aufricht, "Principles and
Practices of Recognition by International Organizations, " A. J. I. L. ,
v. 43, no. 4, October 1949, p. 691.

4For concurring ipinions, see H. Lauterpacht, ed. , Oppenheim's
International Law: A Treatise, v. I (London: Longmans, Green and

 

 

113

in the activities of the United Nations. 1

2. The Indonesian Case

 

In the late summer of 1947 the problem of Indonesian-Dutch

strife came before the Security Council. Of immediate concern was

 

Co. , 1955 and 1948), pp. 134 and 140-143, reSpectively; Lauter-
pacht, Recognition in International Law, pp. 401-403; Josef L.

Kunz, ”Critical Remarks on Lauterpacht's 'Recognition in International
Law, "' A.J.I.L. , v. 44 no. 4, October 1950, p. 719; Philip C. Jessup,
A Modern Law of Nat ions (New York: The Macmillan Co. , 1948), pp.
49-50; P. E. Corbett, trans. and ed., Charles DeViSScher's Theory
and Reality in Public International Law (Princeton: Princeton University
Press, 1957), p. 230; Clyde Eagleton, International Government

(New York: The Ronald Press Co. , 1957), pp. 70-75; International
Court of Justice, ”Advisory Opinion of April 11, 1949 on Reparations
for Injuries Suffered in the Service of the United Nations, " Pleadings,
Oral Arguments, and Documents, 1949, p. 21. (Quoting the opinion

of Mr. fick Tate, Acting Legal Adviser to the American Secretary of
State.)

 

 

 

 

 

 

1See, e. g. , Hans Kelsen, Principles of International Law (New
York: Rinehart and Co., 1952), pp. 278-279, 284-285. Kelsen bases
his Opinion on the dichotomous theory of recognition; Malbone W.
Graham, ”Some Thoughts on the Recognition of New Governments and
Regimes, " A.J.I.L. , v. 44 no. 2, April 1950, p. 360. Graham sub-
mits that while the issue has not been settled, recognition is passing
out of the hands of individual states and into the collective jurisdiction
of the United Nations; Quincy Wright, ”Some Thoughts About Recogni-
tion, "A.J.I.L., v. 44, no. 3, July 1950, pp. 555-559. Wright
qualifies the implied recognition principle, however, by suggesting
that it is valid only in matters within the competence of the United
Nations organs. Thus, members are obliged to deal with each other
merely within the organization; S. Rosenne, "Recognition of States
by the United Nations, " B. Y.I.L. , v. 26, 1949, p. 439 ff. The author
is of the opinion that each organ of the United Nations has the capacity
to recognize a state within the terms of its competence, as defined in
the Charter, and for the purposes of applying the article out of which
the demand for recognition as a state was made. In the final analysis,
the Assembly must be decisive. Furthermore, he states, a majority
of two-thirds voting for admission is performing an act of recognition,
while the minority, if it so desires, may refrain from recognizing

 

114

a proposal that agents of the Indonesian Republic be invited to the

Council's discussions. 1

There was apprehension that an invitation would be interpreted
as an implicit act of recognition. Consequently, Sir Alexander
Cadogan of the United Kingdom stated that, as his Government had
not yet recognized the Republic, it must vote against its partici-
pation in the debate. 2

Thereupon, M. Nisot of Belgium asserted that

the recognition of a State is a serious matter. I do not think
it is within the Security Council's competence indirectly to
accord recognition to the Indonesian Republic by admitting it
as a sovereign and independent State when it is not yet recog-
nized as a member of the community of States.

It is even possible that some representatives here may
not personally have the requisite authority to participate on
behalf of their Govermnents in such recognition. I myself
have no such powers, Since Belgium has not recognized the
Indonesian Republic. In that reSpect, I am therefore in the
same position as my colleague, the representative of the
United Kingdom.3

 

the new member. Rosenne's line of reasoning is somewhat problem-
atic, as it tends to confuse recognition for intramural and extramural
purposes. On the one hand, the organs are strictly circumscribed by
the Charter's provisions, among which there are no statements con-
cerning recognition. On the other, individual competence is assured
the states opposing admission of a new member. Consequently, in

the first instance it appears that recognition, if admission or acceptance
of credentials could be equated with such, is of an intramural character.
In the second instance, individual recognition is guaranteed in both the
intramural and extramural Spheres. Thus, the author's attempt at
clarification appears to have confused the function and purpose of the
recognition act.

1Article 32 stipulates that any state not a member of the organi-
zation may be invited to the Council's discussion of a diSpute to which
it is a party. It may participate without a vote.

2United Nations Security Council, ”Continuation of the Discussion
on the Indonesian Question, " Official Records, no. 74, lBlst Meeting,
August 12, 1947, p. 1923.

31bid., p. 1930.

 

115

Dr. Tsiang of the Republic of China, after maintaining that a
broad definition of 'State' is permissible under the Charter, and that
moral and political considerations made such an invitation necessary,
concluded:

In supporting the prOposal to invite the representative of the
Indonesian Republic to participate in this discussion, I imply
that he would be the proper '0pposite nurnber' of the repre-
sentative of the Netherlands in this dispute. I imply nothing
else, I recognize nothing else. 1

M. El-Khouri of Syria, President of the Security Council,
closed the debate and called for a vote. He concluded that the Security
Council had no power to establish the sovereignty of the Republic, but
merely to seek pacification of a troubled area. Consequently,

. . . an invitation to the representative of the Indonesian
Republic to participate in . . . [the] discussion would not
bind any State to recognize the independence or sovereignty
of the Indonesian Republic. The invitation would be extended

simply in connection with the work of the Security Council. . . . 2

At a later meeting, the representative of the Netherlands,
M. Van Kleffens, expressed the attitude of those averse to collective
legal recognition:

. . . I submit that it is not for any organ of the United Nations
to say that a State is recognized as either a de jure or de facto
Government. That is the exclusive prerogatfie of individual
States. There is nothing in the Charter which gives the United
Nations or any of its organs, the ability to raise a political
entity to the status of a State recognized _d_e facto or dpjure,

or to raise the Government of such a political entity to the
status of a Government recognized de facto or de jure.3

 

 

 

 

lIbid.. pp. 1935-1936.
21bid., pp. 1939-1940.

3United Nations Security Council, "Continuation of the Discussion
on the Indonesian Question, ” Official Records, no. 76, 184th Meeting,
August 14, 1947, p. 1981.

 

116

3. The Palestine Case

 

An analogous Situation arose in July 1948, when the Security
Council had to consider the implications of an invitation to the Jewish
authorities in Palestine to attend discussions on that strife-ridden
land. M. Manuilsky of the Ukraine SSR, President of the Council,
had addressed his letter of invitation to the 'Governrnent of Israel. '
Hence, the question of implied recognition of that State and Govern-
ment.

The first Speaker at the session of July 7, 1948, Sir Alexander
Cadogan of the United Kingdom, after assailing the (imprOpriety of
the invitation, observed that

. . . the action of the President in inviting to the Council
table a representative of the Government of Israel cannot, of
course, possibly affect in any way the attitude of my Govern-
ment in regard to the recognition or non-recognition of that
Government,

since

the Security Council cannot commit any of its members in
that way.

Accordingly,

I wish to make it clear that the position of my Government is
entirely and absolutely reserved. 1

The French Govermnent took a Similar stand when M. De La
Tournelle declared that,

notwithstanding the procedure the President has adOpted in
inviting a certain Government to participate in this discussion,
I wish to state, on my Government's behalf, that it reserves
its right to complete freedom of action. It has not recognized
the State of Israel and considers that an invitation to the

 

1United Nations Security Council, ”Continuation of the Discussion
on the Palestine Question, " Official Records, no. 93, 330th Meeting,
July 7, 1948, p. 2.

 

117

representative of that Government couched in these terms
might complicate a situation which is in itself already very
delicate. 1 '

Belgium's M. Van Langenhove supported the position of his
colleagues from the United Kingdom and France. 2
M. Manuilsky subsequently assailed the objections of his
EurOpean colleagues, suggesting that in the Indonesian case M. El-
Khouri had invited the Indonesians as representatives of a new State.3
M. El-Kthouri quickly attacked the President's statement. He main-
tained that in the previous case the Netherlands-Indonesian Linggadjati
Agreement had already resulted in recognition of the Republic as a
c_ipfpfifpgovernment. The Syrian delegate rejected M. Manuilsky's
attempt to parallel the Agreement with recognition of Israel by the
United States, the Soviet Union, and others. Consequently, he argued,
only representatives of the Arab Higher Committee and the Jewish
Agency could legally be invited.4

Mr. Jessup of the United States proceeded to support the
President's analogy between the two cases and the right of the Govern-
ment of the State of Israel to be represented as such. However, he was
quick to reaffirm the British, French, and Belgian thesis that invita-
tions extended under Article 32 implied neither collective nor individual
recognition. 5

Senor Munoz of Argentina, after deploring delay in discussing

the significant issue of truce violations in Palestine, dismissed the

 

11213,, pp. 2-3.
211312;, p. 3.
3_Ipi_d_._, pp. 3-4.
4122;, p. 3.
5_I_l_)_i_d_._, p. 7.

118

relevance of the recognition problem by insisting that

the recognition of foreign governments is the sovereign
privilege of every State; it is evident that this privilege has
neither been lost nor abandoned by the Government of
Argentina. The terminology used by the members of the
Council cannot affect this fact. 1

The meeting closed with a vote on the motion to overrule the
President's ruling that the Jewish agent was a representative of the
State of Israel. With only Belgium, Canada, China, Syria, and the
United Kingdom supporting the motion, it failed for want of the
necessary seven affirmative votes.

Significantly, at the meeting of July 15, 1948, Mr. Eban, the
Israeli representative, supported Mr. Jessup's position by holding
that ". . . the Security Council has no power or duty or competence

of recognition. "2

4. The Chinese Case

 

Concern with the recognition problem throughout the year 1950
was significant for several reasons. First, it was the only prolonged,
if not concerted effort by the major organs, the General Assembly,
Security Council, and Secretariat, to deal with the recognition issue.
Second, the focus of this concern was shifted from the admission of
new states and invitations to contending parties to the problem of

reviewing credentials of new govermnents in member states.3

 

1Ibid., pp. 7-8.

2United Nations Security Council, "Continuation of the Discussion
on the Palestine Question, " Official Records, no. 97, 337th Meeting,
July 15, 1948, p. 36. ' '

 

3For a detailed analysis of the credentials problem and lack of
uniformity in rules of procedure in the organs of the United Nations,
esPecially in regard to the Chinese case, see Hans Kelsen, The Law
of the United Nations: A Critical Analysis of its Fundamental Prob-
lems (New York: Frederick A. Praeger, 1951), pp. 943-949.

 

 

119

In a message of January 13 to the President of the Security
Council, India's B. N. Rau emphasized the dangers inherent in the
diverse procedures used by organs of the United Nations to validate
the credentials of new governments. He suggested that in order to
minimize the possibility of conflict, a uniform rule for the organi-
zation be adopted. 1

Shortly thereafter, Secretary-General Trygvie Lie reSponded
to Mr. Rau's proposal with a memorandum on the "Legal AsPects of
Problems of Recognition in the United Nations. ,,2

Mr. Lie explained: The primary difficulty in the current ques-
tion of representation in the United Nations is its linking with the
question of recognition by the member states. This association is
unfortunate from the standpoints of both legal theory and practical
application. In the latter, a lack of uniformity in rules of procedure
‘ encourages the possibility of rival governments being seated in one
or several, but not all, of the organs. From a theoretical point of
view, representation and recognition are different problems. In the

latter, the decision is political and discretionary.3 Admission and

 

1United Nations Security Council, Official Records, 5th Year,
Supplement for January 1-May 31, 1950, Document 571447, January
13, 1950, pp. 2-3.

 

2United Nations Security Council, Official Records, 5th Year,
Supplement for January l-May 31, 1950, Document S/1466, March 8,
1950, pp. 18-23.

 

3United Nations Security Council, Official Records, 3rd Year,
no. 68, 294th Meeting, May 18, 1948, p. 16. (Mr. Lie was citing
the reSponse of Mr. Warren Austin of the United States to M. El-
Khouri's questioning of American recognition of Israel. Austin denied
that any nation could question the sovereignty of the United States in
the exercise of the high political act of recognition of the de facto
status of a State. Secretary-General Lie used this as evi-d—e-nce of the
political and discretionary character of recognition.)

 

 

120

representation, however, are both based on the collective action of

the appropriate organs. 1

Both League and United Nations practice
support this thesis. Consequently, a member voting to accept the
representation of a government which it hasn't yet recognized is under
no obligation coincidentally or subsequently to grant such recognition.
This practice is both legally correct and in conformity with the
organization's basic character. 2
Referring to the Chinese case, the Secretary-General urged
that members be guidedppp by an irrelevant consideration of recog-
nition, but rather, by Article 4 of the Charter. Only that rival
Government in effective authority and habitually obeyed by the bulk
of the population, if peace-loving and able and willing to fulfill the
obligations of membership Should be seated.3
Later in the year, the problem pas sed‘to the General Assembly,
which subsequently requested that‘an Ad Hoc Political Committee study

4

it and prepare a working formula. After noting the inadequacy of

 

1See footnote 2, page 110, the International Court's opinion on
the admission of states.

2See footnote 1, page 113, Wright and Rosenne.

3For an Opinion to the effect that Lie's memorandum implied that
the Communist Chinese should be seated, see Quincy Wright, "The
Status of Communist China, “ Journal of International Affairs, v. 11,
no. 2, 1957, p. 171; for an accusation that Lie had undermined the
Chinese Nationalists' United Nations front against the Communists by
a Show of partiality, see Dr. T. F. Tsiang's statement in United
Nations Security Council, Official Records, 5th Year, Supplement for
January 1-May 31, 1950, Document S/l470, March 13, 1950, pp.
23-26.

4A letter of July 19, 1950 (Document A/1292), from the Cuban
delegate to Secretary- General Lie, called for the placing of the question
of recognition by the United Nations on the provisional agenda of the
Fifth Session of the Assembly. Another Cuban letter of July 26, 1950
(Document A/1308) to the same effect, was given to Lie to circulate as

 

 

 

 

 

121

present rules, the advantage of uniformity, and the reasonableness
of Assembly authority, the Cuban delegation presented its resolution.
It recommended that questions of representation be decided in the
light of effective authority, general consent of the p0pulation,

ability and willingness to achieve the purposes of the Charter and to
fulfill the state's international obligations, and reSpect for human
rights and fundamental principles. It resolved, furthermore, that
the Assembly alone consider the question of legitimate representation,
requested the Secretary-General to transmit the resolution to the
organs and agencies of the United Nations for such action as may be
appropriate, and declared, significantly, that

. . . decisions taken by the General Assembly in accordance
with this resolution shall not affect the direct relations of
individual Member States with the State, the representation of
which has been the subject of such decisions. 1

Amendments and counterproposals were considered in subse-

quent meetings of the Committee.2 Finally, on November 28, 1950,

 

an explanatory memorandum on the item. On September 6, 1950, Lie
transmitted to the members of the Assembly the text of a June 1,- 1950
(Document A/l344) letter from the Director-General of U. N. E. S. C. O. ,
including a resolution adopted by that body's General Conference of the
Fifth Session, meeting Jon May 30, 1950, calling for the United Nations
to adOpt general criteria for a uniform and practical settlement of the
recognition-representation problem. At its 285th meeting, on Septem-
ber 22, 1950, the Assembly decided to include the item on the agenda
of its Fifth Session, and referred it to the Ad Hoc Political Committee.

 

1United Nations General Assembly, "Draft Resolution by Cuba on
'Recognition by the United Nations of the Representation of a Member
State, "' in the Ad Hoc Political Committee, 18th Meeting, October 20,
1950, Document A/AC. 38/L. 6. '

 

2For an insight into the work of the Ad Hoc Political Committee
prior to formulation of the final resolutions of that body and the
General Assembly, see Documents A/AC. 38/L.11, A/AC. 38/ L. 21,
A/AC. 38/L. 21/Rev.I, A/AC. 38/L. 22, A/AC. 38/L. 23, A/AC. 38/L. 24,
A/AC. 38/L. 25, A/AC. 387L. 45, A/AC. 387L. 50, A/AC. 38H... 53,
A/AC. 38/L. 54, A/AC. 387L. 55, A/AC. 38/L. 56.

 

 

 

 

 

 

 

 

 

122

the Ad Hoc Political Committee agreed on a formula to be sent to
the General Assembly in the form of a resolution. It

. . . l. Recommend[ed]that whenever more than one authority
claims to be entitled to represent a Member State in the United
Nations, and this question becomes the subject of controversy
in the United Nations, it should be considered in the light of
the purposes and principles of the Charter and the circum-
stances of each case;

2. Recommend[ed] that the attitude adopted by the
General Assembly or its Interim Committee concerning any
such question should be taken into account in other organs of
the United Nations and in the Specialized agencies;

3. Declare[p] that the attitude adOpted by the General
Assembly or its Interim Committee concerning any such
question shall not of itself affect the direct relations of
individual Member States with the State concerned;

4. RequeSfied] the Secretary-General to transmit the
present resolution to the other organs of the United Nations and
to the specialized agencies for such action as may be appro-
priate. 1

 

 

 

 

 

 

 

 

The Assembly, at its 325th Plenary Meeting of December 14,

1950, passed a resolution Similar to that recommended by its Ad Hoc

Political Committee. 2

 

1For complete text, see United Nations General Assembly,
"Resolution Adopted by the Ad Hoc Political Committee on 'Recognition
by the United Nations of the Representation of a Member State, " Ad
Hoc Political Committee, 60th Meeting, November 28, 1950, Document
A/AC. 38/L. 58. Italics added.

 

zUnited Nations General Assembly, "Resolution by the General
Assembly on the Report of the Ad Hoc Political Committee, ” 325th
Plenary Meeting, December 14, 1950, Document A/1753. This resolu-
tion is the same as that recommended by the Committee, except for
this somewhat redundant insertion between paragraphs 1 and 2 of the
operative section Assembly resolution: "2. Recommends that, .’when
any such question arises, it should be considered by the General
Assembly, or by the Interim Committee if the General Assembly is
not in session. " Hence, operative paragraph 2 of the Committee reso-
lution is Operative paragraph 3 of the Assembly resolution.

 

 

123

The resolution adOpted by the General Assembly was no more
than an innocuous concession to those seeking a legal formula,
whether applied individually or collectively, for the recognition act.
Significantly, the resolution ignored specific references to the recog-
nition problem. Rather, its declaration that the Assembly's attitude
shall not of itself affect the direct relations of individual member
states with the state concerned, implied that recognition is a question

distinct from that of representation in the United Nations.

Conclusion

 

Failure of the United Nations to establish precisely, except for
Mr. Lie's memorandum, a distinction between recognition and repre-
sentation in international organization may perpetuate the illusion of
a principle of implied recognition in the United Nations. (This, however,
is clearly rejected by political reality and a positive international law
deriving therefrom. For the student of that reality and law the
observation that ". . . states are in no mood to give any more

strength to the United Nations . . . , "1

encourages a conclusion that
recognition remains a political and individual procedure in the relations

among states .

 

1University of Michigan Law School, Eighth Summer Institute on
International and Comparative Law, International Law and the United
Nations, Ann Arbor, June 23-28, 1955 (1957), pp. 370-371.

 

CHAPTER V

CONCLUSION

While states have on numerous occasions conceded the existence
of International Law, attempts to establish its nature and role have
produced great controversy. This writer has suggested that a study
of the recognition problem might enable the student of international
affairs to evaluate the role of law and 'a presumed legal framework in
the activities of states.

In a consideration of the question, 'Is It Law?', three factors,
the 'Spiritual' (basic consensus among the states), 'institutional'
(development of coercive supranational institutions), and 'real
political' (contemporary East-West conflict), pointed to the character
of International Law.

While some have argued that law cannot exist in the absence of
hierarchical relationships producing coercive institutions, others
have insisted that consensus among the states indicates the existence
of a primitive, weak, and decentralized International Law. Thus,
while the former perceive a more highly-developed institutional
structure as the creative force of law, the latter concede to it only a
strengthening role in progressive evolutionary development. That
evolution toward a higher stage of coercive institutions must rest on
a base of consensus among states.

Although the controversy over the nature of International Law

has not been resolved, its present state suggests a tentative

124

125

conclusion: at best it is a primitive regulating agent able to Operate
only in a very circumscribed capacity. For evidence of that
capacity, one must turn to the actions of states and a positive inter-
national law derived therefrom.

The refusal of states to relinquish discretion in recognition is
one illustration of the limited capacity of International Law. Under-
lying this refusal is a basic agreement as to the political nature of
recognition. To ensure the political nature of the recognition act,
they have historically relied upon three criteria, legitimism, willing-
ness and ability to fulfill international obligations, and pip factoism.
Onlypp factoism approaches an objective, 'legalistic' principle;
however, the deliberate refusal of states to admit rights to, and
duties of, recognition has reduced it, too, to a political instrument.

In the Twentieth Century, even while creating certain inter-
national institutions, the states have been careful not to grant them
instruments of coercion. Rather, the concept of the sovereign
equality of states has been written into their respective constitutions.
Thus, acting as sovereigns, they have denied to the League of
Nations and the United Nations a pre-eminent function in recognition.
Collective, legal recognition has been categorically rejected.

While the political nature of recognition was established prior
to the contemporary East-West conflict, the 'real political' factor
has not failed to ensure that it will continue to be an instrument of
national interests rather than legal obligation. In an era of great
ideological, military, and political conflict the states have clung
even more jealously to the political prerogative of recognition.

Even in a relatively stable world environment, however, it is doubtful

whether they would voluntarily strengthen the international rule of

126

law. Certainly American and British recognition practice in the
Nineteenth Century renders some support to this Speculation.

In fact, the history of recognition seems to demonstrate that, what-
ever the circumstances, states only reluctantly, if ever, acquiesce
in International Law as a coercive agent. Rather, a consensus
upholding narrow political interestsappears to bethe extent of

their acquiescence.

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