PART II

NORMAL RIGHTS AND DUTIES OF STATES

TITLE A

RIGHTS OF POLITICAL INDEPENDENCE

1

§ 35. The Right to Become a State of International Law. The birth of a State of international law may be due to one of many causes. Thus it may be attributable to the revolution of a colony, or to the secession of the inhabitants occupying a portion of the territory of a State, or to the determination of a controlling group of powers to establish and recognize a new State within territory previously belonging to an existing State.

When a political entity or country is possessed of a people occupying a well-defined territory, and a government exercising control therein and free to enter into foreign relations, it has attained the likeness of a State and may in a broad sense be deemed to be one. Such a State, nevertheless, finds itself unable by virtue of its own acts to enjoy fullest rights of intercourse with the several members of the family of nations, and so to live the life of a State of international law, until they acquiesce and permit it to do so. This is true although the birth of its state life precedes in point of time, and is not, therefore, technically dependent upon external acknowledgment.1

1 "The position of the new State in relation to the international system is not one of admission into a society. This is the fundamental error into which Huber and a great many other writers have fallen, and as long as this view persists we cannot understand the true relationship. When the new State has come into being there is, as has heretofore been pointed out, an indeterminate situation in the existing international order. From the purely juristic standpoint, the whole subsequent relationship between the new State and the existing system is an attempt to reestablish the legal continuity. The most potent argument in favor of the participation of the new State itself in this process is the fact that the period between its existence as a State from the point of view of its internal constitution and the so-called recognition by third States cannot be, as far as policy is concerned, a period totally devoid of law. To accept the doctrine of creative recognition is to deny this proposition. A protracted period without law in the international sense would mean what

2

RECOGNITION

a

36. In General.

66

Recognition has been defined as the assurance given to a new State that it will be permitted to hold its place and rank, in the character of an independent political organism, in the society of nations." "The rights and attributes of sovereignty

are said to "belong to it independently of all recognition ", although "it is only after it has been recognized that it is assured of exercising them."

When a country has by any process attained the likeness of a State and proceeds to exercise the functions thereof, it is justified in demanding recognition. There appears to be no disposition to withhold it provided the fact be established that the requisite elements of state life are present and give promise of remaining. The method by which a new State comes into being may, however, have an effect upon the time when recognition is accorded.

outlawry means in private law, that the new political entity might be subjected to violence at the hands of other States and in general be treated as beyond the pale, without such treatment being in any way a violation of the international obligation of the third State." Julius Goebel, Jr., The Recognition Policy of the United States, New York, 1915, 60.

1 Moore, Dig., I, 72, adverting to Rivier, I, 57, where it is added: "Recognition is therefore useful, even necessary to the new State. It is also the constant usage, when a State is formed, to demand it. Except in consequence of particular conventions, no State is obliged to accord it. But the refusal may give rise to measures of retorsion. When, after the formation of the Kingdom of Italy, certain German States persisted in refusing to recognize it, Count Cavour withdrew the exequaturs of their consuls. Recognition was then accorded."

See, in general, Moore, Dig., I, 72-248, and documents there cited; Julius Goebel, Jr., The Recognition Policy of the United States (with bibliography), New York, 1915; A. P. C. Griffin, List of References on Recognition in International Law and Practice, Washington (Library of Congress), 1904; Memorandum on The Method of "Recognition" of Foreign Governments and Foreign States by the Government of the United States, 1789-1897, by A. H. Allen, Chief of Bureau of Rolls and Library, Department of State, Senate Doc. No. 40, 54 Cong., 2 Sess.; Memorandum upon the Power to Recognize the Independence of a New Foreign State, presented by Mr. Hale in the Senate Jan. 11, 1897, Senate Doc. No. 56, 54 Cong., 2 Sess.; Frederic L. Paxson, The Independence of the South-American Republics, Philadelphia, 1903; Frederick Waymouth Gibbs, Recognition, London, 1863; The Recognition of the Confederate States, by Juridicus, Charleston, 1863; George Bemis, Hasty Recognition of Rebel Belligerency, Boston, 1865.

Also, Bonfils-Fauchille, 7 ed., §§ 195-213; Dana's Wheaton, Dana's Note No. 16; Hershey, 115-128 (with bibliography); Higgins' 7 ed. of Hall, §§ 26-27; Oppenheim, 2 ed., I, §§ 71-75; Rivier, I, 57-61; Westlake, 2 ed., I, 49-58.

2 Mr. Adams, Secy. of State, to the President, Jan. 28, 1819, Am. State Papers, For. Rel., IV, 413, Moore, Dig., I, 79.

There can be no ground for withholding recognition of a new State whose life is due to a peaceable dissolution of a previous union, as in the case of Norway and Sweden in 1905.1

When the demand for recognition comes from a State whose very existence is due to revolution, foreign powers act with deliberation. This is because premature recognition is regarded by the parent State as an act of intervention, and oftentimes, therefore, as a cause of war. It has been found, moreover, that a State resulting from revolution commonly seeks recognition before the conflict is at an end, and that it may do so even when its territory is infested with hostile and unbeaten armies.

2

§ 37. Mode of Recognition.

b

The mode of according recognition is not material, provided there be an unequivocal act indicating clearly that the new State is dealt with as such and is deemed to be entitled to exercise the privileges of statehood in the society of nations.3 The entering

1 See documents concerning the dissolution of the Union between the Kingdoms of Sweden and Norway, in For. Rel. 1905, 853–874, and especially telegram of Mr. Root, Secy. of State, to the Norwegian Minister of Foreign Affairs, Oct. 30, 1905, id., 865; and communication of Mr. Root to the Swedish Minister at Washington, No. 362, Nov. 8, 1905, id., 866.

"There can be no reason for refusing to recognize a federated State, formed by the union of recognized States, such as the German Empire in 1871 and the North German Confederation in 1866; or as Switzerland in 1848, after the confederation of States became a federated State. For those States, being sovereign, had the incontestable right to bind themselves together by a federal bond. It was a matter which concerned them, and did not concern third powers." J. B. Moore, in Moore, Dig., I, 72.

2 This was true in the case of the United States. Attempts were made to secure recognition in 1776. It was not, however, until the news of Burgoyne's defeat at Saratoga in 1777 reached Europe, that France recognized and contracted with the new Republic. This conduct was understood by France itself as being nothing less than intervention. At that time it was doubtless true that continental statesmen did not believe that international law contemplated any lawful recognition of a new State born of revolution prior at least to its recognition by the parent State. Julius Goebel, Jr., The Recognition Policy of the United States, 92-93. See, also, Edward S. Corwin, French Policy and the American Alliance of 1778, Princeton, 1916.

"The recognition of Texas as an independent power may be made by the United States in various ways: First, by treaty; second, by the passage of a law regulating commercial intercourse between the two powers; third, by sending a diplomatic agent to Texas with the usual credentials; or, lastly, by the Executive receiving and accrediting a diplomatic representative from Texas, which would be a recognition as far as the Executive only is competent to make it. In the first and third modes the concurrence of the Senate in its executive character would be necessary, and in the second in its legislative character." Report of Mr. Clay, Committee on Foreign Relations, Senate, June 18, 1836, Sen. Ex. Doc. 406, 24 Cong., 1 Sess., Moore, Dig., I, 96, 97.

into a formal diplomatic or conventional relationship is conduct of such a character.1

Recognition may be collective. Thus the Treaty of Berlin of 1878, to which Great Britain, Germany, Austria, France, Italy, Russia and Turkey, were signatories, registered the collective recognition of Montenegro, Servia and Roumania.2

Again, the treaty concluded in behalf of the Allied and Associated Powers with the Polish Republic in June, 1919, contained in its preamble a collective confirmation of the prior acts of those Powers in according to Poland recognition as a new State.3

C

§ 38. Conditional Recognition.

States are free to accord recognition on such terms as they may see fit to impose. A group of States contemplating collective recognition may lay down those which it deems imperative. According to the Treaty of Berlin of 1878, Bulgaria was recognized as an autonomous and tributary principality of the Sultan of Turkey, but with a Christian government and a national militia; Servia and Roumania were recognized subject to the condition that complete religious toleration should prevail within the territories of those countries; and in the case of Roumania, the further condition was imposed that certain specified territory should be restored to Russia.4

If the terms on which recognition is conceded be violated by the new State, the group of States according recognition may assert the right to intervene for the purpose of establishing a state of affairs in accordance with the condition specified. Experience

1 As Hall states: "Any act is sufficient which clearly indicates intention. Again the official reception of diplomatic agents accredited by the new State, the despatch of a minister to it, or even the grant of an exequatur to its consul, affords recognition by necessary implication." Higgins' 7 ed., 88-89.

2 Arts. XXVI, XXXIV and XLIII, Nouv. Rec. Gén., 2 ser., III, 458, 460 and 462, respectively; Holland, The European Concert in The Eastern Question, 277 and following.

See, also, treaty concluded by Great Britain, Austria, France, Prussia and Russia, with Belgium, Nov. 15, 1831, with respect to the separation of Belgium from Holland, Brit. and For. State Pap., XVIII, 645.

3 See text contained in British Treaty Series No. 8, 1919 [Cmd. 223]; also communication of M. Clemenceau, as President of the Peace Conference, to M. Paderewski, Premier of Poland, in transmitting the treaty to the latter, June 24, 1919, id.

Arts. I, V, XXXIV, XXXV and XLIII-XLV. Nouv. Rec. Gén., 2 ser., III, 451, 453, 460 and 462-463, respectively. See, also, Holland, The European Concert in The Eastern Question, 277.

5 "The meaning of such conditional recognition is not that recognition can be withdrawn in case the condition is not complied with. The nature of the