PRIOR TO RECOGNITION BY PARENT STATE

[§ 40 has shown, however, that the exercise of such a right is likely to be ineffective. Consequently a new system has been devised and applied with reference, as has been observed, to certain of the newer States of Europe, as in the treaty of June 28, 1919, between the Principal Associated and Allied Powers, on the one hand, and Poland on the other.1

It has been observed that European and other States have found it possible to maintain diplomatic relations with countries not possessed of or attached to that civilization which is commonly described as European, without recognizing those countries for all purposes as States of international law.2

d

Time of According Recognition to a New State Produced by Revolution

(1)

§ 39. After Recognition by Parent State.

The recognition by the parent State of its former colony which by force of arms has attained independence and won such respect therefor, justifies other States in taking similar action. Under such circumstances their conduct cannot be regarded as premature.3

(2)

§ 40. Prior to Recognition by Parent State.

When recognition by foreign States precedes that accorded by the parent State, complaint on the part of the latter is to be anthing makes recognition, if once given, incapable of withdrawal. But conditional recognition, if accepted by the new State, imposes the internationally legal duty upon such State of complying with the condition; failing which a right of intervention is given to the other party for the purpose of making the recognised State comply with the imposed condition." Oppenheim, 2 ed., I, § 73.

Cf., also, statement in Moore, Dig., I, 73, from Rivier, I, 60.

1 States, Certain Minor Impairments of Independence through the Medium of the League of Nations, supra, § 27.

2 States, Countries Not Possessed of European Civilization, supra, § 33. Mr. Adams, Secy. of State, to Mr. Anduaga, Spanish Minister, April 6, 1822, Am. State Pap. For. Rel., IV, 846, Moore, Dig., I, 87.

"While Spain maintained a doubtful contest with arms to recover her dominion, it was regarded as a civil war. When that contest became so manifestly desperate that Spanish viceroys, governors, and captain-generals themselves concluded treaties with the insurgents, virtually acknowledging their independence, the United States frankly and unreservedly recognized the fact, without making their acknowledgment the price of any favor to themselves, and although at the hazard of incurring the displeasure of Spain." Mr. Adams, Secy. of State, to Mr. Anderson, Minister to Colombia, May 27, 1823, MS. Inst. to U. S. Ministers, IX, 274, 282, 283, Moore, Dig., I, 89.

ticipated.1 Nevertheless, the opinion has long prevailed in the United States that the propriety of recognition is not necessarily dependent upon the approval of such State. In harmony with the theory early advocated by Jefferson respecting the recognition of new governments, it has long been the accepted American doctrine that the right to accord recognition depends solely on the circumstance whether a new State has in fact come into being, and that the test of the existence of that fact is whether the conflict with the parent State has been substantially won. Statements of principle have not always drawn a sharp line of distinction between the time when the cause of the parent State was desperate or hopeless, and that when the contest was at an end.4

1 "The law of nations does not undertake to fix the precise time at which recognition shall or may be extended to a new State. This is a question to be determined by each State upon its own just sense of international rights and obligations; and it has rarely happened, where a new State has been formed and recognized within the limits of an existing State that the parent State has not complained that the recognition was premature.' Mr. Hay, Secy. of State, to General Reyes, Colombian Envoy, Jan. 5, 1904, For. Rel. 1903, 294, Moore, Dig., III, 90.

2 Recognition of New Governments, infra, § 44.

3 "In every question, relating to the Independence of a Nation, two principles are involved, one of right and the other of fact. The former exclusively depending upon the determination of the Nation itself, and the latter resulting from the successful execution of that determination. Under these circumstances, the Government of the United States, far from consulting the dictates of a policy questionable in its morality, has yielded to an obligation of duty of the highest order, by recognizing as Independent States, Nations, which, after deliberately asserting their right to that character, had maintained and established it, against all the resistance which had been or could be brought to oppose it. This Recognition is neither intended to invalidate any right of Spain, nor to affect the employment of any means which she may yet be disposed or enabled to use, with the view of reuniting those Provinces to the rest of her Dominions. It is the mere acknowledgment of existing facts, with the view to the regular establishment with the Nations newly formed, of those relations, political and commercial, which it is the moral obligation of Civilized and Christian Nations to entertain reciprocally with one another." Mr. Adams, Secy. of State, to Don Joaquin de Anduaga, Spanish Minister at Washington, April 6, 1822, Brit. and For. State Pap., IX, 754, 755.

"But there is a stage in such contests when the parties struggling for independence have, as I conceive, a right to demand its acknowledgment by neutral parties, and when the acknowledgment may be granted without departure from the obligations of neutrality. It is the stage when independence is established as a matter of fact so as to leave the chances of the opposite party to recover their dominion utterly desperate. The neutral nation must, of course, judge for itself when this period has arrived." Mr. Adams, Secy. of State, to the President, Aug. 24, 1818. Monroe MSS., Dept. of State, Moore, Dig., I, 78.

See, also, Report of Mr. Clay, from Senate Committee on Foreign Relations, June 18, 1836, Senate Ex. Doc. 406, 24 Cong., 1 Sess., Moore, Dig., I, 96; President Jackson, message concerning Texas, Dec. 21, 1836, Richardson's Messages, Moore, Dig., I, 98; Mr. Forsyth, Secy. of State, to Mr. Castillo, March 17, 1837, MS. Notes to Mexican Legation, VI, 71, Moore, Dig., I, 102; President Grant, Annual Message, Dec. 7, 1875, For. Rel. 1875, I, vii-viii, Moore, Dig., I, 107; President McKinley, special message, April 11, 1898, For. Rel. 1898, 750, Moore, Dig., I, 108.

PRIOR TO RECOGNITION BY PARENT STATE

[$ 40

The point to be observed is, however, that the right of recognition, according to American theory, depends upon a fact, namely, the success of the revolutionary force, and that regardless of the illegitimacy thereof in the eyes of the parent State.1 Thus recognition based upon careful regard for such a fact is deemed to be consistent with the maintenance of friendly relations between the recognizing State and the parent State, and as not reasonably provocative of war.

The according of recognition to a country still in the throes of warfare against the parent State partakes of a different character. Such action constitutes participation in the conflict. It makes the cause of independence a common one between the aspirant for it and the outside State. Participation must be regarded as intervention, and therefore essentially antagonistic to that State.

Thus the rightfulness of recognition depends in each case upon its unlikeness to participation in the conflict. When the struggle is over and independence won, recognition bears no resemblance to such conduct. On principle, the test should always be whether the contest is practically at an end. As there may be great difficulty in ascertaining with precision when such a moment has arrived, the wisdom of allowing an interval to elapse between the termination of the struggle and the according of recognition is apparent. The deliberation of States in this regard is, however, due to a sense of expediency rather than to one of duty. As soon as a revolting colony has in fact gained its independence and attained the qualifications for statehood, the according of recognition is not at any time thereafter to be deemed premature.2

1 If the position taken by Secretary Seward, with respect to the much dreaded recognition by Great Britain and France of the Confederacy appears to be at variance with the previous attitude of the Department of State, it must be recalled that the conflict was raging at the time when he expressed himself, and that no de facto control exercised at any time by the Confederate forces over any territory remained unchallenged or proved to be capable of maintenance. The Civil War was not terminated until it was brought to a close by force of the Union arms. Therefore, it is believed that at any stage thereof the United States might fairly have regarded recognition of the Confederacy as a State as an act of intervention. See, in this connection, Mr. Seward, Secy. of State, circular to all Ministers of the United States, March 9, 1861, Dip. Cor. 1861, 32, Moore, Dig., I, 104; Mr. Seward, Secy. of State, to Mr. Adams, American Minister at London, April 10, 1861, Dip. Cor. 1861, 71, 79, Moore, Dig., I, 105.

2 The people of Panama, by a bloodless revolution, November 3 and 4, 1903, declared themselves independent of Colombia. For. Rel. 1903, 230-240. On November 2 and 5, 1903, the commanders of American naval vessels near the Isthmus were ordered to maintain free and uninterrupted transit across the same, to prevent the landing of any armed force with hostile intent whether Colombian or insurgent at any point, to prevent the landing of a Colombian force reported to be approaching the Isthmus, if such landing would precipitate

The recognition by the United States of Poland in January, 1919, is fairly illustrative of the principle involved.1 Poland then possessed in fact the attributes of sovereignty, exercising supremacy within certain territorial areas, although the extent of the limits. thereof was a matter of controversy. No duty on the part of the United States with respect to Germany or Austria-Hungary forbade recognition, while the freedom of the new Republic from actual domination by Russia removed from the act of recognition a character to be regarded as hostile to that country. It remained, however, for the Peace Conference at Paris to adjust the boundaries of the new State, and to prescribe requisite cessions to it, as well as to establish its relations with Danzig.3

a conflict, to make every effort to prevent, in the interest of peace, Colombian troops at Colon from proceeding to Panama, and to prevent the recurrence of a (reported) bombardment of Panama by a Colombian gunboat. On November 6, the United States recognized the independence of Panama. Mr. Hay, Secy. of State, to Mr. Ehrman, Vice-Consul-General, Nov. 6, 1903, id., 233; Same to Mr. Beaupré, American Minister, same date, id., 240. On November 13, Señor Bunau-Varilla, Minister of Panama, presented his letters of credence to the President of the United States. Id., 245. A treaty between the United States and Panama was signed at Washington, November 18. Malloy's Treaties, II, 1349. The part taken by the United States was one of intervention. Its conduct was so described and acknowledged by President Roosevelt. For. Rel. 1903, 272-273. The case is, therefore, without value as a precedent with regard to the time when the recognition of the statehood of a country attaining independence by revolution may be justly accorded.

See President Roosevelt, remarks on occasion of presentation of letters of credence by the Minister from Panama, Nov. 13, 1903, For. Rel. 1903, 246; President Roosevelt, Annual Message, Dec. 7, 1903, id., vii, xxxvi; President Roosevelt, special message, Jan. 4, 1904, id., 260, 272-273, 276-277; General Reyes, Colombian Envoy, to Mr. Hay, Secy. of State, Dec. 23, 1903, id., 284, 288-290; Same to Same, Jan. 6, 1904, id., 306; Same to Same, Jan. 11, 1904, id., 311; Mr. Hay, Secy. of State, to General Reyes, Colombian Envoy, Jan. 5, 1904, id., 294. The messages of President Roosevelt, and the Hay-Reyes correspondence are contained in Moore, Dig., III, 46–113.

Cf. Diplomatic History of the Panama Canal, submitted by President Wilson to the Senate April 23, 1914 (embracing documents compiled by Department of State), Senate Doc. No. 474, 63 Cong., 2 Sess.

See, also, Shelby M. Cullom, "The Panama Situation", The Independent, LV, 2787; Theodore S. Woolsey, "The Recognition of Panama and Its Results", Green Bag, XVI, 6; G. G. Phillimore in Law Magazine and Review, XXIX, 212; G. W. Scott, "Was the Recognition of Panama a Breach of International Morality", The Outlook, LXXV, 947; W. C. Dennis, "The Panama Situation in the Light of International Law", Am. Law Reg., LII, 265. 1 Official Bulletin, III, No. 525, Jan. 30, 1919, containing communication of Mr. Lansing, Secy. of State, to Mr. Paderewski, Polish Premier. See, also, Dept. of State communiqué for the Press, No. 1, April 24, 1920, concerning the recognition the previous day by the United States of the de facto Government of the Armenian Republic.

2 The preamble of the treaty between the Associated and Allied Powers, on the one hand, and Poland, on the other, of June 28, 1919, adverted to the fact that by a proclamation of March 30, 1917, the Government of Russia assented to the reëstablishment of an independent Polish State.

3 Part III, Section VIII of treaty of peace with Germany, of June 28, 1919. See, also, treaty concluded by the Associated and Allied Powers with Poland. June 28, 1919, British Treaty Series No. 8, 1919 [Cmd. 223].

RECOGNITION, BY WHOM DETERMINABLE

[§ 41

The recognition by the United States in September, 1918, of the Czecho-Slovak National Council as a de facto belligerent government, and the announcement simultaneously of a readiness to enter into formal relations with it, is to be regarded as a form of belligerent activity incidental to the prosecution of the war then existing against Germany and Austria-Hungary, rather than as illustrative of the exercise of the right of recognition as such.1

e

§ 41. Recognition, by Whom Determinable.

The recognition of a foreign State is a matter peculiarly within the province of the political as distinct from the judicial department of the government. The position taken by the former is! rigidly followed by the latter. As Sir William Grant expressed it in 1809:

It always belongs to the government of the country to determine in what relation any other country stands towards it; that is a point upon which courts of justice cannot decide.2

Such is the position of the courts of the United States.3

1 Concerning the recognition by the United States of the Czecho-Slovaks, see announcement of Mr. Lansing, Secy. of State, Official Bulletin, Sept. 3, 1918, Vol. II, No. 402; Editorial Comment, Am. J., XIII, 93.

Cf., also, note of Mr. Lansing, Secy. of State, to Mr. Ekengren, Swedish Minister at Washington, concerning the unwillingness of the United States to accept the mere autonomy of the Czecho-Slovaks and the Jugo-Slavs as a basis for peace with Austria-Hungary, Oct. 18, 1918, Official Bulletin, Oct. 19, 1918, Vol. II, No. 441.

See text of Declaration of Independence of the Czecho-Slovak Nation adopted by its provisional government at Paris, Oct. 18, 1918, Official Bulletin, Oct. 19, 1918, Vol. II, No. 441; Waldes v. Basch, 179 N. Y. Supp. 713. Also Art. 81 of the treaty of peace of June 28, 1919, by which Germany, "in conformity with the action already taken by the Allied and Associated Powers" recognized the complete independence of the Czecho-Slovak State which included the autonomous territory of the Ruthenians to the south of the Carpathians.

The Pelican, Edw. Admr., Append. D.

3 "The conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative the political Departments of the Government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." Clarke, J., in the opinion of the Court in Oetjen v. Central Leather Co., 246 U. S. 297, 302.

See, also, Emperor of Austria v. Day, 3 De G. F. and J., 217, 221, 233; Republic of Peru v. Peruvian Guano Co., 36 Ch. Div. 489, 497; Republic of Peru v. Dreyfus, 38 Ch. Div. 348; Taylor v. Barclay, 2 Sim. 213; Rose v. Himely, 4 Čranch, 241, 272; Kennett v. Chambers, 14 How. 38; Luther v. Borden, 7 How. 1; Foster v. Neilson, 2 Pet. 253, 307; Gelston v. Hoyt, 3 Wheat. 246, 324; United States v. Palmer, 3 Wheat. 610, 634; The Nueva Anna, 6 Wheat. 193; The Three Friends, 166 U. S. 1; Fifield v. Insurance Co., 47 Penn. St. 166, 172.