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Some thoughts about Recognition

Published online by Cambridge University Press:  20 April 2017

Quincy Wright
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Type
Editorial Comment
Information
American Journal of International Law , Volume 44 , Issue 3 , July 1950 , pp. 548 - 559
Copyright
Copyright © American Society of International Law 1950

References

1 It follows from this that in the contemplation of the United Nations the Ukraine and Byelorussia are sovereign states, and the Union of Soviet Socialist Republics does not include those two republics. British Commonwealth and League of Nations practice interpreted the term “British Empire” used in the Covenant to mean “Great Britain and Northern Ireland and all parts of the British Empire which are not separate members of the League.” Report of the Inter-Imperial Relations Committee of the Imperial Conference of 1926 (Cmd. 2768, 1926 (append.); P. J. Noel Baker, The Present Juridical Status of the British Dominions in International Law (London, 1929), pp.360 ff., 395, 401; Q. Wright, Mandates Under the League of Nations (Chicago, 1930),pp. 130-31. Goodrich and Hambro, Charter of the United Nations (2nd ed., Boston,1949), pp. 98 ff., 124 ff., 132) point out the discordance between the legal and the factual situation in regard to certain Members of the United Nations.

2 This JOURNAL, Vol. 18 (1924), pp. 152-154.

3 See especially Art. 2, par. 6, of the Charter.

4 The International Court of Justice as “the principle judicial organ of the United Nations” (Art. 92) would appear to be bound by such “recognitions” by the principal political organs of the United Nations, i.e., the General Assembly and the Security Council. If they differed, the opinion of the General Assembly, as the more widely representative, would probably be held to prevail.

5 This was generally accepted in respect to the League of Nations. Malbone W.Graham, The League of Nations and the Eecognition of States (1933), pp. 34, 39; In Quest of a Law of Eecognition (1933), p. 21; Lauterpacht, Eecognition in International Law (Cambridge, 1947), pp. 401 ff.

6 “The distinction must be asserted between recognizing a government and entering into diplomatic relations with it. No state is legally obliged to enter into and maintain diplomatic relations with a State or Government which it recognizes. On the other hand, it can not enter into full and normal diplomatic relations with a State or Government which it does not recognize” (H. Lauterpacht, London Times, Jan. 6, 1950).

7 1bid, and Lauterpacht, Recognition in International Law, pp. 6, 25.

8 This JOURNAL, Vol. 25 (1931), p. 722.

9 Above, note 2.

10 Professor Lauterpacht does not deny this but suggests that “the lawyer abandons his legitimate province once he begins to probe into the motives which have induced governments to express their obligation to act upon a legal rule. Such realism may be appropriate for the historian and the sociologist. The jurist is concerned with the legal rule upon which governments profess to act” unless, he adds in a footnote “a government uses grandiloquent language the insincerity or cynicism of which are so patent as to preclude it from being accepted at its face value” (Ibid., p. 25).

11 The Soviet Government has drawn a different conclusion in absenting itself since its recognition of the Communist government of China from all organs of the United Nations which continue to recognize the Kuomintang government. This interpretation seems to be irreconcilable with the obligations assumed by the Soviet Union under Arts. 2 (2), 9, 23 and others of the Charter. Other Members of the United Nations which have recognized the Communist government of China continue to deal with the Kuomintang government in United Nations organs.

12 During the Spanish Civil War certain Members of the League of Nations dealt with Franco in respect to certain parts of Spain, while they dealt with the Loyalist government of Spain in the League of Nations. After the Italian conquest of Ethiopia certain Members of the League continued to deal with Haile Selassie's Government in the League while they dealt with Italy on interests in Ethiopian territory. In many cases Members of the League broke or refused to establish relations with the governments of other Members of the League outside of League organs (Lauterpacht, op. cit., p. 402).

13 Lauterpacht, op. cit., pp. 98 &., 339.

14 Writers have usually been so intent in distinguishing the recognition of different things—states, governments, belligerency, etc.—that they have neglected to define the concept itself. But see H. Lauterpacht (Institute of Pacific Relations Inquiry Series,Legal Problems in the Far Eastern Conflict, 1941, p. 130), who defines recognition as “the treatment of a new title as valid”; and Georg Schwarzenberger (International Law,(London, 1945), Vol. 1, p. 53), who treats recognition as an act of a subject of international law which “can be adduced against it by other subjects of international law as a proof of acquiescence.” To similar effect, a report presented to the Virginia Beach Conference of the Institute of Pacific Relations, 1939, declared “Recognition has the legal effect of waiving whatever legal opposition the recognizing state might be able to make to the assertion by another state of a new legal title.” Legal Problems in the Far Eastern Conflict, p. 181.

15 While instances can be found of applying the term “recognition” to all these situations, it has most commonly been applied to new states, new governments, belligerency, and territorial transfers.

16 Above, note 8. The conditions which give title to territory are so clearly denned that recognition is usually, but not always, unnecessary (Lauterpacht, Recognition in International Law, p. 411). The conditions which constitute hostilities, belligerency,aggression, insurgency, piracy, or police action are so unclear that recognition is always necessary. In fact the distinctions are so important and attitudes are so likely .to differ that collective procedures, as contemplated under the United Nations Charter are especially desirable (Q. Wright,“The Present Status of Neutrality,” this JOURNAL Vol. 34 (1940), pp. 403 ff.

17 While premature recognition constitutes in principle a violation of the rights of the parent state, it is less certain that delayed recognition violates the rights of the new state or that recognition of the fruits of aggression violates rights pf the victim or of the community of nations (see I.P.E. Beport, above, note 14, and comments by Q. Wright, H. Lauterpacht and E. M. Borchard, ibid., pp. 3 ff., 58,115 ff., 129 ff., 157 ff.).Efforts have been made to define precisely the conditions of statehood (W. H. Bitsher, Criteria of Capacity for Independence, Jerusalem, 1934). The Permanent Mandates Commission formulated criteria, realization of which would justify or even require the emancipation of a mandated community, and these were accepted by the League of Nations Council and applied in the case of Iraq (Permanent Mandates Commission, Minutes, Vol. 20, p. 229; Q. Wright,“Proposed Termination of the Iraq Mandate,” this JOURNAL, Vol. 25 (1931) pp. 436 ff.). Criteria formulated by the League of Nations and the United Nations in admitting new Members and by national governments in recognizing states and emancipating colonies are believed by some to be sufficiently precise to justify the assertion of a duty to recognize new states.“The emphasis —and that emphasis is a constant feature of diplomatic correspondence ”on the principle that the existence of a State is a question of fact signifies that, whenever the necessary factual requirements exist, the granting of recognition is a matter of legal duty”(Lauterpacht, Eecognition in International Law, p. 24). “When a country has by any process attained the likeness of a State and proceeds to exercise the functions of one,it is justified in demanding recognition. There may be no reason or disposition on the part of States generally to withhold recognition provided the fact be established that the requisite elements of statehood are present and give promise of remaining. The method by which the new State comes into being may, however, cause delay in the according of recognition. Thus when an outside State proceeds to set up a new State within territory which prior to such action constituted part of the domain of an existing State, and in opposition to its will, the procedure may cause other States to be reluctant to acknowledge the validity of the achievement, and to withhold recognition of the new State whose birth takes place under such conditions” (C. C. Hyde, International Law (3rd ed., Boston, 1945), Vol. 1, pp. 148-149).

18 For discussion of the recognition of these doctrines see Legal Problems in the Ear Eastern Conflict, p. 77; C. Q. Penwick, International Law (3rd ed., 1948), p. 380; The Scotia (1871), 14 Wall. 170.

19 In the jurisprudence of the Supreme Court of the United States recognition has usually been considered a “political question.” Moore, Digest of International Law, Vol. I, pp. 744 ff.; Q. Wright, in Legal Problems in the Far Eastern Conflict, pp. 118 ff.; C. C. Hyde, International Law, Vol. 1, p. 156.

20 Lauterpacht, who in general supports the juridical character of recognition, acknowledges that general recognition may be “quasi-legislative.” Legal Problems in the Far Eastern Conflict, p. 145; see also Eeport to Virginia Beach Conference, ibid., pp.182 ff.

21 Above, note 14.

22 See Q. Wright,“The Present Status of Neutrality,” this JOURNAL, Vol. 34 (1940),pp. 403 ff.

23 See also par. 3 above.

24 Above, note 5.

25 “A new state of affairs is not opposable to a State which has not recognized it, and, if it has done so, only within the limits of such recognition.” Schwarzenberger,op. tit., p. 53; Hyde, op. cit, Vol. 1, pp. 149 ft.

26 It may, however, constitute general recognition. See note 6 and par. 9 above.

27 Lauterpacht, ^Recognition in International Law, p. 402; Graham, The League of Nations and the ^Recognition of States, p. 34.