Hostname: page-component-586b7cd67f-vdxz6 Total loading time: 0 Render date: 2024-11-23T23:35:19.313Z Has data issue: false hasContentIssue false
  • English
  • Français

Recognition of States and Governments under International Law with Special Reference to Canadian Postwar Practice and the Legal Status of Taiwan (Formosa) *

Published online by Cambridge University Press:  09 March 2016

Poeliu Dai
Poeliu Dai*
Affiliation:
Roxboro, Quebec
Get access

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Notes and Comments
Information
Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 3 , 1965 , pp. 290 - 305
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1965

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

This note was written in a private capacity; responsibility for the opinions expressed is the author’s.

References

1 See Oppenheim, I, International Law 125–27 (8th ed. Lauterpacht, 1955)Google Scholar; Briggs, Herbert W., The Law of Nations, Cases, Documents, and Notes 113–14 (2nd ed., 1952)Google Scholar; Lauterpacht, , Recognition In International Law 38–48 (1947)Google Scholar; Wright, Quincy, “The Chinese Recognition Problem,” (1955) 49 Am. J. Int’I L. 324 Google Scholar; Kelsen, Hans, General Theory of Law and State 221–23 (1945)Google Scholar and his article entitled “Recognition in International Law,” (1941) 35 Am. J. Int’I L. 605–09; Brierly, , The Law of Nations 138–40 (6th ed. Waldock, 1963)Google Scholar; Chen, , The International Law of Recognition 13–17 (1951).Google Scholar

2 See Hackworth, I, Digest of International Law 161, 166–71 (1940)Google Scholar; and Kelsen, Hans, “Recognition in International Law,” (1941) 35 Am. J. Int’I L. 605–14.CrossRefGoogle Scholar

3 See Lauterpacht, , Recognition in International Law 100–101, 124–125 (1947).Google Scholar He quoted Bynkershoek as stating that “The party… which is entitled to exercise the right of legation is the one which actually performs the functions of a government” and Vattel as advocating that “Foreign powers are entitled to look to the sovereign in actual possession.” He also stated that the practice of the United States and Great Britain for more than a century and a half had been based predominantly on the principle of effectiveness evidenced by an adequate expression of popular consent.

4 The best critique of the Estrada Doctrine is found in Jessup, , A Modern Law of Nations 60–62 (1948).Google Scholar

5 See Lauterpacht, op. cit. supra note 3, at 73–78. Cf. Briggs, op. cit. supra note ι, at 115–116.

6 An overwhelming majority of authorities on international law deny the validity of the theory of right to recognition and duty to recognize. Thus the Institut de Droit International in its Resolution Concerning the Recognition of New States and New Governments adopted at Brussels in April 1936 took the position that recognition is a “free act” of acknowledgment. McNair wrote that “It is a rule of international law that no new state has a right as against other states to be recognized by them, and that no state has a duty to recognize a new state”: Oppenheim, International Law 144 (4th ed. McNair). Charles Cheney Hyde stated that “As international law imposes no obligation upon a State to accord recognition to a new government functioning within any other at any particular time, the bare withholding of it is a matter of policy”: Hyde, I, International Law Chiefly as Interpreted and Applied in the United States 160 (2nd revised ed., 1947).Google Scholar Schwarzenberger wrote that “each subject of international law remains free to grant or refuse recognition of any kind” : Schwarzenberger, I, International Law 128 (3rd ed., 1957).Google Scholar And above all Josef L. Kunz stated emphatically that “under positive international law there is no right to recognition by new states or de facto governments, nor is there a legal duty to recognize them” : Kunz, , “Critical Remarks on Lauterpacht’s ‘Recognition in International Law’,” (1950) 44 Am. J. Int’I L. 713.CrossRefGoogle Scholar Foster, John Dulles repeatedly stated “Diplomatic recognition is always a privilege, never a right”: See II Whiteman, Digest of International Law 13 (1963).Google Scholar

7 Lauterpacht, op. cit. supra note 3, at 78.

8 Supra note 4, at 49–51, 60.

9 H.C. Deb. (Can.), 1949,) Vol. I, at 468 and 219; also Report of Department of External Affairs, 1949, at 29.

10 For text of exchange of notes between President Syngman Rhee and Secretary of State for External Affairs, Mr. L. B. Pearson, see Monthly Bulletin of Department of External Affairs, vol. I, No. 8, August 1949, at 19–20.

11 Report of Department of External Affairs, 1949, at 22–23.

12 Other new African states which Canada has recognized and with which diplomatic relations have been established include today Cameroun, Central African Republic, Chad, Congo (Brazzaville), Democratic Republic of the Congo, Dahomey, Gabon, Guinea, Ivory Coast, Niger, Senegal, Sierra Leone, Uganda, Tanzania and Upper Volta. Report of the Department of External Affairs, 196s, at 18.

13 Statement by Stanley Haidasz, Parliamentary Secretary to the Secretary of State for External Affairs (H.C. Deb., March 23, 1964, at 1328). The capital where the Mongolian envoy exchanged communications with the Canadian Ambassador was reported to be Warsaw: see Toronto Globe and Mail, January 31, 1962.

14 See Prime Minister MacKenzie King’s statement in H.C. Deb. (Can.), 1946, Vol. I, at 260. For concise account of Canadian wartime relations with foreign states, see Skilling, H.G., Canadian Representation Abroad 285–323 (Can. Inst, of Intern’l Affairs).Google Scholar

15 Deb H.C. (Can.), 1941, Vol. 1, at 994–95.

15a For exchange of notes between Prime Minister St. Laurent and Prime Minister Yoshida, see Monthly Bulletin of Dept. of Ext. Afj., Vol. 4, No. 5, May 1952, at 176–77.

16 With respect to East Germany, the Report of the Department of External Affairs tabled in Parliament for 1949 states: “On October 5, 1949, a provisional government of the Democratic Republic of Germany was announced in Berlin. . .. The new ‘Government’ in spite of lavish claims to independence, was in fact permitted by Moscow only to assume the administrative functions formerly exercised by the Soviet Military Authority except in matters relating to the fulfillment of the Potsdam Resolutions and other four-power agreements in Germany. Early statements in the Communist press that this step would be followed by a peace treaty and a withdrawal of Soviet forces, have, so far, not been justified by Soviet statements or actions. It is clear that this body does not satisfy the Canadian government’s views on the form of political organization for Germany as given in the government statement of January 30, 1947. (H.C. Debs. Jan. 30, 1947 p. 9, paras. 15–18). The government has therefore endeavoured to refrain from any act that could be taken as giving even limited recognition to this regime.” (1949 Report, at 21).

17 Ibid. On October 26, 1950 Canada made an announcement terminating the state of war with Germany. Report of the Department of External Affairs, 1950, at 7. In August 8, 1951, Canadian Ambassador T. C. Davis presented credentials to the Federal Republic of Germany.

18 External Affairs Monthly Bulletin, Vol. XV, No. 12, at 476.

19 H.C. Deb. (Can.), May 20, 1965, at 1498.

20 The most notable events of Canadian-Chinese relations of the period included the conclusion of a Mutual Aid Agreement on March 22, 1944 under which China received military supplies to the value of $26.6 millions; an exchange of notes dated April 14, 1944, relinquishing by Canada extraterritorial rights in China; a Financial Agreement signed on February 7, 1946, regarding a loan of $60 million dollars to China for the purchase of Canadian produced goods for export to China; and a commercial modus vivendi concluded on September 26, 1946. See Canada Treaty Series 1944, No. 11; 1946, No. 37. Cf. Statement made by the Prime Minister on the extra-territorial treaty, H.C.Deb (Can.), 1944, Vol. 2, at 2065–66. Texts of all these instruments are found in Treaties between the Republic of China and Foreign States, 1927–1957, Ministry of Foreign Affairs, Taipei, 1958, at 46–64.

21 For the three important statements by the Secretary of State for External Affairs concerning the criteria for recognition of the Central People’s Government of China, see H.C. Deb. (Can.), 1949, Vol. II, at 1109, and 1838–39; and H.C. Deb. (Can.), 1950, Vol. I, at 515–16. Also statement by the Prime Minister, Mr. Louis St. Laurent on March 25, 1954, H.C. Deb. (Can.), 1954, Vol. IV, at 3333–35.

22 The Report of the Department of External Affairs 1950, at 21, states that “The problem of recognition of the Peking Government as the government of China was given serious consideration during the course of the year.” The Report of the Department for 1951, at page 24, states that “The question of the recognition of the Central People’s Government in Peking was held in abeyance as a result of its intervention in the war in Korea.” Cf. James Eayers, Northern Approaches, Canada and the Search for Peace 146.

23 H.C. Deb. (Can.), 1959, Vol. II, at 1405-06 and 1407.

24 H.C. Deb. (Can.), 1960, Vol. I, at 938. Reference to the status of Taiwan was reiterated in another statement by Mr. Green on April 26, 1961, H.C. Deb. (Can.), 1961, Vol. IV, at 4028–29.

25 H.C. Deb. (Can.), 1963, Vol. I, at 24–25.

26 H.C. Deb. (Can.), 1963, Vol. V, at 5194.

27 H.C. Deb. (Can.), 1964, Vol. IV, at 3479 and 3480.

28 H.C. Deb. (Can.), September 22, 1964, at 8283–84.

29 Text of Declaration in Foreign Relations of the United States, Diplomatic Papers, the Conferences at Cairo and Tehran, 1943, at 448–9 (Washington).

30 Foreign Relations of the United States, Conference of Berlin, 1945, Vol. 2, at 1474–76 (Washington). “The Soviet Government accepted the proposal of the allies and adhered to the Statement of the Allied Powers of July 26, 1945.” Molotov’s Statement to Japanese Ambassador upon the declaration of war, Aug. 8, 1945.

30a The Instrument of Surrender of Japan dated Sept. 2, 1945 states that Japan “accepts the provisions set forth in the Declaration issued by the heads of governments of the United States, China, and Great Britain on July 26, 1945 at Potsdam and subsequently adhered to by the Union of Soviet Socialist Republics”. For Directive No. 1, see S.C.A.P. Directives to the Japanese Government, Vol. 1, General Headquarters, S.C.A.P., Tokyo, at I.

31 For text, see Treaties between Republic of China and Foreign States, 1927–1957, Ministry of Foreign Affairs, Taipei, 1958, at 248–60. For text of Japanese Peace Treaty, see Conference for Conclusion and Signature of Treaty of Peace with Japan, San Francisco, Sept. 4–8, 1951, Records of Proceedings, State Dept. Publication No. 4392, at 313–26.

32 Statement by the Secretary of State for Foreign Affairs, Great Britain, on February 4, 1955: see 536 H.C. Deb. (5th ser.) 159 (1955).

32a Dept. of State Press Release June 27, 1950.

33 Security Council, Official Record, No. 70, November 29, 1950, S/PV 528.

34 Selected Speeches and Messages of President Chiang Kaishek, 1949–52, Office of Government Spokesman, Taipei, 1953, at 65.

35 Important Documents concerning the Question of Taiwan, Foreign Language Press Peking, 1955 at 14. Also, Mr. Wu Hsiu-chuan, representative of the People’s Republic of China declared in the Security Council of the United Nations on Nov. a8, 1950 the following: “When the Chinese Government accepted the surrender of the Japanese armed forces in Taiwan and exercised sovereignty over the island, Taiwan became, not only de jure but also de facto, an inalienable part of Chinese territory and this has been the situation as regards Taiwan since 1945. For this reason, during the five post-war years from 1945 to 37 June 1950, no one has ever questioned the fact that Taiwan is an inseparable part of Chinese territory, de jure or de facto”, U.N. Security Council Official Record, Fifth Year, 527th Meeting, S/PV. 527.