Volume I Part 12 (2/2)

II

RECOGNITION OF STATES AS INTERNATIONAL PERSONS

Hall, ---- 2 and 26--Lawrence, ---- 44-47--Phillimore, II. ---- 10-23--Taylor, ---- 153-160--Walker, -- 1--Westlake, I. pp.

49-58--Wheaton, -- 27--Moore, ---- 27-75--Bluntschli, ---- 28-38--Hartmann, -- 11--Heffter, -- 23--Holtzendorff in Holtzendorff, II. pp. 18-33--Liszt, -- 5--Ullmann, ---- 29-30--Bonfils, Nos. 195-213--Despagnet, Nos.

79-85--Pradier-Fodere, I. Nos. 136-145--Nys, I. pp.

69-115--Merignhac, I. pp. 320-329--Rivier, I. -- 3--Calvo, I. ---- 87-98--Fiore, I. Nos. 311-320, and Code, Nos. 160-177--Martens, I.

---- 63-64--Le Normand, ”La reconnaissance internationale et ses diverses applications” (1899).

[Sidenote: Recognition a condition of Members.h.i.+p of the Family of Nations.]

-- 71. As the basis of the Law of Nations is the common consent of the civilised States, statehood alone does not include members.h.i.+p of the Family of Nations. There are States in existence, although their number decreases gradually, which are not, or not fully, members of that family, because their civilisation, if any, does not enable them and their subjects to act in conformity with the principles of International Law. Those States which are members are either original members because the Law of Nations grew up gradually between them through custom and treaties, or they are members which have been recognised by the body of members already in existence when they were born.[98] For every State that is not already, but wants to be, a member, recognition is therefore necessary. A State is and becomes an International Person through recognition only and exclusively.

[Footnote 98: See above, ---- 27 and 28.]

Many writers do not agree with this opinion. They maintain that, if a new civilised State comes into existence either by breaking off from an existing recognised State, as Belgium did in 1831, or otherwise, such new State enters of right into the Family of Nations and becomes of right an International Person.[99] They do not deny that practically such recognition is necessary to enable every new State to enter into official intercourse with other States. Yet they a.s.sert that theoretically every new State becomes a member of the Family of Nations _ipso facto_ by its rising into existence, and that recognition supplies only the necessary evidence for this fact.

[Footnote 99: See, for instance, Hall, ---- 2 and 26; Ullmann, -- 29; Gareis, p. 64; Rivier, I. p. 57.]

If the real facts of international life are taken into consideration, this opinion cannot stand. It is a rule of International Law that no new State has a right towards other States to be recognised by them, and that no State has the duty to recognise a new State. It is generally agreed that a new State before its recognition cannot claim any right which a member of the Family of Nations has towards other members. It can, therefore, not be seen what the function of recognition could be if a State entered at its birth really of right into the members.h.i.+p of the Family of Nations. There is no doubt that statehood itself is independent of recognition. International Law does not say that a State is not in existence as long as it is not recognised, but it takes no notice of it before its recognition. Through recognition only and exclusively a State becomes an International Person and a subject of International Law.

[Sidenote: Mode of Recognition.]

-- 72. Recognition is the act through which it becomes apparent that an old State is ready to deal with a new State as an International Person and a member of the Family of Nations. Recognition is given either expressly or tacitly. If a new State asks formally for recognition and receives it in a formal declaration of any kind, it receives express recognition. On the other hand, recognition is tacitly and indirectly given when an old State enters officially into intercourse with the new, be it by sending or receiving a diplomatic envoy,[100] or by concluding a treaty, or by any other act through which it becomes apparent that the new State is actually treated as an International Person.

[Footnote 100: Whether the sending of a consul includes recognition is discussed below, -- 428.]

But no new State has by International Law a right to demand recognition, although practically such recognition cannot in the long run be withheld, because without it there is no possibility of entering into intercourse with the new State. The interests of the old States must suffer quite as much as those of the new State, if recognition is for any length of time refused, and practically these interests in time enforce either express or tacit recognition. History nevertheless records many cases of deferred recognition,[101] and, apart from other proof, it becomes thereby apparent that the granting or the denial of recognition is not a matter of International Law but of international policy.

[Footnote 101: See the cases enumerated by Rivier, I. p. 58.]

It must be specially mentioned that recognition by one State is not at all binding upon other States, so that they must follow suit. But in practice such an example, if set by one or more Great Powers and at a time when the new State is really established on a sound basis, will make many other States at a later period give their recognition too.

[Sidenote: Recognition under Conditions.]

-- 73. Recognition will as a rule be given without any conditions whatever, provided the new State is safely and permanently established.

Since, however, the granting of recognition is a matter of policy, and not of law, nothing prevents an old State from making the recognition of a new State dependent upon the latter fulfilling certain conditions.

Thus the Powers a.s.sembled at the Berlin Congress in 1878 recognised Bulgaria, Montenegro, Servia, and Roumania under the condition only that these States did not[102] impose any religious disabilities on any of their subjects.[103] 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 thing 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.

[Footnote 102: This condition contains a restriction on the personal supremacy of the respective States. See below, -- 128.]

[Footnote 103: See arts. 5, 25, 35, and 44 of the Treaty of Berlin of 1878, in Martens, N.R.G. 2nd Ser. III. p. 449.]

[Sidenote: Recognition timely and precipitate.]

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