Jessup

Tentative assertion of such a right in connection with the com- mon interest of all neutral states in the upholding of the law of neutral rights is to be found in the views expressed by several Euro- pean governments in connection with the Trent Affair in i86i.72

The same thought was utilized in various proposals for armed neutral- ities or leagues of neutrals.78

The history of the Concert of Europe throughout much of the nineteenth century is illustrative of the acceptance of a concept of interdependence as a legal norm in international relations, at least so far as the affairs of the European continent were concerned. It is true that this instrument was wielded by the Great Powers, often for

selfish ends, and that they tended to ignore the rights of the small powers. But as the action of the Concert was frequently rationalized and defended, there was an invocation of a concept of community

interest, of interdependence. Procedurally, the Great Powers asserted their right to act as the instruments of the public law of Europe.

Thus Lord Salisbury defended the action of the Concert in respect of Greece by referring to "the federated action of Europe" enacting rules as a "legislature" in the interests of European peace.74 Numerous discussions and agreements concerning the neutralization of Switzerland and other areas reflect the acceptance of the concept of inter- dependence.75 The famous declaration in the treaty of Paris of March

30, 1856 is comparable in its pronouncement that the Sublime Porte was admitted to participate in the advantages of the public law and

Concert of Europe. The signatory powers accordingly agreed to

respect the independence and territorial integrity of the Ottoman

Empire and said that they would consider any act tending to violate

72 "Harvard Research in International Law, Draft Convention on Rights and

Duties of Neutral States in Naval and Aerial War,'* An. 114, commentary, 33

Am. /. Int. L. Supp. (1939), 788 ff.; French Statement in 55 British and Foreign

State Papers, 610-12, and 1862 US. For. Rel., 307; Austrian position in 55 British and Foreign State Papers, 618 and German statement in ibid., 624; also British

summary of these views in ibid., 641 ff.

73 See Jessup, "Neutrality, Its History, Economics and Law," Vol. IV, Today and Tomorrow (1936), i6off.; Billow to Lord Granville, 31 Aug. 1870,

Fontes juris gentium, Ser. B. Sectio I, Tomus I, Pars I, 2.

74 Address in the House of Lords quoted in i Westlake International Law <2d ed. 1910), 322; cf. Lawrence, The Principles of International Law (7th ed.

1923), 322.

78 See "General Act of the Congress of Vienna, June 9, 1815," Articles DC,

LXXXIV, XCII. 2 British and Foreign State Papers, 3; cf. Peterson, op. cit.t supra note 52, p. 547.

this engagement as a question of general interest.76 The joint interest of the powers in the "open door" for China and respect for Chinese

territorial integrity may also be noted. The concept of interde- pendence is clearly recognized in the Covenant of the League of

Nations and in the Charter of the United Nations.77

An interesting assertion of the right of a state to secure satisfaction because of the injury it sustains through the weakening of the inter- national legal system through any breach of a rule of international

law was made by the French Government in its case against Italy before a tribunal of the Permanent Court of Arbitration in the cases

of the Carthage and the Manouba. These two French ships had been captured by the Italians during their war with Turkey; the French claims for indemnity were submitted to arbitration. In addition to material compensation for the damage to the vessels, the French

Government asked for the "sum of one hundred thousand francs for

the moral and political injury resulting from the failure to observe international common law and conventions binding both Italy and

France." The Tribunal, correctly under the existing law, refused to make such an award, holding that the establishment by an arbitral tribunal of the fact of a breach of international legal obligations "con- stitutes in itself a serious penalty." 78

SOVEREIGNTY

Sovereignty, in its meaning of an absolute, uncontrolled state will, ultimately free to resort to the final arbitrament of war, is the quick- sand on which the foundations of traditional international law are

built.79 Until the world achieves some form of international govern- ment in which a collective will takes precedence over the individual will of the sovereign state, the ultimate function of law, which is the elimination of force for the solution of human conflicts, will not be

fulfilled. Like the legal attribute of equality, the function of sover- eignty as a legal concept was to protect the state in a world devoid of

76

46 British and Foreign State Papers ( 1855-56) , 8.

77 See "Commentary on the League of Nations Covenant by the British in Butler, A Handbook to the League of Nations '(ad

711

Scott, Hague Court Reports (1906), 332, 335. 70 See the Introductory Chap.

any alternative to self-protection. The gradual development of ade- quate modernized law and organization should provide such an al-

ternative.

Because the international system has so far failed to meet the cen- tral problem of war, it is often inaccurately assumed that no progress has been made in the direction of limiting the free exercise of state will.80 Once it is agreed that sovereignty is divisible 81 and that it therefore is not absolute, various restrictions on and relinquishments

of sovereignty may be regarded as normal and not stigmatizing. The slow but steady development of majority rule in international organizations 82 bears witness to the change which is taking place. Of great significance is the contrast between the Covenant of the League of Nations, which left to each member freedom to decide whether it would participate in sanctions recommended by the Council, and Chapter VII of the Charter of the United Nations, whereby the mem- bers relinquish the power of decision to the Security Council and are bound to take action on the basis of that decision. Notable also

are those numerous provisions in the Charter which recognize that the treatment of the individual citizen is no longer a matter solely of domestic concern and that the denial of fundamental human rights to a citizen can no longer be shrouded behind the impenetrable cloak of national sovereignty.88 Sovereignty in the sense of exclusiveness of jurisdiction in certain domains, and subject to overriding precepts of constitutional force, will remain a usable and useful concept, just as in the constitutional system of the United States the forty-eight states are considered sovereign. But sovereignty in its old connotations of ultimate freedom of national will unrestricted by law is not consistent

with the principles of community interest or interdependence and of the status of the individual as a subject of international law. With the development of international law regulating the state's use of force |nd the implementation of the spirit of those provisions of the

Charter which should make any resort to war clearly illegal, sover-

80 Cf. Postulate 3, International Law of the Future (1944), p. 29; Chap.

VII, infra.

81 See the practical argument to this effect in i Oppenheim, Sec. 69, p. 116. 88 See Riches, Majority Rule in International Organization (1940).

83 See Norman Wait Harris Memorial Foundation, Proceedings zist Insti- tute (1945), "The United Nations and The Organization of Peace and Securitv."

99, 126; Chap. IV, infra.

eignty would no longer constitute a major obstacle to the develop- ment of a genuine international community. Theoretical difficulties

confronting the acceptance of the supremacy of international law would then disappear.

stress its legal character. Whichever view reflects more accurately the existing international law, it is clear that political opposition to the constitutive view stems from the lack of organization of the international community, inasmuch as recognition is accorded at the will of established states in a position to blackball a new aspirant to membership in the community of nations. The argument of some writers that there is a duty to recognize when an aspirant actually possesses the attributes of statehood has afforded slight satisfaction in the absence of organized international machinery to enforce the

pbligation.

Surely this is a situation to which the concept of community interest has clear application. The appearance on the international scene of a new state must be a matter of interest to all other states, especially in modern times, when so many contacts in trade, aviation, radio, and other human activities do not depend on geographical proximity and when there is general acknowledgment of the world- wide interest in the existence of stable and "peace-loving" govern- ments. The traditional practice of unilateral recognition of a new state is not consistent with the hypothesis of the acceptance of the concept of community interest. Examples in the past of group recognition of a new state bear witness to the fact that recognition of states in certain areas and under certain conditions has already been acknowledged to involve such a degree of community interest as to induce joint action. This was particularly true of the period in

which during the nineteenth century the Concert of Europe undertook to act in matters of common concern. Turkey was indeed

recognized before it was admitted "to participate in the advantages of the public law and the Concert of Europe" by the Treaty of Paris of 1856; that treaty was rather an acknowledgment and guarantee of the integrity of the Ottoman Empire.8 It was otherwise with the

Balkan states. When Rumania declared its independence Russia considered that this created a de facto but not a de jure situation; the legal position would remain to be determined by the Powers.4

Not until Rumania was recognized by a European congress was it believed that the new state could become a party to international

3 See statement of Lord Salisbury in the House of Lords, 19 March 1807,

reprinted in i Westlake, International Law (id ed. 1910), 3*2.

4 Lord Loftus to the Earl of Derby, 31 May 1877, Fonus Juris Gentium,

Series B. Sectio I, Tomus II, Pars I, p. 53.

treaties.5 By the Treaty of Berlin of 1878 the Great Powers formally

recognized the independence of Rumania. But in the same treaty a split in the collective front is registered by the provision of Article

XXVI relative to Montenegro, whose independence was recognized by the Sublime Porte "and by all the High Contracting Parties who have not yet admitted it." Serbia was recognized in the same manner as was Rumania.6 After World War I the Principal Allied and

Associated Powers jointly confirmed the recognition of Poland. In transmitting to Poland the treaty to be signed the President of the

Peace Conference pointed to the past practices of Europe in dealing with such matters.7 Negatively, the combined action of the Members of the League of Nations and of the United States in denying recognition to the Japanese puppet Manchukuo presents a striking

example of a like attitude.8

vXOnce this community interest in recognition is admitted, the problem resolves itself into one of procedure. There has been no single established procedure for according recognition. Recognition might be express or implied, unilateral or joint. It might take the form of a declaration, the conclusion of a treaty, or the exchange of diplomatic representatives. Under the League of Nations Covenant it might be accorded through the admission of a new state to mem- bership in the League through the two-thirds vote of the Assembly required by Article i of the Covenant.9 The Permanent Mandates Commission of the League adopted in 1931 a list of conditions which must be fulfilled before a mandated territory could be considered to have achieved a position in which it could be released from the mandatory regime and recognized as a state.10

These League of Nations precedents suggest the utility of in- voking the organization of the United Nations for the establishment of a standard procedure for the recognition of new states. It is necessary first to determine whether recognition should be con-

5(Jeneral Ghika to M. Kogalniceano, 14/26 January 1878, ibid., 12.

669 British and Foreign State Papers, 749.

7112 ibid., 2258.

8 See i Oppenheim, sec. 751, and i Hyde, sec. 1090.

9See the discussion and citations in Lauterpacht's note 3, i Oppenheim, 122;

Graham, The League of Nations and the Recognition of States (1933).

10Permanent Mandates Commission, Minutes of the Twentieth Session,

1931, League Doc. C. 422. M. 176. 1931. VI., VI. A. Mandates 1931. VI. A. L, 229, summarized in i Hackworth, Digest of Int. L., 119-120.

A MODERN LAW,, OF NATIONS

sidered tojnvolve legal or political considerations. The answer must

KT that both types of considerations are involved. There are and should continue to be certain definite criteria for determining

willing to enter into international relationships and to assume and discharge international obligations. The fixing of those criteria is in the nature of a legislative act for which the Montevideo Conven- tion of December 26, 1933 on Rights and Duties of States and the resolution of the Permanent Mandates Commission in 1931 afford

models. Such a legislative act might take the form of a general convention proposed by the General Assembly and submitted to the states for ratification. It would seem preferable, however, to utilize the method found. satisfactory in the Inter-American Conferences, which have adopted "declarations" embodying the conclusions of the delegates. These declarations do not require ratification and do not have the status of treaties, but they are persuasive evidence of the existence of the rule of law which they enunciate.11 Thus at the Lima

Conference of 1938, the American Republics reiterated "as a fundamental principle of the Public Law of America" the proposition that the occupation or acquisition of territory by force shall not be valid or have legal effect.12 One may also note statements embodied in treaties which continue to have evidential value quite irrespective of the continued validity of the treaties in which they were originally embodied. For example, in a number of the liquor-smuggling con- ventions concluded by the Ignited States in the 1920*5 there was an assertion of the three-mile rule as the limit of territorial waters, so

phrased as to be an acknowledgment of the existing law rather than merely a contractual obligation in regard to the future.18 A more

11 Cf. Lauterpacht's view on the binding effect of resolutions of the Assem- bly of the League of Nations in i Oppenheim, 141 n. 3. According to Schwarzen- berger, "if States have declared their intentions" in such a body as the General Assembly, "they cannot go back on the decision at which the international organ has arrived." In this connection he cites the advisory opinion of the Permanent Court of International Justice in the matter of the Jaworzina Boundary, P.C/./.,

Ser. B, No. 8 (1923), 51-53; i Schwarzenberger, International Law (1945), 2X2

18 Report of the Delegation of the United States of America to the Eighth

International Conference of American States, Dept. of State Pub. 1624 (1941),

132.

19 E.R.: "The High Contracting Parties declare that it is their firm intention to uphold die principle that 3 marine miles extending from the coast-line out-

famous instance is the statement in the Declaration of Paris of 1856

to die effect that "privateering is and remains abolished." 14

^Although the General Assembly of the United Nations possesses under Chapter IV of the Charter powers which are no more than

recommendatory, it would be within IfifcompetencSf to adopt by the two-thirds vote required under Article 18 for "important questions" a declaration relative to the essential characteristics of a state and

to assert that there must be a finding of the^ possession of-such

this time; the weight of such declarations would be enhanced as the membership is enlarged by the admission of new members. It may be presumed that any new state would desire to become * member of the United Nations. Under Article 4 of the Charter the

admission of new members takes place by a decision of the General

Assembly on the recommendation of the Security Council. The

General Assembly might well frame such a declaration as has been suggested in the form of an indication of the standards by which it would be guided in determining whether to admit a new member.

The criteria for membership would not be identical with the criteria for statehood, but the latter would be included within the former,

since one requirement for membership is that the applicant shall be a state.15 Moreover the requirement of paragraph i of Article 4 that the applicant shall be "able and willing to carry out" the obligations of the Charter is closely akin to the general requirement that a state shall possess a government able and willing to enter into and carry out international obligations.16 There would remain for the judg- ment of the Organization the question whether the applicant was not only a state, but a "peace-loving" state.

wards and measured from low-water mark constitute the proper limits of territorial waters." US. Treaty Ser. No. 685.

14But the treaty itself declared that its provisions were binding only upon the parties; 46 British and Foreign State Papers, 136,

15The nature of this requirement has already been discussed in Chap. II.

16"The recognition of any State must always be subject to the reservation

that the State recognised will respect the obligations imposed upon it either by general International Law or by definite international settlements relating to its

territory." ''Report of the International Committee of Jurists on the Legal

Aspects of the Aaland Islands Question," League of Nations Off. /. Sp. Supp,

(1920-21), No. 3, p. 1 8.

48/ A MODERN LAW OF NATIONS

In one sense, the establishment of the fact that a state is "peace- loving" may be regarded as the imposition of a condition of recog- nition, but there is no basis for continuing the nonsensical practice which has been called "conditional recognition." Baty has properly pointed out in regard to so-called conditional recognition of a state that "Any entry into relations with the new state, as a governing authoriJy, implies recognition of its state-hood. ... It follows . . .

that recognition cannot be conditional. . . . Either it is a fact or it is not. The very essence of recognition is that the recognizing state thereby declares that it has satisfied itself that the recognized authority possesses the distinguishing marks of a state. To say that one recognizes that it has them, subject to its conduct being satis- factory in other particulars, is sheer nonsense. It is like telling a pupil that her sum is right if she will promise to be a good girl." 17 Thes& considerations do not exclude the possibility that a recognizing state may announce the conditions which it insists must be fulfilled

before it will accord recognition, and these considerations may be informally communicated to the authority seeking recognition. The recognition of new states by the Concert of Europe was often extended on such conditions. The fulfillment of the condition was

exacted as an indication that the new community possessed the attributes required of a state, including the readiness to comply with the responsibilities of its position in the society of nations. It is in this sen^ that one may read the Protocol of June 28, 1878, signed on behaft of Great Britain, France, Italy, and Germany, relative to the recognition of Serbia. It was said that "Serbia, who claims to enter the European family on the same basis as other States, must previously recognize the -principles which are the basis of social organization in all States of Europe and accept them as a necessary condition of the favour which she asks for." 18 The condition there

demanded was the recognition of the principle of religious liberty; in connection with the admission of a new state to the United Nations, the condition would be the recognition of the principles of the

Charter relative to the pacific settlement of all international disputes. Obviously in connection with the applications for membership in the

17 Baty, "So-called 'De Facto' Recognition," 31 Yale L. J. (1922), 469.

18 Quoted in a letter to M. Paderewski by the President of the Paris Peace Conference on June 24, 1910, 112 British and Foreign State Papers, 225.