state is a matter of doubt. States have discovered that the granting or withholding of recognition can be used to further a national policy; they have refused it as a mark of disapproval, as nearly all of them did to Manchukuo . . . ."

Brierly, The Law of Nations (5th ed., 1955) 131-132.

Charles Cheney Hyde wrote:

"They [Governments] may hold to a philosophy that inspires reluctance to acknowledge the durability of a government which gains control through harsh and ruthless methods applied in the face of popular opposition, and which seemingly reflects the achievement of a minority. They may proclaim, through treaty or otherwise, a determination to withhold recognition from aspirants who flout their own constitution and scorn the ballot. Again there may be unwillingness to recognize an entity deemed to lack the disposition or capacity to respond to the international obligations of its country. 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. . . ."

I Hyde, International Law Chiefly as Interpreted and Applied by the United States (2d ed., 1945) 160.

Senator Warren Austin, speaking on behalf of the United States in the Security Council of the United Nations on May 18, 1948, with reference to recognition on the part of the United States of the State of Israel, stated:

"I should regard it as highly improper for me to admit that any country on earth can question the sovereignty of the United States of America in the exercise of that high political act of recognition of the de facto status of a State.

"Moreover, I would not admit here, by implication or by direct answer, that there exists a tribunal of justice or of any other kind, anywhere, that can pass judgment upon the legality or the validity of that act of my country.'

U.N. Security Council Off. Rec. No. 68, 294th meeting, May 18, 1948, p. 16.

". . . In 1928 this writer published a comprehensive monograph on recognition [Josef L. Kunz, Die Anerkennung von Staaten und Regierungen im Völkerrecht (Handbuch des Völkerrechts, II/3, Stuttgart, 1928, pp. 218)], in which he tried to state the positive international law on the basis of a full study, summary and critique of the practice of states, court decisions and the literature. His neutral and impartial study led to the adoption of the socalled 'declaratory doctrine.' He proved 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.

"Certainly much has happened in this field since 1928, and a new comprehensive monograph was in order. The book by Professor Lauterpacht [H. Lauterpacht, Recognition in Inter

national Law (Cambridge, England, 1947, pp. xx, 442)], a great and truly leading international lawyer, is, as everything which Lauterpacht writes, entitled to the greatest interest. The book has many excellent qualities, publishes hitherto unknown documents, gives exceedingly interesting discussions and highly valuable analyses of difficult recent recognition cases, especially with regard to the Italian conquest of Ethiopia and the Spanish Civil War. But Lauterpacht's principal thesis which probably constitutes the reason why the book was written, namely, his assertion of a right to recognition and a duty to recognize, is certainly entirely untenable as not being in accord with positive international law.

"To understand fully Lauterpacht's position, it is necessary to point out an article, published in the period between this writer's monograph of 1928 and Lauterpacht's monograph of 1947, from the pen of the scholar from whom we both theoretically stem: Hans Kelsen [Kelsen, 35 A.J.I.L. 1941, pp. 605–617]. In his usual powerful logical reasoning and wonderful lucidity Kelsen distinguished between the political and the legal act of recognition. The first, consisting of the willingness to enter into political relations, is an act wholly within the discretion of the recognizing state. But the legal act of recognition is the ascertainment (la constatation) that certain requirements, prescribed by international law, have been fulfilled by a legal community or a body of persons (government). Legal recognition is for Kelsen strictly constitutive in character, a theory which was at once attacked [see Philip M. Brown, "The Effects of Recognition," this Journal, Vol. 36 (1942), pp. 106-108; and Edwin Borchard, "Recognition and Non-Recognition," ibid., pp. 108-111] as not being in accord with the practice of states. The position of Kelsen is wholly one which he felt compelled to adopt from purely logical reasons: law cannot deal with 'naked facts,' but only with facts as ascertained by the legally competent authority in a legally prescribed procedure. This idea entered Kelsen's 'Pure Theory of Law' relatively late and that explains that the same Kelsen earlier [see H. Kelsen, Das Problem der Souveränität (1921), pp. 224-241, and Allgemeine Staatslehre (1925), pp. 126-127] held that the norm of general international law laying down the conditions for the coming into existence of a state in the sense of international law establishes recognition and that, therefore, recognition by existing states has only a declaratory, and no juridical, importance.

"It is from this idea of recognition as a legal act of ascertaining the fulfilment of requirements laid down by international law that Lauterpacht's book is written, coupled with the idea of a right to, and a duty of, recognition. This principal thesis the author tries to prove as positive international law from the practice of states. In this endeavor, it must be said in the interest of scientific truth, he has failed completely. Criticisms of his untenable thesis are not lacking. [See, e.g., the book review by E. J. Cohn in Law Quarterly Review, Vol. 64, No. 255 (July, 1948), pp. 404-408, and the critical remarks by Herbert W. Briggs, "Recognition of States, Some Reflections on Doctrine and Practice," this Journal, Vol. 43 (1949), pp. 113-121.] As to the

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right to and duty of recognition, the author is also in contradiction with Kelsen's above-quoted article. Kelsen correctly states that 'existing states are only empowered, not obliged to recognize,' and that 'refusal to recognize is no violation of general international law.' Also Philip C. Jessup, writing de lege ferenda, correctly states that under positive international law 'states are free to accord or to withhold the recognition of new governments.' [Philip C. Jessup, A Modern Law of Nations (New York, 1948), pp. 43-67, at p. 55.]

"This writer has always been and is, of course, entirely in agreement with the statement that it is a norm of general international law which lays down the requirements for the coming into existence of a 'state in the sense of international law.' Because of the existence of this norm, Jessup's [ibid., p. 46] proposal de lege ferenda, according to which the United Nations should adopt a treaty or declaration fixing 'certain definite criteria for determining whether an entity has the necessary attributes of statehood,' is unnecessary. .

"A right to, a duty of, recognition has been supported by writers, especially those of the school of natural law, or for political reasons, particularly by Latin American writers [see, recently, Jiménez de Aréchaga, Reconocimiento de Gobiernos (1947)], who are always fearful that recognition may be made a tool of intervention. But no such norm exists in positive international law; it is a mere postulate de lege ferenda. Even if it existed, as Jessup [Jessup, op. cit., p. 44] pointedly remarks, it would 'afford slight satisfaction in the absence of organized international machinery to enforce the obligation.'

"In spite of all his dialectic efforts, Lauterpacht must admit that he has been unable to find a clear statement in the practice of states in favor of a legal duty of recognition. But, to the contrary, a study of American state practice discloses with all clarity that international law knows no such duty. Hackworth, whose Digest of International Law gives the American practice from 1906 to 1940, clearly states: "The existence in fact of a new state or government is not dependent upon its recognition by other states. Whether and when recognition will be accorded is a matter within the discretion of the recognizing government.' [Hackworth, op. cit., p. 161. He also clearly states: "There is no obligation to recognize that a status of belligerency exists." Ibid., p. 391.]"

Kunz, "Critical Remarks on Lauterpacht's 'Recognition in International Law' ", 44 Am. J. Int'l L. (1950) 713-715, 718, 719.

"From a theoretical point of view, one might be inclined to believe that the recognition of a State is a strictly legal institution, governed by precise legal criteria, since it decides the participation of human collectivities in international relations. It would thus seem correct to speak not only of a right to recognition, but also of a duty of recognition binding on all States equally.

"Observation shows that this is far from so and that the matter belongs, though in varying degrees, much more to politics than to law. In practice the recognition of a State has two aspects: objectively it takes note of the State's existence as a subject of international law; subjectively, it implies that the conditions under which the State established itself are not contrary to the rights or interests of the recognizing State. It is in this second aspect that recognition has political significance and is subject to the unfettered discretion of the government granting it. [T. Perassi, Lezioni di Diritto Internazionale, pp. 42-43. Though well founded, the distinction does not spring from the practice of States. Recognition is in practice one act in which the two aspects merge.] This explains, on the one hand, why the existence of a new State, with all the associated legal effects, is not affected by the refusal of one or more States to recognize it, and, on the other hand, the special value for the new State of recognition granted by States that have been most interested in contesting its establishment."

De Visscher, Theory and Reality in Public International Law (Princeton, 1957, translated from French by P. E. Corbett), p. 228.

Speaking of the Chinese Communist government and the contention that there was an alleged "right" to recognition, Secretary of State Dulles said:

"There are some who say that we should accord diplomatic recognition to the Communist regime because it has now been in power so long that it has won the right to that.

"That is not sound international law. Diplomatic recognition is always a privilege, never a right.

"Of course, the United States knows that the Chinese Communist regime exists. We know that very well, for it has fought us in Korea. Also, we admit of dealing with the Chinese Communists in particular cases where that may serve our interests. We have dealt with it in relation to the Korean and Indochina armistices. For nearly 2 years we have been, and still are, dealing with it in an effort to free our citizens and to obtain reciprocal renunciations of force.

"But diplomatic recognition gives the recognized regime valuable rights and privileges, and, in the world of today, recognition by the United States gives the recipient much added prestige and influence at home and abroad.

"One thing is established beyond a doubt. There is nothing automatic about recognition. It is never compelled by the mere lapse of time."

Secretary of State Dulles, "Our Policies Toward Communism in China", address before the international convention of Lions International, San Francisco, Calif., June 28, 1957, XXXVII Bulletin, Department of State, No. 942, July 15, 1957, pp. 91, 93–94.

"Of course, if it were merely that the Government of the Federal Republic of Germany did not wish to establish diplomatic

relations with Poland, Czechoslovakia and the other countries in Eastern Europe, then it would not be necessary to speak about it at an international conference. Every state is free to enter into relations with other countries as it sees fit although it should be said outright that it is difficult to regard the position of the Government of the Federal Republic of Germany on these questions as reasonable."

A. A. Gromyko, Soviet Minister of Foreign Affairs, speaking as chief of the Soviet delegation at the second session, May 12, 1959, of the Geneva Meeting of Foreign Ministers, held May 11-June 20 and July 13-Aug. 5, 1959. Foreign Ministers Meeting, May-August 1959, Geneva (Department of State publication 6882) 18, 20.

"Theoretically a politically organised community enters of right... into the family of states and must be treated in accordance with law, so soon as it is able to show that it possesses the marks of a state. . . . For though no state has a right to withhold recognition when it has been earned, states must be allowed to judge for themselves whether a community claiming to be recog nised does really possess all the necessary marks, and especially whether it is likely to live. Thus although the right to be treated as a state is independent of recognition, recognition is the necessary evidence that the right has been acquired.“

Hall, International Law (8th ed., by Higgins, 1924) 103.

Professor Lauterpacht wrote:

“To recognize a community as a State is to declare that it fulfills the conditions of statehood as required by international law. If these conditions are present, existing States are under the duty to grant recognition. In the absence of an international organ competent to ascertain and authoritatively to declare the presence of requirements of full international personality, States already established fulfill that function in their capacity as organs of international law. In thus acting they administer the law of nations. This rule of law signifies that in granting or withholding recognition States do not claim and are not entitled to serve exclusively the interests of their national policy and convenience regardless of the principles of international law in the matter. Although recognition is thus declaratory of an existing fact, such declaration, made in the impartial fulfilment of a legal duty, is constitutive, as between the recognizing State and the community so recognized, of international rights and duties associated with full statehood. Prior to recognition such rights and obligations exist only to the extent to which they have been expressly conceded or legitimately asserted, by reference to compelling rules of humanity and justice, either by the existing members of international society or by the people claiming recognition.

"These principles are believed to have been accepted by the preponderant practice of States. They are also considered to represent rules of conduct most consistent with the fundamental requirements of international law conceived as a system of law.