HORUMARKA HABKA AQOONSIGU

IMPROVEMENTS IN THE PROCESS OF RECOGNITION

Collectivization of the Process of Recognition. The preceding criticism of the declaratory view of recognition does not imply that the present position under which existing States in compliance with a legal duty fulfill the function of recognition with a constitutive effect, is satisfactory and that it ought to be perpetuated. It is true that an acknowledged and decisive infusion of the element of national interest has not been a typical feature of the process of recognition. But, as has been shown,0 6 the exceptions are frequent and disquieting. Neither is it possible to ignore the political implications and repercussions of the process of recognition, even when it takes place in the fulfillment of a duty owed to international society and to the community in question. The dual position of the recognizing State as an organ administering international law and as a guardian of its own interest must reveal itself in a disturbing fashion whenever there is an occasion for successfully using the weapon of recognition for the purpose of achieving political advantages. Situations will arise in which a State may see in the manner of the exercise of the function of recognition an opportunity for securing for itself benefits from the parent State or from the community claiming recognition. Consideration of such benefits cannot be regarded as legitimate, but it cannot always be absent in the decision of the recognizing State. It would be futile to deny either the existence of the difficulty or the fact that it is due to an obvious imperfection of international organization. The solution of that difficulty would seem to lie in transferring that function to an international organ not laboring under the conflict between interest and duty. An innovation of this nature would also abolish the glaring anomaly of a community existing as a State in relation to some but not to other States

Collectivization of the process of recognition depends clearly upon a high degree of political integration of the international community in the form of an international organization of States. Recognition of States, though consisting in the application of a legal principle and in the ascertainment of the existence of conditions of statehood as laid down by international law, could and probably ought to be placed, in view of its political implications, within the competence of the highest executive and legislative organs. The thorough collectivization of recognition in this way would be possible only if the international organization were both universal and compulsory, that is, an organization to which by a sovereign act of international legislation all States would be made to adhere and from which there could be neither withdrawal nor expulsion. An international organization which is not universal would make possible the collectivization of recognition only in the mutual relations of its members, though, politically, the authority of such recognition would extend outside the scope of its membership. In a universal international organization on a compulsory basis recognition by an appropriate majority of its highest organs corresponding to the Council or Assembly of the League of Nations would automatically involve membership. In an international organization which is not universal or in which membership is voluntary, admission by the competent organ would automatically involve recognition by all the members of the organization. The position would have to be made clear by a constitutional provision lifting the fact of automatic recognition above the uncertainty and the controversy with which it was surrounded in the Covenant of the League of Nations. Development in the direction of collectivization of recognition may be facilitated by the realization that instances of collective recognition are not absent from international practice-to mention only the cases of recognition of Greece by the Treaty of London of 1830, of Belgium by the Treaty of London of 1831, of the German Empire by the Protocol of London of 1871, of the Balkan States by the Berlin Treaty of 1878, of the Congo State by the Berlin Treaty of 1885, of the creation of Albania by the Treaty of London of 1913 as well as the recognition of her independence by the Conference of Ambassadors in 1921, and the various instances of collective recognition of new States by the Allied Powers after the War of 1914-1918.' Moreover, diplomatic practice shows that, as in the case of recognition of governments, recognition of States, even when granted separately, is often preceded by negotiations aimed at establishing a common line of action. The attempts made by Great Britain to secure at the Congress of Verona joint action with other European Powers in the matter of the recognition of the Latin-American States, as well as the attempts of the United States to secure the cobperation of Great Britain in the same matter, may be mentioned as examples.

International Courts as Agencies of Recognition. It is not believed that a promising avenue of progress would lie in conferring upon the highest international judicial authority the power to grant recognition on the application of the community claiming it. On the face of it, this would seem to be the natural course. It would appear that a function consisting in the application of international law and in the ascertainment of the existence of requisite conditions of fact may and ought properly to be fulfilled by a judicial organ of the highest authority and impartiality. There is no doubt that so far as its Statute, including the rules of law applicable thereunder, is concerned, the Permanent Court of International Justice would be in a position to act in that capacity. Yet it seems undesirable to burden the Court with a task whose implications and the circumstances of whose performance are of capital political significance. This applies in particular to cases where the question of recognition of States arises in connection with a revolt against and secession from the parent State. For these reasons it is, from the practical point of view, more appropriate that this particular function of applying the law should be performed not by the judicial, but by the highest executive or legislative organs of the international community. The Court might still make

a useful contribution in pronouncing by way of advisory opinions or in a similar capacity on any questions of law incidental to recognition. Neither do objections apply to the ability and the propriety of the Court's giving redress in the form of compensation for injury actually suffered for arbitrary delay of recognition by one State in face of practically universal recognition by other States. In this connection the claim of the United States in the case of the Bergen Prizes, a case of non-recognition of belligerency, is of some interest."'

Municipal Courts and the Function of Recognition. The foregoing considerations explain also why no amelioration of the present position can be expected from transferring the function of recognition to municipal courts as distinguished from the executive organs of the State. Moreover, the possibility must be envisaged of different tribunals of the same State reaching different conclusions as to the existence of the requirements of statehood in any given case. In addition, the contingency would still remain of the courts of various countries arriving at divergent views on the matter

It is convenient in this connection to consider the criticism which has been levelled against two principles-one of a procedural, the other of a substantive nature-obtaining in Great Britain and in the United States, as well as in other States in the matter of recognition. The procedural rule of unchallenged authority is that in the matter of recognition as on other questions relating to foreign affairs, the position taken up by the executive department of government is of decisive weight. The question whether a foreign community exists as a State in the contemplation of international law is answered by the courts in strict relianceupon the statement of the Executive informing the court whether and to what extent recognition has been granted. The practical justification of that procedural principle is that it would be inconvenient for the State and its neighbors if its various organs were to assume divergent positions in the matter of its external relations."' It is proper that courts