Recognition Versus Reality in International Law and Policy
Alfred P. Rubin*
By what the West has considered Chinese tradition, the basis for the authority of the ruler of China has been moral insight, tradition (perhaps a subcategory of divine law), and positive law. Indeed, in both Chinese and Western history, there are schools of thought that require the "stool of law" to rest equally on those three legs. Some consider the three only in combination: morality and divine law tradition; morality and positive law; or positive law and divine law tradition. They view those combinations as the real three legs of just authority, and argue that, lacking in either moral stature or divine law tradition, authority is properly overthrown; it is not authority under law at all. Thus, they argue that the positive law is not law by itself, but is law only if the moral authority that Confucius considered the true mark of the great man is combined with the "mantle of heaven," i.e., divine law authority signaled by augurs, good crops, victory in war, proper ancestry (although that is probably not really necessary in a new dynasty), and perhaps other signs of the pleasure or displeasure of fate, heaven, the divine order, or what have you.
One response to this tradition in China has been for the possessor(s) of authority based on the positive law to identify his (their) positive law with morality, regardless of what others might think of it. In 213 B.C., the Emperor burned the books that might have given insights into morality, reality, or tradition other than his own.
In the West, too, rulers who base their authority on divine law (including dynastic tradition) or the law-making processes of the positive law (including force), frequently try to equate their will with morality and the divine order so that it becomes law by the naturalist definitions found in many cultures.
Those attempting to equate morality with force, dynastic tradition, insight into divine law, or the unexamined will of a single person or school, routinely fail. Thus, in China, the great burning of the books in 213 B.C. did not create a permanent authority in the Qin Emperor, but instead created a mistrust of written law, positive law based on dynastic authority, and military prowess without morality. Morality is still determined by individuals in light of individual perceptions of community and personal values.
In China, all of this has traditionally led to confrontation in which government seeks to establish its authority by military and other traditional means. Then, by positive legislation, it applies words and labels to facts in order to create a sense that its order is the order that conforms to higher norms, to divine law, and to morality, which should be obeyed without question by everyone in deference to the divine order and moral superiority of the ruler. But when those words depart from the facts as perceived by those sought to be persuaded, then either the words must be amended to reflect the facts, or the facts amended to make the words true.
The situation is not very different in the Western cultures with which we are more familiar. Statesmen have always been tempted to refuse to apply the legally significant words to facts that they would prefer to be different. For example, the statesmen of Spain refused to concede the independence of the Netherlands for sixty-seven years, between the time of the Act of Abjuration by the States General (1581 A.D.) and the Peace of Westphalia (1648). During this period, the Netherlands, by any objective measure, was politically and economically independent of Spain (though not by virtue of divine law as perceived by Roman Catholic Spain, or by the dynastic tradition of the Celtic and Indo-Germanic tribes that had settled the area long before it was Christianized). Additionally, Spain had won nearly all of the many pitched battles between its forces and the States General of the Netherlands. Similarly, the United States won nearly all of the pitched battles against North Vietnam and the Viet Cong during the 1960s and 1970s. However, the struggle ended with the withdrawal of American forces and the continued exercise of expanded legislative authority by the governmental structure based in Hanoi.
At times, the notion that withholding recognition of unpleasant facts can change them, reaches ludicrous proportions. During the 1930s, under the American Stimson Doctrine, it was almost conventional wisdom (therefore, almost certainly wrong) that the non-recognition policy of the United States and others would force Japan to relinquish its hold on the parts of China that it had occupied.(1) The United States withheld recognition from the Beijing authorities of China from the moment they had achieved effective control over almost all the traditional territory of China in 1949, until facts forced a change in United States recognition policy. This forced change occurred originally in talks at Panmunjom over the cessation of hostilities in Korea, then over repatriation of civilians in each other's territory in September 1955, and again in 1973.(2) However, it was not brought to full diplomatic relations until an appropriately evasive formula had been negotiated, which became effective on January 1, 1979.
Clearly, during those thirty years, the United States could not, and did not, ignore reality. When two Central Intelligence Agency agents, John Downey and Richard Fecteau, were shot down over China proper during the Korean War, the United States did not discuss their detention with the government it recognized as having complete authority in China: the Chiang Kai-shek government in Taiwan.(3) It negotiated (unsuccessfully) for their release with Beijing's Ambassador in Warsaw, Poland.(4)
Without going into more detail, it seems abundantly clear that recognition or non-recognition might have affected political events in some minor ways, and might have been compelled by domestic politics, but were marginally effective on international reality. Indeed, even the most articulate positivist jurist rejected the notion that recognition was a significant factor in organizing a view of law.(5) Hans Kelsen, the grandfather(6) of modern legal positivism, wrote a major and blessedly short article fitting recognition into the positivist framework in 1941.(7) In his article, he concludes that while recognition is a discretionary act and might well have legal results in the municipal legal orders that separate the recognizing authority from the judicial authority, and then require the judiciary to follow the lead of the executive recognizers, in the international legal order, the legal results are both more and less than meets the eye.(8) Recognition might merely align the words of art used by international lawyers with the facts; or, if not, then the words actually used by the people with discretion to recognize or not would have to be interpreted to allow whatever legal results were conceived by whoever was concerned to flow in the world that real lawyers had to deal with. Thus, if the United States had been forced to deal with Japan over events involving the Japanese authorities in Manchukuo in the late 1930s, no amount of non-recognition by Stimson or others would explain away the fact that in order to achieve some reconciliation of policies, Japan would have to be treated as having legislative and enforcement authority in Manchukuo at that time.
An analogy can be drawn to the American attempt for approximately fifteen years to reverse the Soviet revolution in Russia by asserting that the situation was too fluid to compel any formal recognition. But despite American non-recognition of the Soviet control in Russia from 1919 to 1933, American tribunals were forced to accept Soviet decrees as capable of changing property rights in Russia, even if the takings were illegal under the American view of international law.(9)
To positivist lawyers and statesmen who insisted on the ultimate discretion of statesmen, lawyers, and judges to attach whatever legal labels best suited their policy goals and draw whatever legal conclusions they liked from those labels, an underlying principle became apparent: effectiveness.(10) Those who regarded recognition as declaratory of actual fact, which had its effect regardless of non-recognition, had won out over those who regarded recognition as constitutive, a mark of admission to an exclusive European/American club. Those who ignored reality were bound, sooner or later, to find themselves in a de jure world that was so far from the de facto world we all must live in, that they lost credibility themselves and found that their policy preferences could not be achieved at any rational cost.
This is the situation as seen by Western and other statesmen and lawyers when the Chinese Communists seized the strings of power in mainland China in 1949. The claim of the authorities in Beijing that control over the mainland carried with it a legal right to authority in the offshore islands (Taiwan, Quemoy, Matsu, and others) was no more true in a legal world than it was true in the harsh world of fact. Similarly, the claim by the rump government of China--that the mainland was really ruled from Taiwan--evoked from statesmen who had to deal with China more disbelief, if not contempt, than modified behavior. When, in November 1971, political forces finally resulted in the Beijing authorities' credentials superseding those of the Taiwan authorities in the United Nations, there was literally dancing on the tables as the American delegation stalked out. The display of American temper might have been well-received in Taipei; however, it was poorly received everywhere else and did not change anybody's labeling system where the labels meant anything in the real world.
The fact that a status or situation is recognized does not foreclose a change in fact. Thus, it is very difficult to understand why British recognition of Tibet as part of the territory of China is regarded by any Tibetan or Chinese as conclusory. While public policy in Tibet is currently made in Beijing--or with the acquiescence of the people in official positions in Beijing--there is nothing in international law that inhibits revolution. In fact, a revolutionary change will inevitably result in a change in the label achieved by recognition. If it were otherwise, then I suppose America's continued recognition of the authorities in Taiwan as the Government of China would have foreclosed the Communist revolution. It is very difficult to understand why the authorities in Beijing now seem to take a different view.
Whatever their concern about the Constitution of China--a municipal law issue--it is also very difficult to understand why any Chinese or other authorities care about the legal implications of the recognition or non-recognition policies of other states.(11) Not only is recognition or non-recognition irrelevant to true legal relationships under one rationale or another, but making an issue of it emphasizes the political authority of the second state, which can then demand political or legal concessions as the price of returning to the real world. Unless they believe that foreigners' views affect domestic politics in China, or that foreign municipal law is pertinent to Chinese assertions of rights under that foreign law that cannot be vindicated through the means that international law makes available to China, it seems very foolish of the Chinese to give such tools to the foreign authorities with whom they are in relations.
Finally, it seems clear that if recognition is fundamentally discretionary in the recognizing state, then its legal effects, however great in the municipal legal order of that state, must be minimal in the international legal order. If the non-recognized entity wants the advantages that it fancies getting in the municipal legal order of the (non)recognizing state it should be honest with itself about its evaluation. That was the situation at the time of the Litvinov Assignment, when the Soviet Union achieved recognition from the United States in return for giving up its claimed assets in the United States, assets that it had no hope of getting anyhow. As part of the deal under which the United States finally recognized(12) the patently false pretentions of the Beijing authorities to rule an undivided China, the United States, in return, was given control over Chinese assets in American banks.(13)
In sum, it seems that most of the fuss about recognition, as it concerns Taiwan and the PRC, is based on a confusion of international and municipal law, and both legal orders with policy. The policy argument makes some sense. The legal argument on all sides seems empty as a matter of positive law, divine law, natural law, and morality.
* Distinguished Professor of International Law, The Fletcher School of Law and Diplomacy.
1. See H. Lauterpacht et al., Legal Problems in the Far Eastern Conflict: Part II: The Problem of Non-Recognition 129-78 (1941). The conclusion of the study, with which I entirely agree, is that "[t]he doctrine of non-recognition would seem to make no constructive contributions to a disordered world, but on the contrary embodies potentialities for further disequilibrium." Id. at 178.
2. See Kenneth T. Young, Negotiating with the Chinese Communists: The United States Experience, 1953-1967, at 24-26, 320 (1968).
5. See generally Hans Kelsen, Recognition in International Law: Theoretical Observations, 35 Am. J. Int'l L. 605 (1941).
6. Jeremy Bentham was the great-great-grandfather, John Austin the great-grandfather, and Leo Gross the father. I forbear giving a family rank to the fore-runners, like Alberico Gentili and Francisco Suarez.
7. See generally Kelsen, supra note 5.
9. See, e.g., M. Salimoff & Co. v. Standard Oil Co. of New York, 186 N.E. 679, 682-83 (N.Y. 1933). There are many other such cases, including, finally, United States v. Pink, 315 U.S. 203 (1942), in which the United States Supreme Court held that Soviet confiscatory decrees in 1918 and 1919 were to be given effect in United States law to vest Russian confiscated property in the United States Government under the terms of the 1933 Litvinov Assignment. See id. at 222-25.
10. See R. Y. Jennings, Nullity and Effectiveness in International Law, in Cambridge Essays in International Law 64, 64-87 (1965). Jennings rests heavily on Sir Hersch Lauterpacht's assertion that "[l]aw is a product of social reality. It cannot lag for long behind facts. This antinomy of law and fact is an abiding problem of jurisprudence." H. Lauterpacht, Recognition in International Law 426-27 (1947).
11. Indeed, when it was in their interest to take a different position, they did. See Ti-Chiang Chen, The International Law of Recognition 420-22 (L. C. Green ed., 1951).
12. The Taiwanese dispute the word "recognized" as the proper translation of the Chinese word used in this context, and the Beijing people seem to exaggerate the implications of the word as a matter of international law and American municipal law even if they are right in its interpretation. Not being a linguist in Chinese, I cannot offer any opinion on the subject. As a lawyer, I would suggest that the implications in United States municipal law are for the United States, not either of the Chinese factions, to resolve.
13. The key documents in this are the Shanghai Communique, Feb. 28, 1972, U.S.-P.R.C., 11 I.L.M. 443 (1972); the Joint Communique on the Establishment of Diplomatic Relations Between the United States of America and the People's Republic of China, Dec. 15, 1978, U.S.-P.R.C., 18 I.L.M. 274 (1979); and the Agreement Between the Government of the United States of America and the Government of the People's Republic of China Concerning the Settlement of Claims, May 11, 1979, U.S.-P.R.C., 18 I.L.M. 551 (1979).